Informe definitivo - Informe núm. 297, Marzo 1995

1. 83. The complaint is contained in a communication from the Trade Union of Workers (USO) dated 21 September 1994.
2. 84. The Government sent its observations in a communication dated 31 January 1995.
3. 85. Spain has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), as well as the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 86. In its communication of 21 September 1994, the Trade Union of Workers (USO) alleges that, when the votes cast in the 1990 trade union elections were counted, the Confederation of Workers' Committees (CC.OO.) and the General Union of Workers (UGT) reached an agreement to reform trade union election regulations which, in September 1992, resulted in the "Proposed Modifications of Election Regulations and Trade Union Representation" (as attached). In these proposals, the trade union confederations UGT and CC.OO., realizing their combined strength, decided to end the fighting among themselves and to join forces to oppose the other trade union options. The proposed modifications were sent to the Ministry of Labour and Social Security, which came to an agreement with the UGT and CC.OO. on the reform of trade union election regulations. The result of this agreement was Act No. 11/1994 of 19 May 1994, and Royal Decree No. 1844/1994 of 9 September 1994 (as attached), by which the Spanish Government approved the Election Regulations for organizations representing workers in enterprises (workers' delegates and members of works councils).
2. 87. The complainant organization adds that under these new election regulations the most representative trade unions are granted the exclusive right to call trade union elections, at the same time as other trade unions are denied this right. This exclusive right to call trade union elections implies the right to group together or divide up elections at their convenience; hence, the paradoxical situation where, even in sectors or enterprises where other trade union organizations hold the majority, these must accept that the aforementioned unions take the initiative in the matter of elections (the right to call elections is the key to becoming the most representative organization). This will be most evident during the established transitional period (from 15 September 1994 to 15 December 1995), when the most representative trade unions will be able to set the timetable for elections which, once it has been filed with the Public Registry under the Labour Authority, in most cases reduces to nothing even the minimal right that the less representative trade unions have to call elections.
3. 88. In addition, the most representative trade unions are granted exclusive access to the lists of workers in enterprises and public services, which are indispensable electoral tools. Although this may be justified as a means of exercising the right to call elections, that is not the purpose of the regulation since the election notice need only indicate the place of work and the date the election is to be held (section 67.1, Act No. 8/1980 of 10 March 1980 of the Workers' Charter, as amended by Act No. 11/1994 of 19 May 1994). Thus, the most representative trade unions are given a valuable electoral tool which is at the same time denied to other trade unions participating in the elections.
4. 89. The new regulations also abolish the election supervision bodies (the National Trade Union Election Committee and the Provincial Committees). Although they may not be a model of efficiency for eliminating the endemic electoral fraud and irregularities, they are still better than the "rubber-stamp" agency that has replaced them, i.e., the Public Registry, which will register anything submitted to it, since by its very nature it has no greater responsibility.
5. 90. The complainant organization points out that the new regulations require compulsory arbitration in disputes arising over election irregularities - which are in fact a common feature of trade union elections. (For example, the results of the 1990 trade union elections, held in December of that year, were not officially announced until 11 months later.) The arbitrators will obviously be appointed by the most representative trade unions, yet they will rule on matters affecting every trade union taking part in the election, whether or not they are the most representative.
6. 91. As regards small enterprises, which provide more than 80 per cent of all elected workers' representatives, the regulations are too nebulous and weak, making it possible, for example, to announce that the whole election process must be conducted in little more than 24 hours.
7. 92. According to the approved regulations, following an initial period of 15 months, trade union elections in Spain will become a kind of endless cycle, with no beginning or end, nor with any public announcement of the results of elections or the votes cast. Under this system the "most representative" status (10 per cent, compared with 5 per cent at the political level) is likely to be monopolized by the same trade unions. There is no indication (or desire) that the new regulations might contribute to changes in this "most representative" status. The election rules imply that the present trade union system will be frozen ad eternam, thereby making it impossible for nationwide trade union projects, models and options other than those that currently exist ever to acquire the status of "most representative". By its very nature, all of the above is tantamount to a direct infringement of the democratic principle whereby today's minority can become tomorrow's majority and vice versa, so long as democratic channels remain open for the workers to express their will. The main effect of applying these regulations will be to increase the power of the most representative trade unions (perhaps leading to their consolidation into a single union) while gradually eliminating the possibility of opting for other trade unions that are not currently among the most representative.
8. 93. According to the complainant, it is evident from the preceding paragraphs that the Spanish State and Government have violated the principle of freedom of association, and specifically Convention No. 87.

