Collective disputes and illegal wildcat strikes

Lawyer. Employment advisor of companies and chambers of business. Academic Counselor for Libertad y Progreso.

EL CRONISTA – Recent violent industrial actions, including occupation and extortion, have brought back to the forefront the issue of whether the right to strike is a limited constitutional right and whether protests involving physical or psychological violence and extortion can resolve their grievances.

It is urban legend that violent cases, like the protest by tire workers, will prevail in future negotiations, and as compared to the statistics, this statement is only valid for five very combative unions in a scenario where there are more than 600 unions registered with the Department of Labor.

It is worth mentioning that there are three factions in unionism that have followed different models with some variations since 1945.

The moderate faction is represented by Hector Daer and the so-called official CGT (General Confederation of Labor), together with most of the leaders of the big national unions, such as Employees of Commerce, Food, Health Care, and other sectors.

The combative faction that exists since the onset of Peronism has been largely represented by combative unions, such as the Union led by Hugo Moyano while holding different positions starting at MTA [Argentine Workers’ Movement].​

And there is also the left-wing faction, which was born with ATE [Civil Service Union] and CTA [Argentine Workers’ Central Union], and now has split into two CTAs, one of them is led by Hugo Yasky and the other one is led by Ricardo Peidró with the Federation of Pharmaceutical Sales Representatives. There is also SUTNA [Argentine Tire Workers’ Union], whose leadership is Trotskyist, with Partido Obrero [Workers’ Party]. Curiously enough, it is a member of the traditional CGT.

Every Union resorts to the right to strike under Section 14 bis of the National Constitution, but few of them do so in compliance with the law, which sets forth four conditions:

  1. Strikes must be called by a representative union with legal status (see the Supreme Court ruling in the matter of Orellano v. Correo Argentino;
  2. Strikes must serve a collective purpose affecting the entirecategory or sector represented;
  3. Strikes involve a concerted stoppage of work;
  4. Strikes must comply with all the legal procedures for mandatory mediation or conciliation currently in place, and possibly arbitration to resolve grievances.

Violence in all its forms, including traffic obstruction, sabotage, attack against non-strikers, injuries, theft, robbery, occupation of company facilities, aggression towards third parties, is firmly condemned and violates the right to strike, thus turning this industrial action into an illegal measure, regardless of the exact classification of the crimes committed according to the Argentine Criminal Code.

Those who promote wildcat strikes usually commit a number of crimes, which usually go unpunished by Correctional Criminal Courts since they are part of an industrial action in a collective conflict.

The usurpation of private property, theft, robbery, sabotage, traffic obstruction, arson, injuries in all forms, threats, extortion, physical violence against non-striking employees, attacks on third parties, the use of firearms or knives, the use of explosives, turn the right to strike into an illegal act, which must be prosecuted in court.

It is worth mentioning that it is the Courts who can determine the legitimacy of strikes, and not the Executive. However, under Raúl Alfonsín when democracy was restored, the Department of Labor declared some general strikes illegal, and the Courts ruled that it had the power to do so in its capacity as the law enforcement authority, and then the Judge could only revoke such declaration if there were fundamental errors or signs of arbitrariness.

In any case, in a world where conflicts should be resolved by consensus, wildcat strikes, unrestricted and violent industrial actions, are wholly unacceptable in a democratic country. During mediation, threats from both sides, violence and coercion against non-strikers, and damages against companies and third parties, are completely unacceptable in any developed country around the world.