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Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 371, Marzo 2014

Caso núm. 2947 (España) - Fecha de presentación de la queja:: 10-MAY-12 - Cerrado

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Allegations: Restrictive legislation on collective bargaining and trade union leave

  1. 317. The complaint is contained in a joint communication dated 10 May 2012 from the Trade Union Confederation of Workers’ Committees (CC.OO.) and the General Union of Workers (UGT). These organizations submitted supplementary information and additional allegations in communications dated 22 June, 30 July and 29 October 2012 (the last of these communications – on issues related to the public sector – was also signed by the Independent Central Workers’ Union and Union of Civil Servants (CSIF), the Workers’ Trade Union (USO) and many other national public sector trade unions.
  2. 318. The Government submitted its comments in communications dated 5 July, 27 September and 28 November 2012, and 22 February and 30 December 2013.
  3. 319. 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), the Workers’ Representatives Convention, 1971 (No. 135), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

A. The complainants’ allegations
  1. 320. In their communications dated 10 May, 22 June, 30 July and 29 October 2012, the CC.OO., UGT, CSIF, USO and many national trade unions complained that the right to freedom of association and the right to bargain collectively, recognized and guaranteed in ILO Conventions Nos 87, 98 and 154, had been violated by Royal Legislative Decree No. 3/2012 of 10 February 2012 on urgent measures for labour market reform, adopted by the Government and confirmed by the Congress of Deputies.
  2. 321. The complainant organizations explain that, on 25 January 2012, two trade unions, the Spanish Confederation of Business Organizations (CEOE) and the Spanish Confederation of Small and Medium-Sized Enterprises (CEPYME), signed the Second Agreement on Employment and Collective Bargaining 2012, 2013 and 2014 (II AENC), which was published in the Official Gazette of 6 February 2012. The II AENC is a binding three-year collective agreement that requires the signatory parties to increase their efforts to ensure that all their member organizations – within the framework of their freedom to negotiate – conduct themselves or modify their conduct “with a view to application of the criteria, guidelines and recommendations” contained therein. The parties used similar language in the record of the signing of the II AENC, which stated that the signed document was designed to “provide guidance for the negotiation of collective agreements during the period of its validity by setting criteria and making recommendations to be followed during collective bargaining”. The Agreement covers the structure of collective bargaining and agrees and sets out a set of coordination and implementation rules that would govern collective bargaining in the future. The parties again express a preference for collective bargaining at the State or, failing that, the independent level in order to structure the bargaining, and they do not support the elimination of provincial agreements, which, in their view, provide coverage to a significant number of enterprises and workers. They also call for bargaining to be conducted at the enterprise level, whether through conventions or through enterprise agreements and pacts, in order to negotiate on issues relating to “working hours, functions and wages”; the internal flexibility aspects of such negotiations are covered in other parts of the Agreement.
  3. 322. However, the complainant organizations maintain that just two weeks later, on 10 February 2012, the Government adopted Royal Legislative Decree No. 3/2012 of 10 February 2012 on urgent measures for labour market reform (Official Gazette of 11 February 2012), which repealed and annulled most of the points that had been negotiated and agreed in the II AENC, particularly those relating to the structure of collective bargaining and the regulation of internal flexibility; it has even been said that the legislation on the state of emergency “fails to reflect, even partially, its content, marginalizing and ignoring it”.
  4. 323. The aforementioned Royal Legislative Decree was drafted and promoted by the Government immediately after the signing of the II AENC with no participation by or negotiation with the unions. There were no prior consultations on the substance of the regulations, nor was there any effort to hold functional consultations to allow for an exchange of views and expression of differing perspectives on the reform. The reported violations contained in Royal Legislative Decree No. 3/2012 continued after the adoption of Act No. 3/2012 of 6 July 2012 since the amendments to Spanish law resulting from the Congress of Deputies’ consideration of the Legislative Decree in the form of a draft law were essentially a mere reiteration of what had already been regulated by Royal Legislative Decree No. 3/2012. Only certain ancillary points were modified. The complainant organizations state that they were not consulted by the Government before or after the adoption of the Royal Legislative Decree. Nonetheless, the CC.OO. and the UGT proposed amendments to the draft law under consideration by Parliament with respect to institutions and the role of lawmakers with a view to improving the regulations and avoiding future claims of unconstitutionality involving, as we understand it, certain provisions of the law which violate rights recognized in the Constitution and in the ILO Conventions that Spain has ratified. These proposals were completely ignored.
  5. 324. The complainant organizations then summarize the provisions of Royal Legislative Decree No. 3/2012 (now Act No. 3/2012):
    • (a) Primacy of application must be given to enterprise collective bargaining agreements, even against the shared desire of unions and employers’ organizations. It is therefore prohibited to negotiate a change in or exception to the rule of the absolute priority of the enterprise agreement. The wording of Royal Legislative Decree No. 3/2012 with respect to the priority of enterprise agreements was modified with the addition of a statement that such agreements may be negotiated and different working conditions imposed at any time during the period of validity of higher level collective agreements (even prior to their expiration). Thus, voluntary collective bargaining between unions and employers’ organizations is subject and subordinated to the legal precedence of the provisions of enterprise agreements, many of which are negotiated not by unions, but by non-union representatives. Moreover, this priority of application is the result not of a voluntary collective bargaining agreement; it was imposed by the Government first through Royal Legislative Decree No. 3/2012 and now through Act No. 3/2012; this constitutes unwarranted interference in the unions’ right to bargain collectively.
    • (b) Enterprises can “disregard” – in other words, fail to implement – the provisions of a collective agreement on economic, technical, organizational or production-related grounds without the consent of the negotiators of the agreement, or even of the representatives of the enterprise’s employees, by requiring binding administrative arbitration. With respect to the disregarding of, or general failure to apply, the working conditions established in a collective agreement, the amendments to article 82, paragraph 3, of the Workers’ Statute that were introduced by Act No. 3/2012 may be summarized as follows: (1) the scope of the economic situation that warrants such disregard is clarified and some aspects of that situation that constitute grounds for dismissal and contract suspension are added; it is established that a decline in revenue or sales must have these characteristics: on the one hand, the reference is to ordinary revenue from the enterprise’s production or to operating revenue and, on the other, revenue for two consecutive quarters must be lower than for the same quarters of the previous year, not the quarter immediately preceding the one in which the decline first occurred. The same criteria that apply to collective dismissals are included through the aforementioned reference to two quarters rather than three as grounds for dismissal; and (2) in the event of a dispute between the enterprise and the workers’ representatives regarding a failure to apply the provisions of a collective agreement, the dispute may be brought before the committee on the agreement; however, where this has not been requested or where the committee has failed to resolve the dispute, Act No. 3/2012 now requires the parties, or rather the party that is seeking not to implement the agreement – in other words, the employer – to follow the dispute settlement procedures set out in interprofessional agreements in accordance with article 82, paragraph 3, of the Workers’ Statute. The new wording states:
      • Where the consultations end without agreement being reached and the procedures mentioned in the previous paragraph are not applicable or have failed to resolve the dispute, any of the parties may refer the dispute to the National Advisory Committee on Collective Bargaining Agreements (CCNCC), if the failure to comply with the working conditions affects either branches of the enterprise located in more than one autonomous community, or the relevant bodies of such autonomous communities. The decisions of these bodies, which may be adopted internally or by an arbitrator whom they appoint for that purpose with the necessary guarantees to ensure the latter’s impartiality, must issue a ruling within 25 days of the date on which the dispute was referred to the bodies in question. Such a decision shall have the same force as agreements reached during consultations and may only be appealed following the procedure and on the grounds set out in article 91. …
    • Therefore, according to the unions, if no solution is reached through these procedures, the parties are authorized to request the National Advisory Committee on Collective Bargaining (CCNCC) or an equivalent autonomous community body to issue a ruling or appoint an arbitrator. Act No. 3/2012 provides that this appointment shall be made with the necessary guarantees to ensure the impartiality; this has an impact on the status of the arbitrator. However, in light of the tripartite nature of the Committee and the fact that the Administration has the final say in resolving the dispute or appointing the arbitrator, the latter is not truly impartial, having been appointed by the Administration for the purpose of modifying the provisions of the labour laws established in a collective agreement during its period of validity. Additional Provision 5 empowers the CCNCC to intervene in the resolution and dispute processes during consultations on failure to apply the working conditions established in collective agreements and, because it is a tripartite body, the Administration plays the deciding role in the adoption of agreements.
    • (c) Internally negotiated flexibility has been replaced by a unilateral decision of the employer, which, without the workers’ consent, may decide not to apply the working conditions agreed with the workers’ representatives in enterprise agreements. Royal Legislative Decree No. 3/2012 made sweeping changes in the legal regime governing “significant changes in working conditions” under article 41 of the Workers’ Statute by authorizing employers, sometimes after several rounds of consultations in which no agreement has been reached, to make unilateral modifications to extremely important working conditions established in pacts or collective agreements that were concluded with the workers’ representatives authorized to negotiate comprehensive agreements. However, under the Spanish system of labour relations, problems in the functioning of an enterprise do not constitute grounds for employers to modify unilaterally the provisions of collective conventions and agreements, an effect that is disproportionate and incompatible with the effectiveness to be expected from collective bargaining. The empowerment of employers to modify at will the working conditions contained in a collective agreement or pact, including on matters as important as wages and working hours and even against the wishes of the workers’ representatives, constitutes a violation of the guarantee of the effectiveness and binding force of collective agreements. It also violates the provisions of ILO Conventions Nos 98 and 154 and of the Collective Agreements Recommendation, 1951 (No. 91), which endorse and guarantee the parties’ mandatory compliance with the provisions of agreements reached through collective bargaining.
  6. 325. The complainant organizations also maintain that, through Royal Legislative Decree No. 20/2012 of 13 July 2012, the Government decided unilaterally to take steps to ensure budgetary stability and promote competition and to establish a series of measures reorganizing and rationalizing the public administrations, thereby affecting the statutory and contractual status of all public sector employees, or of State public sector employees alone.
  7. 326. These measures are justified because “the current economic situation and the need to reduce the public deficit without impairing the provision of essential public services makes it necessary to increase the efficiency of the use of public resources by the public administrations in order to make progress towards the essential goal, set within the constitutional framework and by the European Union, of achieving budgetary stability”. Royal Legislative Decree No. 20/2012 focuses on emergency, urgent and unilateral measures “designed to rationalize and public administration staffing costs and to manage staff more efficiently ... reducing staffing costs and increasing the quality and productivity of public servants”. The measures imposed unilaterally by the Government are quite diverse and may be summarized as follows:
    • ■ Wages have been reduced by eliminating the additional payment for the month of December 2012 (the bonus). This amounts to an average savings of around 8 per cent and brings the purchasing power of public servants to approximately that of 2012.
    • ■ The full benefit for temporary inability to work has been reduced and potential increases have been limited, thereby penalizing public servants who, owing to illness, are temporarily unable to work.
    • ■ Working hours in all public administrations have been reorganized across the board by drastically reducing the length of the annual holiday with pay and the number of personal days. This measure has also entailed a reduction in many other types of leave (including, among other things, maternity leave, flexible working hours and leave to care for a dependent relative) beyond the legal minimum; under Royal Legislative Decree No. 20/2012, they are no longer available to individuals or groups as the favourability principle and the principle of more favourable terms no longer apply.
    • ■ Trade union leave has been reduced in the public administrations and subsidiary bodies; this significantly lessens the number of hours with pay that may be used to carry out union or staff representation functions and of full-day waivers of attendance at the workplace.
    • ■ In future, collective bargaining in the public administrations will be greatly reduced since the binding force of any collective pact, agreement or convention is subject to the possibility that the public administrations may decide unilaterally to adopt adjustment measures or plans in order to reduce the public deficit. It is possible to “disregard” the provisions of conventions or pacts, regardless of the subject matter and without the need for consultation; the only requirement is to “inform” the unions.
