Informe definitivo - Informe núm. 265, Junio 1989

1. 30. Complaints of infringement of freedom of association were submitted against the Government of Spain by the General Union of Workers (UGT) and by the Trade Union Confederation of Workers' Committees (CCOO) in communications dated 5 and 6 October 1988. The UGT sent the ILO additional allegations on
   • this matter in communications dated 6 October and 18 November 1988 and 10
   • March 1989. The CCOO sent further information on 7 November 1988. The
   • Government furnished its obervations in a letter dated 9 March 1989.
2. 31. 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. The complainants' allegations

1. 32. In its initial complaint, the UGT claims, in relation to a signed
   • agreement between the Ministry of Labour and Social Security and the
   • Democratic Union of Pensioners concerning the revaluation of social security
   • retirement pensions and other pensions for 1989, that the Government has made
   • use of a non-union association - the aforementioned "Democratic Union of
   • Pensioners" (UDP) - to cut off discussions that were taking place with the
   • most representative unions. The UGT maintains that this demonstrates total
   • disregard by the Government of the lawfully established right of
   • representativity and collective bargaining.
2. 33. The CCOO explains that, following the agreement between the Government
   • and the UGT and CCOO reached at the end of July 1988, the Government convened
   • the majority unions (CCOO, UGT and ELA-STV) at the end of September for
   • negotiations on increases in the social security retirement pensions and other
   • state pensions for the year 1989. However, in addition to the legally
   • constituted and majority unions, the Government also convened the UDP which is
   • not a trade union and has not held trade union elections so that its level of
   • representativity cannot be determined. According to the CCOO, this association
   • is concerned only with recreational and cultural activities for pensioners.
   • Under Spanish trade union law, pensioners do not have the right to form trade
   • unions but can join already existing ones: according to section 3 of the Basic
   • Act on freedom of association, workers who have retired from occupational
   • activity may join trade union organisations that have already been formed but
   • may not set up trade unions to protect their particular interests, without
   • prejudice to the possibility they have of establishing associations in
   • accordance with special laws. Nevertheless, a few days after the negotiations
   • had begun - that is to say on 17 September 1988 - the Government signed an
   • agreement concerning pension increases for 1989 with the UDP alone, despite
   • the opposition of the majority unions CCOO, UGT and ELA-STV.
3. 34. The CCOO denounces the discriminatory attitude of the Government,
   • considering that the latter thus accorded representativity to a non-union
   • association rather than to the legally constituted majority trade unions,
   • contrary to the terms of ILO Convention No. 98.
4. 35. The UGT refers to the promises made by the Government, which had
   • undertaken to negotiate with the social partners the increases in the social
   • security and other state pensions for 1989. It lists the specific proposals
   • made by the Government to the UGT on 16 September 1988 - the eve of the
   • signing of the agreement with the UDP - and gives a detailed description of
   • the agreement in question:
     • - proposals made by the Government to the UGT on 16 September: assistance
   • pension: 20,000 pesetas per month; age: 66; comparison of the minimum pension
   • with the minimum inter-occupational wage: over two years; revaluation: 5.45
   • per cent;
     • - agreement signed with the UDP on 17 September: pension: 19,450 pesetas per
   • month; age: 67; comparison of the minimum pension with the minimum
   • inter-occupational wage: over three years; revaluation: 5.35 per cent. Once
   • the agreement had been signed, states the UGT, the Government stepped up by
   • two points the estimated figure for inflation for 1988, namely 3 per cent,
   • which had been taken as a basis for the negotiations; a new estimate for the
   • year was set at 5 per cent which, according to the UGT, explains the haste
   • with which the agreement was signed, calls into question the good faith of the
   • administration and illustrates the serious threat to the pensioners'
   • purchasing power.
5. 36. Like the CCOO, the UGT denounces the non-union character of the UDP,
   • which is merely a group of associations of pensioners, which associations, for
   • tax purposes, are stated to be run in the public interest. According to its
   • rules, the UDP is totally independent "of the Government, the political
   • parties, the trade union confederations", etc. (articles 3, 4 and 5 of its
   • rules) and is not subject to the obligation stipulated in the Basic Act on
   • freedom of association whereby trade unions are required to hold periodic
   • general elections accrediting their representativity in the field of their
   • trade union activity. Furthermore, still according to the UGT, the UDP is
   • financially dependent on the State, which pays for 80 per cent of its
   • activities since, under its rules, the contributions paid by its members are
   • purely symbolic (1 peseta per contributor per month) and may not exceed a
   • total of 500,000 pesetas.
