Informe provisional - Informe núm. 254, Marzo 1988

1. 401. The complaint is contained in a letter from the Independent Trade Union Confederation of Public Employees (CSIF) of 16 March 1987. The organisation sent further information in a letter dated 30 April 1987. The Government supplied its observations in communications dated 11 June 1987 and 14 January 1988.
2. 402. Spain has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant's allegations

1. 403. The CSIF alleges that Royal Decree No. 1311/1986 of 13 June setting standards for the conduct of elections to representative bodies of workers in the undertaking, allows non-established public employees in public administrations to elect their trade union representatives but that public employees do not have this right. The complainant organisation considers that this is discrimination in favour of the government trade union, the General Union of Workers (UGT) with the aim of setting up a new unified trade union within the Spanish State - which is contrary to Convention No. 151.
2. 404. The CSIF also alleges that the Ministry of Defence has unilaterally decided that civilians working for its agencies should be given the status of military personnel, which means that they cannot exercise their trade union rights in accordance with the provisions of Act No. 11/1985 on freedom of association.
3. 405. Referring to the promulgation of Royal Decree No. 1671 of 1 August 1986 (to approve the regulations issued under Act No. 4 of 8 January 1986 respecting the transfer of accumulated trade union assets), the CSIF states that its applications for the transfer of property were rejected since, as no general trade union elections had taken place in the public administrations, all applications concerning such transfers had been turned down.
4. 406. The CSIF alleges, furthermore, that its representativity, which the Spanish Government itself had recognised on the basis of the electoral results obtained so far, is not recognised in practice by the various ministerial bodies and governments of the autonomous communities. The CSIF gives the following concrete examples:
   • - Refusal by the Ministry of Health and Consumption to allow the CSIF to be officially represented in negotiations between the National Institute for Health (a body independent of the Ministry) and the trade union confederations, obliging the CSIF to turn to the low courts. Refusal by the same Ministry to allow the CSIF to take part in joint meetings at the level of the provinces in connection with the integration of the university hospitals within the social security health network.
   • - Refusal by the Government Council of Andalucia to recognise the representativity of the CSIF for the purposes of negotiating matters concerning the public service in Andalucia.
   • - Refusal by the Office of the President of the Community of Madrid to allow time off for trade union business in accordance with the agreements signed. The CSIF encloses an order from the President's Office of the said Community under which such leave for trade union purposes should be granted to two CSIF representatives for periods of one month and one-and-a-half months respectively.
   • - Refusal to allow the CSIF to be represented on the State School Board, the organisation being given only one seat out of 50, which obliged it to turn to the courts of law. The CSIF disputes the three orders of the Ministry of Education and Science dated 23 October 1986 appointing representatives to the State School Board from the group of teachers, from the staff of the administration and services of teaching establishments, and from the trade union confederations.
   • - Refusal by the General Directorate for Traffic to allow the CSIF to take part in negotiations in the traffic sector.
5. 407. Finally, the letter from the CSIF states that it is common practice for obstacles to be placed in the way of its trade union representatives and it quotes the following situations:
   • - Failure to fulfil agreements concerning time off for trade union purposes and obstructionism vis-à-vis Mr. Jiménez Blázquez, CSIF president in the province of Cantabria. When Mr. Blázquez applied to the Ministry of Education and Science for time off for trade union purposes, he was put on secondment, whereupon the Provincial Director of Education and Science informed him that if he wished to remain on the School Board of his workplace he would have to give up the secondment.
   • - Obstructionism and persecution of the CSIF representative at the National Institute for Occupational Safety and Health, Mr. Rufino Jiménez Peña, who was transferred after having been elected as a trade union leader and who, since then, is the only employee in the Institute assigned to "minimum duties" (even though the Institute is not overstaffed and new people are constantly being taken on). Nor is Mr. Jiménez Peña given the necessary facilities (a place where he can speak with members in private, his own telephone and a lock-up desk).
   • - Obstructionism and persecution of the CSIF representative at the Ministry of Education and Science, Mr. Julio Follana Rodréguez, who, having been granted time off for trade union purposes entailing being completely dispensed from work, was ordered to vacate his office.