  8. 327. The complainant organizations state that these measures have been implemented by suspending all public sector employee agreements, pacts and conventions and amending the legislation (primarily Act No. 7/2007, the Basic Statutes of the Public Service (EBEP)) that regulates the working conditions of public servants.
  9. 328. The complainant organizations report that all of this has been done without the required convocation of the negotiating committee, even though all of the issues in question are subject to compulsory negotiation pursuant to articles 37 and 38 of the aforementioned Act No. 7/2007. In other words, the Government issued Royal Legislative Decree No. 20/2012 without communicating, let alone negotiating, with the legitimately empowered unions. Just two months after Royal Legislative Decree No. 20/2012 was adopted by the Government and entered into force, the unions were informed at a routine meeting in the context of negotiations envisaged in article 38 of the EBEP. The Government provided this information to the unions because it had no intention to act of its own volition. At that meeting, the Administration made it clear that there could be no negotiation; it simply “read” the provisions of the Act to the unions on the negotiating committee. The Government has still not provided any reply or solution to the unions’ questions regarding the harm that the Royal Legislative Decree has caused to public servants and their union representatives.
  10. 329. According to the complainants, by repealing provisions of all previous collective agreements, pacts and conventions between, on the one hand, the various public administrations (central, autonomous and local) and the rest of the public sector, and, on the other, all public servant unions that are members of the relevant general negotiating committees, the Government’s unilateral decision amounts to elimination of the right to bargain collectively.
  11. 330. This unilateral imposition on the pretext of an urgent need to reduce the public deficit leaves no room whatsoever for negotiation and deprives the unions of their indisputable and primordial function of protecting the interests that they represent through the participation channels established in laws and conventions. Ultimately, the Government has raised to the status of a non-derogable public policy rule to which there can be no amendments a number of matters which, prior to the adoption of Royal Legislative Decree No. 20/2012, were subject to mandatory collective bargaining under the law (the 1987 EBEP). Articles 32 and 38 of this 1987 legislation first purport to “ensure compliance with collective conventions” and with “pacts and agreements”, respectively, and then provide, on an exceptional basis, for the possibility of suspending or modifying them “on the grounds of a significant change in the economic situation”. In that event, “the public administrations must inform the unions of the reasons for the suspension or modification”. However, the Government did not negotiate with the unions the provisions of the aforementioned Royal Legislative Decree No. 20/2012 that concern public servants, nor did it invoke the emergency envisaged in articles 32 and 38; it simply declared that collective agreements, pacts and conventions concerning public sector employees which contained provisions conflicting with articles 1 to 16 of Royal Legislative Decree No. 20/2012 were “suspended”. This is not an empowering provision in a public administration legislative act, but a directly applicable legal statement with immediate legal effects; this is proof of a premeditated violation of public servants’ right to bargain collectively.
  12. 331. The complainant organizations further maintain that the Government’s belligerent attitude towards collective bargaining will continue since Royal Legislative Decree No. 20/2012, in its Additional Provision 2, interprets articles 32 and 38 of the EBEP as follows: “It shall be understood, among other things, that this includes threats to the public interest arising from a significant change in the economic situation where the public administrations must adopt adjustment, public account rebalancing, economic or financial measures or plans in order to ensure budgetary stability or reduce the public deficit.” There is no doubt that this statement authorizes disregard for the provisions of collective conventions or pacts; there is no limitation as to its scope and no stipulation that consultations be held, the only requirement being to inform the unions. This severely limits negotiations and makes them subject to the unilateral will of the Administration while ignoring the role of unions and attacking the very heart of collective bargaining.
  13. 332. The complainant organizations further maintain that the right to time credit (trade union leave) is established in the additional provisions on freedom of association contained in article 28, paragraph 1, of the Constitution, which, according to a ruling of the Constitutional Court, covers both public servants and administration staff. However, article 10 of Royal Legislative Decree No. 20/2012 provides, with effect as from 1 October 2012, that:
    • Within the framework of the public administrations and ancillary bodies, universities, foundations and societies, as from the entry into force of this Royal Legislative Decree, all union rights – whether referred to as such or by any other name – established in agreements on public servants or statutory personnel or in collective conventions and agreements on workers signed by their representatives or unions, the provisions of which go beyond those of Royal Legislative Decree No. 1/1995 of 24 March 1995 (adopting the revised Workers’ Statute Act); Organization Act No. 11/1985 of 2 August 1985 (on freedom of association) and Act No. 7/2007 of 12 April 2007 (the EBEP) concerning hours with pay that may be used for the conduct of union or representation functions, for the appointment of union delegates or as full-day waivers of attendance at the workplace, as well as other union rights, shall be brought fully into line with the provisions of these legislative acts. Therefore, any collective pacts, agreements and conventions on such matters that have been signed and that go beyond the aforementioned provisions shall be repealed and without effect as from the entry into force of this Royal Legislative Decree. The foregoing is without prejudice to any future agreements reached exclusively in general negotiating committees in order to modify the obligations or work attendance regime of union representatives with a view to the effective performance of their representation and negotiation functions or to the proper exercise of other union rights.
  14. 333. The complainant organizations stress that revocation, pursuant to article 10 of Royal Legislative Decree No. 20/2012, of the expansion of union time credit that had been agreed inter partes during collective bargaining is a permanent structural measure, contrary to the time limits established in the principles of the Committee on Freedom of Association.

B. The Government’s reply

B. The Government’s reply
  1. 334. In its communications of 5 July, 27 September and 28 November 2012 and 22 February and 30 December 2013, the Government states that, before evaluating the complainant organizations’ allegations, it is essential to consider the context in which the challenged labour reforms were made. The situation in Spain in early 2012 made it necessary for the Government to take decisive, urgent action in several areas. One of its priorities was the labour market since the economic crisis that Spain had been experiencing since 2008 had highlighted the weaknesses of its institutional design. The seriousness of the current crisis is unprecedented. At the time of adoption of Royal Legislative Decree No. 3/2012, the available data from the most recent labour force survey indicated that the number of unemployed persons stood at 5,273,600, having risen by 295,300 during the fourth quarter of 2011 and by 57,000 since the fourth quarter of 2010. During the same period, the unemployment rate had risen by 1.33 points as compared with the third quarter and stood at 22.85 per cent. In other words, Spain has lost more jobs than the principal European economies: over 3.2 million since the beginning of the crisis and almost 100,000 per month during the quarter immediately preceding the 2012 labour reform, by which time there were as many as 1.5 million families in which all of the members were unemployed. The crisis has had a greater or lesser impact an all the European countries, but Spain has lost more jobs, more rapidly, than the principal European economies. From the first quarter of 2008 to the last quarter of 2011, 11 per cent of jobs were lost in Spain versus 2.5 per cent in the Eurozone.
  2. 335. The economic crisis that Spain is experiencing has highlighted the highly seasonal nature of employment and the enterprise cycle; this results in fluctuations that are uncommon in developed countries. From the very beginning of the crisis, unlike the experience of our neighbouring countries, Spanish enterprises have relied primarily on the termination of employment contracts rather than making greater use of internal flexibility measures. In Spanish enterprises, adjustments have been made through dismissals, not in working conditions. This choice is not accidental or capricious; it is a response to the weaknesses of our labour market, which is hampered, on the one hand, by a high percentage of temporary jobs – with less investment in training and a greater likelihood of dismissal – and, on the other, by a legal framework that has not sufficiently encouraged internal flexibility and collective bargaining that would make it easier for enterprises to adapt working conditions to changes in economic and production circumstances. It was easier to eliminate workers – by not extending or renewing temporary contracts or through so-called “express” dismissal – than to modify the working conditions in an attempt to preserve jobs, for example, through reductions in working hours and wages, an irregular distribution of working hours, a change in functions, and even temporary failure to apply the working conditions established in collective conventions.
  3. 336. The result of all these factors is a highly dualistic labour market. There is a large pool of workers with continuing contracts and, in most cases, wage increases, agreed during collective bargaining, that exceed the production and inflation rates, as well as a right to strong protection against dismissal. On the other hand, however, there is another large pool of workers with temporary contracts who do not enjoy the same protection from the dismissals that are enterprises’ primary mechanism for responding to problems by making adjustments in working conditions (such as wage restraints and changes in working conditions) and who alternate between insecurity and unemployment.
  4. 337. This discrepancy is clearly inequitable and, moreover, has been particularly detrimental to the youth labour market. It is no accident that 27 per cent of the jobs lost during the fourth quarter of 2011, by comparison with the same quarter of the previous year, had been held by workers under 25 years of age; this number rises to over 50 per cent for workers under the age of 29. This is a consequence of the high percentage of young people who hold temporary jobs; 82.3 per cent of employed young people hold such jobs involuntarily. These workers on temporary contracts are the first to be dispensed with by enterprises, just as young workers with permanent contracts are likely to be the first to be dismissed, not because they are less productive than older workers with more seniority, but simply because they were the last to be hired by the enterprise and are therefore owed less severance pay. The duality is so great that the workers dispensed with are not those who make the greatest contribution to the enterprise, but those who can be dismissed at the lowest cost. The result is that by the end of 2011, virtually one of every two young jobseekers was unemployed.
  5. 338. It should therefore be borne in mind that the economic crisis that began in 2008 has made Spain the country with the highest unemployment rate in the European Union. The speed and intensity of the job loss in Spain is essentially a result of the ineffective relationship between the different types of flexibility – hiring, internal and dismissal – in labour market regulations. And, since the labour market reforms made since the beginning of the crisis have proved insufficient and ineffective in creating jobs, it became essential to address the structural weaknesses of the labour market so that Spain’s economic recovery could begin.
  6. 339. Thus, the labour reform adopted by the Government through Royal Legislative Decree No. 3/2012 and, subsequently, Act No. 3/2012 of 6 July 2012, adopted after consideration by Parliament, merely sought to create conditions in Spain’s labour market that would facilitate rapid improvement of the situation described above by, among other things, giving enterprises greater internal flexibility so that, when they experience changes or difficulties, they could adapt to new conditions in order to preserve jobs rather than resorting to lay-offs as they had done in the past.
  7. 340. In that connection, the Government stresses that, following the adoption of the reform, various international organizations welcomed it. For example, according to the 27 July 2012 International Monetary Fund (IMF) report on Spain:
    • On labour market policy, a profound labour reform was introduced in February with measures to reduce labour market duality (by lowering the dismissal costs of permanent workers for unfair dismissals) and wage rigidity and to increase firms’ internal flexibility (by giving priority to firm level agreements over wider collective agreements). … Directors underlined the urgency of additional progress in boosting competition and jobs, given the high level of unemployment in particular among the youth. They welcomed the recent labour market measures, aimed at reducing market duality and wage rigidity, and increasing firms’ internal flexibility. These efforts should be complemented with further steps to improve the product and service markets, and the enterprise environment. More broadly, Directors encouraged a rapid implementation of the government’s structural reform agenda.
  8. In its preliminary assessment with a view to the drafting of an economic report on Spain, the Organisation for Economic Co-operation and Development (OECD) noted that there had been considerable progress with the labour reform; the grounds for dismissal had been clarified, the amount of severance pay had been reduced and enterprises had been given greater freedom to adapt wages and working hours to changes in the economic situation.
  9. 341. The Government notes that the source of the complaint was the publication, in the Official Gazette of 11 February 2012, of Royal Legislative Decree No. 3/2012 of 10 February 2012 on urgent measures for labour market reform. In accordance with article 86, paragraph 2, of Spain’s Constitution, this Legislative Decree was confirmed by the Congress of Deputies at its meeting of 8 March 2012. The confirmation agreement was published in the Official Gazette of 14 March 2012. The procedure for the handling of draft legislation is now complete; thus, Royal Legislative Decree No. 3/2012 has been repealed through an Act adopted by Parliament, Act No. 3/2012 of 7 July 2012, which has the same purpose.
