Informe definitivo - Informe núm. 243, Marzo 1986

1. 86. The Trade Union Confederation of Workers of Catalonia (CSTC) presented its complaint in a communication dated 10 January 1985 and the National Trade Union Confederation of Galician Workers (INTG) in a communication dated 28 February 1985. The Government replied in a communication dated 16 October 1985.
2. 87. Spain has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.087), and the Right to Organise and Collective Bargaining Convention, 1949 (No.098).

A. The complainants' allegations

1. 88. The CSTC alleges that the Freedom of Association Act approved by Parliament on 26 July 1984 restricts freedom of association in three respects: the criteria for determining the most representative trade union, the privileges granted to the most representative trade unions, and the contribution to be paid in respect of collective bargaining.
2. 89. On the first point, the complainant explains that the Act defines the most representative trade union as that which has 10 per cent representation at the national level, or 15 per cent in a region. According to the complainant, the percentages required for a union to be officially represented are higher than those required of the political parties participating in the government and in parliament and are therefore unfair. Moreover, the Act gives rise to a situation where a trade union operating at the national level which qualifies as the most representative union but which has only a 1 per cent representation in a region (such as Catalonia) is still considered to be the most representative trade union, whereas another operating at the level of a region where it has 14.5 per cent representation is not.
3. 90. On the second point, the complainant observes that the most representative trade union can call an election however few members it may have in an enterprise, if any, whereas others must have at least a 10 per cent representation to do so. The complainant explains that many Spanish enterprises did not hold regular elections in 1980 and 1982 and that in the public administration they were held only in a few instances. According to the complainant, only the two unions currently qualifying as the most representative will therefore be recognised in these enterprises and in the public administration, while the others will not even be able to hold elections to show how representative they are. Moreover, the most representative trade unions will be entitled to use temporarily the properties which constituted the trade union assets accumulated during the dictatorship. In other words, even if a union has 30, 50 or even 90 per cent of the elected representatives in a given province or town, it will not be able to use such premises unless it has been designated as the most representative union at the national level or at the level of the region, since by law only the latter have the right to use premises which form part of public property. Moreover, the officers of the most representative trade unions will have priority as regards recruitment whereas those of other unions will have to wait for a vacancy before being reinstated in their jobs. Lastly, only the officers of the most representative trade unions may participate in trade union activities inside an undertaking. Thus, if a union holds a meeting of its members in an undertaking, its officers will not be allowed to participate - even if it is the only union operating there - unless they belong to a union that has been designated as the "most representative trade union"; on the other hand, the officers of the most representative trade unions would be allowed to participate.
4. 91. On the third point, the complainant considers that the payment of a trade union contribution in respect of collective agreements means a reintroduction of compulsory union membership since only workers who expressly refuse to pay, in the manner and within the time limit stipulated by the collective agreement negotiating committee, may abstain from paying the contribution. Moreover, the dues are designed to favour the unions designated as most representative since, under Act No. 32/1984, they will be able to participate in negotiations on all collective agreements above enterprise level even if they have no representatives in the sector concerned; in other words, the unions qualifying as most representative will receive their share of the union dues relating to all industry-wide or regional collective agreements.
5. 92. The complaint presented by the National Trade Union Confederation of Galician Workers (INTG) concerns a completely different matter, namely its exclusion from the Shipbuilding Sector Reconversion Plan Supervisory Commission.
6. 93. The INTG explains that, in 1982, it was recognised as the most representative trade union and that as such it was invited to participate in the preliminary phase of the shipbuilding sector reconversion process. At that stage the most representative organisations at the national level (General Union of Workers (UGT) and Trade Union Confederation of Workers Committees (CCOO)) and in the regions (INTG and Solidarity Movement of Basque Workers (ELA-STV)) were represented on the Supervisory Commission. Following a difference of views over the minimum requirements for the reconversion plan, the CCOO and the INTG refused to agree to the preliminary phase. They were, therefore, automatically excluded from subsequent proceedings, since Decree No. 8 of 1983 and Act No. 27 of 1984 stipulate that organisations must agree to the plan to be represented on the Supervisory Commission composed of representatives of the State administration, the workers' and employers' organisations, and the administration of the regions. The Supervisory Commission was, therefore, reduced to three representatives of the UGT and two of the ELA-STV, without any representative of the CCOO or INTG in spite of the fact that, together, they represented over 50 per cent of the workers in the shipbuilding sector.
7. 94. The INTG states that it has appealed to the Supreme Court against its exclusion and that the Court has not yet handed down its decision.
8. 95. Finally, the INTG considers that its exclusion from the Supervisory Commission is a blatant infringement of the principles of freedom of association since the shipyard most affected by the reconstruction plan, where 3,414 out of the 5,500 workers employed by the enterprise are said to be redundant, is located in the territorial area in which it operates; the INTG is, therefore, the union most representative of the workers in the sector concerned.
9. 96. The INTG encloses with its complaint the text of Royal Decree No. 8 of 1983 on reconversion and reindustrialisation, section 6 of which provides for the establishment of a supervisory and monitoring commission composed of representatives of the State administration and of such workers and employers' organisations as have signified their agreement with the plan. It also encloses a copy of its appeal to the Supreme Court in which it requests a seat on the Supervisory Commission without any prerequisites, and that the decisions taken and negotiations conducted by the Commission under Legislative Decree No. 1271/84 be declared null and void. Lastly, it encloses Resolution No. 820/84 of 30 November 1984 and the Supplementary Resolution of 7 December 1984 on how to resolve the structural problem of redundancy in the shipbuilding sector, which were adopted by the General Directorate of Employment as a result of the agreements signed with the UGT on 16 November 1984, and an appeal which the INTG sent to the Ministry of Labour and Social Security to have the two resolutions repealed.

