Informe provisional - Informe núm. 41, 1960

1. 70. Continuing its examination of the complaints of infringements of freedom of association presented by the International Confederation of Free Trade Unions, the General Union of Spanish Workers in Exile and the World Federation of Trade Unions against the Government of Spain, the Committee on Freedom of Association, at its 20th Session (Geneva, November 1958), submitted an interim report which was adopted by the Governing Body and which contained a number of conclusions, recommendations and requests for further information.
2. 71. The information awaited from the Government not having been received, the Committee, at its 21st and 22nd Sessions, held in February and May 1959 respectively, adjourned its examination of the case. Further, since the date of the last report presented by the Committee in this case, the General Union of Spanish Workers in Exile, by three communications dated respectively 31 December 1958, 17 March 1959 and 21 June 1959, forwarded further information in respect of the complaints which it had submitted. Copies of these communications were transmitted to the Government for its observations.
3. 72. By two communications dated 22 May and 28 July 1959, the Government of Spain forwarded additional observations to the Office.

A. A. The complainants' allegations

• Preliminary Question as to the Competence of the General Union of Spanish Workers in Exile to Present Complaints
  73. 73 In its letter dated 28 July 1959, the Government of Spain again refers to the alleged partiality of the General Union of Spanish Workers in Exile, to the fact that the allegations which it makes relate more to political questions than to trade union questions and to the fact that the Government of Spain denies that the Organisation in question has any right to submit allegations to the I.L.O.
  74. 74 The Committee has already considered the question as to the receivability of complaints made in the present case against the Government of Spain, including complaints made by the organisation in question, and has decided that such complaints were receivable. As the conclusions submitted by the Committee on this matter have been approved by the Governing Body, the Committee considers that there is no ground for it to consider this aspect of the matter further.
• Legislation relating to Collective Agreements
  75. 75 At its 20th Session (November 1958), after having examined the observations made by the Government and the legislative texts relating to collective agreements, the Committee noted that, as the result of the promulgation of the Collective Agreements Act, previous administrative authorisation for the initiation of negotiations and the conclusion of collective agreements was not necessary. On the other hand, with respect to the actual application, or putting into effect, of agreements which had been concluded, the Committee noted that, by virtue of sections 13 and 14 of the Collective Agreements Act and of sections 18-20 of the Regulations issued under the Act, it was necessary to submit agreements, once they had been concluded, to the competent authorities for their approval, and that agreements did not enter into force if they were disapproved.
  76. 76 The Committee drew attention to the fact that it had already observed in a previous case that the requirement of previous approval by a government authority to make an agreement valid might in certain circumstances discourage the use of voluntary collective bargaining between employers and workers for the settlement of conditions of work. " In these circumstances ", the Committee stated, " even though a refusal by the Government to give its approval may be the subject of an appeal to the courts, the system of official approval in itself is contrary to the whole system of voluntary negotiation." In Case No. 102 (Union of South Africa) the Committee again emphasised the importance it attaches to the principle that the trade unions shall have the right by collective bargaining to seek to improve the living and working conditions of their members and that the public authorities should refrain from any interference which would restrict this right.
  77. 77 That is why, after recommending the Governing Body to note that, as the result of the promulgation of the Collective Agreements Act, previous administrative authorisation for the initiation of negotiations and the conclusion of collective agreements was not necessary but that, on the other hand, it was necessary to submit the agreements, once they had been concluded, to the competent authorities for their approval in order to enable them to enter into force, the Committee also recommended the Governing Body to request the Spanish Government to be so good as to inform the Governing Body of the proportion of cases and the circumstances in which agreements were not approved as originally submitted and, in general terms, of the action taken in such cases.
  78. 78 In its reply dated 22 May 1959, the Government begins by stating that, in view of the relatively recent date on which the new Collective Agreements Act came into force, the number of such agreements is still limited. It points out, however, that the following agreements have already been concluded: two nation-wide agreements covering 72,621 workers, two provincial agreements covering 41,054 workers, three local agreements covering 7,100 workers and two company agreements covering 320 workers ; in other words, 121,095 workers are already covered by collective agreements. According to the Government, the following are in process of negotiation : two nation-wide agreements covering 140,000 workers, one inter-provincial agreement covering 200,000 workers, ten provincial agreements covering 49,908 workers, three local agreements covering 2,690 workers and 22 company agreements covering 29,800 workers.
