.jpg)
Strike action in Spain is governed by legislation dating back to 1977, a Royal Decree-Law that no government has since fully replaced, and which many consider ill-suited to the realities of the modern workplace. Whatever one's view, there has never been sufficient political will or consensus to draft a new text. As a result, following the adoption of the 1978 Constitution, a series of partial repeals and challenges before the Constitutional Court have left a fragmented piece of legislation, parts of which have been declared unconstitutional, that nonetheless remains in force as regards strikes and lockouts.
It is hardly surprising that reaching a political and legislative consensus on strike law is so difficult. It is worth bearing in mind that the right to strike is recognised as a fundamental right under the Spanish Constitution and therefore requires the highest level of legal protection.
Choosing to join or not to join a strike are both legitimate rights of every worker, and employers and trade unions alike must respect either choice.
A summary of the obligations of employees and employers:
Every employee has the right to participate freely in a strike. It is equally important to remember that striking is never compulsory, and every employee has an equally valid right not to take part.
The company must ensure that employees who freely choose to work are able to do so without obstruction, and must therefore keep its premises open to them. In practice, particularly in industrial settings, picket lines can sometimes block access to company premises and prevent those who wish to work from entering. Any picket action that restricts the freedom of employees, employers, or self-employed workers is unlawful.
At the same time, the company must fully respect the right of those employees who choose to strike, and any retaliatory measure taken against them will be unlawful.
In terms of pay and Social Security contributions, the employment contract is considered suspended for the duration of the strike, meaning the employee is not entitled to receive salary. The obligation to make Social Security contributions is likewise suspended, and no entitlement to unemployment benefit or temporary disability (IT) benefits accrues during this period. This has drawn criticism from some quarters, who regard the loss of pay as a form of pressure that undermines the striker's supposed freedom of choice. Without venturing into deeper analysis, it is worth recalling that employment law is founded on the principle of reciprocity between the obligations to work and to pay. Under labour law, a strike day is treated as a day not worked, and this same principle justifies the withholding of pay.