6. 37. The UGT describes the previous negotiations which took place on this
   • subject and explains the relevant legislative provisions, namely Royal Decree
7. No. 38 of 16 November 1978, followed by Royal Decree No. 3064 of 22 December
8. 1978 in respect of the institutional management of the social security scheme.
   • Under the terms of the former Decree, the management of the National Health
   • Institute and of the National Social Services Institute was supervised at both
   • state and local level through bodies on which the various trade unions,
   • employers' organisations and the Government were equally represented. Royal
   • Decree No. 3064 set up general supervisory boards comprising, for the various
   • social security and assistance bodies, 13 trade union representatives (in
   • proportion to their representativity), 13 representatives of the most
   • representative employers' organisations and 13 representatives of the
   • administration.
9. 38. Furthermore, the UGT goes on to say that in past years the Government
   • either determined increases in social security pensions unilaterally or
   • submitted the issue to collective bargaining. In the latter case it did so
   • with the most representative trade unions and it is only in the course of the
   • past two years that it has convened the UDP to the negotiating table. It is
   • also the first time it has signed an agreement with this association. Under
   • the previous circumstances, the parties directly involved in both the
   • negotiations and the agreements were the most representative trade unions and
   • not the UDP or any other association or union. The UGT stresses the fact that
   • the UDP should never have been convened on an equal footing with the CCOO and
   • itself since this association does not meet the conditions of greatest
   • representativity which characterise these trade union organisations.
10. 39. With the voluminous documentation appended to its complaint, the UGT
    • encloses a cutting from the newspaper "Ya" dated 22 September 1988, according
    • to which the UDP comprises 40 associations throughout Spain with 650,000
    • members who pay a contribution. Still according to the press cutting supplied
    • by the UGT, the President of the UDP, Nicolas Malo, stated that his
    • association came into being in the 1960s, under the Associations Act, born of
    • the concern of people who had been militant in various political and trade
    • union fields and who now were engaged in cultural and leisure activities.
11. 40. In conclusion, the UGT considers that the Government has undermined the
    • right of trade union representation and the right of collective bargaining
    • which are protected by Conventions Nos. 87 and 98. The UGT maintains that the
    • Committee on Freedom of Association - on the subject of the right of trade
    • union representation - has on several occasions stressed the priority to be
    • given to representative organisations of workers over groups of workers who
    • are not organised in trade unions; in this respect it cites the Collective
    • Agreements Recommendation, 1951 (No. 91), which gives priority, as regards one
    • of the parties to collective bargaining, to representative workers'
    • organisations and does not mention representatives of non-organised workers
    • except in the absence of the former organisations. As regards the right to
    • collective bargaining, according to the UGT, the Committee on Freedom of
    • Association has on many occasions emphasised the need to protect this right in
    • respect of other associations, stating that appropriate measures should be
    • taken to ensure that workers and employers enjoy the free exercise of this
    • trade union right, even vis-à-vis other organisations and third parties.
12. 41. In a subsequent communication, dated 18 November 1988, the UGT states
    • that it has lodged an appeal before the competent national courts against the
    • agreement signed by the Ministry of Labour and Social Security and the UDP and
    • that it will keep the ILO informed of the outcome of the case. In a further
    • communication, dated 10 March 1989, the UGT states that the Supreme Court
    • ruled that the appeal in question, dated 10 November 1988, was receivable.
    • B. The Government's reply
13. 42. According to the Government, the agreement between the Ministry of
    • Labour and Social Security and the Democratic Union of Pensioners (UDP), of 17
    • September 1988, is not a collective agreement and does not involve the right
    • of collective bargaining. Consequently, it cannot be maintained that the right
    • to collective bargaining of the most representative trade unions has been
    • infringed by the said agreement since, according to the Government, Article 4
    • of ILO Convention No. 98 refers to the voluntary negotiation of workers'
    • conditions of employment and not to consultation-negotiation on retirement
    • pensions policy.
14. 43. Furthermore, as regards the representation and defence of retired
    • pensioners, Spanish legislation provides two channels: that of the trade
    • unions and that of the associations of retired pensioners, neither having
    • priority or preference over the other.
15. 44. The authorities, and essentially the Government, in accordance with the
    • legal system in force in Spain, have jurisdiction over the revaluation of
    • pensions under the social security scheme as well as other pensions and state
    • subsidies.