  10. 342. In response to the allegation that no consultations were held, the Government states that it is difficult to reconcile the urgency of the situation – which, according to article 86 of Spain’s Constitution, authorizes and justifies the executive power’s adoption of provisions with the official rank of Legislative Decree and the substantive rank of law: “Where there is extraordinary and urgent need, the Government may issue temporary legislative provisions which shall take the form of legislative decrees” – with consultations. In any event, consultations need not correspond to the apparent implication of the complaint: that they must culminate in acceptance of the demands of those consulted. In that connection, it should be borne in mind that consultations in no way alter the responsibility of the party that will be taking the measures: in this case, the Government.
  11. 343. It should also be borne in mind that another legislative act, Royal Legislative Decree No. 7/2011 on urgent measures for the reform of collective bargaining, against which there have been no reported complaints, was published just eight months prior to the most recent labour reform. The measures adopted through Royal Legislative Decree No. 3/2012 are in keeping with Royal Legislative Decree No. 7/2011 and, in the context of the labour market reform and of the issuance of Royal Legislative Decree No. 7/2011, it was acknowledged that the social partners objected to reform of the agreements on collective bargaining and this objection culminated in the Government initiative to regulate collective bargaining in light of the urgency of the matter.
  12. 344. In this case, at the time when Royal Legislative Decree No. 3/2011 was issued, there was already awareness of the II AENC, published in the Official Gazette of 6 February 2012, the purpose of which is to provide guidance for bargaining and establish criteria for negotiating committees and which is therefore required to evaluate the circumstances and address several general issues relating to bargaining and the functioning of enterprises.
  13. 345. The introduction to the II AENC states that “these emergencies require action through specific measures designed to achieve economic growth leading to job creation as quickly as possible”. In other words, the need for action without loss of time was recognized. The II AENC reflects agreement on measures relating to the bargaining structure and internal flexibility, the wage rates established in collective agreements, and other matters of equal interest and importance. The Agreement is a clear expression of the social partners’ opinion of collective bargaining at that time, which, moreover, was quite close to the time of issuance of Royal Legislative Decree No. 3/2012. Nevertheless, and precisely because of the need to take measures as quickly as possible, to use the words of the II AENC itself, and not only with regard to some aspects of collective bargaining and internal flexibility, it was neither advisable nor possible to hold consultations on issues on which the social partners had already expressed their views on those occasions.
  14. 346. Moreover, article 86 of Spain’s Constitution also authorizes the issuance of a legislative provision by the executive, not the legislative, power, without the need to follow the normal procedures for the drafting of legislation.
  15. 347. Another issue is that the measures ultimately adopted through the Royal Legislative Decree differed on some points from those advocated in the II AENC. But this in no way affects the extraordinary and urgent reasons for the issuance of such legislation by the executive power. In that regard, it should be reiterated that the executive power cannot abdicate its decision-making responsibility, particularly during crises when action must be taken without delay.
  16. 348. In addition, it is not true that, as stated in the complaint, Royal Legislative Decree No. 3/2012 repealed the II AENC. It must be acknowledged that, in a sense, the Royal Legislative Decree deals with certain issues differently from the II AENC, but it is also clear that the normative hierarchy principle requires that the negotiators of collective conventions ensure consistency with higher ranking norms, not those of lower rank. In short, the II AENC as a whole remains applicable within the normative hierarchy.
  17. 349. The authors of the complaint state, referring to the II AENC, that the Royal Legislative Decree “fails to reflect, even partially, its content, marginalizing and ignoring it”. This is far from true; the Government has publicly stated that it welcomes the II AENC; it has congratulated the signatory parties and informed them of its hope that both the wage agreement aimed at holding down prices and the internal flexibility agreement negotiated will be implemented in lower level bargaining. The Government also points out that since the II AENC, which the unions consider to have been repealed, was signed by two parties, it is surprising that the other party has not taken a position on the matter.
  18. 350. Therefore, the accusation that the II AENC was “suspended or repealed by decree without the consent of the parties” must be rejected. Royal Legislative Decree No. 3/2012, which entered into force on 12 February 2012, simply contains transitional implementation rules concerning the validity of the agreements denounced on the date of its entry into force. A separate question, as noted above, is whether collective agreements in the broad sense are contrary to the normative hierarchy principle, which cannot be violated since, according to article 9, paragraph 3, of Spain’s Constitution, “The Constitution guarantees the principle of legality, the normative hierarchy, the publication of legislation, the non-retroactivity of punitive provisions that are not conducive to or restrict human rights, legal certainty, the accountability of public authorities and the prohibition of arbitrary action by those authorities”. This provision is reflected in article 3 of the Worker’s Statute.
  19. 351. The Government notes that, according to the Committee on Freedom of Association, tripartite consultations must be held before the Government submits draft legislation to Parliament; however, it explains that, in this case, it was a question of submitting to the legislature not draft legislation, but legislation authorized under article 86 of Spain’s Constitution. In that respect, Act No. 50/1997 of 27 November 1997 on the organization, powers and functions of the Government makes no provision for the drafting of legislative decrees and thus does not call for the holding of consultations in such urgent cases, which are envisaged in the Constitution. Moreover, where there are urgent grounds for doing so, the Council of Ministers may even dispense with procedures, including consultations, provided that they are not prescriptive in nature, and may decide to adopt a draft law and submit it to the Congress of Deputies or, where appropriate, to the Senate without following those procedures.
  20. 352. With respect to the allegation that no consultations whatsoever were held with the most representative unions prior to the Spanish Government’s adoption of Royal Legislative Decree No. 3/2012, the Government later denied the signatory unions’ claim that no consultations whatsoever had been held prior to its adoption. At five technical meetings, held during February and March 2012 (on 15, 20 and 23 February and 5 and 12 March 2012) and attended by representatives of the Ministry of Employment and Social Security and of two unions, the UGT and the CC.OO., both parties had an opportunity to explain their positions and make suggestions concerning various issues relating to the labour reform. The first four meetings were held before the Congress of Deputies adopted the agreement confirming Royal Legislative Decree No. 3/2012 and, in any event, all five meetings preceded the date on which it was first considered by Parliament, which adopted it as Act No. 3/2012.
  21. 353. Furthermore, during this consideration by Parliament, which continued until 6 July 2012 – the date on which Act No. 3/2012, which replaced Royal Legislative Decree No. 3/2012, was ultimately adopted – the parliamentary groups had an opportunity to submit amendments to the draft law based on Royal Legislative Decree No. 3/2012. A total of 657 amendments were submitted to the Congress of Deputies and were discussed at length during this phase; later, 574 amendments were submitted to the Senate. During this consideration, a total of 74 amendments submitted by various parliamentary groups were adopted by the Congress of Deputies and 11 by the Senate. The signatory organizations themselves recognized, in a written statement, that “they had prepared draft amendments to the text of the draft law that was under consideration by Parliament” in order to improve the regulation, among other goals that were also set out in their statement. The organizations added that “these draft amendments were completely ignored”. This claim is not borne out by the statistics on the amendments submitted during the consideration of Act No. 3/2012.
  22. 354. Moreover, three conclusions may be clearly inferred from the signatory organizations’ written statement:
    • ■ The organizations themselves admit that they prepared proposed amendments to the draft law. This, together with the meetings between representatives of the Ministry of Employment and Social Security and two unions, the CC.OO. and the UGT, contradicts the allegation, earlier in the written statement, that there was no consultation with the unions either before or after the issuance of the legislation (Royal Legislative Decree No. 3/2012 of 10 February 2012) that prompted the original complaint. Preparation of the draft amendments mentioned by the unions led to the submission of proposed amendments by parliamentary groups that were present during the consideration by Parliament; obviously, the unions themselves were not present although, as they themselves recognize by stating that they could prepare draft amendments, they were able to influence the process.
    • ■ Contrary to the unions’ claim, the draft amendments containing their opinions were not ignored, but were considered and studied. A different question is whether the amendments containing those opinions were rejected, in whole or in part, but this is not the issue under consideration at this time.
    • ■ Furthermore, the answer to the question of who is alleged to have rejected the proposals (if indeed they were rejected) is certainly not the Government, against which, let it be recalled, the complaint is directed, but rather Spain’s Parliament, which adopted Act No. 3/2012 of 6 July 2012 on urgent measures for labour market reform. It is Parliament that represents the Spanish people in whom national sovereignty is vested and that exercises the State’s legislative power under Spain’s Constitution.
  23. 355. As to whether the unions’ proposals were rejected (not ignored) during Parliament’s consideration of the draft law based on Royal Legislative Decree No. 3/2012, while, for the aforementioned reasons (the fact that Parliament, not the Government, is responsible for the text of Act No. 3/2012), there is no need to defend the Government on this point, it should be noted that the parliamentary consideration in question led to changes in various articles of the draft law, including those that gave rise to the complaint, which are directly related to the ILO Conventions mentioned therein. The final text of the Act is clearly the outcome of contributions from the various parliamentary groups.
  24. 356. Concerning the allegation that “primacy of application must be given to enterprise collective bargaining agreements”, the Government declares that the contested provisions allude to “the priority of application of enterprise agreements over State sectoral agreements, independent agreements or lower-level agreements”. “Primacy” and “priority” are not equivalent terms and this point should be clarified. According to the Royal Academy of the Spanish Language dictionary, “primacy” is defined as “the superiority, advantage or excellence of a thing over another similar thing”, while “priority” is defined as “the precedence of a thing over another thing, whether in time or in importance”. It is important to bear this in mind since improper word usage may lead to an incomplete understanding of the situation.
  25. 357. Therefore, before entering into a legal analysis, it must be reiterated that, under the Act, certain matters that are regulated in an enterprise agreement shall be given precedence of application over the regulations on these matters that are contained in higher level agreements. The Act in no way provides that the former regulation is superior.
  26. 358. The Government points out that:
    • ■ The priority – not primacy – of application is limited. In other words, as seen from a simple reading of new article 84, paragraph 2, of the Workers’ Statute, priority is not given to all the provisions of the agreement, but only to certain parts and certain matters. Neither shall priority be given to everything that lies within its scope, nor shall the integrity of the higher level convention be undermined; it will remain fully applicable as before, except that its provisions relating to all or some of the matters that were legally included in and negotiated within the scope of the enterprise agreement will be partially inapplicable.
    • ■ Priority of application is nothing new or unheard of in Spanish labour law, nor is it a violation of the principles that govern the latter’s application. As is generally known, the determination of which of the various norms – including norms with different hierarchical rank and different origin; general, sectoral and enterprise norms; and norms of prior and subsequent adoption – applies is based on the normative hierarchy (the minimum norm, the most favourable norm), tempered by consideration of which of the successive norms in force is applicable and of the mandatory or non-mandatory nature of the norm (irrevocability of rights), all of which must be tempered by the pro operario principle.
  27. 359. Neither is it new or unheard of in Spanish labour law that the normative hierarchy principle is tempered by the need to apply the norm that is closest to the situation in question. Both of these rules are the result of modifications to the Workers’ Statute since its adoption in 1980.
  28. 360. In 1994, in a departure from the trend towards the centralization of conventions and agreements under article 83, paragraph 2, of Act No. 8/1980 of 10 March 1980, the Workers’ Statute, which facilitated the concentration of power in the hands of the major unions and employers’ organizations, the legislators decided to encourage decentralized levels of bargaining.
