Comment

I. The issue at hand.

Based on the legal prohibition against strike-breaking set forth in article .5 of Royal Decree-Law 17/1977, of March 4 (“RDLRT”), the specific issue raised before the Constitutional Court is whether the decision by the business de Sevilla business to put double trains into service (instead of the single trains provided for in the schedule prior to the strike call) during certain conference by the strike call violated the fundamental right to strike (Art. 28.2 of the Spanish Constitution) of the workers who participated in the strike.

Setting aside these specific factual circumstances, the fundamental issue at stake is the scope and content of the prohibition on lockouts in a context where the framework governing reference letter is clearly outdated reference letter of a constantly evolving production system.

II. The general prohibition on lockout in a context where the framework for reference letter is becoming obsolete.

As is well known, the framework governing the fundamental right to strike (Art. 28.2 of the Spanish Constitution) still revolves around a rule (the RDLRT) which, as the Constitutional Court itself notes, has been largely rendered obsolete by subsequent changes in the development productive activity across a wide range of sectors. In fact, the Court maintains that the general prohibition on strike-breaking contained in article . article (which expressly covers only external strike-breaking, that is, the replacement of striking workers by individuals from outside the business):

"has become obsolete in light of the changes that business organizations have undergone in recent decades, due to the introduction of complex forms of partnership companies and the emergence of sophisticated production automation processes."

Since this is indeed the case, in the subject it is necessary to refer to the legal doctrine that the Constitutional Court itself has developed over time purpose scope and content of the fundamental right to strike—a doctrine which, by way of an expository review, the Constitutional Court fully addresses in its ruling. This doctrine, as regards the general prohibition of strike-breaking (both external and internal), is based on the following general premise:

" Schools cannot 'make up for the work the strikers should have performed,' and their actions constitute an abuse when, objectively speaking, the substitution effectively renders the right to strike meaningless because it neutralizes or diminishes the pressure associated with the strike, a prohibition intended to ensure the effectiveness of this fundamental right (SSTC 123/1992, Legal Ground 5, and 33/2011, Legal Ground 4)."

Applying this general premise to the reality of new technologies and the challenge they pose to the effective exercise of the fundamental right to strike, the Constitutional Court has already had occasion to rule on the employment of technical and technological means to maintain productive activity and replace the service no longer provided by those participating in the strike—a phenomenon known as “technological strike-breaking.” Thus, the Court held that (SSTC 183/2006, 184/2006, 191/2006, and 193/2006):

"The use of such mechanisms raised the question of the limits of a fundamental right—an area in which the interpretation of the right should be as broad as possible and restrictions should be limited to what is necessary—and we noted that the employment certain technological means during a strike at a public television station could constitute internship if it served to minimize the strike's effects."

Years later, in explicitly analyzing whether resource technical resource available to the business but not routinely employed) could constitute a violation of the fundamental right to strike, the Constitutional Court clarified its doctrine on the matter, stating the following (Constitutional Court Ruling 17/2017, Legal Ground 7):

"Although 'the employer's freedom, with regard to Schools and Schools workers, is restricted by the exercise of the right to strike […] there is no provision that, during the exercise of that right, prohibits the employer from using the technical means available to them […] in the business maintain their operations'." In fact, "the employer is under no obligation to reduce its operations beyond what is a logical consequence of the workers’ participation in the strike," hence it must be rejected "that the effective exercise of the right requires the employer to refrain from using the technical means at its disposal and to abstain from carrying out productive activities that could jeopardize the achievement of the strike’s objectives."

III. Clarification of constitutional doctrine regarding the prohibition of strike-breaking.

1. The general prohibition of lockout in the context of a constantly evolving labor market.

As the Constitutional Court argues, within the framework a constantly evolving model , the growing functional autonomy of the technical and technological means integrated into the business organization can blur the line between tasks traditionally performed by workers and those that were previously the domain of the physical means of production. It is not surprising, therefore, that, with regard to the general prohibition on strike-breaking, the Court considers that the emergence of these technical and technological means has a clear impact on the exercise of the fundamental right to strike:

"In this scenario, business ability business adjust the technological, mechanical, or automated resources at its disposal and adapt its standard production and service delivery procedures, in order to maintain business operations during the period of the strike, has a direct impact on the effective exercise of the fundamental right and produces the same result of result the consequences of the strike as was previously achieved by the physical replacement of striking workers, which constituted the basis for the prohibition of external and internal strike-breaking."

In fact, the workers’ cessation of the work they are contractually obligated to perform due to their participation in the strike becomes futile if its purpose—which is to serve, in extreme situations, as a means of pressure to alter the balance of the unequal power relationship in which the work finds themselves work cannot be achieved because it is prevented by the employer’s conduct, in the exercise of their ordinary private power to direct and organize the business resources, reinforced by the introduction of information and communication technologies and management staff management , which objectively interfere with the legitimate exercise of the right."

