Informe definitivo - Informe núm. 321, Junio 2000

1. 177. The complaint is contained in communications of the National Confederation of Labour (CNT) dated 6 August and 2 November 1999. The Government sent its observations in a communication dated 22 February 2000.
2. 178. 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 Workers' Representatives Convention, 1971 (No. 135).

A. The complainant's allegations

1. 179. In its communications dated 6 August and 2 November 1999, the National Confederation of Labour (CNT) alleges that the chairperson of the safety and health committee of the Iberia Líneas Aéreas de España enterprise and the Recoletos Compañía Editorial S.A. enterprise refused to allow a trade union delegate (with the right to speak but not to vote) to attend the meetings of that committee. In both cases, the judicial authorities (Labour Court of Madrid, High Court of Justice and Constitutional Court) ruled that the trade union branch of the CNT does not have the right to attend meetings of the safety and health committee since it is not represented on the works council, neither has it voluntarily participated in the elections to that body. According to the CNT, the existence of elected representatives is thus being used, contrary to the provisions of ILO Convention No. 135, to undermine the position of the trade unions concerned or their representatives, impeding their exercise of freedom of association. The CNT considers that it has as much right as any other trade union to be concerned with the workers' safety and health, that the right it claims does not impose a burden on anyone and that the denial of this right will result in depriving its members of information on safety and health.

B. The Government's reply

1. 180. In its communication of 22 February 2000, the Government states that the question at issue is whether the delegate or spokesperson of the CNT trade union in the enterprises Iberia Líneas Aéreas de España and Recoletos Compañía Editorial S.A. has the status of trade union delegate under the terms laid down by Spanish law in order to participate in the safety and health committee, with the right to speak but not to vote. In this respect, it should be pointed out that section 10(1) of Basic Act No. 11/1985 respecting freedom of association provides that "in undertakings or, as the case may be, in workplaces that employ more than 250 workers, whatever the type of their contract, the trade union branches that may be established by the workers who are members of the trade unions represented on the works councils or on the representative organs to be established in the public administrations shall be represented for all purposes by trade union delegates elected by and from among the union's members in the undertaking or workplace", which means, on the one hand, that in order for a union to have a trade union delegate, there must be at least 250 employees in the enterprise or workplace and, on the other, the trade union must be established in the enterprise and represented on the works council; the latter requirement was not met in this case, since the CNT itself in its own communication admits that it does not participate in elections of workers' representatives.
2. 181. In this respect, attention should be drawn to the decision of the Central Labour Court of 23 December 1986, denying the appellant, a member of the CNT trade union, the right to the status of trade union delegate, in which it was emphasized that the requirements for a trade union branch to meet in order to have delegates are those laid down in section 10(1) of the Basic Act respecting freedom of association. The ruling states the following:
   • This conclusion is not in contradiction with the provisions of section 8(1) of the Basic Act respecting freedom of association, since the latter lays down the general right of all trade unions to establish trade union branches, but this right does not imply that every trade union branch must have at least one trade union delegate, given that, as stipulated in section 10, the only branches that may be represented by such delegates are those that meet the requirement of subsection (1) of that section. Neither can it be maintained that these considerations violate articles 7 and 28 of the Constitution of Spain or Article 5 of ILO Convention No. 135, since none of these articles prohibits establishing restrictions or conditions on the ability of trade union branches to have trade union delegates, and secondly, such restrictions (laid down in section 10(1) of Act No. 11/1985 as pointed out above) do not in any way constitute an infringement of freedom of association, since these limitations, duly regulated as they are in this enactment, are dictated by indisputable imperatives of reason and hence, in such cases, there has been no violation of the right to freedom of association, but only correct regulation of this right.
3. 182. Moreover, judgement No. 84/1989 of the Constitutional Court, in the appeal for protection of constitutional rights lodged against the Central Labour Court's decision of 23 December 1986, makes clear what is meant by the trade union's self-exclusion with respect to its participation in unitary or elected representative bodies, and in this respect point 4 of the legal reasoning states:
   • Therefore, if a trade union excludes itself from participation in representative bodies, which of course is perfectly legitimate and cannot be hindered (STC 23/1983 of 25 March), this means that it has also excluded itself from the consequences which representation on such bodies entails (STC 37/1983 of 11 May). If the right to be represented by trade union delegates, with the attendant powers and guarantees, is reserved to trade union branches of trade unions which, because they represent more voters, are represented on works councils (section 10 of the Basic Act respecting freedom of association), a trade union branch without such representation clearly cannot enjoy the right or the accompanying powers and guarantees.
4. 183. In the light of the above, and taking account of the fact that the CNT trade union does not meet the requirements for representation on the unitary representative bodies, as provided in section 10 of the Basic Act respecting freedom of association, and that the requirements laid down in this section do not violate the rights of freedom of association and equality of treatment and collective bargaining as stated in rulings STC 173/1992 and STC 188/1995, trade union branches that do not meet these requirements may nominate representatives or spokespersons in the exercise of their freedom to organize, but cannot in any way nominate trade union delegates having the rights and guarantees recognized by the Basic Act respecting freedom of association.

C. The Committee's conclusions

1. 184. The Committee observes that in this case the complainant objects to refusal to allow a delegate from its trade union branches on the safety and health committee of two enterprises.
2. 185. The Committee notes that, according to the statements made by the Government: (1) the complainant has excluded itself from this right by not contesting the elections to the workers' representative bodies and hence not being represented on the works council; and (2) only the trade union branches represented on the works council may have delegates (in this case on the safety and health committee).
3. 186. The Committee concludes that: (1) Spanish legislation has chosen to provide that the determination of trade union delegates on the safety and health committee of an enterprise is conditional upon the representativity of trade union branches in so far as the latter is expressed in terms of the results of elections to the works council; (2) although the works council is a representative body of the workers in general, the candidates for election to this body are representatives of the trade union branches. Therefore the Committee considers that, contrary to the complainant's assertions, the existence of elected representatives on the works council does not undermine the position of the trade union representatives within the meaning of Article 5 of Convention No. 135.