  29. 361. Under the new wording of article 84 of the Workers’ Statute, agreements at a higher level than enterprise agreements may have an impact on agreements at an even higher level – with, however, certain guarantees of legitimacy for the negotiating parties and with the exclusion of certain matters. The Government considers that proximity of the source of regulations governing working conditions to the labour relations environment is a requirement for the success of those regulations since they will be more closely aligned with the circumstances in which the labour relations are conducted. Thus, the lawmakers encouraged the establishment of independent but more limited collective bargaining frameworks when the negotiating parties so desire.
  30. 362. Prior to the adoption of Royal Legislative Decree No. 3/2012, which is being challenged by the complainants, Royal Legislative Decree No. 7/2011 of 10 June 2011 on urgent measures for the reform of collective bargaining provided that:
    • Except where a State or autonomous community collective agreement or convention negotiated pursuant to article 83, paragraph 2, establishes different rules concerning the structure of collective bargaining or the concurrency of conventions, the regulation of conditions in an enterprise agreement shall have priority of application over a State sectoral agreement, an autonomous community agreement or an agreement of lesser scope on the following matters:
      • (a) the amount of the basic wage and wage supplements, including those associated with the status and performance of the enterprise;
      • (b) bonuses, overtime pay and specific compensation for shift work;
      • (c) working hours and the distribution of working time, shift work schedules and annual holiday planning;
      • (d) adaptation of the job classification system to the circumstances of the enterprise;
      • (e) adaptation of the aspects of hiring procedures that fall within the scope of enterprise conventions under this Act;
      • (f) measures designed to promote a balance between work, the family and social life.
  31. 363. Thus, as can be observed, enterprises have been given greater collective bargaining capacity as compared with sectoral agreements on matters such as the base wage, wage supplements, working hours and the distribution of working time in order to encourage flexibility and to adapt working conditions to the specific, concrete circumstances of enterprises.
  32. 364. To summarize, in the past, the lawmakers have already encouraged decentralization by distributing exclusive or shared competencies among the various types of collective bargaining. Through a series of reforms, efforts have been made to encourage decentralization wherever possible by promoting more enterprise-centred collective bargaining. This decentralizing normative process, which was not challenged before the ILO at the time, is similar in nature to the process established by Royal Legislative Decree No. 3/2012 and Act No. 3/2012, which did not then, and does not now, entail restriction of the free choice of the bargaining unit or prohibition of the opening of contractual discussions at certain levels.
  33. 365. It must also be borne in mind that, in light of the inviolability of the workers’ rights recognized in collective agreements, Act No. 11/1994 paved the way for modification of those rights by adding to article 82 a new paragraph 4, which states: “4. A collective agreement adopted at a later date than a previous agreement may modify the rights set out in the former. In that event, the regulations contained in the new collective agreement shall apply in full.” This modification was, of course, challenged by the unions but, to the knowledge of the Ministry of Labour, no complaint such as this one was submitted. The reason for the unions’ challenge was that the Act modified collective bargaining, and therefore labour relations; this meant that, in the future, no right arising from collective bargaining could be considered established and that it would be necessary to decide on a case-by-case basis, by agreement between the parties, what had been established in previous instruments and what could be established for the future. This situation created the dizzying prospect of having to begin from scratch with each collective bargaining session, a scenario that is repeating itself today as a result of regulation of what has been called the “stability” of the agreement or extension of the period of validity of its normative clauses, which directly establish working conditions, beyond the initially agreed time period even if the agreement is denounced.
  34. 366. The normative change that has been introduced is fully consistent with the principle of free and voluntary collective bargaining since it in no way stipulates the level of such bargaining. In any event, the decision as to the bargaining level is subject to the will of the parties. On this point, however, the complainant organizations appear to have forgotten that the new legislation allows authorized parties to negotiate agreements at the enterprise level, just as they are empowered to negotiate collective agreements at a higher level. In no way does it require collective bargaining at the enterprise level since, in any event, it is for the parties authorized to negotiate enterprise agreements to decide whether to negotiate an agreement at that level or to apply a higher level agreement. A separate issue is that, once the parties authorized to negotiate an enterprise agreement have elected to do so and signed the agreement, the latter is given priority of application over higher level agreements, albeit only on certain matters. This simply means that a rule of concurrence among agreements of differing scope has been established; it in no way entails a violation of the right to bargain collectively.
  35. 367. Therefore, the new legislation is fully consistent with the principles established in paragraphs 988 and 989 of the Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, fifth (revised) edition, 2006:
    • 988. According to the principle of free and voluntary collective bargaining embodied in Article 4 of Convention No. 98, the determination of the bargaining level is essentially a matter to be left to the discretion of the parties and, subsequently, the level of negotiation should not be imposed by law, by decision of the administrative authority or by the case-law of the administrative labour authority.
    • 989. The determination of the bargaining level is essentially a matter to be left to the discretion of the parties. Thus, the Committee does not consider the refusal by employers to bargain at a particular level as an infringement of freedom of association.
  36. 368. With regard to the bargaining level, it should also be borne in mind that, according to Paragraph 4(1) of the Collective Bargaining Recommendation, 1981 (No. 163), “Measures adapted to national conditions should be taken, if necessary, so that collective bargaining is possible at any level whatsoever, including that of the establishment, the undertaking, the branch of activity, the industry, or the regional or national levels.” Similarly, the Committee of Experts, having recalled that the right to bargain collectively should also be granted to federations and confederations and rejected any prohibition of the exercise of that right, has stated that “legislation which makes it compulsory for collective bargaining to take place at a higher level (sector, branch of activity, etc.) also raises problems of compatibility with the Convention”, and that “the choice should normally be made by the partners themselves”, since “they are in the best position to decide the most appropriate bargaining level ...”.
  37. 369. Neither Royal Legislative Decree No. 3/2012 nor Act No. 3/2012 imposes appropriate bargaining units. Article 83, paragraph 1, of the Workers’ Statute states that all collective agreements shall have the scope of application agreed by the parties. Now, as in the past, it is for workers’ and employers’ representatives to decide where they will exercise the power to regulate working relations that is implied by the right to bargain collectively. Having done so, they must also decide which working relations will be subject to their authority by establishing the scope of application of the collective agreement.
  38. 370. Furthermore, the decision to give priority of application to enterprise agreements, while limited to certain matters, was not taken on a whim; it was motivated by the need to allow a number of matters to be negotiated by preference at the enterprise level on the understanding that this is the most appropriate place to deal with such matters. On that point, it should be stressed that this idea was shared by the unions that signed the complaint, at least until a few months ago. For example, in the II AENC (adopted on 30 January 2012), which was signed by the employers’ organizations and by the two unions that have signed the complaint, states, in its section on the structure of collective bargaining, that “sectoral agreements should encourage negotiation at the enterprise level, at the initiative of the concerned parties, on working hours, functions and wages because this is the most appropriate place to deal with such matters.”
  39. 371. In that connection, in the statement of reasons for Act No. 3/2012, it is recognized that:
    • … the previous labour market reform (Royal Legislative Decree No. 7/2011 of 10 June 2011 on urgent measures for the reform of collective bargaining) also sought to modify the structure of collective bargaining by giving enterprise agreements priority of application over other agreements on a number of matters that are considered essential to the flexible management of working conditions. In practice, however, the decentralization of collective bargaining was to be effected through State or autonomous community agreements; this could hinder that priority of application. The innovation that is now being made is aimed specifically at ensuring the decentralization of agreements so as to facilitate the negotiation of working conditions at the level closest and most appropriate to the real situation of enterprises and their employees.
  40. 372. On this matter, it is interesting to refer to the recent National High Court Labour Chamber Judgment No. 0095/2012, issued on 10 September 2012, which repealed, as from 12 February 2012 (the date on which Royal Legislative Decree No. 3/2012 of 10 February 2012 on urgent measures for labour market reform entered into force), portions of several articles of the Fifth Collective Agreement on the Cement Products Sector, signed on 21 February 2012, which, under then article 84, paragraph 2, of the Workers’ Statute (on wage rates and the distribution of working time), established that that sectoral agreement would be given priority of application over lower-level agreements, including enterprise agreements. The court considered that this was a violation of the provisions of article 84, paragraph 2, of the Workers’ Statute, which, as amended by the aforementioned Royal Legislative Decree, gave enterprise agreements priority of application over State sectoral agreements, autonomous community agreements or lower-level agreements on a number of matters that expressly included wage rates, working hours and the distribution of working time.
  41. 373. This was the argument made in the Chamber’s judgment of 10 May 2012:
    • Collective agreements are norms that have binding force and effects only within the limits established by law”, citing, in that connection, Constitutional Court Judgment No. 210/1990. In its judgment of 18 January 2000, the Supreme Court stated that “although collective bargaining is grounded in and based on the Constitution (article 37, paragraph 1), the Constitution also establishes that the law takes precedence over agreements; for example, article 7 establishes that the parties to such agreements, unions and employers’ organizations, must respect the law. As stated in the aforementioned Judgment No. 58/1985 (Repertorio del Tribunal Constitucional (RTC) 1985, 58) “the incorporation of collective agreements into the official system of sources of law, following the principle of the uniformity of the legal system, requires … respect for generally accepted peremptory norms, which, owing to their higher rank in the normative hierarchy, have the potential to restrict collective bargaining and may also, in exceptional cases, have full jurisdiction over certain matters which are therefore not subject to collective bargaining.
  42. 374. With respect to the allegations concerning the implications of the aforementioned new article 84, paragraph 2, of the Workers’ Statute, which expressly provides for the negotiation of enterprise agreements while higher level agreements are in force (an amendment introduced by Parliament), from which the unions conclude not only that the alleged violation of the right to bargain collectively and of the binding force of agreements has not been corrected, but that it has been expanded and strengthened, the Government notes that new article 84 of the Workers’ Statute regulates the rules governing the concurrence of agreements with differing scope. The general rule, established in article 84, paragraph 1, of the Workers’ Statute (on prohibition of the concurrence of agreements with differing scope), is supplemented by a series of additional rules, one of which gives enterprise agreements priority of application with respect to certain issues mentioned in paragraph 2 of that article. However, it is clear that in order for different agreements to “concur”. But in order for different agreements to “concur”, the first step in determining which of them has priority of application as envisaged in article 84 of the Workers’ Statute is obviously to consider the “history” of the concurrent agreements. Unless two or more agreements have been negotiated in the past and there is uncertainty as to which of them is applicable, there is clearly no problem to resolve. Article 84 is based on the assumption that a de facto conflict has arisen between two or more collective agreements and provides rules for resolving such conflicts. Logically, this will occur where several such agreements have been negotiated and signed in succession (an agreement is signed and, subsequently, one or more agreements conflict with it) since it is extremely difficult to imagine a scenario in which the concurrent agreements were negotiated and signed at the exact same time.
  43. 375. Thus, since the addition to article 84, paragraph 2(1), of the Workers’ Statute does not alter the regime that preceded the labour reform, the potential for collective agreements to be negotiated by the parties authorized to do so (including at the enterprise level) has always existed within Spain’s system of labour law. The sole purpose of the modification is to preserve the potential to negotiate enterprise agreements subsequent to higher level agreements as a prerequisite for giving them priority of application.
  44. 376. Therefore, the fact that a collective agreement was negotiated while another agreement or differing scope was in force has never affected its validity: the negotiated agreement is valid and cannot be repealed. A separate but extremely important issue is whether the agreement, assuming that it is valid, can be applied under the established legislation governing conflicts between concurrent agreements.
  45. 377. In conclusion, neither Royal Legislative Decree No. 3/2012 nor Act No. 3/2012 dictates bargaining levels or constitutes lawmakers’ interference in the negotiating parties’ freedom to use whatever bargaining level they wish; they may continue to do so. As proof that the lawmakers’ preference for giving enterprise agreements priority of application does not affect the right to bargain collectively, from the date on which Royal Legislative Decree No. 3/2012 entered into force until 16 November 2012, with the labour reform in full effect, a total of 28 State or supra-autonomous community sectoral collective agreements, nine autonomous community sectoral collective agreements and 177 provincial sectoral collective agreements were legally registered, even though all of them were of broader scope than enterprise agreements.
