News

Taxi Strike or Lockout?
29/01/2019 - Monika Bertram

January is turning out to be a tumultuous month in Spain for the taxi sector and chauffeur-driven hire vehicles (vehículos de turismo con conductor), locally known as the “VTC.”

In Spain the VTC platforms operating are Uber and Cabify. From the moment they burst on to the scene, the face-offs and rivalry between the two sectors have been more than evident.

The taxi sector is perhaps having the hardest time co-existing with the VTC. Following several vindications and demonstrations, in January it toughened up its discourse, first in Barcelona and now in Madrid.

Since 21 January, in Madrid we have been experiencing a general and indefinite taxi sector strike; this means that since then, it has been imposible to use this public service.

In light of the above and at this point, it is interesting to examine whether what we are experiencing is really a strike or, on the contrary, a lockout (cierre patronal). In order to resolve this issue, it is necessary to differentiate general traits of the two concepts.

A strike is a fundamental right, included in Article 28.2 of the Spanish Constitution and in Articles 1 through 11 of Royal Decree-Law 17/1977, of 4 March, on labour relations, and implies the suspension of the labour tie. That is, as the employment relationship is temporarily suspended, not terminated, the worker is freed from his/her obligation to render services for the entrepreneur and the entrepreneur, in turn, is freed from remunerating the work of such worker.

Furthermore, the right to strike, as with any right, is not an absolute right and is limited by other constitutionally protected rights and assets, such as the freedom to work or the guarantee of operation of services essential to the community.

On the contrary, a lockout (cierre patronal), is not a fundamental right, but is indirectly acknowledged in the Constitution, specifically in Article 37.2, since it really constitutes a general measure for a collective conflict. It is, furthermore, governed by Articles 12 and those following it in the aforementioned Royal Decree, and implies an exceptional measure by virtue of which the entrepreneur agrees on the temporary closing of the work centre.

In order for the entrepreneur to carry out the temporary closing of the work centre, the following legally established requirements must be met:

  1. Existence of obvious, violent danger to the persons or of serious damages to things.
  2. Illegal occupation of the work centre or of any of its offices, or real danger that this could occur.
  3. That the volume of absenteeism or irregularities in the work seriously prevent the normal production process.

If the lockout is carried out without meeting these legally established requirements and procedures, our case law suggests that we are dealing with an undercover lockout (High Court of Justice-Labour Division of the Basque Country of 21 January 2009).

Considering one definition and then the other, and seeing that with the indefinite general strike there are no taxis circulating in Madrid, perhaps the operation of the minimum services for residents is being compromised. It is for this reason that perhaps we could conclude that what the taxi sector really promoted is a hidden lockout. In any case, it is evidently debatable.

What is obvious is that in this era, where advances in the technology and automobile sectors occur in gigantic steps, it is necessary to find formulas, including legislative ones, in which one sector and the other, as well as those to come, can live in perfect harmony without the right to work being threatened for any of them.