B. The Government's reply

1. 408. The Government states that the promulgation of Royal Decree No. 1311/1986 in no way involves discrimination, as it merely implements the provisions of the Workers' Statute and the Act on freedom of association as regards the conduct of elections covering non-established employees. The purpose of the Decree is simply to facilitate the holding of such elections both in private enterprise and in the public administration, in the latter case only for the non-established employees; it does not apply to public employees in the public administration, who are governed by their own statutory regulations under the Constitution (Articles 103.3 and 149.1.18). Article 103.3 of the Constitution, on the subject of the public employees' statute, reproduces the reference in Article 28.1 to the special characteristics of the right of public employees to join trade unions. Workers and employees in the public service constitute two quite separate groups and are covered by different laws under the Constitution. As stated by the Constitutional Tribunal in Ruling No. 98/1985, constitutional order is not undermined by the fact that public employees have "specific representative bodies and their own procedures for consultation and bargaining". In view of the foregoing it would be difficult to combine elections to bodies representing workers in the undertaking, including those employed by the public administration as workers, with elections - which are not in fact trade union elections - to bodies representing public employees. In short, the fact that the two types of election are held separately and the existence of separate representative bodies are no more than evidence of the necessary existence in Spain of separate legal systems for public employees and non-established workers. Furthermore, the constitutional mandate is thereby fully complied with. In this connection the Government mentions the recent promulgation of Act No. 9/1987 of 12 June on representative bodies, determination of conditions of work and participation by personnel in the service of public administrations. This Act, together with the convening of elections to the representative bodies in the public administration, carried out on orders from the Ministry for the Public Administrations dated 23 July 1987, is a good example of the desire of the Spanish authorities faithfully to carry out their mandate under the Constitution in respect of freedom of association. Lastly, as regards the statements in the complaint concerning alleged intentions to set up new trade unions within the Spanish State, these are mere value judgements made by the CSIF with no arguments to back them up.
2. 409. As regards the allegations of discrimination in respect of trade union assets, the Government states that there has been no discrimination whatsoever in the transfer of accumulated trade union assets. These assets accumulated from the "trade union contribution" existing under the former "vertical trade union system" which was not paid over when the State was the employer. Consequently, the CSIF can hardly claim rights to assets that its members did nothing to constitute. Confirmation of the Spanish Government's correct action in this respect can be seen in a decision of the ILO's Committee on Freedom of Association itself, which stated that the criteria used in the distribution of trade union assets were the right ones. This principle of non-discrimination can be seen in section 6 of the Act respecting freedom of association which provides for the temporary transfer of the use of public property by organisations considered to be most representative trade unions, including the unions of public employees that might come within this definition.
3. 410. As regards the alleged refusal by the Ministry of Health and Consumption to allow the CSIF to be officially represented in National Institute for Health negotiations, the Government states that, in a ruling dated 3 June 1987, the National Court dismissed the case brought by the CSIF, which was required to pay the costs, on the grounds that it had not given proof of its representativity in the specific area of the health sector of the Social Security Department. The ruling states that the fact that an organisation is most representative throughout the whole of the public service does not necessarily mean that it is the most representative union in a specific sector of the administration, such as the aforementioned health sector of the Social Security Department. The CSIF appealed against this ruling but the appeal was deemed admissible on one point only.
4. 411. With regard to the alleged refusal by the Ministry of Health and Consumption to allow the CSIF to take part in discussions on the integration of the university hospitals, the Government repeats that the Confederation was not the most representative union in the health sector of the Social Security Department and that it had not taken part in the previous negotiations. Once again the Confederation appealed to the National Court against the action of the Government. The ruling is not yet known but it should be pointed out that, as can be seen from the above, the substance of the case is the same as in the preceding paragraph.
5. 412. As regards the allegation that the Government Council of Andalucia refused to recognise the representativity of the CSIF, the Government states that an agreement was reached on this point between the Government Council of Andalucia and the CSIF on 30 July 1987, which implies a return to normal of relations between the autonomous administration and the said trade union organisation (the Government has enclosed a photocopy of the said agreement).