  79. 79 With respect more specifically to the request for information made by the Governing Body, the Government declares that so far the authorities have not refused approval for any draft collective agreement and have never required any amendment to be made to the original texts of agreements submitted.
  80. 80 In these circumstances, the Committee recommends the Governing Body:
      • (a) to take note of the tendency towards a greater utilisation of collective bargaining and collective agreements for the purpose of determining conditions of employment which would seem to be manifesting itself in Spain ;
      • (b) to take note of the Government's statement that the authorities so far have not refused approval to the texts of any collective agreements submitted to them ;
      • (c) to draw the attention of the Government, nevertheless, to the conclusion reached by the Governing Body at its 140th Session (November 1958) that the requirement prescribed by law of previous governmental approval before a collective agreement can be put into effect is contrary to the whole principle of voluntary collective bargaining, namely that trade unions should have the right by collective bargaining to seek to improve the living and working conditions of their members and that the public authorities should refrain from any interference which would restrict this right ;
      • (d) to suggest to the Government that in these circumstances it may wish to consider the desirability of submitting to the competent national authorities proposals for appropriate amendments to its legislation in order to bring it into harmony with the principles referred to above.
  81. Allegations relating to the Effects on Trade Union Freedom of the Prohibition of Strikes
  81. 81 When it examined this aspect of the case at its meeting in November 1958, the Committee took note of the Government's statement that, under the legislation in force, the penal provisions could be applied only when workers behaved seditiously and not on account of leaving their work. After examining the relevant legislation Labour Charter, Penal Code and State Security Act-the Committee observed, nevertheless, that the effect of these texts did not appear to be compatible with the statement made by the Government. The Committee pointed out that section XI (2) of the Labour Charter states that " individual or collective actions which in any way disturb the normal flow of production or threaten to do so shall be treated as offences against the State ". Moreover, section 44 of the State Security Act of 29 March 1941 provides that " lock-. outs by employers and strikes by workers shall be punishable by a period of imprisonment ranging from three to five years ", and section 46 provides that " any person who in any way causes the suspension or disruption of the public services ... or the lockout or strike referred to in section 44 shall be punished with a period of from one to three years' imprisonment ". Finally, section 222 of the Penal Code declares " strikes by workers " to be seditious acts punishable by a term of imprisonment. The Committee - took the view, therefore, that the legislative provisions relating to strikes and, especially, the penal provisions, appeared to be so broad in their terms as to be susceptible of application in a manner incompatible with freedom of association, and pointed out, in this connection, that in most countries workers and their organisations are granted the right to strike as a legitimate means of furthering their occupational interests so long as they are exercised peacefully and with due regard to temporary restrictions placed thereon.
  82. 82 For these reasons, on the recommendation of the Committee, the Governing Body requested the Spanish Government to state whether the necessary steps had been taken to ensure that the authorities responsible for initiating legal proceedings fully appreciated the scope of the law, which, according to the statement of the Government, related only to seditious acts and not simply to cessation of work.
  83. 83 In reply to this request for information the Government, in its communication dated 22 May 1959, makes the following statement: " The Spanish Government ventures to point out that the suggestion that it should take steps to impose some particular interpretation of the law upon the authorities responsible for initiating legal proceedings is repugnant to the independent judiciary which is recognised and embodied in the Fundamental Statutes of the Spanish State. This independence of the judiciary, which is an inescapable imperative and a condition sine qua non for upright and impartial justice, formally excludes the possibility of any governmental representations to the judges and to the court, who are not merely subject to no control in the performance of their duties but are also under a positive obligation to interpret and apply the law in accordance with their honest and technical judgment and to see that their sentences are enforced."