B. The Government's reply

1. 97. In its communication dated 16 October 1985, in reply to the complaint presented by the CSTC, the Government states that, it had preferred to wait for the constitutional Court to hand down its judgment on the appeal against the Freedom of Association Act before responding to the allegations. In Decision No. 98/1985 of 9 July 1985, the Court rejected the appeal for the Act to be declared unconstitutional.
2. 98. As regards the substance of the matter, the Government states that the Freedom of Association Act provides for two sets of criteria for determining the most representative trade union in accordance with the distribution of political power under the system of territorial autonomy set out in the Constitution. The Act accordingly designates as the most representative at the national level those trade unions that have 10 per cent or more of the total number of staff delegates and works council members and their counterparts in the public administration, as well as those trade unions or trade union bodies affiliated to a national trade union federation or confederation which has been granted most representative status. In the case of the regions, the most representative trade unions are those that have at least 15 per cent of the staff delegates and workers' representatives on works councils and of their counterparts in the public administration, provided they have at least 1,500 representatives and are not affiliated to trade union federations or confederations at the national level. In the same way as the most representative trade unions at the national level, trade unions or trade union bodies affiliated to a representative trade union federation or confederation at the level of a region likewise qualify as the most representative trade unions at the level of the region. In other words, the criterion thus selected is the result of elections held in organisations which represent all the workers at workplaces. In the Government's view, the objective and non-discriminatory nature of this criterion is not open to criticism.
3. 99. Regarding the "privileges" enjoyed by the most representative trade unions, the Government explains that the Freedom of Association Act grants to most representative trade unions the right to engage in collective bargaining in accordance with the provisions of the Workers' Statute, to take part in determining working conditions in the public administration, to participate in non-jurisdictional labour dispute settlement systems, to hold elections for staff delegates and works councils, to have access temporarily to public premises and assets and, in general, to exercise any other representative function that may be provided for.
4. 100. Under the Freedom of Association Act, the most representative trade unions at the level of a region equally enjoy representative status at the specific level of that community in order to exercise all the functions which, at the national level, the most representative trade unions have. The most representative organisations at the level of the region may, therefore, exercise their right to freedom of association in two ways. In the first place, they can act as representative bodies in dealings with the public administration or other state entities; secondly, and independently of the Freedom of Association Act, they can exercise similar rights as official parties to collective bargaining, since section 87 2 b)of the Workers' Statute stipulates that the trade unions of autonomous communities having at least 15 per cent of the members of works councils or staff delegates at that level are entitled to negotiate collective agreements at the national level.
5. 101. As to trade unions that do not qualify as the most representative at the national and regional levels under section 7(2) of the Freedom of Association Act, they may, if at a specific territorial and functional level they have 10 per cent or more of the staff delegates and members of works councils and their counterparts in the public administration, exercise at those specific levels the right to bargain collectively, to participate directly in determining working conditions in the public administration, to participate in the non-jurisdictional labour dispute settlement system, and to organise elections of staff delegates and members of works councils and of their counterparts in the public administration.