6. 413. As regards the alleged refusal by the President's Office of the Community of Madrid to allow two CSIF representatives time off work for trade union purposes, the Government states that although the agreement of 11 June 1985 between the State Administration and various trade union confederations does not impose any obligation on the Autonomous Community of Madrid (which, as its name implies, is autonomous as regards the State Administration), the said Autonomous Community does grant time off to public employees working for it and belonging to the CSIF, as is demonstrated by the decision of the Adviser to the President's Office dated 12 November 1986 and the decisions of the Director-General of the Public Service of the Community of Madrid (the Government encloses photocopies of these decisions).
7. 414. As regards the allegation concerning the membership of the State School Board, the Government states that the CSIF has challenged three Ministerial Orders on this issued by the Ministry of Education and Science on 23 October 1986 in accordance with the terms of sections 9.1 and 10.1 of Royal Decree No. 2378/1985 of 11 December regulating the State School Board, which was set up by Act No. 8/1985 of 3 July concerning the right to education. The first of these Orders appoints 12 titular members, and the same number of substitute members, representing groups of teachers in public education and a further eight in private education. In making these appointments, the only requirement the Ministry was obliged to observe, and which it took into account, was that the representatives of the teachers' group had to be nominated by trade union confederations or organisations which, in accordance with the legislation in force, were considered to be most representative (section 9(1) a) of the above-mentioned Royal Decree). In this respect it should be remembered that the status of "most representative union" is established in Act No. 11/1985 of 2 August on freedom of association, section 6.2 of which provides that the most representative unions are those which obtain a minimum percentage of votes in elections at the relevant level; in this particular case it is the national level that is involved, given the coverage of the State School Board. As regards the appointment of representatives of the first group of teachers (i.e. in public education), the Ministry of Education and Science was not able to use this criterion directly since trade union elections have not yet been held in the education sector of the public administration. Consequently, it referred to the results of the trade union elections at the national, general (non-public servant) level. These elections clearly show the most representative trade union bodies to be, firstly the Workers' Committees (CC.OO.) and General Union of Workers (UGT), followed by the ELA-STV and "Intersindical Galega". Taking these results into account and wishing to promote the maximum participation and representation of groups on the advisory body, that is the State School Board, the Ministry of Education and Science deemed it advisable to give some representation to other trade union organisations with which it had contacts and held negotiations on various subjects of interest within the teaching sphere of the public service. This is why it also offered a representative seat, in the teachers' group, to each of the following organisations: ANPE, CSIF, UCSTE and FESPE. As regards representatives of the groups of teachers in private education, seats were offered to the trade union organisations which had come out as most representative in this sphere, namely: UGT, USO, FSIE, UTEP (a coalition of the CC.OO. and UCSTE) and FESITE-USO.
8. 415. As regards the second Ministerial Order that was contested, concerning the appointment of members of the State School Board for the group of personnel of the administration and services of teaching establishments, the Government states that it was obliged to grant representation to the trade union groups established both in the sector of administrative staff and in that of service personnel, in both public and private teaching establishments, since the order covers both categories. This double condition and guarantee of representativity was met only by the General Union of Workers (UGT) and the Workers' Committees (CC.OO.) and the Ministry abided by this criterion. It should not be forgotten in this connection that the CSIF, although enjoying some support in the sector of public teaching establishments, does not have the same support as regards the private schools, and moreover, even if it is established in the sector of administrative staff of public teaching establishments, is not so established as regards the service personnel of these same public teaching establishments.
9. 416. As regards the third Ministerial Order, concerning membership of the State School Board representing the trade union confederations group, the Government states that the Ministry of Education and Science, in appointing representatives of this group, considered that the term "trade union confederations" referred to trade union organisations at the national (and global as regards their trade union activities) level which, consequently, were not restricted to the education sector. This being the case, and in view of the figures of the recent elections in which the General Union of Workers (UGT) and the Workers' Committees (CC.OO.) came out far ahead, the Ministry divided the representative seats between these two organisations on a fair and proportional basis since they were clearly the most representative.