  46. 378. The Government adds that it rejects the statement in the complaint that the priority given to enterprise agreements has totally and unconditionally annulled the binding nature of collective bargaining. The binding force of collective agreements is guaranteed under Spain’s Constitution (article 37, paragraph 1) and through recognition of the authorized parties, who take the initiative in deciding on their scope of application and negotiate in good faith until they reach an agreement that will be binding for as long as it is in force. The changes made do not affect the right to bargain collectively or to freedom of association, but they do modify the bargaining structure and the relationship between agreements of differing scope, which have been regulated by law since 1980.
  47. 379. With regard to the allegation that enterprises can “disregard” – in other words, fail to implement – the provisions of a collective agreement on economic, technical organizational or production-related grounds, without the consent of the negotiators of the agreement or even of the representatives of the enterprise’s employees, by requiring binding administrative arbitration, the Government recalls that, under many European labour law systems, collective agreements are binding only on the signatory parties (this is the case in France, Germany, Italy, the Netherlands, Portugal and Sweden), although it is possible, in some cases, for enterprises that were not represented at the negotiations to become parties to the agreement; moreover, some legal systems even allow the scope of a collective agreement to be expanded through a governmental act or decision, making it universally binding within the functional and geographical scope of its application. In that connection, Spain’s Workers’ Statute distinguishes between two types of collective agreements: (1) State collective agreements, which are negotiated following the procedures set out in the Statute; this type of agreement has the force of law and general or erga omnes scope. Thus, as stated in article 82, paragraph 3, of the Statute, they “are binding on all employers and employees included in their scope of application for as long as they are in force”; and (2) extra-State collective conventions, also known as collective agreements or pacts, which are negotiated without regard for the Workers’ Statute requirement that the signatories be initially authorized and empowered; these agreements have contractual status and are binding only on the contracting parties and the employees and employers directly represented by them.
  48. 380. Thus, in Spain, unlike the situation under other labour law regimes, enterprises are not free to decide whether to apply a State collective agreement even where the enterprise was not directly involved, nor is it a member of an employers’ organization that was involved, in the negotiation of the agreement. The agreement is binding on enterprises by the mere fact that they fall within its scope of application. In the case of such legal regulation (which, it should be stressed, is not the case under other legal systems, where agreements are binding only on the signatory parties), it is far more logical for a binding agreement to be “disregarded”, particularly as this potential appears to be significantly limited not only in the situations in which it may occur, but in the matters to which it can apply.
  49. 381. All of the legislative amendments introduced by Act No. 3/2012 – setting aside issues not raised in the complaint, such as the extent of the economic situation that constitutes grounds for non-application under other provisions of the reform legislation (such as collective dismissals, contract suspensions and reduced working hours) – increase collective autonomy in the settlement of disputes arising from a lack of agreement concerning non-application of the working conditions on economic, technical, organizational or production-related grounds. They also make it clear that the procedure for the settlement of such disputes is ancillary to the established collective bargaining dispute settlement procedures and provide additional guarantees with a view to the proper use of this internal flexibility instrument.
  50. 382. The following is a list of these changes and their significance and scope:
    • – The text of Royal Legislative Decree No. 3/2012 stated that the parties “will be able to” employ the established collective bargaining dispute settlement procedures before bringing their dispute before the CCNCC. This might be interpreted as meaning that the parties have the option of bringing it directly before the CCNCC. The final text of the legislation makes it clear that the aforementioned procedures must first be attempted. To that end, the Act states that the parties “must” employ them; this means that failure to meet this requirement within the prescribed time period precludes initiating proceedings before the CCNCC.
    • – Whereas the previous version (the Royal Legislative Decree) stated that in order to bring a dispute before the CCNCC the parties must not only have failed to reach agreement but must “not have followed” the established collective bargaining dispute settlement procedures, the final version of the legislation authorizes use of the CCNCC only where these procedures “were not applicable”; this stresses the ancillary nature of the CCNCC as compared with the established collective bargaining dispute settlement procedures. Thus, it is clear that where collective bargaining procedures are available, their use by the parties is compulsory, not optional.
    • – Both before and after Parliament’s consideration of the draft act, access to the CCNCC was allowed where the established collective bargaining dispute settlement procedures “had not resolved the dispute”; this is also consistent with the principle of subsidiarity that governs proceedings before the CCNCC. In that connection, it should be noted that the Workers’ Statute itself indicates, in article 85, paragraph 3(c), on the minimum content of agreements, that such agreements must include, among other things:
      • (c) Procedures for the effective settlement of disputes arising from non-application of the working conditions mentioned in article 82, paragraph 3, by adapting, where necessary, the procedures established for that purpose in State or autonomous community interprofessional agreements pursuant to the relevant articles thereof.
    • – Thus, in so far as a collective agreement includes – as provided by law – effective dispute settlement procedures and the use of these procedures is, as stated above, compulsory for the parties, there will be no need to bring proceedings before the CCNCC since the dispute will already have been resolved.
  51. 383. Clear proof of the ancillary nature of proceedings before the CCNCC is the fact that, from the date of the entry into force of the labour reform to 31 October 2012, a total of 477 agreements on non-application of the labour conditions established in collective agreements were registered with the labour authorities; this means that in none of those cases was there a need to bring proceedings before the CCNCC.
  52. 384. Thus, CCNCC involvement in the settlement of disputes is envisaged as a last resort. By no means can this be termed compulsory arbitration within the meaning of paragraph 992 of the Digest, op. cit., which states: “The imposition of a compulsory arbitration procedure if the parties do not reach agreement on a draft collective agreement raises problems in relation to the application of Convention No. 98.”
  53. 385. Furthermore, even where a dispute is referred to the CCNCC, by no means can this be said to be an “arbitration of the authority”, mentioned in article 993 of the aforementioned Digest: “Provisions which establish that, failing agreement between the parties, the points at issue in collective bargaining must be settled by the arbitration of the authority are not in conformity with the principle of voluntary negotiation contained in Article 4 of Convention No. 98.”
  54. 386. Article 2 of Royal Decree No. 1362/2012 of 27 September 2012, which currently regulates the CCNCC, states that the latter “is a tripartite collegiate body comprising representatives of the State Administration and the most representative unions and employers’ organizations, attached to the Ministry of Employment and Social Security through the Directorate-General for Employment, which fulfils its mandate with independence and functional autonomy”. Thus, it is a tripartite committee consisting of the most representative unions, employers’ organizations and the State Administration.
  55. 387. With respect to the exercise of decision-making functions in the event that, all the requirements having been met, the CCNCC must settle a dispute between an enterprise and the workers’ representatives owing to a lack of agreement during the proceedings on non application of the working conditions set out in the applicable collective agreement, as mentioned in article 82, paragraph 2, of the Workers’ Statute, Royal Decree No. 1362/2012 provides that “the Committee may settle the dispute itself or appoint an arbiter, who shall be an impartial, independent expert. Where the parties to the dispute agree on the procedure to be followed in settling it, their wishes shall be followed. Otherwise, the choice of procedure shall lie with the Committee.”
  56. 388. Thus, if the parties to the dispute agree to select one of these options, that is the option to be followed; in such cases, the CCNCC may not choose the procedure. Furthermore, in the event that it is decided to appoint an arbiter, the legislation provides that “where the parties to the dispute agree to the appointment of an arbiter, it is preferable for the arbiter to be appointed by mutual agreement”. Failing such agreement, a procedure is envisaged whereby each of the three groups of representatives proposes two arbiters and, through rounds of voting in an order to be established in advance, one arbiter at a time is eliminated until only one remains.
  57. 389. Therefore, the legislation provides for sufficient mechanisms to ensure that the arbitration system is genuinely independent. In addition, the outcome of this procedure is in no way predetermined since, according to the regulations governing the CCNCC,
    • the arbiter, having examined the competing claims, must rule on the allegation that the working conditions have not been applied and, to that end, shall consider those conditions in the context of the complaint and their impact on the employees in question. The award may uphold the claim in its entirety or propose non-application of the working conditions, but to a lesser extent. The arbiter may also rule on the length of the period during which the working conditions may not be applied.
  58. 390. These are, in any event, the responsibilities of the party charged with settling the dispute, whether the CCNCC or an appointed arbitrator. Therefore, whoever settles the non application dispute shall determine not only the validity of the claim of non-application, but also whether the alleged non-application is as serious as the complainant maintains and what impact it has had on the affected workers. Thus, the fact that the legislation currently in force provides for the possibility of the challenged act in no way implies an automatic ruling on the case.
  59. 391. The first time that the CCNCC considered the substance of a case involving an allegation that working conditions had not been applied (in September 2012), in investigating the claim that the working conditions established in an enterprise agreement had not been applied, the CCNCC rejected the enterprise’s request for permission not to apply the enterprise agreement, arguing essentially that “there has been no significant change in the enterprise’s economic situation since the agreement extending the enterprise agreement and the wage conditions for 2012 and 2013 was signed at the end of April ... ”.
  60. 392. In light of the foregoing, there is no doubt that, under the existing legislation, the procedure for the settlement of disputes regarding the non-application of working conditions established in a collective agreement is consistent with the principle recognized in paragraph 995 of the Digest, op. cit., that “in order to gain and retain the parties’ confidence, any arbitration system should be truly independent and the outcomes of arbitration should not be predetermined by legislative criteria”.
  61. 393. The Government also notes that, prior to the issuance of Royal Legislative Decree No. 2012, at present and since the adoption of Act No. 11/1994, significant changes in working conditions do not require administrative authorization; they are made by agreement with the workers’ representatives. In the event of a disagreement arising during the consultation period, any of the parties may refer the dispute first to the joint committee on the collective agreement that the enterprise wishes not to apply – the implementation committee – and then, if no agreement is reached, to an independent dispute resolution procedure; only if there these various bodies fail to resolve the dispute may it be brought before the CCNCC.
  62. 394. With respect to the allegation that negotiated internal flexibility has been replaced by a unilateral decision of the employer, without the need for the employees’ consent, not to apply the working conditions established in an enterprise agreement negotiated with the workers’ representatives, the Government states that such decisions by an enterprise may naturally be appealed before the labour courts and that this has been the case since the 1994 labour reform with no reported complaints.
  63. 395. Enterprise agreements are a manifestation of the right of workers’ and employers’ representatives to bargain collectively, but they are not subject to the authorization and other criteria set out in the Workers’ Statute. Thus, although they are binding on the parties and play a key role in labour relations, they do not fall within the scope of Title III of the Statute. Because the regime governing such agreements and compliance with the obligations arising therefrom is not part of the Workers’ Statute, they fall under the heading of general contractual obligations. This means that, despite their binding nature, which has the force of law as between the parties, unilateral modification of the provisions of an agreement follows the logic of compliance with contractual obligations and may give rise to compensation where there are insufficient grounds for a more severe penalty and, under certain circumstances, even where such grounds exist.
  64. 396. In any event, Royal Legislative Decree No. 3/2012 provides, with respect to this type of significant change, for the possibility that specific procedures may be established through collective bargaining; that consultations on the causes, the potential to reduce the effects and the measures needed to mitigate the impact on the affected persons may be held with the workers’ representatives; that, during these consultations, the parties must negotiate in good faith in an effort to reach agreement; and that the parties may agree to replace the consultations by mediation or arbitration. The Government maintains that this legislation does not restrict the potential for negotiation in response to changes in collectively agreed working conditions; that any replacement of consultations must, in itself, be the subject of an agreement between the employer and the workers’ representatives; that the complaint is unfounded; and, as noted above, that this regulation is nothing new since it is based on the 1994 labour reform.
