Could technology abolish workers’ right to strike?


By Victoria Villanueva.

Striking is a method to use pressure conceived in the productive model of the 19th and 20th centuries when the human workforce was essential for production. Present technology coupled with future expectations means that workers now share workspace with autonomous machines, some even equipped with artificial intelligence, which will probably lead to a major change in the current concept of the right to strike.

This implies less dependence on workers and a potential weakening of their capability to disturb the company by applying the traditional strike. This is the idea underlying the Constitutional Court's judgment of February 2, 2017, in the case of Telemadrid, which has captured the attention of many headlines recently.

The Telemadrid case is different to cases previously resolved by the Supreme Court and the Constitutional Court: during the general strike on September 29, 2010, the TV channel broadcast a Champions football match between Valencia and Manchester United, using the technology it had as well as the services of three non-striking employees.

 In the judgment, the Constitutional Court assesses the following factual circumstances:

  1. The employees that did not exercise their right to strike and carried out tasks they carry out regularly (connection, broadcasting and graphics); therefore, the Constitutional Court understands that the employer did not make unilateral changes to the employment conditions (ius variandi) to the detriment of the right to strike.
  2. The football match was broadcast using the company’s technical means, but not those used regularly, and a different procedure to usual was implemented: (i) the signal was sent using a codifier used in special cases and constitutes a reserve line; and (ii) the Telemadrid logotype was inserted in a machine located in the “graphics” department instead of in the “continuity” department where all the workers were exercising their right to strike.

The Constitutional Court upholds that the use of technology already installed at the company could not be classified as “strikebreaking” prohibited by article 6.5 of Royal Decree Law 17/1977 of March 4 on Work Relations, which prohibits the replacement of striking workers, but not the use of material and technological means; the contrary would classify the employer’s ”behavior as a form of collaboration in the strike not covered by law.” The Constitutional Court bases its decision on the requirement of proportionality and mutual sacrifices in the exercise of this fundamental right to strike, which cannot totally restrict the employer's freedom and, of course, we cannot forget the right to continue working of the non-striking employees (nor the right of Valencia supporters to enjoy a live Champions match...).

Although the Constitutional Court endorses the employer’s behavior as licit and not contrary to the right to strike, we must not lose sight of the interesting vote led by Senior Judge Fernando Valdés Dal-Ré, which was upheld by two of the court’s other senior judges. Therefore, we must be careful as this is an eminently casuistic matter in which the details and contributory circumstances tend to be decisive.