B. The Government's reply

1. 94. In its communication of 31 January 1995, the Government states that in September 1990 at the meeting of the National Election Committee, a tripartite body whose members include the USO, it was unanimously agreed that, after the series of elections that would serve to measure the representativeness of the trade unions, the members of the Committee would send the Government suggestions as to how the electoral laws and regulations could be modified to remedy any shortcomings noted. And that was what happened.
2. 95. The Act which was finally passed made the Government responsible for drafting regulations. When the final draft of these regulations was ready and in order to obtain their views on how to improve the text to bring it more into line with the law, the draft was sent for comment to eight trade union organizations, naturally including the USO, and to two employers' organizations. Many of the comments received were acted on, though unfortunately it was not possible to incorporate any comments from the USO because it did not send any.
3. 96. The Government also points out that, in specific instances and for specific issues, Spanish legislation requires that opinions be obtained from certain institutions before bills are submitted to the Chamber of Deputies.
4. 97. Before it was submitted to the Spanish Parliament, the present bill was referred on 17 November 1993 to the General Council of the Judiciary which found it appropriate and raised no objection to the electoral procedures set out in the text. It made only some slight changes to the bill, to the effect that: (1) employers can challenge the election process; (2) arbitrators can be appointed by organizations other than the most representative; (3) arbitrators must hold a degree in law or social studies; and (4) terms of office may be revoked during their extension period. These details were incorporated into the approved regulations; consequently section 76.2 of Act No. 11/1994 of 19 May 1994 provides that "anyone with a legitimate interest, including the enterprise" may contest the election process. As to the appointment of arbitrators by organizations other than the most representative, section 76.3 of this Act extends the right to make such appointments not only to the most representative organizations at the state or autonomous-community level but also to those "with 10 per cent or more of delegates and members of works councils at the provincial or occupational level, or within the enterprise concerned". The requirement that arbitrators must hold a law or social science degree is stipulated in section 76.3 of the Act. Lastly, as regards the revoking of terms of office, paragraph 5 of section 67.1 provides that "partial elections may be held as a result of resignations, dismissals or adjustments in representation arising from increases in staff", which is in line with the second transitional provision 1 of Act No. 11/1994 of 19 May 1994.
5. 98. From the above it can be easily appreciated that, once the adjustments called for by the General Council of the Judiciary were taken into account, the regulations referred to in the complaint were considered to be acceptable by the state Judiciary.
6. 99. Furthermore, on 9 December 1993 the Economic and Social Council - a socio-economic and labour advisory body on which trade union, employers' and sectoral organizations as well as experts on socio-economic and labour affairs are represented - issued a report on the bill, in which it concluded that the arrangements provided for therein concerning the election of workers' representatives in enterprises were acceptable.
7. 100. The Senate (with nationwide representation) and the Chamber of Deputies (the Legislature) approved Act No. 11/1994 of 19 May 1994, which modified certain sections of the Workers' Charter, of the law on labour procedure and of the law on infringements and sanctions relating to social and labour standards, which include those sections referring to the election of workers' representatives in enterprises that are the subject of the USO's complaint.
8. 101. From a detailed analysis of the legal considerations raised by the USO in its communication and from the very manner in which they are expressed, it is apparent that the USO claims that, under the new election regulations, only the most representative trade unions have the right to call trade union elections while this right is denied to all other trade unions. This deliberate generalization is not borne out by the actual regulations. Under section 67.1 of Act No. 11/1994 of 19 May 1994, the right to call elections is not only granted to the most representative trade unions, as stated in the complaint, but is extended to those with at least a 10 per cent representation in the enterprise, as well as, by majority decision, to workers in any workplace. These regulations are exactly the same as those given in the Workers' Charter prior to Act No. 11/1994, and were applied in the trade union elections of 1990 in which the USO took part - at which time it considered that this manner of calling elections was acceptable. There is no change in this regulation in the new Act.
9. 102. In fact, the right to call elections goes even further than this. Section 7.2 of the Fundamental Act on Freedom of Association also empowers trade unions with a given level of representation within a specific occupational and territorial context to call elections.
10. 103. There are still other ways of calling elections in addition to those set out in the previous paragraph. The final paragraph of section 67.2 of the Workers' Charter, which is new, provides that "where more than one body calls elections in an enterprise or workplace, the first election notice shall be considered valid for initiating the election process, unless the majority of union members in an enterprise or in a workplace with a works council has proposed a different date, in which case the latter shall prevail".