  65. 397. In reply to the allegations concerning Royal Legislative Decree No. 20/2012 of 13 July 2012, the Government recalls that the courts have recognized Royal Legislative Decree as a constitutionally legal instrument for addressing so-called “difficult economic situations” owing to its ability to achieve the goal that justifies its urgency. Royal Legislative Decree No. 20/2012 of 13 July 2012 on measures to ensure budgetary stability and promote competition calls for the application of a set of fiscal measures on, among other things, employment and social security, infrastructures, trade liberalization, promotion of competition, provision of public assistance and rationalization of the Administration in response to Spain’s current economic situation. The scope of these measures is far broader than would appear from the wording of the complaint. Their purpose is not to restrict collective bargaining; in fact, they were adopted in light of its principles and are appropriate to Spain’s current socioeconomic situation.
  66. 398. The Government maintains that the serious recession that Spain’s economy began to experience in 2008 and the resulting economic policy adopted at the time led to an accumulation of macroeconomic imbalances that were unsustainable for the country. Without the adoption of measures capable of correcting those imbalances, such as those that the Spanish Government has been taking since December 2011, it would be impossible to put the country back on the path of stable growth. Royal Legislative Decree No. 20/2012 of 13 July 2012 is part of that process and includes a variety of essential measures to ensure budgetary stability and promote competition:
    • – Measures to reorganize and rationalize public administrations; while these are the primary subject of the complaint, they should be considered not in isolation, but in light of the situation described and the set of structural measures that the Government has taken in order to address it. These measures are designed to:
      • ■ achieve rationalization and reduce spending;
      • ■ optimize resources;
      • ■ improve management and transparency in the Administration;
      • ■ achieve structural reduction and rationalization;
    • – Social security and employment measures. The latter are designed to:
      • ■ focus protection on persons who have lost their jobs or require special protection;
      • ■ promote the rehiring of unemployed persons by encouraging their rapid return to work;
      • ■ generate the revenue needed to ensure the sustainability of the public benefit system;
      • ■ strengthen the employment policy system based on the principle of efficiency so that the limited available resources can be allocated to the most useful initiatives for improving employability;
      • ■ rationalize the benefit system.
    • – Measures to rationalize the public assistance scheme.
    • – Fiscal measures to supplement those adopted since the end of 2011, primarily through Royal Legislative Decree No. 20/2011 of 30 December 2011 on urgent budgetary, fiscal and financial measures for correction of the public deficit and Royal Legislative Decree No. 12/2012 of 30 March 2012. Changes in Government revenue during the first half of 2012 made it necessary to adopt additional measures through Royal Legislative Decree No. 20/2012, which focuses primarily on the value added tax, the corporation tax and, to a lesser extent, the personal income tax and excise duties.
    • – Other measures in the areas of trade liberalization, corporate internationalization, infrastructure, transport, housing and the elimination of imbalances between costs and revenue in the electricity sector.
  67. 399. The Government notes that several measures were adopted within the framework of article 135 of Spain’s Constitution and of the international instruments to which the country is a party through the European Union. Article 135 states that all public administrations shall ensure that their actions are consistent with the principle of budgetary stability and that the State and the autonomous communities shall not incur structural deficits exceeding the limits that the European Union has set for its member States.
  68. 400. In order to follow the principles set out in this article of Spain’s Constitution, it was necessary to adopt Organization Act No. 2/2012 of 27 April 2012 on budgetary stability and financial sustainability; economic and financial rebalancing plans were also adopted by the Fiscal and Financial Policy Council.
  69. 401. In that context, the economic relapse that Spain experienced in the first half of 2012 was extremely widespread and had serious consequences for budgetary sustainability and job loss. The first two quarters of 2012 saw a further decline in economic activity and the financial markets’ loss of confidence in Spain, which was not unrelated to the various institutional problems in the Eurozone. For Spain, the most immediate consequence of this market instability was a severe tightening of financing conditions.
  70. 402. In response to this situation, in order to address the economic situation and reduce the public deficit, the Government needed to enact the structural reforms contained in Royal Legislative Decree No. 20/2012 of 13 July 2012, adopted within the framework of Spain’s commitments to the European Union; these include:
    • – The specific recommendations to Spain made by the European Council in June 2012.
    • – The redirection of Spain’s fiscal path as envisaged in the Stability and Growth Programme 2012–15, introduced at the Economic and Financial Affairs Council (ECOFIN) meeting of 10 July 2012, at which the Ministers of the Economy of the European Union decided to give Spain an extra year to correct its excessive deficit (recommendation on Spain’s excessive debt and the macroeconomic framework associated with the new growth forecasts).
    • – The National Reform Programme 2012 as a framework for managing the process of rationalizing the public administrations to complement the exclusively fiscal adjustments and the reduction of administrative structures, which make it necessary to take steps to reduce staffing costs and increase the quality and productivity of public servants.
  71. 403. It should also be stressed that the present Government is not the only one to have taken measures of this kind. The previous Government also had occasion to adopt, through the same procedure and in an economic situation that had begun to develop in Spain but was not yet as serious at it later became, Royal Legislative Decree No. 8/2010 of 20 May 2010, through which emergency measures for reduction of the public deficit were adopted and which, like the present legislation, contains specific measures (on public employment, pensions, public assistance, health, local economies and finance, and other measures for controlling public spending). The Constitutional Court has had an opportunity to rule on several issues arising from Royal Legislative Decree No. 8/2010 and has stated that the measures contained therein do not constitute a violation of the right to bargain collectively.
  72. 404. It should also be borne in mind that the Constitutional Court, as an independent body, the ultimate interpreter of Spain’s Constitution, the only body of its kind (Article 1 of the Constitutional Court Organization Act No. 2/1979 of 3 October 1979) and competent to determine whether legislation is consistent with the Constitution, has agreed to hear several appeals challenging the constitutionality of Act No. 3/2012 of 6 July 2012 and Royal Legislative Decree No. 20/2012 of 13 July 2012.
  73. 405. Therefore, the final wording of these articles will depend on the Court’s decision and the relevant domestic remedies have not been exhausted. While no specific appeal regarding freedom of association and the right to bargain collectively has been brought before the Constitutional Court, the aforementioned appeals may have an indirect impact on those issues since, under article 37 of Act No. 7/2007 of 12 April 2007 (the EBEP), the public administration issues that may be negotiated include compensation and limits regarding work schedules, working hours, shifts, holidays and leave.
  74. 406. In that regard, it is necessary to bear in mind paragraph 29 of the document entitled “Special procedures for the examination in the International Labour Organization of complaints alleging violations of freedom of association”, which states “When a case is being examined by an independent national jurisdiction whose procedures offer appropriate guarantees, and the Committee considers that the decision to be taken could provide additional information, it will suspend its examination of the case for a reasonable time to await this decision, provided that the delay thus encountered does not risk prejudicing the party whose rights have allegedly been infringed.”
  75. 407. Therefore, since appeals against the legislation that is the subject of the dispute are pending before the Constitutional Court, the Government urges the Committee, on the basis of paragraph 29 of the aforementioned document, to grant the Government’s request to defer consideration of the case until the Constitutional Court has issued a reasoned judgment on those appeals.
  76. 408. Concerning the substance of the issues raised in the allegations, the Government states that Royal Legislative Decree No. 20/2012 of 13 July 2012 on measures to ensure budgetary stability and promote competition was prompted by urgent and extraordinary necessity within the meaning of article 86 of Spain’s Constitution since, according to the Legislative Decree’s statement of reasons, “the current economic situation and the inescapable need to reduce the public deficit in order to achieve budgetary stability require that the proposed measures be adopted as urgently as possible with full respect for the Constitutional framework and that of the European Union”.
  77. 409. Article 86 of Spain’s Constitution provides that, in cases of extraordinary and urgent necessity, the Government may issue provisional legislation in the form of legislative decrees, which may not affect the organization of basic State institutions; the rights, duties and freedoms of citizens established in Title I of the Constitution; the regime of the autonomous communities; or the laws governing general elections.
  78. 410. Making use of this entitlement, the Government began the drafting of Royal Legislative Decree No. 20/2012.
  79. 411. Article 86 of Spain’s Constitution also provides that legislative decrees must be submitted to the Congress of Deputies immediately for discussion and voting, after which they are no longer provisional.
  80. 412. Pursuant to the aforementioned provision of the Constitution, the Royal Legislative Decree was confirmed by a decision of the Congress of Deputies on 19 July 2012 (in other words, before the current allegations were made in the complainants’ most recent communication) and therefore through the legislative mechanisms envisaged in Spain’s legal system, having been endorsed by the body that represents the Spanish people – the Congress of Deputies – which Spain’s Constitution has empowered to do so.
  81. 413. It should be noted that this event does not constitute, de facto or de jure, a “unilateral decision of the Government”, as is wrongly stated in the complaint, but rather legislation drafted as provided in articles 81 et seq. of Spain’s Constitution.
  82. 414. An examination of the arguments made throughout the statement of reasons for the Royal Legislative Decree and, more specifically, those that refer to improving the efficiency of the public administrations’ use of public resources in order to “help achieve the essential goal of budgetary stability, which is based on the constitutional framework and that of the European Union”, shows that Royal Legislative Decrees – a normative procedure envisaged for situations of urgent need – are an instrument that is fully appropriate in addressing what constitutional doctrine terms, as mentioned above, “difficult economic circumstances”.
  83. 415. This economic situation has – as stated above – taken the form of a significant economic downturn that was “extremely widespread and had serious consequences for job loss”, as well as “remaining imbalances in Spain’s economy” and a serious “loss of confidence on the part of financial markets”.
  84. 416. The Government recalls that the right of public servants to bargain collectively is recognized in the EBEP, adopted through Act No. 7/2007 of 12 April 2007. Title III, Chapter IV, articles 31 et seq. of this norm regulate “The right to bargain collectively, to representation and to institutional involvement. The right to freedom of assembly”. It should be noted that this article establishes, as general principles, that “public servants have the right to bargain collectively, to representation and to institutional involvement in the establishment of their working conditions”. Article 33 sets out the principles governing the right to bargain collectively: “Collective bargaining on the working conditions of public servants, which shall respect the principles of legality, budgetary resources, a legally binding outcome, good faith in bargaining, openness and transparency, shall be conducted through the exercise of the union’s representative power under article 6, paragraph 3(c) and article 7, paragraphs 1 and 2, of Organization Act No. 11/1985 of 2 August 1985 on freedom of association and under the provisions of this Chapter.” The same Act establishes negotiating committees comprising the Administration and union representatives (the Public Administrations Negotiating Committee and the State Public Administration Negotiating Committee) as a means or instrument for bargaining collectively. Bargaining must be conducted with the union representatives who are currently authorized to participate in those committees (not with just any organization or with all existing Spanish unions, regardless of their representational capacity); at the time, this meant three signatories of the complaint: the UGT, the CC.OO. and the CSIF.
  85. 417. In this normative context, consideration should be given to the Government’s convening, on 11 July 2012, of the Public Administrations Negotiating Committee and the State Public Administration Negotiating Committee in order to open negotiations on the measures contained in Royal Legislative Decree No. 20/2012.
    • – The Government convened the two negotiating committees established pursuant to the EBEP in order to conduct negotiations on the Royal Legislative Decree and, to that end, attempted to negotiate with the very unions that have complained to the ILO that no negotiations took place.
    • – The Government fulfilled its collective bargaining obligation in good faith since, although the draft legislation was subsequently submitted to the Congress of Deputies for confirmation in accordance with article 86 of Spain’s Constitution, the Government drafted the Royal Legislative Decree on the understanding that it should not be adopted by the Council of Ministers without prior negotiation with the unions.
    • – The negotiating committees were convened on 9 July 2012 and the unions were instructed to hold their negotiations on 11 July 2012.
    • – The unions convened were those which were authorized to participate in the negotiations.
