The constitutional right to strike. Who ensures minimum services?

The Public Prosecutor's Office Magistrates' Union (SMMP), after the General Assembly held on June 21st in Lisbon, decided to declare a national strike on July 9th and 10th, as well as a strike by judicial districts for July 11th and 14th, for magistrates placed in the geographical area of the Regional Prosecutor's Offices of Lisbon and Porto, respectively, and for July 15th, for magistrates placed in the geographical area of the Regional Prosecutor's Offices of Coimbra and Évora.

As we all know, the right to strike is a fundamental and inalienable right of workers, enshrined in article 57 of the Constitution of the Portuguese Republic, and also in articles 530 of the Labor Code and 394 of Law no. 35/2014, of June 20, which approves the General Law on Labor in Public Functions (LGTFP).

The strike results in the suspension of the employment contract of the participating worker, including the right to pay and the duties of subordination and attendance (article 536, paragraph 1 of the Labor Code), leaving the worker in a situation of immunity with regard to the consequences of his/her abstention from work.

However, the right to strike is not absolute and may be subject to limitations in the case of services or activities considered essential, where the law requires the provision of minimum services to guarantee the basic needs of the community.

Under the terms of Article 397 of the General Law on Public Service Employment, in bodies or services intended to meet essential social needs, the association declaring the strike, or the strike committee, and the participating workers must ensure, during the strike, the provision of the minimum services essential to meet those needs. This includes sectors such as security and public services that ensure the satisfaction of essential needs whose provision is the responsibility of the State.

The law establishes that the definition of minimum services must respect the principles of necessity, adequacy and proportionality.

On June 27th, a meeting was held at the Directorate-General for Public Administration and Employment (DGAEP), between the Attorney General's Office and the Public Prosecutor's Union, with a view to negotiating an agreement on minimum services and the means necessary to ensure them, under the terms of article 398, paragraphs 1 and 2 of Law no. 35/2014, of June 20th (LGTFP).

The parties agreed that the following minimum services would be performed:

a) Procedural acts strictly necessary to guarantee the freedom of individuals, namely, interrogations of detained defendants;

b) Presentation of detained minors, under the terms of article 51 of the Educational Guardianship Law;

c) Communications referred to in paragraph 7 of article 174 of the Code of Criminal Procedure (searches carried out by a criminal police body in cases of terrorism, violent or highly organized crime, when there are well-founded indications of the imminent commission of a crime that puts the life or integrity of any person at serious risk);

d) Promotions related to the validation of urgent involuntary treatments, within the scope of the Mental Health Law;

e) Emergency procedures referred to in Article 91 of the Law on the Protection of Children and Young People in Danger;

f) Interrogation of detained citizens who are illegally in Portugal, with a view to applying coercive measures;

g) Urgent proceedings within the scope of international judicial cooperation in criminal matters;

h) Habeas Corpus; and

i) Decision-making regarding the exemption or performance of forensic autopsies.

They also agreed on the means for carrying out these minimum services, which are set out in a table attached to such agreement which describes, by geographical area, the number of magistrates required to ensure the minimum services by districts/courts/nuclei.

The question that arises is: if there are magistrates not adhering to the strike in a number equal to or greater than that defined in the aforementioned table that lists the means for carrying out the minimum services, will it be necessary to call on the magistrate adhering to the strike to carry out the minimum services?

It is true that article 397.1 of the LGTFP states that “participating workers must ensure, during the strike, the provision of the minimum services essential to meeting those needs”.

But does this mean that minimum services must be provided by striking workers when non-striking workers are available? Or that the employer is prohibited from calling on a worker who did not join the strike to perform minimum services?

The Lisbon Court of Appeal has already ruled on this issue on 12.03.2014, with rapporteur Judge José Eduardo Sapateiro, expressly stating that the use of non-striking workers was not prohibited by law and that it is always possible for the employer to use non-striking workers to guarantee the minimum essential services.

Also in the same sense, we read the decision on minimum services for strikes in Public Health Business Entities, after the constitution of the Arbitration Court dated June 3, 2025, which expressly establishes that: the use of work by those participating in the strike is only lawful if the minimum services cannot be ensured by non-participating workers under the normal conditions of their work.

Therefore, it seems clear to us that the answer to the question posed above can only be negative.

We know that the right to strike is not absolute. However, calling on a striking worker to provide minimum services when there is a non-striking worker (who fulfills the necessary requirements agreed upon between the employer and the workers' association) seems to us to constitute a disproportionate, inappropriate, and unnecessary restriction, attacking the essential core of the constitutional right to strike.

The texts in this section reflect the authors' personal opinions. They do not represent VISÃO nor reflect its editorial position.