Ratified treaties;¹ Work of international control bodies² 

Right to strike/Exercise of the right to peaceful strike/Use of violence/Collective bargaining/Reference to international law to strengthen a decision based on domestic law

The claimant lodged this dispute in order to request that the Court declare illegal the work stoppage initiated by the trade union on the grounds that violent was used during the stoppage, infringing the prohibition of violence enshrined in point f) of article 450 of the Substantive Labour Code.³ According to the claimant, once the collective bargaining stage had been exhausted without any direct agreement being reached between the trade union and the enterprise, a strike was initiated without the presence of labour authorities, employing violence to block the entrances to the enterprise and preventing the performance of essential activities of that enterprise. The trade union denied using violence but admitted that it attended the street blockade to prevent the strike from being obstructed by the enterprise.

The Supreme Court of Justice referred to the provisions of domestic law and national case law, indicating that the right to strike forms part of the constitutional system of the collective right to work reinforced by ILO Conventions Nos. 87 and 98, which form part of the constitutional bloc. Nevertheless, in accordance with the scope of the right to strike established by case law in the Constitutional Court, the right to strike does not constitute a fundamental right in so far as its exercise is subject to legal regulation, and is not an absolute right but a relative one, since it is subject to limitations such as its peaceful exercise.

The Court then referred to the recommendations of the ILO Committee on Freedom of Association on the subject of pickets contained in the collection of decisions and principles of the Committee on Freedom of Association of the Governing Body of the ILO. In this respect, the Court observed:

“In fact, national legislation finds support in the principles and recommendations of the ILO Committee on Freedom of Association, in particular the recommendations of paragraphs 649, 650 and 651 on strike pickets, which state that strike action is only legitimate when it is peaceful (649) and the activity of workers is solely limited to peacefully inciting workers not to occupy their workstations (651), proscribing activities whose aim is “disturbing public order and threatening workers who continued work” (650) or when their action “accompanied by violence or coercion of non-strikers” (651), while paragraph 667 clearly expresses that “The principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike”.

[…] The Committee on Freedom of Association of the Governing Body of the ILO in paragraphs 324 and 325 of Report 323,⁴ states that ‘the occupation of plantations by workers and by other persons is contrary to Article 8 of Convention No. 87.’”

Based on the above, the Court concluded that, in the light of the contents of the Constitution, national case law, and the recommendations of the ILO Committee on Freedom of Association, there was no “open definition” of strike action that permitted the occupation of a workplace, and much less so the use of violence. Consequently, it declared the strike subject of the present dispute to be illegal.

¹ ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); ILO Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

² ILO Committee on Freedom of Association.

³ Article 450 ILLEGAL CASES AND SANCTIONS. 1. Work stoppage is illegal in any of the following cases […] f) When it is not limited to the peaceful suspension of work activities.

⁴ Report of the ILO Committee on Freedom of Association (No. 323) GB279/8, 279th session of November 2000, Case 2021.