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The use of strike-breakers by a principal
20 de enero, 2016
1. Violation of the right to strike by a company that does not employ the worker
1.1. Over the past year, Spanish employment courts have established a legal doctrine regarding the possibility of violating the right to strike by way of actions carried out, not by the workers employer, but by parties related to such employer. Based on the constitutional doctrine that admits such violation by a party that, although not the employer, participates or interacts with the employer in direct connection with the employment relationship, the Supreme Court has not hesitated to endorse this view.In this regard, the above constitutional doctrine was clear, positing that «the fragmentation of employment relations in cases of subcontracting» divested employees of protection. Specifically, «as a matter of fact, this lack of protection arises from what constitutes the essence of subcontracting, that is, the fragmentation of employment relations into two sets, one involving the workers direct employer, which contracts the provision of such workers services, and the other the party that actually receives such services mediately under a business agreement In the case of the right to strike which, if exercised, must by definition be mainly turned towards the principals production activity inasmuch as served by the subcontract itself – the principals freedom from liability in respect of any actions that may be taken in order to prevent, encroach on or sanction a legal exercise of the right to strike, under cover of its supposed separation from the employment relationship between the parties, would practically eliminate the right to strike in the context of such a relationship. Indeed, the prohibitions, guarantees and protections provided in employment legislation in connection with industrial actions harmful to the right to strike would be of scarce use if they should only apply to the contractor – the direct employer in the employment relationship – but not the principal, which is the party that should ultimately suffer the harmful economic effects of the strike and may, therefore, have an equal or greater interest than the contractor in combatting it» (Judgment of the Constitutional Court 75/2010, FJ 7)…
1.1. Over the past year, Spanish employment courts have established a legal doctrine regarding the possibility of violating the right to strike by way of actions carried out, not by the workers employer, but by parties related to such employer. Based on the constitutional doctrine that admits such violation by a party that, although not the employer, participates or interacts with the employer in direct connection with the employment relationship, the Supreme Court has not hesitated to endorse this view.In this regard, the above constitutional doctrine was clear, positing that «the fragmentation of employment relations in cases of subcontracting» divested employees of protection. Specifically, «as a matter of fact, this lack of protection arises from what constitutes the essence of subcontracting, that is, the fragmentation of employment relations into two sets, one involving the workers direct employer, which contracts the provision of such workers services, and the other the party that actually receives such services mediately under a business agreement In the case of the right to strike which, if exercised, must by definition be mainly turned towards the principals production activity inasmuch as served by the subcontract itself – the principals freedom from liability in respect of any actions that may be taken in order to prevent, encroach on or sanction a legal exercise of the right to strike, under cover of its supposed separation from the employment relationship between the parties, would practically eliminate the right to strike in the context of such a relationship. Indeed, the prohibitions, guarantees and protections provided in employment legislation in connection with industrial actions harmful to the right to strike would be of scarce use if they should only apply to the contractor – the direct employer in the employment relationship – but not the principal, which is the party that should ultimately suffer the harmful economic effects of the strike and may, therefore, have an equal or greater interest than the contractor in combatting it» (Judgment of the Constitutional Court 75/2010, FJ 7)…
The use of strike-breakers by a principal
