Right to Strike in the Public Service: Rules and Limits

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

Brazil’s Federal Constitution guarantees public servants the right to strike, but that right depends on implementing legislation and must respect limits set by the Supreme Federal Court.

The Constitutional Provision and the Legislative Gap

Public servants’ right to strike is set out in Article 37, item VII, of the 1988 Federal Constitution, which provides that the exercise of this right will be regulated by a specific law. Since the Constitution was promulgated, the National Congress has never enacted that law. The resulting legislative omission lasted for decades and created legal uncertainty for both public servants and the public administration.

Because of this gap, the STF (Brazil’s Supreme Federal Court) has been asked to rule on the issue many times. In Writs of Injunction (Mandados de Injunção) 670, 708, and 712, decided in 2007, the STF ordered that Law No. 7.783/1989 (the Strike Law for the private sector) be applied to public servants, to the extent applicable, until specific legislation is enacted. This decision marked a significant shift in case law, which had previously treated public servants’ right to strike as a constitutional provision of limited effect, one that could not be enforced without implementing legislation.

Applying Law No. 7.783/1989 to the public service by analogy requires adjustments because of the particular nature of public administration. Essential public services receive different treatment: launching a strike is subject to stricter requirements, and a minimum percentage of services must be maintained for the public. The principles of Public Administration must be observed throughout the strike.

Requirements for a Lawful Strike in the Public Service

For a public-service strike to be considered lawful, public servants must meet both formal and substantive requirements. Before the strike begins, they must have negotiated with the administration and be able to show that the channels of dialogue were exhausted without a satisfactory resolution of their demands.

A general assembly of the category is mandatory for deciding on a strike. It must have a sufficient quorum, and its minutes must record the demands, the date the strike will begin, and the conditions for ending it. Advance notice to the administration is a legal requirement that applies by analogy: at least 72 hours for essential services and 48 hours for all others.

Maintaining essential services is a condition for a lawful public-service strike. Public servants must ensure that the minimum services the public cannot do without continue, especially in health care, public safety, education, and social security. Failing to do so can make the strike unlawful and expose participants to liability.

This decision marked a significant shift in case law, which had previously treated public servants’ right to strike as a constitutional provision of limited effect, one that could not be enforced without implementing legislation.

Violence and intimidation against public servants who choose not to join the strike are strictly prohibited, and this principle must be respected. Any picket line must be peaceful and may not block public servants’ access to the workplace. Violent acts strip the strike of its legitimacy and can lead to disciplinary and criminal sanctions.

Pay Deductions for Strike Days and Make-Up Agreements

In RE 693.456 (General Repercussion Topic 531), the Supreme Federal Court held that the public administration must deduct pay for the days public servants stop working because of a strike, unless the parties have made a specific agreement to make up the time. This decision set a clear rule on the financial effects of a strike.

The deduction can be avoided when the administration and the public servants agree to make up the hours not worked. The make-up agreement must be put in writing and set a schedule for replacing the lost days, so that public service is fully delivered over the make-up period.

When a court declares a strike unlawful, that ruling reinforces the duty to deduct pay. It can also have further consequences, such as opening a disciplinary administrative proceeding against public servants who defy a court order to return to work. Refusing to return after a court decision amounts to disobedience and can lead to severe penalties.

Limits and Restrictions on the Right to Strike

Some categories of public servants face restrictions on the right to strike or are barred from striking altogether. Members of the Armed Forces and state military police officers have no right to strike under Articles 142, paragraph 3, item IV, and 42, paragraph 1, of the Federal Constitution. This prohibition stems from the nature of national defense and public safety work.

Public servants who perform essential, non-delegable duties, such as civil police officers and prison officers, face stricter restrictions on the right to strike. The STF has held that strikes by these categories must observe tighter limits, with a high percentage of personnel remaining on duty to protect public safety.

Proportionality between the demands and the means used is a criterion for assessing whether a strike is legitimate. The courts may declare a strike unlawful if it causes disproportionate harm to the public or the administration. They may then order an immediate return to work and impose fines on the union responsible.

Liability for Damages During a Strike

Striking public servants can be held liable for damage to public property during the strike. Third parties harmed by the interruption of public services can invoke the civil liability of the State, and the administration then has a right of recourse against public servants who acted with intent or negligence.

A union that launches a strike later declared unlawful can be ordered by a court to pay a daily fine. The union’s liability extends to organizing and running the strike, and it must answer for excesses committed during the work stoppage. The fine is meant to discourage unlawful strikes and protect the public interest.

Striking public servants can face administrative liability through a disciplinary administrative proceeding when they commit a breach of duty during or because of the strike. Simply taking part in a lawful strike is not a disciplinary offense. However, acts of violence, destruction of property, or defiance of a court order can lead to penalties ranging from a warning to dismissal.

Frequently Asked Questions

Can a public servant’s pay be docked for strike days?

Yes. In RE 693.456, the STF held that the administration must deduct pay for the days not worked, unless the parties have agreed to a make-up arrangement. Deduction is the general rule, and it applies whether or not the strike is lawful. The make-up arrangement must be put in a specific agreement with a schedule for replacing the hours not worked.

Which public servants are not allowed to strike?

Members of the Armed Forces and state military police officers are expressly barred from striking by the Constitution, under Articles 142 and 42 of the Federal Constitution. Civil police officers and prison officers face stricter restrictions and must keep a high percentage of personnel on duty. Military firefighters are also covered by the prohibition that applies to state military personnel.

How must a lawful public-service strike be launched?

A lawful strike requires that negotiations with the administration first be exhausted, that the category’s general assembly vote on it with the decision recorded in minutes, that the administration receive advance notice (72 hours for essential services, 48 hours for all others), and that minimum essential services for the public be maintained. The strike must be peaceful, and public servants who do not take part cannot be prevented from working.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.