Informe provisional - Informe núm. 66, 1963

1. 472. The complaint presented jointly by the I.C.F.T.U and the I.F.C.T.U is in the form of a telegram to the Director-General dated 27 April 1962. In a letter dated 23 May 1962 the I.C.F.T.U and I.F.C.T.U, again acting jointly, sent further information in support of their complaint. The Government of Spain sent its observations on these two communications in a note dated 31 July 1962.

473. In the telegram of 27 April the complainants alleged that 47 miners had been arrested in connection with a strike in the Asturian mines and that massive concentrations of police, civil guards and army were being used to intimidate the strikers.

1. 474. In their letter of 23 May, which contains additional information, the complainants state that on 7 April 1962 the miners in the Nicolasa pit owned by the Mieres Mining and Steel Company in Asturias had called a strike on the spot in protest against the draft collective agreement, which did not satisfy their demands; that as a reprisal the company had decided to dismiss seven underground workers; and that the movement had subsequently spread to all the Asturian mines and to steel undertakings, affecting nearly 70,000 workers. After three weeks of peaceful presentation of demands, the complainants continue, the Spanish Government hinted that the workers' wage demands would be met to some extent, but at the same time considerable reinforcements of troops and police were sent to the Asturias and many arrests were made there. The complainants go on to say that at this time protests in support of workers' demands occurred in the provinces of Guipúzcoa and Vizcaya; that the Spanish Government reacted by declaring a state of emergency in these two provinces and in Asturias for a period of three months; that the strike movement spread to other provinces and regions, including agricultural workers in the provinces of Cádiz and Murcia, miners in the provinces of Córdoba, Jaén, Huelva, Ciudad Real and León, steel and textile workers in Catalonia and workers in various industries in Madrid; and that the spread of these strike movements had its origin in the vigorous reaction of the Spanish workers against the imposition of collective agreements which were negotiated without their knowledge by the vertical trade union organisation, and were in fact used to block their wages and obstruct any improvement in their living conditions. The complainants estimate at 100,000 the number of workers on strike and at 1,000 the number arrested or deported, and state that fines were imposed on strikers and other measures of intimidation and violence taken. It is also alleged that the National Trade Union Centre has throughout the strikes acted in support of the Government policy against the strikers; that its head, Mr. José Solis Ruiz, made himself the mouthpiece of the Government and tried to persuade the strikers to resume work without satisfaction of their demands; and that there are no authentic trade unions which can defend the interests of the workers either in periods of normal industrial relations or at times of industrial conflict.
2. 475. In its note of 31 July 1962 the Government, although recognising that the dispute started in the undertaking specified by the complainants, says that the reason for it was not opposition to the conclusion of a collective agreement but a desire to see such an agreement concluded and applied: the metal workers, whose wage scales were not so high as those of the miners, had concluded collective agreements in some undertakings and these had raised wages above the level paid to the miners of the region, who," relying on their traditional higher grading", urged that it was necessary to conclude new collective agreements for them; negotiations for this purpose had soon begun, but it was necessary first to increase the price of coal as this was an essential prerequisite to raising the wages of the miners. The Government adds that in fact the stoppage, although extensive, by no means affected all the mining and metallurgical activities of the region; that in the province of Cádiz it was limited to villages in the immediate vicinity of Jerez de la Frontera; that in the provinces of Córdoba and Jaén there were no labour incidents; that in the province of Valencia there was a stop page only in a single undertaking in Sagunto, where normal conditions were resumed within 24 hours; that it is incorrect to say strikes occurred in the mercury mines of Almadén; that in the province of Murcia the movement was restricted to an incident in two industrial undertakings (which was settled within the same working day) and a strike in the municipal area of Aguilas (also satisfactorily settled); and that the movement was very inextensive in the province of Barcelona, the most industrialised of Spain, and that of Madrid where only one establishment stopped work. As regards the number of strikers, the Government points out that the succession of events made it impossible for 100,000 workers to have been simultaneously on strike, since this number exceeded the aggregate for individual stoppages; and that, if it were correct, this figure would not correspond even to I per cent of the total number of Spanish workers. The Government also states in the same note that no fires were imposed on workers merely for taking part in the strikes; that the few fines imposed were for coercion and violence (punishable under the Public Order Law); that not a single person has been detained by the Government for reasons connected with the strikes; that the few persons arrested but not found to have committed offences were immediately released; that a total of 94 persons were committed for trial by the competent courts, of whom 27 were accused of Communist party activities and 67 of activities for the People's Liberation Front; that six persons were ordered to reside in specific areas, this being the only limitation of their freedom; that the action taken by the Government did not involve a single case of injury to the person; and that in no case was a return to work imposed by force.
