Author: Laura Valderrama
Do you know the legitimation requirements on the part of the employer or third parties in the claim for damages for civil liability derived from the right to strike?
The Supreme Court of Justice Civil Cassation Chamber, through file SC040 of 2023, analyzed the legitimation requirements by the employer or directly affected third parties in the context of a legal or illegal strike.
In this regard, the judgment observes the analyzed background of the review of the declaration of civil liability for damages for the abuse of the right to strike and blockades in access roads of the plaintiff of the mining-energy sector as a third party or beneficiary of the work of the employer subcontractors who, through the union organization, carried out a forced cessation of activities for around twenty (20) days, blocking the access doors to the mining projects without allowing the entry of food, mail, transportation that would allow the normal development of the company and later culminates with a police protection for acts of disturbance and occupation on public roads and access to company doors endorsed by the Ministry of Labor.Later added the process of declaring the illegality of the strike.
Regarding the civil process for liability for damages, the first instance sentenced the defendant workers participating in the strike and the union organization for consequential damages and loss of profits, later the second instance revoked the decision and denied the plaintiff’s claims under the criteria of cessation of activities, harmful or material conducts that were not perceived by the judge must be proven, additionally the declaration of illegality of the strike does not necessarily give rise to patrimonial responsibility for economic damages from the cessation of activities that are considered different from the loss of production due to the cessation of activities, since these are not unlawful damages and are not subject to compensation.
In this regard, the Civil Cassation Chamber recognizes the importance of the right to strike with the exception of essential public services defined by the legislator and the prerogatives that make up the block of constitutionality of conventions 87 and 98 of the International Labor Organization -ILO and its essential definition of article 429 of the Substantive Labor Code:
«the temporary and peaceful collective suspension of work, carried out by the workers of an establishment or company for economic and professional purposes proposed to their employers»
The modalities of strike in Colombia are those derived from the collective conflict, the strike attributable to the employer for breach of contractual obligations, and those created by the jurisprudence of solidarity strike and political, social and economic strike that affect an activity.
Regarding the legitimacy of the strike, it can be described as a scenario of legality and peacefully with compliance with the formal requirements, based on the limitations of the right to strike, it is not absolute by virtue of the restriction of the relevant legal assets, such as the general interest and the materialization of other fundamental rights such as peace, the balance of public and social order, therefore the right to strike is a regulated, not free or arbitrary exercise on the part of the workers and they will only enjoy legal protection when it develops peacefully and the legal effects are fulfilled.(2014 CSJ SL7414)
Additionally, the right to strike that can be exercised abusively has been the object of analysis from civil doctrine, despite being in principle an illegal act, however if it is due to contrary actions or willful or political conduct and in general any other act other than the defense of collective labor interests, the abuse of the right to strike prerogative must be concluded.
The right to strike is a right of workers using as a means to resolve labor conflicts, despite being a coercive means, it can consist of actions of physical or material violence against the employer or third parties attacking other assets relevant legal entities subject to protection in the legal system.
In this regard, the Court analyzes and summarizes the repercussions of the illegality of the strike, which are fundamentally the following:
- The freedom of the employer to dismiss the workers who participated in the strike and the workers with union privileges, without the dismissal requiring judicial authorization.
- The cancellation of the legal status of the trade union organization requested by the employer or the labor administrative authority.
- The legitimization of the claim for compensation for damages by the trade union organization that caused it and workers responsible for the cessation of activities, leading to compensation for damages and although only the employer is referred to as the holder of the mechanism before the civil jurisdiction, it is not It limits the exercise to third parties that have nothing to do with the conflict between the parties and the employment relationship and to whom damage has been inflicted.
In the scenarios of illegality of the strike, there is no doubt that the reparation of damages caused by the responsible trade union organization is appropriate due to the generative event contrary to the labor regulations, there is a duty of responsibility, including for third parties, even applicable when there is a legal strike. or legitimate.
On the other hand, the limit of the strike has other constitutionally protected rights of equal or inferior category, such as the right to free enterprise and the right to work of non-striking workers, which may lead to the absolute impossibility of business organizational capacity. loss of position in the market, decrease in benefits and lack of profits of an employer or a third party directly affected by the strike.
Additionally, the duty of union organizations and their affiliated workers is provided in compliance with the principle «Alterum non laedere» in terms of scenarios of patrimonial responsibility that they cause, not only when the strike is carried out with violence against the employer or third parties, if not other cases of the exercise of strike entail the abuse of the right.
Sources:
- Supreme Court of Justice Civil Cassation Chamber
- SC040 of 2023
- ILO Conventions 87 and 98
- Article 429 of the Substantive Labor Code
