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One of companies’ greatest concerns when dealing with strikes, in addition to solving the conflict as soon as possible, is to meet their production or commercial commitments to customers and users.

Article 6(5) of Royal Decree-Law 17/1977, of March 4, on employment relationships barely regulates “striker replacements.” As a result, Spanish courts keep producing case law on employers’ scope of action in case of a strike, balancing the fundamental right to strike under article 28(2) of the Constitution and companies’ self-management powers.

On February 3, 2021, the Supreme Court issued a judgment (appeal 36/2019) on the right to strike and on companies’ ability to hire replacements for striking employees (whether from group companies or contractors).

In the case at hand, two companies from the same telecommunications group and a third company that had been recently transferred to a non-group company (the “companies”) allocated the striking employees’ jobs to other group company workers and external subcontractors. This case is different from other Supreme Court rulings because the jobs were allocated through an automated incident management system.

The main issue is whether hiring striker replacements that do not usually do the striking employees’ jobs (from other companies) is a violation of the right to strike (possibly including damages).

In this case, the Supreme Court found that the companies were jointly liable for these reasons:

  1. Technical means. First, there was proof that the group companies owned and managed the technical tools used to allocate the jobs, thus evidencing a “strike-breaking purpose.”
  2. Non-usual contractor. Second, there was proof that, from the start of the strike, the companies outsourced the incident management to a non-usual contractor. Thus, the incident was managed differently than it would have been if part of the workforce had not been on strike.
  3. Number of cases. Third, although there was proof of only three unusual incident management cases, the Court found that the companies maintained the continuity of their activities by hiring replacements that do not usually perform the striking employees’ jobs.
  4. Link between the companies. The Court found the companies jointly liable without even assessing if the companies together were a sole group for employment purposes (i.e., a grupo patológico, as it had done in previous rulings). Rather, the Court focused on how the companies had “an interconnected incident management system,” concluding that, without that interconnection or link, there would not have been a strike-breaking effect.

The Court concluded by ratifying the ban on “hiring striker replacements” with a strike-breaking purpose both (i) within the company, allocating workers that do not usually perform the striking employees’ jobs; and (ii) from outside contractors or companies with a “special link.”

The court thus confirms and develops the previous line of case law in PRISA (judgment of February 11, 2015, appeal 95/2015) and ALTRAD (judgment of November 16, 2016, appeal 59/2015). Under this case law, there is no violation of the contractor company’s workers right to strike if there is no special link between the companies.

Finally, this judgment also recalls the debate on strike-breaking through technology,since the consolidation of technology and new ways of performing the jobs have made new tools available to enhance the effectiveness of job resources, e.g., workforce management tools or incident management systems like in the case at hand.

Note that the Constitutional Court (judgment of February 2, 2017, appeal 1168/2014) declared – although not unanimously, since there was a firm dissenting opinion – that there is no applicable provision preventing companies from using their usual technology to do the strikers’ jobs. We will pay attention to the possible interpretations and qualifications of usual in future cases.

This post is also available in: Español

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Senior Knowledge Lawyer del Área de Conocimiento e Innovación (ACI))

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