10. 417. Furthermore, the Government states that the General Directorate of Traffic has not denied the CSIF the possibility of setting up trade union sections, holding meetings, collecting contributions and distributing trade union information; it also receives the information put out by this union. Noticeboards have always been available to the Confederation at all times and when it has asked for trade union premises it has obtained them. Thus it should be emphasised that the Confederation has held information meetings on the premises of the above-mentioned Directorate without any particular requirements having to be met as regards authorisation. Finally, it should be pointed out that the General Directorate of Traffic has an internal agreement with the trade union section of the UGT, to which the CC.OO. subseqently adhered, for holding periodical meetings for information and the exchange of viewpoints on subjects of mutual interest and that, although the CSIF expressed its wish to adhere to this agreement, it has at no time indicated which of the members of its trade union sections would attend the meetings. Consequently, since there was no representative on the spot with whom to hold such meetings, the Directorate did not convene the CSIF until it was informed that there was a trade union section in the central traffic services, at which time the two accredited members of the section were invited to the most recent meeting on 1 October 1987. Both members accepted.
11. 418. As regards the claim made by the CSIF that Mr. José Jiménez Blázquez, a teacher at the Santa Clara Secondary School of Santander, who was elected to the school board of this establishment (an eminently educational body), is still an active member of the board, despite having been granted time off for the exercise of trade union activities, which dispenses him from going to work and giving classes, the Government gives the position of the teaching administration. It believes that if Mr. Jiménez Blázquez wished to continue to be a member of the school board and take part in the teachers' meetings he had to forego the time off for trade union activities and take part in the teaching work; this is because if a teacher is chosen by his colleagues to be a member of a representative body of a teaching establishment, it is essential for him to be in constant contact with the whole educational community of the establishment, i.e. the other teachers, the pupils and their parents. Either Mr. Jiménez Blázquez wanted to continue devoting himself to trade union activities, being fully dispensed from going to work, or he chose to resume his teaching work and the rights inherent in his status as an active member of the school board and the teaching staff.
12. 419. As regards the allegations of discrimination against Mr. Rufino Jimeno Peña by the National Institute for Occupational Safety and Health, the Government states that the job changes alleged by him were not based on his having been elected as a trade union leader but on structural reorganisation within the Institute. The list of posts at the National Institute for Occupational Safety and Health, published in the Official Gazette of 14 March 1986, includes 439 "minimum duties" jobs on different scales, including 65 at level 11, like that presently held by Mr. Jimeno. This list was drawn up, in accordance with the regulations, regardless of who would eventually occupy these posts. The latter were filled on the basis of the qualifications of the applicants for each specific job. The "minimum duties" posts consequently have nothing to do with personal situations, as alleged by Mr. Jimeno, but correspond to purely structural and even budgetary criteria. The positions above the "minimum duties" level were established in accordance with the provisions of section 20 of Act No. 30/1984 of 2 August on the reform of the public service. The posts were filled, consequently, in one of two ways: through competitions (in which Mr. Jimeno did not take part) or by free appointment. All the vacancies that were announced in the latter case were published in the Official Gazette. Under this latter system applicants send their curriculum vitae together with documents in support of their application. A committee appointed by the Directorate of the Institute evaluates the applications in the light of the post to be filled, and chooses the applicant who, by virtue of his training, qualifications and professional experience (as demonstrated by work and publications) meets the requirements for the job; in this way some of the employees chosen are members of the CSIF. It must not be forgotten that the National Institute for Occupational Safety and Health, by its very nature, is designed solely to prevent occupational hazards and this multidisciplinary task is undertaken by specialists in such areas as engineering, chemistry, medicine, psychology, agronomy, etc., who co-operate to raise the level of safety and health and improve conditions of work from the health point of view. This work is backed up by other activities of a mainly administrative nature in the area of personnel management and administration. Mr. Jimeno, who has a degree in Philosophy, as can be seen from his personal file, has no experience in the field of preventing occupational hazards or improving conditions of work, nor even as regards personnel management or administration. This makes it easy to understand that if so far he has not reached a senior position within the Institute, this is not because of trade union discrimination, but because there are better qualified specialists to pursue the aims of the National Institute of Occupational Safety and Health. The management of this Institute has, on various occasions, sought to entrust Mr. Jimeno with specific duties but has come up against the difficulty, described by the heads of the relevant sections, of his lack of specific training for working in their departments. On other occasions the duties that might have been entrusted to Mr. Jimeno would have entailed a downgrading since they corresponded to lower-grade employees.
