Strike and replacement: A jurisprudential study on the replacement of striking workers

Abstract

The objective of this work is to elucidate the scope of the replacement ban included in article #345, paragraph #2, of the Labor Code.

The analysis will focus on determining whether the prohibition refers only to external replacement or, in addition, covers internal replacement and so-called technological replacement.

The study will use a dogmatic methodology, using the sentences that resolved disputes about anti-union practices for replacement of striking workers between the 2017 and 2022 years. Likewise, the pronouncements of the Directorate of Labor will be analyzed in the same range of dates.

Among its results, the broad interpretation of administrative jurisprudence stands out, all- encomprehensive of any business conduct that entails a replacement of the role of striking workers, whatever the means used for this.

On the other hand, from judicial jurisprudence, various criteria are appreciated, being predominant one who understands that prohibited conduct is related to the replacement of the function, an issue that can be verified through different mechanisms, not only the use of external personnel. The article concludes that the prohibition of replacement inside in the Labo Code includes not only external replacement, but also internal and technological replacement.