11. 104. As regards the part of the complaint alleging that access to the staff lists of enterprises and public services is also reserved for the most representative trade unions to the detriment of those which are not, thus depriving the latter of a valuable election tool, it should be pointed out that the complainant once again resorts to a generalization that does not correspond to the actual laws and regulations. Section 67 of Act No. 11/1994 of 19 May 1994, which governs access to public records that contain data on the registration of enterprises and their lists of workers for trade union election purposes, does not specifically grant this right to the most representative trade unions but to "those who have the right to call elections". This refutes the sweeping allegation of the complainant, and makes it quite clear that those with a legitimate right to convene elections have the right of access to public records.
12. 105. As to the allegation that the new regulations abolish the election supervision agencies (the National Trade Union Election Committee and the Provincial Committees), replacing them with a Public Registry which in the complainant's opinion will register anything submitted to it since the nature of this office requires it to go no further, such statements are inaccurate, from a factual as well as a legal standpoint. The system for determining trade union representativeness has gone from one of holding elections over one specific period (with votes being counted by the Provincial Trade Union Committees, and the final results announced by the National Committee) to an open electoral process under which every three years the degree of representativeness of each trade union can be certified by the Public Registry of Election Certificates on the basis of official election results. This change stemmed from the need to spread out elections over a period of time, to avoid a rush to convene elections, and to facilitate the preparation of an election timetable. In addition, the previous system whereby votes were counted by the Provincial Trade Union Election Committees led to disputes when the time came to publish the official figures, which made the Committees virtually useless as decision-making bodies. However, this does not mean that elections are no longer supervised; every trade union organization still has the chance to provide such supervision, not only by having greater control over the preliminary arrangements but also over those following the elections. This is because the new version of section 67 of the Workers' Charter requires the Public Registry to post election notices within one working day of receiving them, as well as to provide a copy to any trade union that requests them. This guarantees that every trade union intending to participate in elections is informed about them sufficiently in advance, since notice must be given at least one month prior to the start of elections.
13. 106. In fact, the trade unions not only control the initiation of the election process but also the final election certificate. The same guarantees are provided as for holding the elections: the Public Registry must again post a copy of the certified results that are submitted to it on the following working day, and deliver a copy to any trade union that requests it (section 75.6 of the new version of the Workers' Charter). Registration of the results does not take place until ten days have passed without any appeal having been received. The changes from the previous legislation are obvious. Previously, only the Provincial Trade Union Election Committees could pronounce the results official, with worker representation on those Committees being held by trade unions with at least 10 per cent of representatives; now, however, any trade union may be represented on the Committees, even if it has a smaller percentage.
14. 107. The new regulations establish a procedure for investigating any appeals that are submitted. Arbitration is entrusted to an arbitrator appointed by the parties and rulings must be made promptly. As provided for in article 24.1 of the Constitution, final authority rests with the courts as a right of citizens, inasmuch as the interested parties may contest arbitration decisions in a labour court, under an amendment to Legislative Decree No. 521/1990 of 27 April 1990, which approved the text of the law on labour proceedings in its "Second section: Elections" (Ch. 5, Title II, Book II).
15. 108. Moreover, the complainant's claim that the Public Registry will register anything submitted to it is completely unfounded. Quite apart from what has been said above, this allegation shows a complete ignorance of the function of the Registry, which is the legal depository of election certificates and acts as an intermediary between the arbitration process and the labour courts, at the same time serving to authenticate election certificates, since there are situations when it may refuse to register a certificate. In such instances, it will request that the Chairman of the Electoral College correct the mistake that has been found; if this is not done within ten days, the certificate will not be registered. If, of course, notification of intent to call an election has not been communicated, registration of the certificate will be automatically denied. A new control procedure has accordingly been established whereby the Public Registry's refusal to register a certificate can be contested in a labour court.
16. 109. All of the above invalidates the complaint, inasmuch as the supervisory system for election certificates has been improved by two types of administrative control, one outside the courts (arbitration), and another within the courts (labour court).
17. 110. From the legal standpoint the USO's complaint concerning the arbitration procedure is nothing more than an expression of its disagreement with arbitration as a means of contesting electoral processes, as well as with the system for appointing arbitrators, inasmuch as the complainant states that they are appointed by the "most representative" trade unions to the detriment of those that do not have that status.
