12.
In the cases of the Workers of the Fireworks Factory of Santo Antônio de Jesus
and their Families v. Brazil 25 and the Miskito Divers (Lemoth Morris et al.) v. Honduras, 26
the Court developed and applied the content of the right to fair, equitable and
satisfactory working conditions that ensure the safety, health and hygiene of workers.
Regarding this right, the Court has indicated that it implies that the worker can perform
his or her work in adequate conditions of safety, hygiene and health that prevent
occupational accidents and diseases, which is especially relevant in activities that involve
significant risks to the life and integrity of persons, and particularly of children. 27
13.
Finally, the present case forms part of this broad and now robust line of
jurisprudence by declaring the right to strike and the right to freedom of association in
favor of workers in contentious proceedings. In this sense, the judgment constitutes an
important contribution to the development of individual and collective labor rights.
Although the judgment declares the violation of the right to freedom of association, in
the following section I will focus on the right to strike, since, unlike the former, this right
had not been the subject of attention in inter-American case law, including that
established prior to 2017, that is, the jurisprudence on indirect justiciability.
III. THE RIGHT TO STRIKE AS THE WORKERS’ “MOST POWERFUL”
INSTRUMENT
14.
Notwithstanding its recognition in the original text of Constitution of Querétaro of
1917 (Art. 123, fractions XVII and XVIII) 28 — the first constitutional text to enshrine
social rights— and its progressive constitutional recognition in the countries of the
25
Case of the Workers of the Fireworks Factory of Santo Antônio de Jesus v. Brazil. Preliminary
objections, merits, reparations and costs. Judgment of July 15, 2020. Series C No. 407.
Case of the Miskito Divers (Lemoth Morris et al.) v. Honduras. Judgment of August 31, 2021. Series
C No. 432.
26
Cf. Case of the Workers of the Fireworks Factory of Santo Antônio de Jesus v. Brazil, supra, para.
174, and Case of the Miskito Divers (Lemoth Morris et al.) v. Honduras, supra, para. 75.
27
28
The original text of the Federal Mexican Constitution of 1917 established: “Art. 123… XVII. The laws
shall recognize strikes and stoppages as rights of workers and employers. XVIII. Strikes shall be legal when
they have as their purpose the attaining of an equilibrium among the various factors of production, by
harmonizing the rights of labor with those of capital. In public services, it will be mandatory for workers to
give ten days' notice to the Conciliation and Arbitration Board of the date set for the suspension of work.
Strikes will be considered illegal only when the majority of the strikers exercise violent acts against persons
or property, or in case of war, when they belong to establishments and services that depend on the
Government. Strikes shall be considered illegal only when the majority of strikers engage in violent acts against
persons or property, or in the event of war, when they belong to Government establishments or services. The
workers of the military manufacturing establishments of the Government of the Republic shall not be included
in the provisions of this section, since they are assimilated to the National Army.” (underlining added).
5
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