Informe definitivo - Informe núm. 268, Noviembre 1989

1. 129. The complaint of the Trade Union Confederation of Workers' Committees (CC.OO.) is contained in a communication dated 20 June 1988. The Government replied in communications of 15 December 1988 and 16 May 1989.
2. 130. 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. 131. In its communication of 20 June 1988 the Trade Union Confederation of Workers' Committees (CC.OO.) alleges that following the election of trade union representatives of workers in the public service, the five most representative organisations in the state education sector (excluding universities) drew the attention of the Ministry of Education and Science to the need to bargain at the sectoral level for the purpose of negotiating the conditions of work and employment of non-university teachers. In particular, the trade unions demanded wage parity with public servants holding the same grade; the Administration's assumption of public liability with respect to school accidents (without prejudice to the appropriate sanctions in the event of negligence); stability in the remuneration of full-time teachers, set at 200 per cent of the base wage; resolution of the problems related to the geographic mobility of "temporary" and "available" teachers who had not held a permanent post for several years; the classification of jobs in all educational centres; and the elaboration of suitable lists of staff within this classification.
2. 132. The Ministry of Education and Science responded to these demands with a series of delaying tactics, calling for meetings without offering counter-proposals to the issues raised, during the months of January and February 1988. As a result of this attitude on 29 February the five trade unions of non-university teachers called on their members to strike on 9, 10, 16 and 21 March, and on 14, 20, 21, 26, 27 and 28 April in support of the above-mentioned demands and in order to bring the Ministry to the bargaining table. However, on these dates the Ministry of Education refused to meet with the trade unions unless they dropped their call for the strike. The teachers responded with a massive observance of the strike: 95 per cent of all teachers throughout Spain participated in this action. However, even as early as 25 February, in other words before the strike, the Ministry repeatedly refused to meet with the trade unions in spite of their formal requests for a meeting made in accordance with Act No. 9/87. The parties did not meet until 6 April, thereby unnecessarily prolonging and aggravating the dispute and thwarting any voluntary negotiations on conditions of employment. In fact, the Ministry refused to meet with the trade unions over a period of 36 days. As from 6 April, the Ministry of Education and Science began unilaterally to set the dates and times of meetings which were convenient for its officials, steadfastly refusing to call meetings on strike days in an obvious indication that it would never bargain or seek to reach an agreement in the face of a strike.
3. 133. The CC.OO. adds that on 4 May 1988 four of the five trade unions signed a preliminary agreement with the Ministry of Education and Science. The Teachers' Federation of the CC.OO. did not sign this agreement and was thus excluded from subsequent discussions. The other signatory organisations and the CC.OO., with the consent of the Ministry of Education and Science, which made available the necessary material and human resources, agreed to submit this preliminary agreement to teachers on 16 May. With more than 90 per cent of the teachers concerned voting, the agreement was rejected by 78 per cent of teachers; only 13 per cent voted for the agreement. Following this rejection of the agreement, the trade unions and the Ministry of Education and Science met again on 23 May. At that meeting the Ministry of Education and Science proposed to forward the wage demands to an inter-ministerial wage council, but refused to discuss or modify the provisions of the rejected agreement regarding the other demands, in spite of its overwhelming rejection by the teachers.
4. 134. Likewise, in May 1988 the Official Bulletin published Royal Decree No. 417/88 of 29 April, which fixes the criteria to guarantee the maintenance of essential services in non-university state educational institutions under the Ministry of Education and Science. No meeting, negotiation or dialogue was held with the trade unions which had called the strike concerning the content of this Royal Decree on minimum services in education. Formulated unilaterally by the Government, this Royal Decree failed to give any justification for the criteria utilised to define such services; nor did it identify the technical criteria or factual data which had been taken into account to justify such a wide-ranging restriction on the exercise of the right to strike. Royal Decree No. 417/88 merely made a generic and abstract reference to the defence of the right to education and the need to avoid any impairment of the system.