2. Reformulation of the prohibition on lockout-breaking in the aforementioned context.

Recognizing, therefore, the obvious limitations that the outdated article .5 of the RDLRT presents in this new context, the Constitutional Court proceeds to clarify its doctrine purpose the limits on a company’s managerial and organizational authority when it directly and exclusively concerns the material resources or the production processes or service delivery available within the business. To that end, it concludes as follows:

(i) The same rationale behind the prohibition of external and internal lockouts applies to other forms of lockout, such as technological or organizational lockouts.

(ii) Replacing the services that striking workers cease to provide to the production process with other available resources—whether human, technical, or technological—constitutes a violation of the fundamental right set forth in article .2 of the Spanish Constitution, provided that such replacement serves to minimize, reduce, or limit the effects of the work stoppage and maintain business operations.

(iii) To this end, it is necessary to distinguish between the business non-existent obligation business collaborate or cooperate with the exercise of the right to strike and business conduct that infringes upon this fundamental right or anti-strike actions that reduce or minimize its effectiveness by maintaining production activity, thereby rendering the right meaningless and violating the business duty business refrain from interfering with, limiting, or preventing its exercise.

(iv) Such conduct may take the form not only of replacing striking workers with other employees (external and internal strike-breaking) but also—and especially today—through the use of material resources, specific technical procedures, or technologies available to the business, which are expressly employed to address the disruption caused by the strike; therefore, in a manner different from the usual one and with the effect of continuing productive activity and neutralizing the consequences of the work stoppage.

(v) The employment certain technological means may constitute an internship if it serves to minimize the impact of the strike, since its effectiveness as a means of pressure is an essential element of the strike.

(vi) In short, the fact that the service appears to be operating normally—by preventing the effects of the strike from becoming visible and having a noticeable impact—undermines its effectiveness as a means of pressure.

IV. – The case-by-case resolution of the issue raised.

Based on the foregoing, the judgment under review ultimately concludes that the business decision business operate double-decker trains (rather than the single-car trains originally planned prior to the strike call) during certain conference by the strike call violated the fundamental right to strike of the striking workers who participated in the strike:

"The measure was intended result not performed by the striking workers and to provide passengers with a attendance close attendance possible to that of the regular intercity transit service. final, Metro de Sevilla resorted to a technical means at its disposal to ensure, under conditions of industrial peace, adequate provision of the transportation service in the face of foreseeable circumstances of increased demand, which it exploited by abusing its organizational authority to normalize the provision of the service affected by the strike. In fact, the observed conduct, in addition to disrupting the carefully balanced equilibrium between the exercise of the right to strike and the minimum coverage of the intercity public transport service, significantly diminished the consequences that the work stoppage had on service users, as well as its impact, its social repercussions, and its public perception, directly affecting the essential content of the right to strike. "Business decisions that interfered with the exercise of the fundamental right, thereby causing harm."

V. Conclusions.

First: Replacing the service that striking workers cease to provide to the production process with other available resources—whether human, technical, or technological—constitutes conduct that infringes upon the fundamental right to strike (Art. 28.2 of the Spanish Constitution), provided that such replacement serves to minimize, reduce, or limit the effects of the work stoppage and maintain business operations.

Second: Precisely for this reason, the prohibition on strike-breaking applies not only to its external forms (replacing striking workers with staff the business) and internal forms (replacing striking workers with staff business staff ), but also to other forms, such as so-called technological or organizational strike-breaking.

Third: In this regard, the employment certain technical or technological means may constitute an internship if it succeeds in minimizing the effects of the strike, since its effectiveness as a means of pressure is an essential element of the strike.

Fourth: final, the essential nature of the fundamental right to strike imposes on business duty to refrain from taking actions that undermine the effective exercise of that right; furthermore, it serves as a limit on other rights or interests in interpretive disputes that may arise from its coexistence with the freedom of business Art. 38 of the Spanish Constitution) or the right to work Art. 35 of the Spanish Constitution).

VI.- Final note.

Given the foregoing, the constitutional doctrine seems clear: if, in any of its various forms (external, internal, technological, or organizational), strike-breaking minimizes, reduces, or limits the effects of the fundamental right to strike, we would then be dealing with abusive business conduct.

It so happens, however, that—as is often the case in this increasingly complex area knowledge —it does not seem to be a simple task to determine in internship does or does not constitute an abusive business practice. Nevertheless, as can be inferred from the points raised in the three dissenting opinions, it would seem entirely disproportionate to require companies to remain completely inactive in the face of strike notices:

"Requiring an employer not to use the technical resources already available within the business during a strike business attempt to continue production as much as possible amounts to imposing a duty of partnership the strike that is not only not provided for by law but is also disproportionate, based on an unacceptable interpretation. The employer must inevitably bear a loss as a result of the strike, stemming from its impact on the business ordinary operations; however, it would be disproportionate to require the employer, in cases such as this one, to contribute—through inaction or omission—to the success of the strike."