November 19, 2018
Ronald Gutiérrez / firstname.lastname@example.org
Partner BDS Costa Rica
Regardless of whether you support the bill on the strengthening of public finances act (the fiscal plan) or endorse directly or indirectly the strike action, the truth is that this topic has created uncertainty and insecurity throughout the country.
As everybody knows, the right to strike is an essential right and its exercise is subject to the limitations and rules set forth by the Labor Code; therefore, the legal or illegal nature thereof, where appropriate, must be declared by the Judiciary.
Now that final judicial decisions have been issued in connection with the strike action, it is time to reflect upon the application and interpretation of the prevailing regulations regarding this matter. Below there are some of the most relevant issues to be considered:
1) Purpose of the procedure. Based on the provisions of the aforementioned Code, we may conclude that the strike action qualification procedure is intended to declare whether a strike action is legal or illegal (see Article 659 et seq.). Actually, there are closed cases under the prevailing laws and resolved before the decisions issued in connection with the current strike action, which were limited to resolve upon the legal or illegal nature of said actions based on the prevailing requirements and regulations. As for this last strike action, a number of decisions have been issued by courts regarding the validity or opportunity in which measures such as salary reductions or dismissals may be applied. Therefore, is this aspect part of the issues that should be resolved upon in each of these judicial proceedings? If so, this should be clearly regulated.
2) Nature of the strike action and mandatory requirements. The Code has defined the type of strike that our lawmaker understood as legally feasible in our country (strikes against employers, rather than strikes against public policies) and Articles 371, 377 and 381 include the necessary requirements that should be met for a strike to be deemed legal. Notwithstanding this, a number of decisions have been issued which state that we are in the presence of an atypical strike and, consequently, the established requirements are not considered strictly enforceable, at least not all. Other questions emerge: Is it possible to go to strike in the country in circumstances not permitted by law? If so, what are the requirements that should be met by these actions, or no further requirements exist? Some decisions have stated that the application of the aforementioned provisions leads to nothing, but then: What requirements should apply? Those defined on a case-by-case basis? Uncertainty is inadmissible.
3) Number of strike days and its reasonableness. Certain decisions state that the employer must endure these demonstrations, although in this case the employer is not entitled to negotiate with workers regarding the above referred bill. It is interesting that courts have interpreted that expressing disagreement during the first 3 days of the strike action (first few days) is reasonable and proportional, but afterwards any further actions would entail an abusive exercise of said right. The question here is: What’s the provision in our Code that sets a minimum or maximum number of days for a strike to be considered legal or illegal? Our laws do not cover this.
4) Peaceful nature of the strike and disruption to public services. There are several decisions stating that the strike will still be considered peaceful provided that the circulation of motor vehicles, goods or persons is not fully blocked. Also, we have seen analyses stating that in case public services are not affected or suspended in an absolute manner, the strike action should be deemed legal. Thus, what is the provision in the Code requiring a full interruption of a public service or free circulation as a condition to understand that service users are being affected or that other essential rights are being limited? Let’s remember that one person’s freedom ends where the other person’s nose begins; especially when it comes to basic public services or essential rights.
It should be noted that the strike action we have been facing as a country not only is a clear depiction of the slowness caused by current laws when it comes to finally resolve upon the strike qualification procedure, but is also an evidence of broad scope of discretion and interpretation to issue such qualification; all of this poorly contributes to our legal certainty, on the contrary, it creates excessive uncertainty, an example of which is that caused to many students today who don’t know for sure what will happen with their grades and academic future, but that’s a different issue.
Our laws must undergo urgent reforms to expedite the strike qualification procedure, but also to define beforehand the types of strike actions that will be allowed in our country and the conditions thereof.