The Extracontractual Guarantee of the Right to Strike

Abstract

In recent years, the judicial protection of the right to strike has acquired an unusual prominence in Spanish case law. This development stems from profound transformations in the productive structure, which have created the need to devise new mechanisms that safeguard this right and allow it to perform its constitutional function within a markedly different economic context. Among these mechanisms, particular importance has been given to extending the guarantee of the right to strike to employers who, while not directly affected by the industrial action, maintain close cooperative links with the primary employer. This phenomenon gives rise to an unprecedented extracontractual guarantee of the right to strike. The purpose of this study is to provide a systematic reconstruction of this guarantee in order to clarify its theoretical foundations, the forms of business cooperation to which it applies, and its legal implications. The central thesis advanced by the author is that of an instrumental employer position for the purposes of safeguarding the right to strike, whereby certain duties –originally incumbent solely upon the employer bound by the employment relationship– are extended to other employers who are functionally and economically connected to the primary employer.