Informe definitivo - Informe núm. 197, Noviembre 1979

1. 25. A communication dated 18 June 1979 has been received from the Federation of Department Store Trade Unions (FASGA) alleging violation of freedom of association in Spain.
2. 26. Spain has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 27. FASGA states that in the trade union elections, which were carried out democratically, the independent workers obtained 36.7 per cent of the delegates in the department store and distribution sector, the Workers' Commissions 31.3 per cent and the General Union of Workers (UGT) 19.5 per cent, with various other tendencies accounting for the remainder. FASGA has the largest representation within the independent groups, with 285 delegates (18.4 per cent of the total), but despite this fact it has been denied the right to participate in the negotiation of the collective agreement.
2. 28. According to the documents attached to the communication the organisation representing the employers (the National Association of Large-Scale Distribution Undertakings) requested the application of the collective disputes procedure on the grounds that at the time when the new agreement was to be negotiated problems had arisen in constituting the Committee which was to discuss its contents because the Workers' Commissions and UGT did not want to bargain jointly with FASGA and the USO-FETICO coalition, despite the fact that these organisations accounted for more than 10 per cent of the delegates or Committee members in the undertakings of the association.
3. 29. In the meeting called by the General Directorate of Labour the representative of the latter stated that it was not for the General Directorate to give a decision in cases such as the present one, since the question was one which should be settled between the parties themselves, although this would not prevent the labour authority from acting as a mediator for the purpose of the enabling the parties to reach an understanding. Finally, he suggested that the parties should resort to arbitration to put an end to their differences. He also suggested that they might respect the criteria for representativeness laid down in the Collective Agreements Bill, and that the central trade union organisations should invariably follow the same rules of procedure in all agreements in which they were involved. The employers' representation, FASGA and USO-FETICO accepted the suggestion of arbitration, which was rejected by the workers' Commissions and UGT.
4. 30. In his resolution, the Director General of Labour records that no understanding was reached and points out that the dissolution of the Trade Union Organisation, which was basically regulated by the Act of 16 February 1971, had resulted in a vacuum in the legislation concerning collective bargaining (Act of 19 December 1973 and Ministerial Order of 21 January 1974), which empowers that organisation to authorise the commencement of discussions and, in its provisions pertaining to the deliberative Committee, alluded to trade union organisations which no longer exist. These powers have not been expressly transferred to the labour authority, whose competence in the matter of collective labour disputes proceedings is at present governed by the Royal Legislative Decree of 4 March 1977. It is also stated in the preamble to the resolution that the principle of freedom of association is not contested in the present case; the point at issue is that of the Constitution of the deliberative Committee in order to reach an agreement.

B. B. The Committee's conclusions

1. 31. In the first place, it should be determined whether the facts alleged by the complainant organisation, if proven, would constitute a violation of freedom of association from the point of view of the relevant ILO standards, which have been ratified by Spain, and the principles upheld by the Committee in similar cases. From this point of view, it should be borne in mind that FASGA alleges that it has been the victim of restrictions on the exercise of its right to bargain collectively as a result of the policy adopted in this connection by other trade union organisations. As regards the Government, FASGA merely alleges that it refuses to intervene in that issue.
2. 32. From the information provided by FASGA it appears that the Workers' Commissions and UGT combined account for just over 50 per cent of the elected representatives of the workers in the sector. The current legislation does not contain provisions applicable in the cases of divergences of views as regards representativeness for purposes of collective bargaining.
3. 33. The Committee has on various occasions emphasised the importance it attaches to the principle that employers should recognise for collective bargaining purposes the organisations representative of the workers employed by them, in the present case the employers have expressed their wish to negotiate with all organisations of workers whose representativeness is 10 per cent or greater; these also include FASGA and the USO-FETICO coalition. The problem to which the complaint refers consequently arises out of the contractual policy adopted by certain organisations of negotiating the renewal of the collective agreement without the participation of the other organisations, which, for their part, cannot accept collective bargaining without their participation. It would seem appropriate to recall in this respect that, in conformity with Article 3, paragraph 1, of Convention No. 87, ratified by Spain, one of the recognised rights of workers' organisations is that of organising their administration and activities and formulating their programmes and that, according to paragraph 2 of the same Article, the public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.
4. 34. In a case relating to another country, which also related to a dispute between trade unions in the area of collective bargaining and basically to differences of opinion between two workers' organisations regarding the methods of negotiation and the structure of any agreement or agreements to be signed, the Committee considered that questions of this nature should be dealt with by negotiation. The Committee noted that the government concerned had intervened as a mediator, and had proposed a definite solution, and concluded that there was no reason to believe that the government had failed to respect the standards of freedom of association.
5. 35. In the present case, according to the information communicated by FASGA, the General Directorate of Labour has confined itself to acting as a mediator and to suggesting that the parties concerned resort to arbitration.

36. The Committee recommends the Governing Body to dismiss, for the reasons set out in the preceding paragraphs, FASGA's complaint without transmitting it to the Government concerned.