  84. 84 The Committee considers that the terms of the reply by the Spanish Government are the result of a misunderstanding. It is evident that, when it made its request, the Governing Body in no way intended to suggest to the Government that it should attempt to influence the courts in order that they might interpret legislative texts in any particular manner whatsoever. It is nevertheless true that, when these texts were drafted, the legislator desired to give them a particular scope and a particular meaning. The point with regard to which the Governing Body wished to have assurances when it made the request referred to in paragraph 82 above was that the Government had taken effective steps to ensure that the courts, in order to be able to interpret the law in accordance with the intention of the law, should be aware of the exact scope which the legislator desired to ascribe to such law, a scope which the Government itself sought to define when it stated, in its communication dated 30 May 1958, that " only when workers behave seditiously, and not on account of leaving their work can they be punished under article 222 of the Criminal Code ". And the reason for which the Governing Body thought it necessary to seek such an assurance was that, as was pointed out above, the particularly broad nature of the terms of the provisions of the legislation cited earlier are susceptible of interpretation in a manner incompatible with the principles of freedom of association.
  85. 85 Further, on the recommendation of the Committee, the Governing Body requested the Government to state whether it was studying the possibility of amending the provisions of the Penal Code, the Labour Charter and the State Security Act relating to the prohibition of strikes.
  86. 86 In its reply, the Government refers to this point in the following terms : " The Spanish Government cannot countenance the attempted interference which is implicit in the request that the provisions of the Labour Charter-a Fundamental Statute of the State-and the Criminal Code be amended. Any amendment of the laws in force in Spain must be made in accordance with the established procedures and the Spanish people will never agree to waive its sovereignty over its own legislation."
  87. 87 When the Committee and the Governing Body consider that national legislation is incompatible with the principles of freedom of association or entails a risk, by reason of the manner of its application, of these principles being infringed, it is their function to observe the fact and to bring it to the attention of the government concerned. In doing so, either explicitly or implicitly, they express the hope that the government-within the terms, of course, of the national Constitution and in accordance with the rules laid down in such Constitution-will inform the competent authorities of the matter with a view to the amendments which may be desirable being made in existing legislation. That is what the Committee and the Governing Body did in the present case and the Committee considers that, as the necessary amendments have not been made to the existing texts, such texts cannot be regarded by the Committee as being compatible with the generally recognised principles concerning freedom of association.
  88. 88 In these circumstances the Committee recommends the Governing Body:
      • (a) to take note once again of the Government's statement that workers cannot be punished under the provisions of the Penal Code merely on account of leaving their work ;
      • (b) to note that, in their application and as a result of the terms in which they are drafted, the legislative texts at present in force appear susceptible of being interpreted in a manner incompatible with this principle ;
      • (c) for this reason, to ask the Government, admitting that the intention of the law is as stated above, whether it has taken the necessary measures to ensure that the authorities responsible for initiating legal proceedings are fully aware of this intention and of the exact scope of the texts which it is their duty to apply ;
      • (d) to observe that in its present form the Spanish legislation relating to strikes referred to in paragraph 81 above entails a danger of being interpreted as absolutely prohibiting strikes, which is not in harmony with the generally accepted principles concerning freedom of association ;
      • (e) to suggest to the Government that in these circumstances it may wish to consider the desirability of submitting to the competent national authorities proposals for appropriate amendments to this legislation.
  89. Allegations relating to the Strikes of March 1958
  89. 89 At its 20th Session, the Committee, having noted the discrepancy between the very full information supplied by the complainants with a view to showing that the strikes in question were due to economic grievances and the Government's statements that the movement was a subversive plot, recommended the Governing Body to request the Government to supply more detailed information on this aspect of the case.
  90. 90 Apart from certain arguments to the effect that the fact that a citizen is a trade unionist cannot free the citizen from penal responsibility in respect to offences committed by him, the only reply by the Government is a reference to the observations which it made in its communication dated 17 October 1958, in the light of which, precisely, the Committee and the Governing Body took the view that it was necessary to obtain more detailed information in order to be able to formulate decisions in full knowledge of all the circumstances.
  91. 91 In these circumstances, considering, as it always has done, that allegations relating to prohibitions of the right to strike are not outside its competence in so far as they affect the exercise of trade union rights, the Committee recommends the Governing Body to affirm, as it has done on many occasions, that the calling of strikes constitutes for the workers an essential means of promoting and defending their occupational interests.
  92. 92 With regard to the allegations relating to the ill-treatment of and other punitive measures against workers who took part in the strikes of March 1958, and also as regards the legal procedure referred to by the Government in its observations, the Committee recommended the Governing Body to draw attention once again to the importance that it has always attached to the right of trade unionists, like all other persons, to enjoy the guarantees afforded by due process of law in accordance with the principles enunciated in the Universal Declaration of Human Rights and to request the Government to supply more detailed information on these aspects of the case.
