Strikes and other industrial actions may mean the full exercise of the constitutional right under Section 14bis of our Magna Carta, or an abuse of right and even extortion in an overtly unlawful act.
Published in El Cronista on May 3, 2019
This is a rather peculiar right because it is the only right whose exercise implies causing damage as a result of a total or partial work stoppage against the production of an employer or many employers at whom the protest is aimed.
Otto Kahn-Freund, who is widely regarded as the founding father of modern British labor law, defined that strike is the pathology of the legal system, as divorce is to marriage and bankruptcy to business law.
For a strike to be lawful, it must meet four requirements, namely:
- It should be promoted by one or more representative unions of those workers who are voicing the grievance (Supreme Court of Justice of Argentina, June 7, 2016, Orellano Francisco Daniel v Correo Oficial de la República Argentina S.A. on specially expedited summary proceeding);
- There must be a collective labor reason affecting those workers who are represented by the Union and take part in the strike action;
- It should imply the mere abstention from work, i.e. work stops temporarily; workers abandon their workplaces without any collateral action affecting their freedom to join the strike or continue working.
- and it should abide by all processes of mediation, settlement and eventually arbitration in line with the existing proceedings under collective bargaining agreements or by application of the Mandatory Settlement Act No. 14786 [Ley de Conciliación Obligatoria] at the national level, and similar acts in the provinces.
Considering that the right to strike enshrined in the National Constitution may cause damage, it should be the last resort once all options have been used.
However, strike actions can cause different degrees of damage according to the striking industrial sectors. For instance, a strike organized by transport unions, oil workers or drinking water workers may have greater impact on society whereas if services or artisanal activities go on strike, e.g. the textile or shoe industries, the general effects are minor.
Whenever unions are strong enough to cause significant damage, the strike action as a tool to exert pressure becomes a virtual extortion because the damage they may cause is extremely serious as compared to the cost of the grievances voiced by unions and workers.
Abuse of right means that rights are exercised far beyond the scope granted in the legislation, contrary to good faith, proportionality, reasonableness, mores and custom, and in particular against the ethical main purpose of the right to strike, in order to get an unreasonable, disproportionate goal causing unpredictable and distorting damage.
Jus abutendi under Roman law was included in the Napoleonic Code, where according to jurist Louis Josserand, no right is absolute and should be subject to rules and precedents to be exercised in good faith.
Section 10 of the new Civil and Commercial Code of Argentina (reform in 2015) states that there is abuse of right whenever the right is exercised excessively.
In turn, compliance with a legal duty cannot constitute an unlawful act.
Consequently, the law does not accept the abuse of right, which means breaching the legal system or exceeding the limitations imposed by good faith, mores and custom.
In addition, the Courts must take the necessary actions to avoid abuse of right by ordering restoration of the status quo ante and payment of compensation.
There is also the so-called abuse of dominant position whenever the full exercise of a right means there is a dominant position in the market, regardless of the specific provisions under special laws such as the rules of consumers’ protection.
In turn, ordinary law protects individual and collective rights, and ratifies that the abuse of individual rights is inadmissible, affecting the environment and collective rights in general.
Wildcat strikes, general strikes and other violent forms of protest or crimes, excessive pressure in connection with unlawful acts turn any industrial action into an illicit act and by no means can it be supported by the right to strike enshrined in the National Constitution or tolerated or accepted as such by any of the branches of government.
By Julian A. de Diego
Director of the postgraduate course on Human Resources at the School of Business at UCA.