6. 102. Furthermore, the Government explains, the labour relations system in Spain is a mixed system from the standpoint of worker representation, with joint participation by trade unions and by workers' representatives elected directly at the enterprise level. This recent innovation has done much to ensure a proper balance and to avoid giving the most representative trade unions too much weight. Therefore, according to the Government, the most representative trade unions at the national level are not the only unions participating in union affairs since the most representative unions at the level of the regions likewise participate in national bodies and in bodies operating at the level of the regions such as the Basque Labour Relations Council, the Andalucian Labour Relations Council, etc.
7. 103. As regards elections in an undertaking, the Government states that they may be convened not only by the most representative trade unions, but also by unions whose members account for at least 10 per cent of the workers involved, or even directly by the workers themselves if a majority so decides. Moreover, section 69 of of the Workers' Statute empowers all legally constituted workers' trade unions - and not only the most representative unions - to submit candidates.
8. 104. Concerning the temporary authorisation granted to the most representative trade unions to use public premises and assets, the Government confirms that the premises are part of the accumulated trade union assets but states that the Freedom of Association Act does not in any way prejudge the issue. The Act merely authorises the temporary cession of these assets to the most representative trade unions at the national and regional levels. A subsequent act adjudicating the accumulated trade union assets will determine their legal status, and in drafting that act, the Spanish Government will in any case take into account the criteria suggested by the Committee on Freedom of Association in Case No. 900, to the effect that the ultimate use to which the assets are put should be decided only after negotiations between the Government and the workers' and employers' representatives.
9. 105. Regarding the alleged reservation of jobs for the elected officers of the most representative trade unions, the Government refutes the allegation on the grounds that section 48(3) of the Workers' Statute provides that a workers' contract may be suspended and his or her job reserved where he or she exercises trade union functions at the provincial or higher level, for as long as the representative function lasts and provided there is no legal restriction on his or her status as a representative of a trade union deemed to be the most representative.
10. 106. As regards the contribution payable in respect of collective bargaining, the Government explains that this derives from a union security clause and that, in all cases, the individual wishes of each worker are respected in so far as he or she expresses them in writing in the manner and within the time limit stipulated by the collective agreement negotiating committee. Moreover, the purpose of the contribution is not to favour the most representative trade unions since, under section 87 of the Workers' Statute, the collection of such dues is permitted not only for the most representative trade unions at the national and regional levels, but also for any trade union which has 10 per cent of the members of works councils and staff delegates in the territorial and functional area to which a collective agreement relates.
11. 107. With respect to the complaint presented by the National Trade Union Confederation of Galician Workers (INTG), the Government states that on 11 February 1985 the Supreme Court rejected the appeal lodged by the INTG and the CCOO against Royal Decree No. 1271/1984 on reconversion measures in the shipbuilding sector. The court confirmed the legality of the Decree's provision to the effect that trade union confederations which had rejected the reconversion process and the bases of the plan from the outset were excluded from the Supervisory Commission.
12. 108. The Government encloses with its reply a copy of the Freedom of Association Act No. 11/1985, which received Royal assent on 2 August 1985 and of the decisions handed down by the Constitutional Court on 27 June 1984 and 29 July 1985 and by the Supreme Court on 11 February 1985.

