Right to strike and occupation of workplaces
The right to strike and the exercise of trade union activity are established in the Constitution of the Republic. The Urgent Consideration Law ("LUC"), approved in July of this year, regulates, among other things, the occupations of workplaces, limiting them.
Background
This provision was born in response to observations made by the ILO (International Labour Organization), after it was understood that our system did not respect the freedom to work (of non-strikers) and the freedom of enterprise, as occupations were allowed that prevented access to other people.
Specifically, the mentioned norm establishes: "The State guarantees the peaceful exercise of the right to strike, the right of non-strikers to access and work in the respective establishments, and the right of company management to enter the facilities freely." This means that violent forms of exercising the strike are not admitted.
The right to enter work is guaranteed to all those workers who do not adhere to union measures, guaranteeing them the right to trade union freedom in its "negative" aspect. It also ensures the right of company management to enter the establishment. Likewise, picketing that prevents the free circulation of people, goods, or services in public or private spaces of public use was declared illegitimate in the same norm.
Procedure to be followed by the employer in case of occupation
The LUC did not establish the mechanism for the eviction of strikers, so a regulatory norm was required to establish how the procedure would be to obtain the cessation of an occupation when it violates the two mentioned freedoms (the right of workers and managers to enter the establishment).
Therefore, on October 15th, the government issued a Decree that repealed two previous regulations (Decrees 165/006 and 354/010) that provided for (legitimizing) workplace occupations, and established a conciliation procedure and possible eviction in the event of this type of measure.
The recently approved Decree establishes that, in the event of an occupation of a public office or private company, the leader or employer may request the intervention of the Ministry of Labour and Social Security.
The Ministry of Labour and Social Security may convene a conciliation meeting within a peremptory period, without prejudice to ordering the immediate evacuation at any time, before, during, or after that meeting, under penalty of the use of public force, being able to resort to it through the Ministry of the Interior in case the occupation persists (as the norm expressly provides).
Final considerations
Our Constitution, referring in article 57 to the regulation of the Right to Strike (in terms of "exercise and effectiveness"), has recognized that it is not an absolute or unlimited right, so there may be forms of exercise that are illegitimate, and we understand that this would be the case with occupation.
This measure, which implies that strikers take control of the company, its assets, and facilities, prohibiting entry to other workers, managers, etc., undoubtedly restricts the right to work in the occupied companies, the right to property, as well as the freedoms of industry and trade, which are also of a constitutional nature (arts. 7, 32, and 36), and indirectly affects the rest of society, as it limits their right to acquire and consume the goods produced or marketed by the occupied companies.
Beyond the legality or illegality of the occupation of workplaces as a manifestation of the right to strike, until the approval of this norm, certain imbalances and transgressions were generated in labor relations, which could harm the rights of other workers, and eventually investment, generating a relative sense of insecurity. This new Decree would put an end to a situation in which the only effective path so far was to resort to protective action, which as is known, implied an "emergency" solution but not a "fundamental" one.
October 19, 2020
