Título Séptimo. Conflictos Colectivos de Carácter Económico

A legal strike is the temporary suspension and abandonment of work in an enterprise, agreed, executed and maintained peacefully by a group of three or more workers, after prior compliance with the requirements established by Article 241, with the exclusive purpose of improving or defending against their employer the economic interests that are proper to them and common to said group.

The common tribunals must impose sanctions in accordance with the law on every act of coercion or violence that is executed on the occasion of a strike against persons or properties.

An illegal strike is one that does not fulfill the requirements established by Article 238.

The legal strike suspends the employment contracts in force in the enterprises in which it is declared, for the entire time it lasts.

To declare a legal strike, the workers must:

a)Strictly conform to the provisions of Article 239, first paragraph;

b)Exhaust the conciliation procedures; and

c)Constitute half plus one of the total of the workers who work in the respective enterprise, enterprises or production center and who have commenced their employment relationship prior to the moment when the collective conflict of an economic-social nature was raised. For this count, trusted workers and those who represent the employer shall not be included.

The strike is just when the facts motivating it are attributable to the employer, due to breach of the individual or collective employment contracts or of the collective agreement on conditions of work, or due to the unjustified refusal to conclude the latter or to grant the economic improvements requested by the workers that the employer is in a position to grant. The strike is unjust when none of these grounds concur.

If the strike is declared just, the Labor and Social Welfare Tribunals must order the employer to pay the wages corresponding to the days on which they have been on strike. The workers who by the nature of their functions must work during the time the strike lasts shall be entitled to double wage.

If the legal strike is declared unjust, the workers who have been on strike shall not be entitled to wage for the time the strike lasts and those who have worked shall not be entitled to double wage.

A strike may not be carried out:

a)By the workers of transport enterprises, while they are in transit and have not completed such journey;

b)By the workers of clinics, hospitals, public hygiene and sanitation; and those who work in enterprises providing motive power, lighting, telecommunications, and water processing and distribution plants for service to the populations, as long as the necessary personnel has not been provided to prevent such services from being suspended, without causing serious and immediate harm to public health, safety and economy; and,

c)By the State security forces.

When any of these services is involved, the tribunal hearing the dispute, prior to deciding the petition referred to in Article 394 of this Code, and only when the requirements established for ruling on the legality of the strike have been met, shall convene the parties to the dispute to a hearing, which shall be held within the twenty-four hours following the respective notifications, in order to establish a minimum service through emergency shifts. Failing agreement between the parties, the emergency shifts shall be fixed by judicial decision within twenty-four hours after said hearing has failed. In no case shall a judicial pronouncement on the legality of the strike be issued if the minimum service referred to in this article has not previously been fixed. The emergency shifts to ensure the provision of a minimum service shall be fixed at between twenty and thirty percent of the total workers of the enterprise, establishment or business concerned, or in cases of craft strike, of the workers of the same profession or occupation within each enterprise, establishment or business.

The competent tribunal shall proceed in the same manner even when the strike does not concern an essential service, according to the preceding definition, when the same, by reason of its duration or repercussions, acquires such a dimension as to endanger the life, health or safety of all or part of the population.

*The President of the Republic in Council of Ministers may decree the suspension of a strike within the national territory in whole or in part, when he deems that it seriously affects activities and public services essential to the country.

When a strike is declared illegal and the workers carry it out, the tribunal must set for the employer a term of twenty days during which the latter, without liability on its part, may terminate the employment contracts of the workers who strike.

The same rules apply in cases of de facto or illegitimate strike. The criminal sanctions imposed against the strikers by the common tribunals are reserved.

The new contracts entered into by the employer may not contain conditions inferior to those that, in each case, were in effect before the strike movement was carried out.

Legal lockout is the temporary suspension and abandonment of work, ordered and maintained by one or more employers, in peaceful form and with the exclusive purpose of defending against their workers the economic interests that are their own, where applicable, common to them.

Legal lockout always implies the total closure of the enterprise or enterprises in which it is declared.

The lockout is legal when employers comply with the provisions of Articles 245 and 241 subsection b) and thereafter give all their workers notice one month in advance for the sole purpose that they may terminate their contracts, without liability for the parties, during this period.

This notice must be given at the time the conciliation proceedings are concluded.

During the entire time the legal lockout remains in force, the contract or contracts of the workers who have not made use of the power granted to them by the preceding article shall be suspended, without liability for the parties.

The resumption of work must be carried out in accordance with the provisions of Article 75.

The provisions of Articles 239, second paragraph, and 243 are applicable to the lockout.

A lockout that does not meet the requirements established in the preceding article is illegal, as is any malicious act by the employer that prevents the workers from normally performing their work.

If a lockout is declared illegal and the employer or employers carry it out, it produces the following effects:

a)It empowers the workers to request their immediate reinstatement or to terminate their contracts within the thirty days following the carrying out of the lockout, with the right to receive the applicable legal indemnities;

b)It causes the employer to incur the obligations to resume work and to pay the workers the wages they should have received during the period in which they were improperly suspended; and

c)It gives rise, in each case, to the imposition of the fine provided by law according to the seriousness of the violation and the number of workers affected thereby, without prejudice to liabilities of any other kind that the common tribunals may declare against its perpetrators.

The same rules govern in cases of de facto lockouts.

A just lockout is one whose grounds are attributable to the workers and unjust when they are attributable to the employer.

If the Labor and Social Welfare Tribunals declare that the grounds of a legal lockout are attributable to the employer, the latter must pay the workers the lost wages referred to in subparagraph b) of the preceding article.

In the case of a legal lockout declared just by said tribunals, dismissal of the workers without liability for the employer shall proceed.

Neither lockouts nor strikes may in any way prejudice workers who are receiving wages or indemnities for accidents, illness, maternity, annual leave or other analogous causes.

The fact that a lockout or a strike ends by direct settlement between employers and workers or by judicial decision does not exempt from liability those who have committed crimes or misdemeanors in connection with the conflict.

In case of legally declared strike or lockout, the Labor and Social Welfare Tribunals, at the request of an interested party, shall order the closure of the establishments or businesses affected by the dispute, for the purpose of respecting the exercise of this right and duly protecting persons and property, for the duration of the dispute.

In case of illegal lockout or strike, or in case of lockout or strikes carried out de facto, at the request of a party or on its own initiative, the labor tribunals may decree and execute without further proceedings, under the liability of the judge, the precautionary measures warranted by the case to guarantee the continuity of the activities of the affected establishments or businesses, as well as the right to work of persons who wish to work. It is understood that these measures shall not affect the rights or actions exercised in accordance with the law, which regulate collective bargaining, lockout or strike.

The right of employers to lockout and that of workers to strike are non-waivable, but the clause by virtue of which they undertake not to exercise them temporarily is valid, while one of the parties does not breach the terms of the collective agreement on conditions of work that has been signed between the employer or employers concerned and sixty percent of their workers.

Likewise, the Labor and Social Welfare Tribunals may suspend the exercise of these rights for a time not exceeding six months, provided that in resolving a given serious conflict of an economic and social nature, they consider it indispensable to obtain greater balance in the relations between employers and workers.