C. The Committee's conclusions

1. 109. This case concerns two distinct sets of allegations. The first concern the recently adopted trade union legislation; the second concern the non-participation of a trade union organisation in the Commission responsible for supervising the reconversion process in a sector affected by the industrial crisis.
2. 110. As regards the legislative aspect of the case - i.e. the alleged introduction of the privileges granted to the most representative trade unions, the Committee notes that the appeal which was lodged against the legislation before the Constitutional Court was rejected by the Court and that the relevant Act was, therefore, promulgated on 2 August 1985.
3. 111. The Committee wishes to point out that on several occasions, and particularly during the discussion on the draft of the Right to Organise and Collective Bargaining Convention, the International Labour Conference has referred to the question of the representative character of trade unions and, to a certain extent, has agreed to the distinction that is sometimes made between the various unions concerned according to how representative they are. Article 3, paragraph 5, of the Constitution of the ILO contains the concept of "most representative" occupational organisations. Accordingly, the Committee has felt in the past that the mere fact that the law of a country draws a distinction between the most representative trade union organisations and other trade union organisations is not in itself a matter for criticism. Such a distinction, however, should not result in the most representative organisation being granted privileges extending beyond that of priority, on the grounds of its having the largest membership, in representation for such purposes as collective bargaining or consultation by government, or for the purpose of nominating delegates to international bodies. In other words, this distinction should not have the effect of depriving trade union organisations that are not recognised as being among the most representative of the essential means for defending the occupational interests of their members and for organising their administration and activities and formulating their programmes, as provided for in Convention No. 87. (See 36th Report, Case No. 190 (Argentina), para. 193, and 217th Report, Case. No. 1061 (Spain), para. 133.)
4. 112. The issue here, therefore, is what criteria are reflected in the text and what are the consequences of the distinction drawn since, to be admissible, the criteria applied to distinguish between more or less representative organisations must be objective, must not leave any scope for abuse and must not be allowed to detract from the fundamental rights and guarantees of the less representative organisations.
5. 113. In the present case, the Committee notes that the criteria applied are quantitative - 10 per cent representation at the national level and 15 per cent at the level of the autonomous communities - and that trade union organisations which, even if they do not qualify as the most representative, obtain in a specific territorial and functional area a 10 per cent representation among the staff delegates and members of works councils and their counterparts in the public administration are empowered to exercise the following functions and rights: to engage in collective bargaining in acccordance with the provisions of the Workers' Statute, to take part in determining working conditions in the public administration through the appropriate consultative channels and negotiations, to participate in non-jurisdictional labour dispute settlement systems, to hold elections for staff delegates and works councils and their counterparts in the public administration and to exercise any other representative function that may be provided for. Furthermore, the Committee has noted all the explanations supplied by the Government on the other points, namely the calling of elections, the reservation of jobs for workers exercising trade union functions and the temporary cession of fixed public assets.
6. 114. As to the dues payable in respect of collective bargaining, the Committee notes that workers who explicitly refuse to pay, in the manner and within the time limit stipulated by the collective agreement negotiating committee, may abstain from paying the contribution.
7. 115. Lastly, the Committee notes that the highest court in Spain, the Constitutional Court, has rejected the appeal to have the Freedom of Association Act declared unconstitutional.
8. 116. In all the circumstances of this case, and taking note of the above judgements, the Committee considers that the provisions of the Freedom of Association Act are not incompatible with the principles of freedom of association.
9. 117. Regarding the non-participation of the National Trade Union Confederation of Galician Workers in the Commission responsible for supervising the reconversion process in a sector affected by the crisis, namely the shipbuilding sector, the Committee observes that the trade union organisation itself recognises that, whereas it had earlier obtained the status of most representative organisation and had participated in the preliminary phase of the reconversion process, it had refused to agree to that preliminary phase.
10. 118. The Committee further observes that the Supreme Court has rejected the appeal brought before it by the complainant organisation on the grounds that, under the Royal Decree of 30 November 1983 (section 6(1)), only those workers' and employers' organisations that agree to the said plan are to be represented on the Supervisory Commission.
11. 119. The Committee considers - as did the Spanish Supreme Court - that, since the complainant organisation has refused to agree to the preliminary phase of the reconversion process, its non-participation in the Supervisory Commission by virtue of section 6(1) of the Royal Decree does not constitute an infringement of freedom of association.