- Organic Law 5/2021 of 22 April removes paragraph 3 of article 315 of the Criminal Code.
- That paragraph specifically punished those who coerced other people into starting or continuing a strike.
- Coercion remains a crime under the general rule, and judges will review final sentences handed down under the repealed provision.
On 23 April 2021 the BOE published Organic Law 5/2021 of 22 April repealing article 315, paragraph 3, of the Criminal Code, which came into force the next day. It is a one-article law that removes that paragraph, which provided an aggravated form of coercion for those who, acting as a group or individually but in agreement with others, coerced other people into starting or continuing a strike.
The reform has a political dimension, which is not for us to assess here, and a practical one: it changes the criminal framework applicable to pickets and to labour disputes in which incidents occur. For companies, the underlying rule remains: nobody may be forced by violence or intimidation to join a strike or to refrain from it, and such conduct can still be prosecuted as coercion. It should be remembered, finally, that the right to strike is recognised by the Constitution and that its exercise, when it complies with the law, cannot be penalised by the company.
What the repealed rule said
Article 315 of the Criminal Code, within the offences against workers’ rights, punishes whoever prevents or limits the exercise of trade union freedom or of the right to strike. Its paragraph 3 added a specific offence for those who, as a group or in agreement with others, coerced third parties into starting or continuing a strike. It was the provision often invoked in proceedings involving informational pickets.
According to the law’s preamble, the aggravated form was being applied over the milder general coercion offence even when the facts were not violent, and that application could deter the exercise of the right to strike. That is why it is removed, on the argument that the general offence of coercion already adequately protects the freedom not to strike.
What happens to pending cases
The law contains a single transitional provision: judges and courts will review final sentences handed down under the legislation being repealed. In practice, convictions based on this paragraph may be reviewed, and facts that do not fit the general offence of coercion in article 172 will be left without a specific criminal penalty. The law came into force on 24 April, with no transitional period.
Companies that suffered incidents in past disputes do not lose the possibility of going to criminal court for coercion, threats or damage, nor to civil or labour courts. What changes is the specific offence applicable and, with it, the judge’s margin of interpretation, who must assess whether there was real violence, intimidation or coercion for the conduct to be a crime.
What to review
Beyond the criminal debate, companies should have a protocol for a strike: setting and meeting minimum services where applicable, guaranteeing access to the workplace for those who wish to work, communication with workers’ representatives and a log of incidents. During a strike the employer cannot replace strikers with personnel from outside the company, except in cases provided by law.
It is useful to document with witnesses and images any incident that blocks access or activity, because its later classification will depend on the specific facts. And it is worth reviewing insurance cover for stoppages caused by labour disputes. This information is general in nature and does not replace the advice of your labour or criminal-law adviser.
The reform does not remove protection against coercion: it changes the rule by which the facts are assessed.
This article is general information. It is not legal, tax or investment advice, and it does not take anyone’s particular circumstances into account.