5. 135. Royal Decree No. 417/88 contains other provisions which impede the exercise of the right to strike:
   • - section 2(b), which defines the administration of educational institutions as an essential service, denies the right to strike to an entire category of workers (school administrators);
   • - by defining as essential the right of students to attend class and receive instruction, the Decree denies the right to strike of teachers who alone are responsible for a given class, for example as is the case in the General Basic Education Programme (such teachers were previously known, in Spanish, as "maestros"). In point of fact, such teachers constitute the largest category of teachers, vastly outnumbering other categories of teachers, such as those working in institutes, etc.;
   • - section 2(b) of Royal Decree No. 417/88 even goes so far as to classify the right not to strike as an essential service. It should be noted that the Spanish Constitution does not, in any way, protect abstention from striking as a constitutional right similar to the right to strike;
   • - section 3 confers upon the Ministry of Education and Science a total discretion (since the Decree fails to define specific situations) to define the minimum services to be provided in the event of a strike.
6. 136. Subsequent to 23 May and the above-mentioned sequence of events, the five trade union organisations and the STEC (Confederation of Regional Trade Unions of Teachers) decided to respond to the intransigence and delaying tactics of the Ministry of Education and Science by calling for an open-ended strike as from 31 May, contingent on the support of at least 40 per cent of the teachers concerned. Without such participation, the trade unions would call off the strike. On the evening of 27 May 1988, in response to this call for a strike, which was motivated by the refusal of the Ministry of Education and Science to modify its proposals, and by its lack of flexibility and willingness to bargain, the Spanish Government, through the spokesman for the Council of Ministers, notified all the media of the following measures:
   • - suspension of all talks and negotiations with the teachers' trade unions, until they called off the strike;
   • - publication in the Official Bulletin of 26 May 1988 of the Ministerial Order of 25 May 1988, which defines requirements for minimum services in non-university state educational institutions. This Order has the same flaws as Royal Decree No. 417/88. Moreover, it contains a number of new restrictions and impediments, including those contained in subsection (c), which generically defines as essential activities "all regularly scheduled examinations conducted to permit an objective evaluation of the students' academic performance". Thus, by requiring all teachers to administer all examinations, this legal requirement implicitly rescinds the right to strike of the whole non-university teaching corps who were called to strike by the trade unions. The absolute impediment to strikes inherent in this measure can be appreciated more fully if one considers that the school year was about to end; moreover, in accordance with the guide-lines issued by the Ministry of Education and Science (circular of 27.11.81), basic education programme teachers do not set final examinations but are expected to evaluate their students' progress on an ongoing basis;
   • - subsequently, on 4 June 1988, the Ministry informed the media of its unilateral decision to extend the school year with a view to making up for days lost due to the strike. In addition to undermining trade union rights and negotiations once again, this decision implied that teachers would be required to work a like number of days as those during which they were on strike, and that they would not be remunerated for these additional days even though they had not been paid wages in respect of the days on strike. In addition to the economic damage already suffered, it is clear that this further measure was intended as an administrative sanction to punish teachers for having exercised the right to strike.
7. 137. The CC.OO. concludes by stating that these actions have violated Convention No. 87, as regards protection of the right to strike as a legitimate activity of trade union organisations, and Convention No. 151, as regards the duty to promote bargaining with trade unions and their participation in determining the working conditions of public servants. Lastly, the CC.OO. refers to the principles of the Committee on Freedom of Association concerning essential services and minimum services, and emphasises that the Government has repressed the exercise of the right to strike by absolutely refusing to discuss trade union demands, and by failing to promote the bargaining process.

B. The Government's replies

1. 138. In its communication of 15 December 1988 the Government states that over a period of many months, and until the end of the 1986-87 school year, the Ministry of Education and Science had been negotiating with the representatives of teachers the major issues affecting teachers in state schools, including initial and ongoing training, entry to the profession, career advancement, the definition of posts and the mobility, rights and duties of teachers. The Ministry pursued negotiations with the greatest interest with a view to improving the conditions of work of teachers, and thus the quality of education. In the spring of 1987, the teachers' representatives proposed to postpone further bargaining until after the first election of teachers' trade union representatives. These elections were held in December 1987, enabling teachers for the first time, and in accordance with the 1987 Act on bodies concerned with the representation, determination of working conditions and participation of public officials, fully to exercise their trade union rights.