    • – The negotiations were to be conducted prior to the Congress of Deputies’ consideration of the draft of the Royal Legislative Decree, which it was scheduled to do on 13 July 2012.
  86. 418. When the day of the meeting arrived, the representatives of the unions (the CC.OO., the UGT, the CSIF, Basque Workers’ Solidarity (ELA) and the Galician Trade Union Confederation (CIG), met first with the Secretary of State for Public Administrations (who chairs the Committee on behalf of the Government) and then refused to attend the meetings of the Committees. The attached certified list of the participants shows that, despite the time pressure and the urgency arising from the particularly serious situation of the economy in Europe and in Spain, the Administration respected the right of the negotiating committee’s members to be informed of, to discuss and to negotiate on the measures set out in Royal Legislative Decree No. 20/2012 and to make proposals thereon.
  87. 419. The list also makes it clear that the unions authorized to participate in these negotiating committees requested to meet first (as mentioned above) with the Secretary of State for Public Administrations, who granted their request. At the end of that previous meeting – at which the unions expressed their opposition to the measures that had been proposed by the Government and were to be discussed at the meetings of the negotiating committees – the very unions that submitted their complaint to the ILO, alleging that the Administration had violated their right to bargain collectively, refused to participate in those meetings despite the urgings of the Secretary of State.
  88. 420. The press kit for those meetings is attached and various media reports show that it was the unions that (in media slang) “skipped out on” the meeting.
  89. 421. The Government therefore considers that its actions should be clearly understood as having respected the principles that govern collective bargaining since, according to the statement of reasons for the EBEP, “The State shall emphasize the principles of legality, budgetary resources, a legally binding outcome, good faith in bargaining, openness and transparency that should govern negotiations”; this is repeated in article 33, paragraph 1, of that Basic Statutes. Thus, the fact that the Administration acted in accordance with those Statutes shows that it also negotiated in good faith since each of the parties had the right to express its views, a right that the unions themselves decided not to exercise.
  90. 422. The Government maintains that it respected both the general framework of the right to bargain collectively and the specific elements of that right as it applies to public servants and that all the provisions on collective bargaining contained in Act No. 7/2007 of 12 April 2007 (the EBEP), particularly those relating to the principles of legality, budgetary resources, a legally binding outcome, good faith in bargaining, openness and transparency, were respected in so far as it allowed for the exercise of the unions’ representative capacity by convening the Public Administration Negotiating Committees and inviting the most representative organizations to attend. The two negotiating committees were convened because some of the issues mentioned in article 37 of the EBEP (matters relating to working conditions and compensation and proposals on, among other things, union rights, working hours and holidays) were included in the Royal Legislative Decree.
  91. 423. The Government notes that the right to bargain collectively has not been drastically restricted. The provisions of Royal Legislative Decree No. 20/2012 that affect collective bargaining are fully consistent with the constitutional principles and with established jurisprudence on the matter (see above). In that connection, the Royal Legislative Decree amends article 32 of the EBEP, but using language that was already included in article 38 of the Statutes and had been in force since their adoption.
  92. 424. With respect to the suspension of pacts and agreements, articles 32 and 38 of Act No. 7/2007 of 12 April 2007 (the EBEP) specifically guarantee at the outset the implementation of pacts and agreements. Only in emergencies and for serious reasons of public interest, as a result of a significant change in the economic situation, may the Government’s public administration bodies suspend or modify the implementation of pacts and agreements that have already been signed, where absolutely necessary in order to preserve the public interest. This entails:
    • – A full guarantee of compliance with the provisions of collective pacts, agreements and conventions.
    • – The introduction, as doctrine has shown, of a safety valve into the collective bargaining regime, similar to the Administration’s ius variandi in public procurement, which cannot be interpreted broadly or undermine in practice the exercise of the right to bargain collectively. Therefore, it must be based on an abnormal – emergency – situation that makes it absolutely necessary to take certain actions in order to safeguard a protected legal asset, the public interest. In that regard, the measures envisaged in the Royal Legislative Decree are fully justified since they apply only during economic emergencies, which are contrary to the public interest and whose modification requires actions that are completely necessary in order to safeguard that interest.
  93. 425. The Government adds that, under these circumstances, which, as has been shown, are considered emergency and exceptional and which therefore justify the actions envisaged in articles 32 and 38 of the EBEP, the legislation establishes that the unions have a right to be informed: “in that event, the public administrations shall inform the unions of the reasons for the suspension or modification”.
  94. 426. Concerning the allegation that the right to freedom of association, the resources and the time credits that unions are afforded in order to perform their functions, the Government states that the provisions affecting such time credits, contained in article 10 of Royal Legislative Decree No. 20/2012, merely corrected administrative excesses resulting from the implementation of pacts that went beyond the provisions of the Workers’ Statute, the EBEP and the Freedom of Association Organization Act with no monitoring whatsoever.
  95. 427. According to the complainant organizations, the norm contained in article 10 of Royal Legislative Decree No. 20/2012 “constitutes unwarranted restriction of the corollary to freedom of association, the permanent, indefinite and ongoing right of unit or union representatives to time credits, established by public servants through collective bargaining, which significantly affects union activities and is therefore contrary to them”. The Government states that the unions’ statement is legally inadmissible and should be deemed to be neither fair nor accurate since:
    • – It is clear from the wording of article 10 of the Royal Legislative Decree that the regulations contained in other legal provisions are being applied; it is simply that excesses in that regard have been restricted:
      • Article 10. Reduction of union leave
      • 1. Within the framework of the public administrations and ancillary bodies, universities, foundations and societies, as from the entry into force of this Royal Legislative Decree, all union rights – whether referred to as such or by any other name – established in agreements on public servants or statutory personnel or in collective conventions and agreements on workers signed by their representatives or unions, the provisions of which go beyond those of Royal Legislative Decree No. 1/1995 of 24 March 1995 (adopting the revised Workers’ Statute Act); Organization Act No. 11/1985 of 2 August 1985 (on freedom of association) and Act No. 7/2007 of 12 April 2007 (the Basic Statutes of the Public Service) concerning hours with pay that may be used for the conduct of union or representation functions, for the appointment of union delegates or as full-day waivers of attendance at the workplace, as well as other union rights, shall be brought fully into line with the provisions of these legislative acts.
      • Therefore, any collective pacts, agreements and conventions on such matters that have been signed and that go beyond the aforementioned provisions shall be repealed and without effect as from the entry into force of this Royal Legislative Decree.
    • – In light of the exceptional nature of the current economic situation, one of the purposes of the Royal Legislative Decree is to “rationalize staffing costs”. This goal entails a fully justified restriction of the express provisions of labour law concerning time off with pay for the conduct of union and representation activities in order to increase the number of working hours devoted to public service.
    • – This provision, which merely corrects previous excesses in the public administrations – which clearly went beyond the practice of Spain’s private sector, undermining the Administration’s functioning and even hindering collective bargaining within it – is fully in line with the Constitution.
    • The Government reports that the labour chamber of Spain’s high court has already had occasion to issue a judgment on article 10 of the Royal Legislative Decree and that it declined to bring the issue of the article’s constitutionality before the Constitutional Court because there had been no violation of the collective bargaining rights established in the Constitution.
    • – It is clear from the wording of article 10 of the Royal Legislative Decree that it fully respects collective bargaining; it does not hinder but, in fact, expressly authorizes the negotiation of new agreements with unions.
  96. 428. Merely by approving the Royal Legislative Decree, the Government demonstrated its desire to encourage collective bargaining, contrary to the gratuitous and erroneous allegations in the complaint that the Royal Legislative Decree hinders it. In fact, not only has the Government encouraged such bargaining; it has signed specific agreements with the unions, of which the latter did not inform ILO in their complaint, even though such an agreement had already been signed on 29 October 2012, the date on which the complaint was submitted.
  97. 429. The fact is that the Spanish Government and the most representative unions firmly undertook to promote dialogue and collective bargaining committees within the framework of the public service. This commitment was made officially in an agreement dated October 2012 (see attached copy); its initial commitments include: (1) establishing the various negotiation and technical committees in Spain’s State Administration in order to give new impetus to areas such as, among others, training, occupational hazard prevention, social responsibility and equality of opportunity; and (2) improving the structure of collective bargaining and the various related areas envisaged in the EBEP (rationalization of union resources and forums for participation and negotiation).
  98. 430. In fact, the second part of article 10, which enables the negotiation with union leaders of new agreements on time credits and other union rights, has already been implemented and, pursuant to this provision, the Administration and union leaders have signed an agreement on the scope of these rights in the State Administration. This is precisely the objective of the agreement on resource allocation and rationalization negotiation and participation structures that was reached in the State Administration Negotiating Committee on 29 October 2012, published as a decision of the State Secretariat for Public Administrations on 12 November 2012 (Official Gazette, 14 November 2012) and signed by the unions that submitted the present complaint to the ILO. In its statement of reasons, this agreement states that “furthermore, Act No. 7/2007 of 12 April 2007 (the EBEP), recognizing the principles contained in the Constitution of Spain, the Freedom of Association Organization Act and ILO Convention No. 151, which support the content of this agreement, recognize the unions as the sole legitimate partners with a view to exercise of the right of public servants to bargain collectively, to representation and to institutional involvement in the establishment of their working conditions.”
  99. 431. In the same statement of reasons, the agreement recognizes the need to respect the unions’ rights under the law, including by providing the resources that are essential to collective bargaining. Therefore, the agreement also provides the unions with the resources that they need so that they “can rationally fulfil their representation and negotiation functions”.
  100. 432. Not only was this agreement signed by the unions empowered to do so; it was also ratified by the State Administration Negotiating Committee and the Single Agreement Negotiating Committee. It was signed by the CC.OO., the UGT, the CSIF, the USO and the CIG on the very same day that these unions submitted their complaint to the ILO Office in Spain, without informing the ILO that they were in full agreement with the Government’s actions and that they had signed and ratified the agreement not in one negotiating committee, but in all of the negotiation forums available under the law with a view to the coordination of collective bargaining by public service employees in the State Administration: the Negotiating Committee on Issues Common to Public Servants and Contractual Workers, the Negotiating Committee on Issues Specific to Public Servants and the Single Agreement Negotiating Committee (for contractual employees).
  101. 433. The Government states that it has fully met its obligations under the ILO Conventions and, after describing in detail the relevant legislation and jurisprudence, it maintains that the reform introduced by the Royal Legislative Decree is consistent with the decisions and principles of the ILO Freedom of Association Committee and, specifically, with paragraph 1038 on “budgetary powers and collective bargaining”. In addition to noting that ILO Convention No. 151 on Labour Relations (Public Service) requires some flexibility in application, the paragraph expressly states:
    • The Committee therefore takes full account of the serious financial and budgetary difficulties facing governments, particularly during periods of prolonged and widespread economic stagnation. However, it considers that the authorities should give preference as far as possible to collective bargaining in determining the conditions of employment of public servants; where the circumstances rule this out, measures of this kind should be limited in time and protect the standard of living of the employees who are the most affected. In other words, a fair and reasonable compromise should be sought between the need to preserve as far as possible the autonomy of the parties to bargaining, on the one hand, and measures which must be taken by governments to overcome their budgetary difficulties, on the other.
  102. The Government also states that there is no violation of the principle of collective bargaining established in Convention No. 98 since Spanish law enshrines the right to bargain collectively in order to establish working conditions as an individual right to be exercised collectively by all public servants. Article 10 of Royal Legislative Decree No. 20/2012 is in itself an example of the promotion of this right; it entrusts the negotiating committees with the adoption of agreements on the rights of union representatives so that they can rationally fulfil their representation and negotiation functions and exercise their other union rights. Also, contrary to the unions’ claims, Royal Legislative Decree No. 20/2012 permits the expansion of this legal regulation by allowing the adoption of agreements granting union rights within the framework of the negotiating committees. Furthermore, the Royal Legislative Decree does not affect the regulations governing the so-called extrajudicial dispute settlement procedures, which empower employers and employees in the public administration to agree to establish, define and implement such systems (EBEP, article 45).
