28 mayo 2021

Strikes Have Become Unlawful Actions That Cause Serious Economic Losses. Published on

Those of us who have the responsibility of dealing with collective conflicts have turned into managers of multidisciplinary teams, who try to prevent labor issues from causing irreparable damage.

Article by Julián A. de Diego published in on May 27, 2021

Collective disputes encouraged by the most combative unions have turned into a source of rather dubious lawful actions, which in turn cause irreparable harm to employers, companies in general, and the working community, in addition to the restrictions imposed during the pandemic. The ability to negotiate and get result in this context is directly proportional to the union’s power to damage through protests that they are not afraid to organize.

Blocking bridges and highways, setting up barricades at the entrance of industrial parks, trucking yards, loading docks or warehouses, camping at circulation paths and work areas at company facilities, or sabotaging suffocate companies and make results conditional on solutions outside legal procedures.

As legal procedures are usually complicated and take time, many unions try to force the law on companies to get the representation of workers, for example.

As a matter of fact, the available remedies are the Unions Act [Ley de Asociaciones Gremiales] proposing a step inside unions through the CGT Representation Committee [Comité de Encuadramiento de la CGT], which rarely offers any solution; an administrative procedure at the Department of Labor; and finally a judicial process or appeal, where the conflict is resolved at last.

The Argentine National Constitution enshrines the right to strike in Article 14 bis, whereby the most representative union may call a strike just in the form of work stoppage, provided the goal is to defend a legitimate common interest and the procedures of mediation, mandatory settlement and arbitration are fully observed. 

In the matter of Orellano, Francisco Daniel v Correo Oficial de la República Argentina S.A. on especially expedited summary procedure, with the signature of Justices Lorenzetti, Highton de Nolasco and Maqueda, the Supreme Court of Justice of Argentina found that any forms of protest organized by informal groups are not lawful because Article 14 bis of the National Constitution and international human rights treaties only grant the right to strike to unions, i.e. formal organizations of workers (Supreme Court of Justice of Argentina, June 7, 2016). Such organizations included merely registered unions and unions with legal status (Supreme Court of Justice of Argentina, Judgments “ATE 1”, “Rossi” and “ATE 2”).

Within the framework of Article 14 bis (National Constitution) and in line with the precedents set by the Supreme Court since 1957, the right to strike is valid and immediately enforceable, even if it may not have been regulated so far. 

The right to strike is valid when the following conditions are duly met:

1. Strikes can only be organized by unions with legal status or merely registered unions, provided they represent the workers involved in the collective dispute (members);

2. The reason for the strike action is a right or claim affecting a category, group or collective represented by the union; 

3. The right to strike should only mean work stoppage, where workers walk away from their jobs with no other physical or psychological side effects, peacefully and without engaging in acts of violence against property or people;

4. Voluntary or mandatory settlement procedures should be observed (Act No. 14.786) aimed at reaching an agreement between the parties to put an end to the conflict.

In addition, when violence escalades during a strike action, it means that crimes are committed under the terms of the Criminal Code, and therefore the enforcement authority should step in. The list of crimes is not exhaustive and includes theft, robbery, threats, fraud, negligent and intentional torts, and even murder.

As to traffic obstruction, Section 194 of the Criminal Code punishes those who block, obstruct, impede, or otherwise interfere with the normal flow of vehicular or pedestrian traffic upon a public street or highway with sentences that range from three months to two years’ imprisonment.

Sabotage is also a type of crime and may carry a prison sentence ranging from one to 25 years in jail for those who may disturb, destroy, deteriorate or damage industrial facilities (among others) with the aim of impairing, distorting or delaying the economic, financial, social, scientific or industrial development of the country.

The Courts –if cases are actually taken to Court- have unanimously ruled that strike actions are unlawful when they turn violent against people or property that belongs to the employer or third parties. However, criminal courts tend to find that demonstrations should not be criminalized and are reluctant to take part when the merit of the case is a labor matter.

Nowadays, conflicts take place in such a complex scenario because strike actions are constitutional.  

In fact, the pandemic is largely “used as an ally” for claims where legitimate demands, such as the preventive protection for health care workers and professionals or adequate pay for the risks they take, gets mixed up with other politicized conflicts that are hidden behind infection, protected groups, high risk groups, sick people, recovered patients and allegedly close contacts. This is a multifaceted labor crisis with multiple causes that bring out the best and the worst in human beings. 

In this context, we can also find a combination of conflicts in the same region, where while disputes are resolved in one sector, another sector calls a strike, thus paralyzing the economic and social life in an area, industry or service with irreparable damages. This is what has happened in the public sector in some parts of Patagonia, where workers blocked the activity in the oil and gas industry and other related services.

Finally, there are conflicts that derive from workers’ need to get pay rises, when inflation rate is conspiring against guidelines originally laid down by the government at 29% that are losing ground day after day. The Department of Labor itself increased the Minimum Living Wage above guidelines payable in seven installments, some of them in 2022. In any case, all unions are reaching agreements with “revision clauses” once or twice during the effective term, anticipating that wages would not keep up with inflation for three consecutive years now, and the purchasing power of workers, even those who work on the books, would fall by 5% to 12% below Indec CPI.

These conflicts involve sectorial decisions, including meetings, partial strike actions affecting one or two hours per shift, and the most dreadful of them all is work stoppage at critical or essential businesses, where the greatest damage is suffered by workers as consumers due to the lack of supply and price speculation.

In other words, those of us who have the responsibility of dealing with collective conflicts have turned into managers of multidisciplinary teams, who try to solve discrepancies as quickly as possible because today more than ever, time is a fundamental variable to prevent labor issues from escalating into irreparable damage.  

Por Julián A. de Diego
Por Julián A. de Diego

Fundador y Titular del estudio “de Diego & Asociados”.  Abogado, Doctor en Ciencias Jurídicas.