2. 139. The Government adds that on 23 December 1987, in other words, before the elections were concluded and its final results announced, and also before the appointment of the Teachers' Councils and the State's General Negotiating Board (which held its first meeting on 15 April 1988), the Ministry of Education and Science called a meeting with the elected representatives of teachers with a view to establishing a schedule and agenda of discussions on issues relating to state school teachers, including the gradual improvement in their wages.
3. 140. Referring to the nature and development of the dispute which is the subject of the CC.OO.'s complaint, the Government emphasises that from the time the strike was called (public notice of the strike was given on 29 February, although it had been mentioned in a number of earlier documents), the Ministry of Education and Science held an open attitude to negotiation so as to avoid the strike and its consequences. Indeed, the education authorities regularly sought to establish contacts, hold prior meetings with one or more trade unions, clarify differing positions, discuss demands, etc. In other words, everything was done to promote negotiation. The meetings held with the trade unions on 10 and 25 February 1988 addressed all the issues and demands raised by the trade unions. Efforts were made to maintain a climate which would favour and promote negotiation, while at all times maintaining the quality of classes, inasmuch as both families and students were affected by a dispute which threatened to undermine the right to education of a large proportion of the population.
4. 141. The Government states that the efforts of the Ministry of Education and Science before and during the dispute helped to restore a climate of dialogue with a view to reaching an agreement with the teachers' trade unions. Proof of this attitude appears in a circular of 23 March 1988 which the Under-Secretary of the Ministry sent to all the trade union organisations concerned. This circular led to a series of contacts between the Ministry and the trade unions, and was followed up by another circular dated 5 April which invited all trade unions to a meeting on 6 April. At this meeting, the Ministry of Education and Science presented a proposal that would ensure wage parity with other branches of the public service, at a total cost of 33,000 million pesetas. In this offer of 6 April, the Government proposed to achieve wage parity with others in the public service by means of three annual payments, which would imply an average annual wage increase of 130,000 pesetas per teacher. At this meeting the authorities also addressed other issues raised by the trade unions. It was decided that talks would continue two days later. The trade unions responded by maintaining and, in fact, doubling their calls for a strike over the next few days.
5. 142. Clearly evidencing the Ministry's wish to resolve the dispute through negotiation, new meetings with the trade unions were held on 16, 18, 21, 22 and 23 April. After lengthy negotiations (approximately 75 hours over the course of those days), there were indications on Saturday 23 April that it might be possible to reach an agreement in principle. Unfortunately, this did not happen. Owing to developments in the dispute, and to the substantial number of days during which students were out of school owing to the strike, on 25 April the Minister of Education and Science held a press conference at which he emphasised the Government's willingness to continue negotiations with a view to settling the dispute; moreover, he announced that if the dispute continued, and if warranted by circumstances, it would be necessary to guarantee the essential public service of education, in accordance with article 28 of the Spanish Constitution, and to establish minimum services to guarantee the fundamental right to education. The measures announced on 25 April responded to the explicit demands of the representatives of the parents of students, and the realisation that the intensity of the dispute was seriously undermining the right to education. It was not a question of reprisals against the strike, but of measures to protect a fundamental right - the right to education. It should also be noted that the Conference of Educational Counsellors of the Autonomous Communities had at all times been kept informed of these measures, including the establishment of minimum services, and that at their meeting of 25 April, these counsellors had expressed their total support for the position adopted by the Ministry of Education and Science in the dispute in question.
6. 143. Following the intensive negotiations which took place that week and weekend, a preliminary agreement was reached on 4 May with four of the five trade union organisations which represented the vast majority of teachers (approximately 72 per cent of all state school teachers). Only one of the organisations which had been involved in all the negotiations decided in the end to break with the other trade unions, and refused to associate itself with the agreement on the ground that it did not meet its expectations. This preliminary agreement offered teachers adequate and substantial improvements in their wages and conditions of work, and would lead to improving the quality of education.
7. 144. Royal Decree No. 417/88 of 29 April and the corresponding Ministerial Order seek to balance the exercise of the right of teachers to strike with the guarantee of the right of students to an education, a fundamental right enshrined in the Constitution. The Government adopted these regulations in the face of a prolonged strike which threatened to continue indefinitely, and did so prudently by seeking not to go beyond the absolute minimum level of a fundamental public service, keeping in mind that the students would be the principal victims of the dispute at such a critical juncture in the school year. It was this assessment of the strike and its effects on the community, as well as the nature of the constitutional right to education, that led the Spanish Government to fix the level of activities necessary to meet the minimum requirements of the right to education.