3. 476. The Government also states that not a single soldier was mobilised on account of the strikes and that " the transfer of a number of police to the affected areas was due to a desire to ensure the continued peaceful course of the dispute and to avoid complications which might have arisen owing to the intervention of groups of Communist political agitators ". As regards the suspension of some Constitutional guarantees, the Government states that its power to do this is conferred by statutory provision, as in the other free countries, and is subject to a series of formal requirements which were scrupulously complied with; and that the Government made moderate use of its emergency powers.
4. 477. As regards the activity of the Spanish trade union organisation during the strike, the Government states that this organisation in many cases channelled the strikers' claims and even led up to the preparation of new collective agreements, some of which had already been concluded whereas others were being negotiated. In support of this statement the Government points out that 429 collective agreements covering 571,260 workers were finalised in the second quarter of 1962, when the strikes occurred, and that 659 others covering 739,048 workers were under consideration at the time of writing; it compares these figures with the 241 agreements concluded in the first quarter of 1962. As for the activity of Mr. Solis, the Government says that he was National Trade Union Delegate before being appointed Minister of the Interior; that his ministerial rank was not connected with his trade union post; that the simultaneous holding of the two functions was " a purely personal and transitory circumstance "; and that he called-without coercion-for a return to work, facilitated the opening of talks for new collective agreements and acted within the Government as a mediator, the result being that official permission was given to raise the price of coal and use the proceeds entirely to improve the wages of the workers concerned.
5. Allegations relating to the Imposition of Collective Agreements
6. 478. Although the complainants and the Government agree on the identity of the undertaking where the dispute first arose, they attribute its outbreak to exactly opposite reasons. On the one hand, the claimants allege that the strike was intended as a protest against a collective agreement which did not satisfy the workers' claims, and that it spread as a reaction on their part against the imposition of agreements negotiated without their knowledge by the vertical trade union organisation. The Government states, on the contrary, that the reason for the strike was a desire to have an agreement rapidly concluded and put into effect; that action by the trade unions in many cases channelled the strikers' claims and led up to new collective agreements; and that the number of such agreements concluded or prepared in the second quarter of 1962 was much greater than in the first quarter of the same year. In the face of two so widely divergent declarations regarding the effect of collective bargaining on the origin and spread of the dispute, the Committee can only refer to a previous case, also concerning Spain, when it had occasion to examine with some care the legislation of that country on collective agreements. It then noted: that as a result of the issue of the Collective Agreements Act previous administrative authorisation for the initiation of negotiations and the conclusion of collective agreements was no longer necessary; that a tendency towards a greater utilisation of collective bargaining and agreements to determine conditions of employment seemed to be manifesting itself in Spain; and that-according to the Government's statement-the authorities had so far not refused approval of any proposed collective agreement submitted to them (such submission still being required before an agreement could come into effect). The Committee also made certain recommendations which it considers appropriate to repeat and to endorse in the present case. It declared 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 "; and it suggested that in these circumstances the Government " 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 ".
7. 479. Having regard to the above, the Committee recommends the Governing Body:
8. (a) to remind the Government once again 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;
9. (b) to suggest to the Government once more 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.
10. Allegations relating to Action to Repress the Strikes
11. 480. As regards the spread of the strike movement and the action taken by the Government to repress it, there are again profound differences between the allegations and the Government's declaration. The complainants state: that the strike affected the whole mining area of Asturias and the metallurgical undertakings of the same region, subsequently spread to Guipúzcoa, Vizcaya and other provinces of Spain including Barcelona and Madrid, involved various branches of industry and agriculture and covered an estimated 100,000 workers in the various parts of the country; that the Government declared a state of emergency in Asturias, Guipúzcoa and Vizcaya and sent large reinforcements of troops, civil guards and police to Asturias. The Government, while agreeing that the strikes were extensive, denies that they affected the whole of the Asturian mining and metallurgical industries. Regarding their spread to other regions, the Government states that the movement was much less extensive than the very considerable scope attributed to it by the complainants and was particularly small in the provinces of Barcelona and Madrid, where only one establishment stopped work, and that in any case, the aggregate number of strikers amounted to less than 1 per cent of the total number of Spanish workers. The Government denies that troops were sent to the province of Asturias, states that not a single soldier was mobilised by reason of the strikes and adds that the dispatch of police to the affected areas was intended to ensure the continued peaceful course of the dispute. It appears to proceed from all this information that the strike movement, though not quite so extensive and intensive as alleged by the complainants, was sufficiently important (and the Government recognises that it was important) to induce the authorities to declare a state of emergency, even if this was restricted to a few provinces and lasted only for a short time.
