The opinion that the Government of António Costa asked the Advisory Council of the Attorney General's Office (PGR) on the strike of drivers of hazardous materials and raw materials was presented this Friday in the Council of Ministers. Generally speaking, the document protects the Government's position and gives the green light to the minimum services, but it is inaccurate as to the legitimacy of the strike.
In its opinion, which the Jornal Económico had access to, the PGR Advisory Council states that, according to the Portuguese Constitution, “the right to strike is a fundamental right, which is part of the set of rights, freedoms and guarantees”. However, it stresses that “the right to strike is not an absolute right, immune to any restrictions or limits”.
“In cases of collision with other constitutionally protected rights or values, [deve] proper practical harmonization within the framework of the constitutionally protected system of rights and values ”, reads the document.
Is this strike illegal?
The PGR considers that a strike that violates the “principle of good faith”, as provided for in Article 522 of the Labor Code and Article 334 of the Civil Code, “may in extreme and exceptional cases be considered abusive and, as such, unlawful. Still, the PGR Advisory Council admits that "it has no evidence to say that this strike is unlawful."
And it gives reason to the Government's proposal to reinforce the minimum services due to the strike: “The right to strike, even if regularly exercised, may be subject to limits imposed by law, under the terms authorized by the Constitution, and the conditions may be set by the Government. minimum services that are indispensable for meeting unavoidable social needs ”.
Can the government resort to civil requisition?
The PGR opinion uses Article 541 of the Labor Code to state that, under the law, the Government may resort to civil requisition or mobilization in order to “remedy a situation of non-compliance or defective compliance with obligation to provide such minimum services ”to meet the essential social needs.
"The civil requisition should only be used exceptionally in situations where non-compliance or defective fulfillment of the minimum services causes serious disturbances in social life", underline the judges of the PGR Advisory Council.
In case of illicit strike, what happens to workers?
In the event that workers are absent due to adherence to strike declared or executed against the law, PGR says that under the Labor Code, absence is considered “unjustified absence”. In addition to unjustified absence, the opinion states that this corresponds to a disciplinary offense, "with the inherent possibility of enforcement and a penalty, which will vary depending on the number of days of absence and other circumstances that influence the severity of the worker's behavior".
Ignorance of the illicit nature of the strike can, however, be considered as grounds for not imposing any sanction.
What about union organizations?
The trade union organizations that declared the strike – in this case the National Union of Hazardous Drivers (SNMMP), the Independent Freight Drivers Union (SIMM) and the Northern Road and Urban Transport Workers Union (STRUN), which joined later, they may be “civilly liable for the damage caused by the strike if it is unlawfully decreed or executed.
“In the event of a strike affecting the life, health and physical integrity of persons or the regular functioning of essential sectors of public interest and the national economy, causing unreasonable damage, the minimum services can and should be extended to safeguard other constitutionally protected rights or interests.