Desconvocatoria puntual y provisional de la huelga intermitente
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Metadatos
Título
Desconvocatoria puntual y provisional de la huelga intermitenteAutoría
Fecha de publicación
2011-04ISSN
1889-1209Tipo de documento
info:eu-repo/semantics/articlePalabras clave / Materias
Resumen
Although over thirty years have passed since the enactment of our Constitution, and the right to strike is thereby acknowledged as a fundamental right that therefore needs to be set out in an Organic Law, the regulations ... [+]
Although over thirty years have passed since the enactment of our Constitution, and the right to strike is thereby acknowledged as a fundamental right that therefore needs to be set out in an Organic Law, the regulations on the matter date from before the Constitution and consequently the Constitutional Court, through its doctrine (STC 11/1981 of 8th April [RTC 1981, 11]), has had to step in to save them from being unconstitutional.
But despite the existence of doctrine of case-law from the Constitutional and the Supreme Courts, disputes about the qualification of the right to strike have continued, especially if we go into topics such as the need to regulate the establishment of minimum services and in view of the range of new situations of conflict that occur today because they are not provided for. An example of this situation is the recent ruling of the Social Court No.16 of Madrid, dated 24th January 2011, on the failure to comply with minimum services in the Madrid Metro, which judged the strike on 29th and 30th June 2010 to be illegal; in the same ruling reference is also made to the failure to enact an Organic Law and the need to resort to the Constitutional Court (STC 11/1981 of 8th April) to interpret the extent to which a service can be considered essential when it comes to scheduling minimum services.
As pointed out by the Constitutional Court, the judge has decided to declare the strike illegal based on a careful weighing up or evaluation of the effects of the strike in each case, since, on the one hand, it is necessary to guarantee a service where constitutional precepts converge with the fundamental right to strike and the right to communication, transport, attendance at place of work, and so forth (STC 56/1983 of 5th May [RTC 1983, 56], which we will address in the Ruling that we now go on to discuss below.
In my opinion, the Ruling of the National High Court of Spain (AS 2011, 3) mentioned above does not address the issues underlying the strikes in enough depth and neither does it get to grips with the effects that might arise from calling strikes that coincide with one another or overlap.
The Court insists on its being exceptionally called off, without addressing the fact that this cancellation cannot be compared with withdrawal, since, as indicated by the Supreme Court in its Ruling dated 17th December 1999 (RJ 2000, 522) “(…) Withdrawal is an act of will by the strike committee or body that has promoted the conflict measure that puts an end to the declared labour conflict, thus declaring it to be over on a permanent or at least unlimited basis (…)” and calling off a strike entails an act of withdrawal, hence withdrawal in an intermittent strike must affect all of it and not just the “stoppages” that are interspersed between times of actual work; the cancellation of a period of time could therefore never affect the withdrawal of the whole strike (FJ Noveno, STS 17th December 1999). So, why is it called an exceptional cancellation? A strike that has been called should not be qualified until it has finished, because who can assure us that during the period between 8th June and 30th June there will not be another "exceptional cancellation"?
Moreover, neither does it address the issue of the strike that “overlaps” that day with the evening cancellation of the intermittent strike, the fact that it is noted that it affects the whole enterprise and it is eluded by rejecting the appeal in joint litigation with the Sindicato Ferroviario SF (which had called a strike for that day), when, additionally, the enterprise had not even taken the steps necessary to propose a series of minimum services, how was the enterprise going to bring proceedings against that Sindicato? [-]
Publicado en
Aranzadi Social 1/2011Derechos de acceso
http://rightsstatements.org/vocab/CNE/1.0/
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