The controversy has intensified since Antonio Garamendi, the president of CEOE, the main organisation representing Spanish business owners, announced that his organisation would challenge the strike call in court. Their argument was that this was a strike with a primarily political and electoral purpose, given its proximity to the parliamentary elections. However, on 22 October, the CEOE confirmed that it would ultimately not contest it.
Regardless of this decision, the question remains whether a general strike can be declared illegal on the grounds of its political motivations when, at the same time, it is defending labour demands.
Can a general strike be deemed illegal on political grounds?
In theory, yes, but in practice it is fairly unlikely. The legislation governing strikes, Royal Decree-Law 17/1977, deems a strike called ‘for political reasons or for any other purpose unrelated to the professional interests of the workers concerned’ to be illegal. However, courts tend to interpret this restriction narrowly.
A good example can be found in Catalonia. In 2020, the Supreme Court upheld the general strike of 8 November 2017, despite its obvious political nature. It held that its purpose was “fundamentally to defend workers’ rights” and that the political aims did not “taint that purpose”. After all, protesting against a government’s social policy is not unrelated to the interests of workers, and this is the criterion that the courts have been applying for years.
That same ruling also contains a detail that is particularly relevant today. The 2017 strike called for action against wages that forced people “to choose between paying the rent or paying for a child’s university fees”, and the Supreme Court treated this issue as a wage-related demand. In other words, the link between housing and wages is not a new one. If we add to this the classic demands put forward in this strike call – such as purchasing power, collective bargaining and a reduction in working hours – anyone challenging the strike would have to prove that the labour-related issues are merely a pretext. In light of the above legal precedent, that does not appear to be a straightforward task.
Nor did it seem likely that the debate would revolve around procedural issues. The trade unions lodged their joint strike notice with the Ministry of Labour on 19 October, well in advance of the notice period required by law.
Furthermore, a 24-hour general strike does not, in itself, fall within the categories deemed abusive, such as rotating strikes or those affecting strategic posts. Everything therefore suggests that it will be the strike’s purpose that is going to be challenged.
What does this mean for companies?
Following the decision by the CEOE not to challenge the strike, the strike scheduled for 11 November will proceed without legal opposition and is therefore presumed to be lawful. Anyone taking part in it will be exercising a fundamental right, and employers must treat it in the same way as any other strike. Even a subsequent legal challenge would not alter this position, since bringing proceedings against a strike does not suspend it. Only a court could order its suspension by way of an interim measure, something that would be exceptional where a fundamental right is concerned. Furthermore, anyone alleging that the strike is unlawful would bear the burden of proving it.
Even if it were declared unlawful after 11 November, any action taken against a worker would require an analysis of their specific case, and under no circumstances could anyone be penalised simply for exercising the right to strike.
Accordingly, an employer that, on the basis that the strike is political in nature, prevents employees from participating, puts pressure on the workforce, or takes retaliatory measures could face claims for infringement of the fundamental right to strike, as well as the corresponding regulatory sanctions.
What should employers do?
The key is neutrality: that is, respecting those who go on strike and ensuring that those who do not can carry out their work. In practice, for employers this means the following:
- If an employee takes part in the strike, the employer may deduct the wages corresponding to the time not worked.
- The employer may not replace striking workers with external staff or agency workers. Nor may it reorganise duties or redeploy employees from other posts or sites to cover for them.
- Employers may not demand that anyone give advance notice of their intention to strike, nor penalise them for taking part, beyond the proportional deduction.
- Minimum services apply only to essential services and must be established by the competent authority, not by the employer. For all other activities, it is sufficient to ensure the safety and maintenance of the premises.
- Those who work remotely may also exercise their right to strike. Employers may not call upon other employees to replace them remotely, nor may they use connection logs to take reprisals against those who take part in the strike.
What if the company’s management is based abroad?
With Spanish subsidiaries of multinational corporations, the risk usually lies not in the law but in the distance. Many decisions are taken from abroad, based on criteria designed for a different system, where such an absence might be viewed as mere absenteeism. It is therefore advisable for the parent company to understand how strikes work in Spain before taking any decisions, and to ensure there is someone present in Spain with genuine decision-making authority on that day. Some frequently repeated mistakes are also worth bearing in mind:
- Asking employees from other companies within the group to perform remotely the duties of those on strike. Such action may constitute unlawful substitution, even if the employees are in another country.
- Recording participation in the strike as absenteeism in the group’s internal metrics, or factoring it negatively into appraisals, bonuses or promotions.
- Sending the parent company lists of the names of those who have taken part in the strike if that is not necessary. Employee participation is personal data and must be treated confidentially; therefore, in most cases, it is sufficient to provide aggregate figures.
Conclusion
The debate over the limits of political strikes is a legitimate one. However, following the CEOE’s decision not to challenge the strike call, it appears unlikely that the issue will be resolved by the courts. In light of the approach that the courts have consistently taken towards strikes that combine political and labour-related demands, all indications are that, from a legal standpoint, 11 November will be considered a strike day like any other. In this context, neutrality and respect for the exercise of this fundamental right will continue to be the best safeguards for employers.