12. 481. The Committee has always applied the principle that allegations regarding the right to strike lie within its competence in so far, but only in so far, as they affect the exercise of trade union rights, and has repeatedly observed that the right of workers and workers' organisations to strike as a legitimate means of defending their occupational interests is generally recognised. In this connection the Committee has stressed the importance which it attaches, when strikes are prohibited or subject to restriction, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending their occupational interests; and has pointed out that the restriction should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures in which the parties concerned can take part at every stage.
13. 482. In the above-mentioned previous case concerning Spain the Committee has already had occasion to examine allegations regarding the prohibition of strikes in that country. It then observed that Spanish legislation on the subject entailed the danger of being interpreted as absolutely prohibiting strikes, which would not be in harmony with generally accepted principles concerning freedom of association; and it suggested to the Government that in the circumstances it might wish to consider the desirability of submitting to the competent national authorities proposals for appropriate amendment of this legislation.,
14. 483. In the present case the Committee considers that, as there appears to have been no change in Spanish legislation regarding the prohibition of strikes since the last occasion on which it examined this question (in connection with the previous case concerning Spain) e it must again call attention to the desirability of modifying the present legislation in the light of the principles expressed in the previous paragraph.
15. 484. Having regard to the foregoing, the Committee recommends the Governing Body to request the Government to examine the possibility of modifying the legislation regarding the prohibition of strikes in the light of the principles expressed in paragraph 481 above.
16. Allegations relating to Arrests and Deportations Due to the Strikes
17. 485. The complainants state that the Government has arrested or deported about 1,000 workers and has imposed fines and taken other measures of intimidation and violence against the strikers. The Government denies that fines were imposed or persons detained for mere participation in the strikes; it adds that the few persons arrested and then found not to have committed any offence were immediately released and that the 94 persons sent for trial and the six deported to other areas were accused of activities for the Communist party or the People's Liberation Front.
18. 486. In the past, where allegations that trade union leaders or workers have been arrested for trade union activities or that their arrest or detention has restricted the exercise of trade union rights have been met by governments with statements that the arrests or detentions were made for subversive activities, for reasons of internal security or for common law crimes, the Committee has followed the rule that the governments concerned should be requested to submit further and as precise information as possible concerning the arrests or detentions or imprisonment and the true reasons therefor. If in certain cases the Committee has concluded that allegations relating to such action against trade unionists did not call for further examination, this has been after it has received information from the governments showing sufficiently precisely and with sufficient detail that the arrests or detentions were in no way occasioned by trade union activities but solely by activities outside the trade union sphere which were either prejudicial to public order or of a political nature a
19. 487. In the present case the Government merely states that the persons concerned were detained or placed in forced residence because they had committed offences of political subversion by reason of their Communist or pro-Communist activities.
20. 488. The Committee considers that, in order to be able to form an opinion with sufficient knowledge of the facts, and to determine whether the allegations are justified or not, it would be necessary to obtain from the Government more precise information as to the reasons for the detention of 94 persons and internal deportation of six others, with particular reference to the specific acts or particular activities for which these persons are held responsible.
21. 489. Having regard to the foregoing, the Committee recommends the Governing Body to request the Government to furnish the information to which reference is made in the preceding paragraph and meanwhile to defer further examination of this aspect of the case.
22. Allegations relating to Government Intervention in the Trade Union Organisation
23. 490. According to the complainants, the National Trade Union Centre acted throughout the strikes in support of the Government's policy and against the strikers; that at its head, Mr. José Solis Ruiz made himself the Government's mouthpiece and tried to persuade the strikers to resume work without satisfaction of their claims; and that in their opinion there are no authentic trade unions which can defend the workers' rights either in periods of normal industrial relations or at times of industrial conflict. In its reply the Government states on the contrary that the attitude of the Spanish trade union organisation during the strikes was beneficial in many cases and permitted establishment of new collective agreements; that Mr. Solis was simultaneously National Trade Union Delegate and Minister of the Interior owing to " a purely personal and transitional circumstance "; that he called -without coercion-for a return to work, facilitated negotiation for new collective agreements and acted within the Government as a mediator, obtaining official permission to raise the price of coal and use the proceeds entirely to improve the wages of the workers concerned.
24. 491. The Committee recalls that in a previous case, also concerning Spain, it had occasion to examine thoroughly the question of the integration of trade union organisations into the state machine, and that it then made certain recommendations which it thinks appropriate to repeat at present, since the trade union structure in Spain does not appear to have changed at all since that time.