13. 420. As regards the trade union activities of Mr. Jimeno and the CSIF the Government states that for over ten years a furnished office has been available to trade union sections and occupational associations, for their exclusive use, with no limitations whatsoever. Since then the office has been used by trade union representatives and members, including Mr. Jimeno's organisation, without any problems or complaints.
14. 421. It is true that Mr. Jimeno approached the management of the Institute, asking for an office to himself with an outside telephone line, a soundproofed door and his own set of keys. This request had to be turned down by the management, just as it would refuse any similar request from any other employee regardless of which union he belonged to. Lack of space prevents this type of request being granted and the use of outside telephone lines is reserved for posts which, by their nature, makes this essential. Nevertheless, and contrary to what is stated by Mr. Jimeno, he actually enjoyed considerable personal independence. It must be added, lastly, that the CSIF takes part in the work of all the committees within the Institute in question and that it has its own notice-board.
15. 422. As regards the allegation that the Director-General of Personnel and Services of the Ministry of Education and Science impeded the trade union activities of Mr. Julio Follana Rodríguez, by ordering him, although he had been given leave from work to undertake trade union activities, to give up the office he was occupying, the Government states that the Administration's position is that it needed the office for the employee who was to replace Mr. Follana. It should not be forgotten that at the Ministry's main office (34 Alcalá Street) there is a trade union office that may be used by union officials.

C. The Committee's conclusions

1. 423. The Committee notes the explanations provided by the Government concerning the elections to representative bodies in the State Administration, the transfer of accumulated trade union assets, the exclusion of the CSIF from negotiations in the health sphere, leave for trade union activities in the Community of Madrid and the allegations of obstructionism on trade union grounds in respect of Mr. Jiménez Blázquez, Mr. Rufino Jimeno and Mr. Julio Follana.
2. 424. The Committee observes that the questions raised by the complainant organisation as regards the attitude of the Government Council of Andalucia and the General Directorate of Traffic towards the CSIF may be considered to have been resolved by, respectively, the agreement between the CSIF and the Government Council of Andalucia, dated 30 July 1987, and the invitation extended to the CSIF by the General Directorate of Traffic to take part in the meetings for information and exchanges of views in which other confederations participate.
3. 425. As regards the membership of the State School Board on which the CSIF maintains that it was given only one seat out of 50, the Committee notes that the Government in its reply states that in one of the groups making up the State School Board it was not possible to use the criterion of "most representative union" at state level as regards public education since, at the time the Board was established, trade union elections had not yet been held in the education section of the public administration. The Committee has noted that elections of trade union delegates in the public administration were held recently and expresses the hope that the outcome of these elections will be reflected in the membership of the State School Board. Furthermore, the Committee notes that as regards another of the groups making up the Board, i.e. the trade union confederation group, the Ministry of Education and Science, in appointing representatives for this group, has borne in mind the fact that the term "trade union confederations" refers to trade union organisations at the national level. The Committee expresses reservations as regards the application of this criterion in so far as it allows for organisations which are broadly representative at the national level in the sphere of education but which do not operate in all sectors to be excluded from the group of representatives of trade union confederations on the State School Board. The Committee, however, does not have detailed information on the representativity of the CSIF in the teaching sector nor on the outcome of the recent trade union elections in the public administration; consequently it is not in a position to give its opinion on the question of the CSIF's participation in the trade union confederation group of the State School Board. The Committee trusts that in future the views it has expressed will be taken into account if the hypotheses considered arise.
4. 426. Lastly, the Committee requests the Government to reply to the allegation that the Ministry of Defence has unilaterally given the status of military personnel to civilians working for it who, therefore, cannot exercise trade union rights in accordance with Act No. 11/1985 on freedom of association.