18. 111. This statement is incorrect. As will be shown below, other trade unions can take part in appointing arbitrators. This is based on objective criteria. The truth is that in Spain a trade union need only be duly registered for it to be fully legalized; and more than 3,000 trade unions have done so.
19. 112. There are two aspects to these legal considerations. First of all, as regards the use of arbitration as a means of contesting electoral processes, the extrajudicial procedure strengthens control over those processes by removing them from the courts, though without denying the interested parties recourse to labour courts in order to contest arbitration decisions. Thus the parties involved in electoral processes have both a supervisory mechanism and access to legal protection.
20. 113. As regards the second issue addressed in the complaint, to the effect that only the most representative trade unions can appoint arbitrators, to the detriment of the others, once again this is a sweeping statement that is not borne out by the facts or the regulations. The latter state that arbitrators must be appointed with the unanimous approval of the most representative trade unions at the state or autonomous-community level, and of those with 10 per cent or more delegates and members of works councils at the provincial, public-service or enterprise level, as provided for in section 76.3, paragraph 2, of Act No. 11/1994 of 19 May 1994.
21. 114. From the legal standpoint the complaint concerning elections in small enterprises is to the effect that the regulations in question allow for the entire electoral process to be carried out in little more than 24 hours. In the Government's opinion, extending the period of one day for holding trade union elections in workplaces with up to 30 workers, where only one staff delegate is elected, does not offer any additional guarantees. The intention here is to facilitate elections by eliminating "red tape" and thus help the enterprises avoid wasting time and money.
22. 115. As regards the complainant's criticism of the second transitional provision 1, which extends terms of office until new elections are held (within 15 months counting from 15 September 1994), the Government states that one reason for this change in procedure is to avoid the concentration of a large number of elections over a short period, which could lead to numerous confrontations between trade unions. If there were no such arrangement to extend terms of office resulting from the 1990 elections, the same concentration would take place; the resulting tension and conflicts among trade unions would naturally give rise to grievances that would all end up in the courts. This does not mean that the procedure is immutable; once the 15 months have expired, elections will be spaced out over a longer period of time, with the results showing how the workers express their will by voting.
23. 116. The Government denies that the provisions to which the complainant organization objects constitute a violation of freedom of association as defined by international Conventions.
24. 117. The electoral legislation impugned in the complaint still provides for a minimum level of representation for calling elections - which is nothing new, since it arises from previous legislation on the subject as well as from the Fundamental Act on Freedom of Association - in addition to the right to access public records of enterprises and workers (an obvious corollary) and the right to appoint arbitrators to decide on appeals. The Committee on Freedom of Association has never considered all this to be an infringement of international standards concerning freedom of association, especially when, as in this case, the legislation is of an objective nature and is based on provisions that afford no possibility of bias or abuse; quite to the contrary, it is founded on workers' trust, freely expressed at the ballot box.
25. 118. Every aspect of the electoral process - the initial notice, voting, election certificates and decisions on appeals through arbitration - is entirely in the hands of the workers and their trade unions. The Public Registry - and this is the only time the public authorities take part in the process - is a governmental "stamp of approval" indicating that the workers and trade unions have followed the correct procedure. It makes the official results public, guarantees their authenticity and facilitates the reaching of decisions on appeals in connection with the results and procedures. Furthermore, a stable and permanent body such as the Public Registry must correspond to what the Committee on Freedom of Association deems desirable: namely, that the competent authorities should always be in a position to investigate objectively any appeal lodged by a trade union that has a specified level of representation in an enterprise or sector, or at the national level.
26. 119. The arbitration procedure is a system that strengthens the control exercised by the parties to a dispute. As to any interference by the public authorities, it is absolutely impartial and objective - as required by the Committee on Freedom of Association - in so far as the appointment of arbitrators by mutual agreement of the parties is not limited to the most representative trade unions but can include those with a minimum of representation; this is more a reflection of the workers' trust than a regulatory requirement, and it can in no way block access to legal recourse.
27. 120. Lastly, the Government rejects the complainant's allegation that the new legislation will maintain a trade union monopoly. As has been made clear, the only people who can maintain a monopoly on trade union representation are the workers who express their will through the ballot box in elections held in every enterprise, and the resultant trade union representation can be verified through election certificates issued by the Public Registry of Election Certificates.