8. 145. In reply to a request made by the Committee on Freedom of Association for detailed information on the allegation according to which the Ministry of Education and Science unilaterally announced its decision to extend the school year to compensate for the days lost to the strike, without providing for additional pay for the teachers concerned, the Government states in a communication of 16 May 1989 that the authorities of said Ministry did in fact announce that the 1987-88 school year would be extended with a view to minimising the consequences of the strike on the education of the students. It adds, however, that this decision proved inconsequential, inasmuch as it was never implemented. The school year ended as originally scheduled, in other words, on 13 June for secondary schools, and on 23 June for general teaching institutions. Moreover, it states that teachers, just as other public servants, are entitled to one month's annual leave, and that this right would not have been infringed even if the school year had been extended by a few days in July.

C. The Committee's conclusions

1. 146. The Committee notes that the complainant organisation in this case has criticised the Government's attitude in negotiations with representative organisations of non-university state school teachers during the first semester of 1988, the promulgation of Royal Decree No. 417 of 29 April 1988 and Ministerial Order of 25 May 1988 concerning minimum services in non-university state schools as being highly restrictive and formulated without consultation, negotiations or dialogue with trade unions, and lastly the authorities' unilaterial decision to extend the school year in order to compensate for the effects of the strike, without providing a corresponding remuneration to the workers concerned. The Committee takes note of the Government's replies.
2. 147. As regards the complainant organisation's allegations concerning the delaying tactics of the Ministry of Education and Science and, more generally, concerning its attitude in negotiations with the trade union organisations of state school teachers, the Committee notes the observations and explanations supplied by the Government. In particular it notes those comments concerning its determined efforts and commitment to engage in negotiations that would lead to an agreement. In the Committee's opinion, the Ministry's alleged refusal to negotiate during a strike or under the threat of a strike - an allegation to which the Government has not replied - is not necessarily incompatible with the principles of freedom of association. Moreover, the Committee notes that during the first semester of 1988, when the dispute which led to this complaint arose, the Ministry of Education held a number of meetings with the trade unions, that it formulated major proposals, that the parties even reached an agreement in principle, which did not materialise, and that the Ministry subsequently signed a preliminary agreement with four of the five trade unions involved in the negotiations. Therefore, the Committee concludes that although the authorities might have made the bargaining process smoother and avoided delays, it does not appear that they have violated the general obligation to negotiate in good faith.
3. 148. The Committee notes that Royal Decree No. 417 of 29 April 1988 and the Ministerial Order of 25 May 1988 concerning minimum services in non-university state schools provide that the Ministry of Education consult with the strike committee for the purpose of determining the personnel considered necessary to provide the minimum services. On the other hand, the activities requiring a minimum service are listed in the Decree and the Government has not denied that this list was made unilaterally, without consulting the trade unions. The Committee must therefore stress the principle that occupational organisations should be involved in defining the minimum services to be provided in the event of a strike (see 234th Report, Case No. 1244 (Spain), paras. 153-155, and 244th Report, Case No. 1342 (Spain), para. 151), and not only in fixing the number of workers needed to maintain such activities.
4. 149. Be that as it may, the Committee considers that it need not dwell on this question since neither the complainant's allegations nor the Government's reply makes it possible to ascertain whether the provisions of the Royal Decree and the Ministerial Order concerning minimum services were ever applied in practice, and if so, to what extent. According to the information available to the Committee, the open-ended strike which began on 31 May 1988 was called off by the trade union organisations on 3 June.
5. 150. Lastly, the Committee notes that the Government has confirmed the allegation that the authorities of the Ministry of Education and Science informed the media of their unilateral decision to extend the school year in order to compensate for the days lost due to the strike. At the same time, the Committee notes that this measure was not implemented. The Committee must nevertheless point out that the Government's announcement that workers would have to do extra hours might in itself unduly influence the course of the strike.