16. 45. Still according to the Government, neither the Spanish Constitution nor
    • the international treaties and agreements ratified by Spain, particularly
    • those of the ILO, nor the national laws in force within the country stipulate
    • the right of trade unions and/or other representative organisations of
    • occupational or collective interests to intervene - even in an advisory
    • capacity - in the annual determination of the revaluation of state pensions.
17. 46. Nevertheless, on several occasions the trade unions, particularly the
    • UGT and the CCOO, have been consulted by the Government at the time of
    • determining the revaluation of social security pensions and assistance
    • pensions. This consultation has at times been extended to include the UDP,
    • with which the agreement of 17 September 1988 was signed.
18. 47. The Government explains that the UDP is a legally constituted
    • association and is very strong among retired pensioners. In both these
    • respects it has the legal capacity to represent these pensioners and to
    • intervene or participate in defending their private interests. It has not,
    • however, the legal capacity to intervene to defend interests which are the
    • lawful reserve of the most representative trade union organisations - which is
    • not the case in the present matter. The Government adds, moreover, that the
    • UDP can in no way be termed a "yellow" organisation nor accused of being
    • dependent on the Government. It recalls furthermore that it made an offer to
    • the UGT on 16 September which the latter did not accept. As regards the
    • allegation made by the UGT that the agreement signed by the UDP is inferior to
    • the offer made to the UGT, the Government states that this constitutes
    • political and not legal criticism. According to the Government, the UGT itself
    • states that the difference relates only to certain aspects; a comparison
    • between the proposal made to the UGT on 16 September and the text signed by
    • the UDP on 17 September confirms that the terms invoked concern only some of
    • the clauses in the disputed agreement.
19. 48. In conclusion, the Government states that the agreement in question in
    • no way undermines trade union rights such as those established in ILO
    • Conventions, nor does it infringe Spanish law on the subject, though this in
    • any case would be a matter for the Spanish courts. The Government and the
    • competent ministry have strictly respected the legal system in force as
    • regards the revaluation of pensions and the consultations and negotiations
    • that have taken place with the complainant trade unions. At all times both the
    • Government and the UDP abided by the principles of freedom and good faith.
20. 49. In the voluminous documentation appended by the Government to its reply,
    • the Government encloses in addition to the rules of the UDP (which indeed show
    • that this organisation is not a trade union), information on the establishment
    • of this organisation after the death of General Franco, its pluralist, united,
    • democratic, free and independent character, its aims of social, economic and
    • political integration of older people, whom it seeks to keep in the mainstream
    • of society, its composition, grouping numerous provincial federations
    • throughout the country (about 40) and the increase in its membership over the
    • years, i.e. from 20,000 in 1978 to 633,000 in 1988. The documentation also
    • refers to all the claims made by the association since 1979 on behalf of older
    • people in various respects concerning their living conditions, and to the
    • numerous interviews, agreements and joint activities carried out between the
    • UDP and the UGT, CCOO and other trade union organisations, both at the
    • national and the European level.

C. The Committee's conclusions

1. 50. The Committee observes that the complainants allege violation of the
   • right of trade union representation and of the right to bargain collectively
   • by the Government which, according to them, signed an agreement on the
   • revaluation of social security retirement pensions and other pensions for 1989
   • with a non-union organisation, the UDP, in order to get out of the discussions
   • that were taking place with the most representative trade unions.
2. 51. The Committee also observes that the CCOO and UGT both admit that they
   • had been convened to the negotiating table, together with the UDP, and that
   • the Government had made the UGT an offer on 16 September 1988. The Government
   • and the UGT are in agreement on the fact that the UGT did not accept the
   • offer. On the other hand, another offer was made by the Government to the UDP,
   • an association which - as the complainants themselves recognise - has a
   • membership of over 600,000 retired persons whose private interests it defends.
   • The agreement with the UDP was signed on the following day, 17 September 1988.
   • The Government strongly denies that the UDP is a "yellow" association
   • dependent on it and claims, on the contrary, that this association which
   • represents retired workers plays an important role, by making claims not of a
   • trade union nature (since indeed it is not a trade union organisation) in
   • defence of the private interests of retired people.
3. 52. The Committee notes that most representative trade union organisations
   • had been consulted with a view to the signing of an agreement on the
   • revaluation of social security retirement pensions, and that the Government
   • signed an agreement with an association representing the interests of retired
   • persons on a wide scale - since, according to available information, this
   • association had a membership of some 633,000 persons in 1988. In these
   • circumstances the Committee considers that there has not been any infringement
   • of freedom of association in the present case.