25. 492. Having regard to the above, the Committee recommends the Governing Body to call the Government's attention once again to the recommendations made in paragraph 187 (b) and (c) of its 27th Report, which were approved at the 137th Session of the Governing Body (October 1957). They read as follows:
26. 187. In all the circumstances the Committee recommends the Governing Body:
27. ......................................................................................................................................................
28. (b) to draw the attention of the Spanish Government to the fundamental contradiction between the legislation in force in Spain and the principles relating to freedom of association which are enunciated in the Preamble to the Constitution of the I.L.O and the Declaration of Philadelphia, and in the Freedom of Association and Protection of the Right to Organise Convention, 1948, and the Right to Organise and Collective Bargaining Convention, 1949; to urge the Government to amend its legislation in order to render it compatible with these principles, and, in particular, with the principles that (i) workers should have the right to establish and join organisations of their own choosing without previous authorisation; (ii) such organisations should have the right to draw up their Constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes, and the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, and (iii) such organisations should not be liable to be dissolved or suspended by administrative authority;
29. (c) to draw the attention of the Government to the principle expressed by the International Labour Conference at its 35th Session (1952) in the resolution concerning the independence of the trade union movement that " governments should not attempt to transform the trade union movement into an instrument for the pursuance of political aims, nor should they attempt to interfere with the normal functions of a trade union movement because of its freely established relationship with a political party ";
30. ......................................................................................................................................................
31. Despatch of a Commission of Inquiry
32. 493. In their first communication of 27 April 1962 the complainants requested urgent despatch of a " mission of inquiry " to verify the repressive measures which the Spanish Government were said to have taken owing to the strike. This request was repeated in the complainants' second communication dated 23 May. In its reply of 31 July 1962 the Government stated that this demand, " made in such categorical and vexatious terms is unacceptable " and adds the following:
33. Reference should be made in this connection to the very different tone of the draft resolution submitted to the last session of the International Labour Conference, in which it was suggested to the Governing Body that it should consider the desirability of amending the existing procedure of the Committee on Freedom of Association and should authorise the Committee in certain conditions " to ask the Government concerned to invite representatives of the Committee to make an investigation ". This draft resolution, on which the Conference took no decision, is drawn up in terms which showed much more respect for national sovereignty and makes a significant contrast with the recommendation in the complaint.
34. 494. The Committee has adjourned consideration of the possibility of some form of inquiry pending receipt of the further information which it recommends the Governing Body to request from the Government.

495. As regards the case as a whole the Committee recommends the Governing Body:

1. (a) to remind the Government once again 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; and to suggest to the Government once again 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;
2. (b) to observe-having regard to the fact that the Committee has always applied the principle that allegations regarding the right to strike lie within its competence in so far, but only in so far, as they affect the exercise of trade union rights-that present Spanish legislation on strikes can be interpreted as providing for their absolute prohibition, which would not be in harmony with generally accepted principles concerning freedom of association; and to suggest to the Government that in these circumstances it might wish to consider the desirability of submitting to the competent national authorities proposals for appropriate amendment of this legislation in the light of the principles set out in paragraph 481 above;
3. (c) to request the Government to furnish as soon as possible more precise information on the reasons for the detention of 94 persons and the internal deportation of six others, with particular reference to the specific acts or particular activities for which these persons are held responsible; and meanwhile to defer examination of this aspect of the case;
4. (d) to call the Government's attention once again to the recommendations put forward in paragraph 187 (b) and (c) of the Committee's 27th Report, which were approved by the Governing Body at its 137th Session (October 1957) and which read as follows:
5. 187. In all the circumstances the Committee recommends the Governing Body:
6. ......................................................................................................................................................
7. (b) to draw the attention of the Spanish Government to the fundamental contradiction between the legislation in force in Spain and the principles relating to freedom of association which are enunciated in the Preamble to the Constitution of the I.L.O and the Declaration of Philadelphia, and in the Freedom of Association and Protection of the Right to Organise Convention, 1948, and the Right to Organise and Collective Bargaining Convention, 1949; to urge the Government to amend its legislation in order to render it compatible with these principles, and, in particular, with the principles that (i) workers should have the right to establish and join organisations of their own choosing without previous authorisation; (ii) such organisations should have the right to draw up their Constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes, and the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, and (iii) such organisations should not be liable to be dissolved or suspended by administrative authority;
8. (c) to draw the attention of the Government to the principle expressed by the International Labour Conference at its 35th Session (1952) in the resolution concerning the independence of the trade union movement that " governments should not attempt to transform the trade union movement into an instrument for the pursuance of political aims, nor should they attempt to interfere with the normal functions of a trade union movement because of its freely established relationship with a political party.
9. ......................................................................................................................................................