The reform package that the government plans to submit to the extraordinary sessions of Congress includes labor reform; One of the points to be regulated in this context is the right to strike in public services.
Public services are services provided by the state to satisfy the needs of the population. For this reason, given the purpose of providing these services, one of their characteristics is “continuity”, that is, the impossibility of interruption. On the other hand, since the state constitution guarantees trade unions the right to strike, it is necessary to reconcile its exercise with the “continuity” that must be guaranteed in the provision of public services.
For this purpose, the legal system divides public services into “essential” and “non-essential” on the one hand and, on the other hand, into services “of transcendental significance” and “non-transcendental significance”.
The first are those whose “non-care” can endanger the life, health or education of the population. Conceptually, the difference between “essential” public services and those of “transcendental importance” is one of degree, and therefore the consequence of classifying them in one way or another is that in both cases the exercise of the right to strike is less or more permitted.
These classifications of public services were adopted by the International Labor Organization (ILO) more than a century ago when it sought to allow restrictions on essential public services and those of transcendent importance. This body even admitted that the right to strike should be banned when a public service is essential.
In our country, the right to strike is expressly enshrined in the state constitution and any restrictions on its exercise are always questioned. However, Law 25,877, which regulates individual and collective labor relations, establishes that in the event of a strike being declared in an essential public service, a minimum level of service must be provided, although it does not specify what type of strike it is.
This rule was in turn changed by DNU 70/23, issued by President Milei at the beginning of his term in office, which stipulated that in essential public services a strike may not paralyze more than 25 percent of them; and when it comes to public services of transcendent importance, a strike must not paralyze more than fifty percent of their provision.
Likewise, the above-mentioned DNU has determined that public services related to health, drug and pharmaceutical services are “essential”; the production, transport and marketing of energy, gas, water and fuels; Telecommunications, Internet, customs, migration, foreign trade, preschool, primary and secondary education, and commercial and cargo airport services; and that sea, river and land transport was of “transcendental importance”; radio and television; food, steel, construction industries; Banks, hotels, restaurants and e-commerce.
The above-mentioned DNU was declared unconstitutional by the Labor Court because there were no exceptional circumstances that would allow the president of the nation to assume the power to regulate the right to strike, bypassing Congress, which is responsible for regulating the rights.
Now the government is taking the matter to Congress, but unions are again opposing it, saying it is unconstitutional. The reality is that the same supreme law that protects and protects the rights and freedoms of residents allows their regulation, to the extent that this regulation is carried out by law (principle of legality) and without changing the law that limits it (principle of reasonableness); I therefore do not see that a legal restriction on the right to strike in the public sector is unconstitutional as long as this definition does not violate the right to strike in such classified activities.
After all, not only is there no absolute right because this is provided for in the national constitution, but the International Labor Organization also recognizes restrictions on the right to strike in the public sector.
Félix V. Lonigro is a constitutional lawyer. Professor of Constitutional Law (UBA)
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