  93. 93 In view of the fact that, in its latest communication, the Government refrains from making any reply in request of the points mentioned above, the Committee considers that it should make the same recommendation to the Governing Body as is referred to in the preceding paragraph.
• Allegations relating to "Social Detainees" (Case of Mr. Felix Carrasquer)
  94. 94 According to the allegations made on 6 May 1958 by the General Union of Spanish Workers in Exile, Mr. Felix Carrasquer, a trade union leader, was detained in 1946 on the pretext that he was the Regional Secretary for Catalonia of the National Federation of Labour, and was set free on probation in 1947. It is alleged that in the same year he was re-arrested, this time charged with being a member of the National Committee of the National Federation of Labour in Madrid, and was sentenced to 30 years' imprisonment, subsequently reduced to 20 years.
  95. 95 The Government not yet having furnished any observations on this aspect of the case, the Committee has requested the Director-General to obtain the Government's information on the matter before the Committee makes its recommendations thereon to the Governing Body. As these allegations, moreover, fall within the definition of allegations to be treated as urgent, in view of the fact that they relate to matters involving " human life or personal freedom", the Committee has requested the Director-General to draw the attention of the Government to this fact and to request the Government to furnish a particularly speedy reply in regard to the matters raised.
• Allegations relating to Measures Taken against Strikers and to Arrests of Trade Unionists and Workers
  96. 96 In a communication dated 12 December 1957, the General Union of Spanish Workers in Exile refers to measures alleged to have been taken against workers at the Sestao shipyards and the miners at the Maria Luisa mine as a result of strikes.
  97. 97 In a letter dated 15 May 1958, the World Federation of Trade Unions alleges that 44 Spanish citizens were arrested on 28 January 1958 under the pretext that they had attended the World Youth Festival. The persons arrested are alleged to have included a number of trade union leaders who had taken no part whatever in the Festival.
  98. 98 In a communication dated 31 December 1958, addressed to the Secretary-General of the United Nations and transmitted by him to the I.L.O, the General Union of Spanish Workers in Exile gives the names of 34 workers alleged to have been arrested for having participated in strikes.
  99. 99 Finally, in a letter dated 27 March 1959, the General Union of Spanish Workers in Exile alleges that 32 workers have been prosecuted and sentenced after being found guilty of having attempted to reorganise the General Union of Workers. The complainants give the names of the workers concerned.
  100. 100 All these allegations were duly transmitted to the Government, but the latter has not yet forwarded any observations thereon. In these circumstances the Committee has asked the Director-General to request the Government to be good enough to forward its observations thereon before the Committee makes its recommendations to the Governing Body. Here again, as the allegations in question fall within the category of those which are required to be treated as urgent, the Committee has asked the Director-General to draw this fact to the attention of the Government and to request the Government to furnish a particularly speedy reply in regard to the matters raised.
• Allegations relating to a Draft Law Defining the New Powers of the Minister of the Interior as Regards Maintenance of Public Order
  101. 101 By a communication dated 21 June 1959, the General Union of Spanish Workers in Exile declares that the official bulletin of the Cortes dated 12 June 1959 contains the text of a draft law defining the new powers of the Minister of the Interior as regards maintenance of public order. According to this draft, it is alleged that the following acts would be punishable as contrary to public order: acts which may disturb public security, acts which may disturb regularity of supplies, acts which may disturb the normal operation of the public services, stoppages of work, strikes and the closing down of establishments. The same draft law adds that, if disturbances of public order are considered serious, the Minister will proceed to declare a state of emergency throughout Spain. In such a case, he will have the power to detain any person who in his opinion may prejudice public order, to search private homes by day or by night, to establish a censorship of all publications, broadcasts and public entertainments, and to set up emergency courts.
  102. 102 The complainants declare that such a law, if it should come to be applied, would deprive the workers of essential means of defending and promoting their interests or of protesting against any injustice, every stoppage of work becoming, in fact, an offence resulting in trial by an emergency court.
  103. 103 These allegations have been transmitted to the Government, which has not yet presented its observations thereon. In these circumstances the Committee has requested the Director-General to obtain the Government's observations before it makes its recommendations on this aspect of the case to the Governing Body.