C. The Committee's conclusions

1. 121. The Committee observes that in the present complaint the complainant organization objects to various provisions of Act No. 11/1994 of 19 May 1994, and of Legislative Decree No. 1844/1994 of 9 September 1994, regarding the election of workers' delegates and members of works councils. The complainant organization is specifically critical of the fact that those provisions favour the two most representative Spanish trade union confederations and "freeze" the current trade union situation, as follows:
2. (1) the most representative trade unions are given the exclusive right to call trade union elections, which allows them to group or divide up the elections at their convenience;
3. (2) the most representative trade unions are given exclusive access to lists of workers in enterprises and public services;
4. (3) a Public Registry has been created which registers anything submitted to it;
5. (4) compulsory arbitration is required in the event of election irregularities, which means that the decisions are taken by arbitrators appointed by the most representative trade unions although the issues in question may affect other trade unions;
6. (5) no public announcement of the results or official vote count is required.
7. 122. The Committee takes note of the Government's statements, particularly in the light of the new legislation, to the effect that:
8. (1) the calling of elections is reserved not only for the "most representative" trade unions but also for those with a minimum of 10 per cent of representatives in the enterprise, as well as, for workers in the workplace by majority agreement;
9. (2) access to lists of workers at enterprises and in public service is also granted to trade unions with 10 per cent representation since access to records is linked to the need to carry out elections;
10. (3) the new system is an improvement on the prior processing of election certificates and establishes three types of control: administrative (the Public Registry, which in certain cases may refuse to register an election certificate), extra-judiciary (arbitration), and judiciary;
11. (4) the appointment of arbitrators to rule on appeals requires unanimous approval by the most representative trade unions at the state or autonomous-community level, and by trade unions with at least 10 per cent of delegates and members of works councils at the provincial, public-service or enterprise level;
12. (5) as regards the complainant organization's allegations that overall election results are not publicly announced, the new law (second transitional provision 1) strives to avoid a concentration of elections during a specific period, i.e. to avoid the trade union conflict that would probably ensure and the need for the courts to settle election disputes; within 15 months following 15 September 1994, elections held will thus be spaced out over a period of time;
13. (6) the allegation that the new legislation will maintain a trade union monopoly is not true, since the only people who can maintain such a monopoly are the workers through their votes;
14. (7) anyone with a legitimate interest can contest the electoral process;
15. (8) although the complainant organization was furnished with a draft of the regulations, it submitted no comments on them.
16. 123. The Committee would like to refer to the opinion of the Committee of Experts concerning the scope of rights and advantages in favour of the most representative trade unions (see 1994 General Survey on Freedom of Association and Collective Bargaining, paras. 97 and 98):
    • In some countries...legislation establishes the concept of the most representative trade unions, which are generally granted a variety of rights and advantages. The Committee believes that this type of provision is not in itself contrary to the principle of freedom of association, provided that certain conditions are met. First, the determination of the most representative organization must be based on objective, pre-established and precise criteria so as to avoid any possibility of bias or abuse. Furthermore, the distinction should generally be limited to the recognition of certain preferential rights - for example, for such purposes as collective bargaining, consultation by the authorities or the designation of delegates to international organizations.
    • However, the workers' freedom of choice would be jeopardized if the distinction between most representative and minority unions results, in law or in practice, in the prohibition of other trade unions which workers would like to join, or in the granting of privileges such as to influence unduly the choice of organization by workers. Therefore, this distinction should not have the effect of depriving those trade unions that are not recognized as being amongst the most representative of the essential means for defending the occupational interests of their members (for example, making representations on their behalf, including representing them in case of individual grievances), for organizing their administration and activities, and formulating their programmes as provided for in Convention No. 87.
17. 124. Taking these principles and the particular circumstances of this case into account, the Committee considers that to grant the right to call trade union elections, as well as access for such purposes to public records (lists of enterprise and public-service workers), to the most representative trade unions and those with 10 per cent of the representatives of the enterprise or public service organization concerned does not appear to influence workers unduly in choosing the organizations to which they wish to belong, nor does it deprive those organizations with fewer representatives from defending the interests of their members, organizing their activities and formulating their action programmes.
18. 125. On the other hand, the Committee considers that, in the case of appeals against electoral irregularities, the system for appointing arbitrators (by unanimous approval of the most representative trade unions and those with 10 per cent of representatives) could undermine confidence in their findings when it is a trade union with fewer representatives that contests an election result. However, inasmuch as the law provides for the appointment of arbitrators on the basis of impartiality and professionalism, and guarantees legal recourse against arbitration decisions, the Committee considers that, although it would be advisable to review the system for appointing arbitrators in the future, this aspect of the case does not at present call for further examination since there are no specific allegations that arbitrators have failed to act impartially.