  103. 434. The Government’s actions should be deemed to be consistent with the principles that govern collective bargaining since, as has been shown, the EBEP, in its statement of reasons, states that “the Statutes establish the principles of legality, budgetary resources, a legally binding outcome, good faith in bargaining, openness and transparency that should govern negotiations”; this is repeated in article 33, paragraph 1, of the Statutes. Thus, since the fact that the Administration acted in accordance with the law shows that it negotiated in good faith and since each of the parties had an opportunity to express its views, the failure to reach agreement during the negotiations on Royal Legislative Decree No. 20/2012, owing to the unions’ refusal to participate in the dialogue opened by the Administration, cannot be interpreted as a lack of negotiation, nor can it be said that only information was provided since the party that was informed had an opportunity to make a timely counter-proposal.
  104. 435. Lastly, the Spanish Government requests that the entire complaint be dismissed.

C. The Committee’s conclusions

C. The Committee’s conclusions
  1. 436. The Committee notes that, in the present case, the complainant organizations allege: (1) that there were no consultations either on Royal Legislative Decree No. 3/2012 of 10 February 2012 on urgent measures for labour market reform, which was adopted by the Government, confirmed by the Congress of Deputies on 13 March 2012, transmitted as draft legislation and subsequently adopted as Act No. 3/2012 of 6 July 2012, and which made certain changes to the Royal Legislative Decree that it replaced; or on Royal Legislative Decree No. 20/2012 of 13 July 2012 on measures to ensure budgetary stability and promote competition, which was adopted by the Government and confirmed by the Congress of Deputies and which includes a series of measures designed to reorganize and rationalize the public administrations; and (2) that certain provisions of these legislative acts violate the conventions on freedom of association and collective bargaining in the public and private sectors that Spain has ratified, particularly, the provisions on collective bargaining and consultation.
  2. 437. The Committee notes that the Government rejects these allegations, explaining that the legislation in question is a response to an unprecedented crisis and to a recession that began in 2008, as well as to accumulated macroeconomic imbalances that required forceful, urgent action in order to address the specific weaknesses of the labour market. More than 3.2 million jobs had been lost since the beginning of the crisis and the unemployment rate stood at 5,273,600 as at February 2012 with over 1.5 million families in which all of the members were unemployed; thus, Spain’s unemployment rate was higher than that of the European Union. The Committee takes note of the Government’s statement that the Royal Legislative Decrees adopted by the Government (Nos 3/2012 and 20/2012) included provisional legislation that was confirmed by the Congress of Deputies, after which it was no longer provisional; that they therefore do not constitute, de facto or de jure, a “unilateral decision of the Government”; and that the constitutional provisions on situations of urgent and extraordinary necessity were followed when drafting them.
  3. 438. The Government explains that Royal Legislative Decree 3/2012 of 10 February 2012 and Act No. 3/2012 of 6 July 2012 sought to give enterprises greater internal flexibility so that, during periods of change or difficulties, they could adapt to the new conditions in order to retain jobs rather than laying off employees as in the past (until now, with large numbers of employees employed on temporary contracts, enterprises have adjusted by laying off employees rather than modifying working conditions); the Government also highlights the high temporary employment and unemployment rates among young people. The Committee notes the Government’s statement that the IMF and the OECD have welcomed the labour reform and that the Government’s adoption of Royal Legislative Decree No. 20/2012 of 13 July 2012 was also a response to the urgency arising from a serious recession that had begun in 2008 and had created macroeconomic imbalances that were unsustainable for Spain, and to a serious lack of confidence on the part of the financial markets that had led to a severe tightening of the country’s financing conditions. The Government states that its goal was to reduce the public deficit and take measures to contain public spending and implement the structural reforms agreed with the European Union, including the specific recommendations made by the European Council and the decisions of the ECOFIN, which gave Spain an extra year to correct its excessive deficit. The Committee takes note of the Government’s statement that appeals against Royal Legislative Decree No. 20/2012 of 13 July 2012 (suspension of payment of the December 2012 bonus to public service staff) have been brought before the Constitutional Court and that appeals against Act No. 3/2012 of 6 July 2012 have also been lodged, as well as its suggestion that consideration of the case be deferred accordingly. In that regard, the Committee would like to point out that the complaint was submitted in May 2012 and that there is no way to know when the Constitutional Court will issue its judgment; moreover, these matters have been brought before the Committee of Experts on the Application of Conventions and Recommendations, which, before considering the case, decided to request the Committee to give its views. The Committee requests the Government to inform it of any Constitutional Court or Supreme Court ruling on the aforementioned pieces of legislation. Lastly, the Committee notes that its purpose in considering the present complaint is not to raise issues of constitutionality or legality under domestic law; it will merely formulate conclusions from the point of view of the principles of freedom of association and collective bargaining laid down in the relevant ILO Conventions, which, moreover, have been ratified by Spain.

    Allegations concerning the lack of consultation

  1. 439. The Committee notes that, according to the complainant organizations, Royal Legislative Decree No. 3/2012 of 10 February 2012 on urgent measures for labour market reform (including reforms that affect collective bargaining in the private sector) was adopted by the Government without any prior consultation on the substance and without holding consultations allowing for an exchange of views with the most representative unions, even though several days previously – on 25 January 2012 – those organizations, the CEOE and the CEPYME had signed an interprofessional agreement on employment and collective bargaining for the period 2012, 2013 and 2014, which, in response to the economic crisis, covered issues relating to the structure and coordination of collective bargaining, internal flexibility, negotiated non-application by enterprises of certain working conditions established in sectoral collective agreements, and wage reductions. According to the complainant organizations, Royal Legislative Decree No. 3/2012 is in direct contradiction to the basic elements of the aforementioned agreement, having disregarded and repealed them. Therefore, the unions, knowing that the Royal Legislative Decree would be referred for consideration as draft legislation, prepared draft amendments when it was submitted to the Congress of Deputies. The Committee also notes the allegations that Royal Legislative Decree No. 20/2012 of 13 July 2012 was adopted unilaterally by the Government without convening the State Negotiating Committees (as it was required to do by law), even though it provided for elimination of the December 2012 public sector bonus and imposed other major restrictions that entailed the suspension of provisions of collective agreements; the unions were informed two months later at a routine meeting, at which the Administration simply read out the provisions of the Royal Legislative Decree without replying to or addressing the issues raised by the unions.
  2. 440. The Committee takes note of the Government’s statement that: (1) the consultations mentioned in the complaint need not culminate in acceptance of the demands of those consulted (the social partners’ opposition to a collective bargaining reform had been known since 2011); (2) the II AENC, signed on 25 January 2012 – very close to the date on which Royal Legislative Decree No. 3/2012 was adopted – recognizes the exceptional circumstances that call for specific measures designed to ensure, as quickly as possible, economic growth leading to job creation; in other words, there was no time to lose and, in the Government’s view, it was neither advisable nor possible to hold consultations on issues on which the social partners had already expressed their views in the past; (3) the Royal Legislative Decree did not repeal the II AENC since, while it differs from it in certain respects (deals with certain issues differently), it makes no mention of other aspects of collective bargaining or internal flexibility; thus, the II AENC as a whole remains applicable and the complainant’s allegation that it has been suspended or repealed must be rejected; (4) as for the Royal Legislative Decrees, the law authorizes dispensing with procedures such as consultations for reasons of urgency and, in the case of Royal Legislative Decree No. 3/2012, there were reasons of extraordinary and urgent necessity during the crisis.
  3. 441. The Committee notes the Government’s statement that consultations were held following the adoption of Royal Legislative Decree No. 3/2012 (specifically, five meetings in February and March 2012 (on 10, 20 and 23 February and 5 and 12 March 2012)) and that they were attended by representatives of two unions, the UGT and the CC.OO., which had an opportunity to express their views and make suggestions; the first four meetings were held before the Congress of Deputies adopted the consolidation agreement on Royal Legislative Decree No. 3/2012 and all five meetings were held before what would later become Act No. 3/2012 was referred to Parliament; during parliamentary consideration, 657 amendments were submitted to the Congress of Deputies and 574 to the Senate and, of these, 74 were accepted by the Congress of Deputies and 11 by the Senate. These amendments led to changes in a number of articles that are mentioned in the complaint. The Government stresses that the unions themselves prepared draft amendments which, since they resulted in the submission of amendments by parliamentary groups, were not ignored but were considered and studied.
  4. 442. In light of the foregoing, the Committee notes that, during the drafting of Royal Legislative Decree No. 3/2012 and before its approval by the Council of Ministers, the most representative unions were not consulted regarding its wording or substance, although this was done subsequently. The Committee refers to the principles, set out below, on the importance of consultation but, with respect to this Royal Legislative Decree, which includes provisions on collective bargaining in the private sector and on the structure of such bargaining, it notes that the most representative employers’ organizations and unions had signed an agreement on the bargaining structure shortly before and that, according to the Government, the Royal Legislative Decree in question differs in some respects from this agreement. The Government invokes in this respect reasons of extraordinary and urgent necessity in moments of crisis.
  5. 443. With regard to Royal Legislative Decree No. 20/2012, which had an impact on the public sector, the Committee takes note of the Government’s statement that it convened the two State Negotiating Committees envisaged in the legislation on 9 July 2012 and summoned the unions to attend on 11 July 2012; these negotiations were to have been conducted before the Council of Ministers considered the draft of the Royal Legislative Decree, as they were scheduled to do on 13 July 2012. According to the Government, the unions asked to first meet with the Secretary of State for Public Administrations but, at the end of that meeting – at which they expressed their opposition to the measures proposed by the Government – the unions voluntarily refused to sit down at the negotiating table, as reported by the press.
  6. 444. The Committee notes from the above that, although the meeting of the Public Administrations Negotiating Committees and that of the State Administration Negotiating Committee, held in order to begin negotiations on the issues to be covered by Royal Legislative Decree No. 20/2012, were scheduled for 11 July 2012, the Government recognizes that the Council of Ministers had planned to begin consideration of the draft of the Royal Legislative Decree on 13 July 2012. The Committee considers that the time that the unions were given to study, discuss, negotiate and make proposals on the draft decree was clearly insufficient, particularly in view of its complexity and of the many important issues affecting the interests of workers and their organizations.
  7. 445. The Committee would like to stress the importance that it attaches to holding consultations with the most representative workers’ and employers’ organizations with sufficient advance notice and, in particular, to ensuring that the drafts of laws or Royal Legislative Decrees are submitted to these organizations for consultation well before their adoption by the Government as a prerequisite for consideration by Parliament. The Committee wishes to recall that, with the necessary limitations of time, the principles governing consultation remain valid during crises that require the taking of urgent measures, and to reiterate the conclusions that it formulated in its June 2013 meeting on a case involving Spain [see 368th Report, Case No. 2918 (Spain), para. 356]:
    • The Committee draws attention to “the importance it attaches to the promotion of dialogue and consultations on matters of mutual interest between the public authorities and the most representative occupational organizations of the sector involved”, as well as “the value of consulting organizations of employers and workers during the preparation and application of legislation which affects their interests. The Committee highlights the importance of holding detailed consultations and making sure that the parties have sufficient time to prepare and express their points of view and discuss them in depth. The Committee also emphasizes that the process of consultation on legislation helps to give laws, programmes and measures adopted or applied by public authorities a firmer basis and helps ensure they are well respected and successfully applied; the Government should seek general consensus as much as possible, given that employers’ and workers’ organizations should be able to share in the responsibility of securing the well-being and prosperity of the community as a whole [see the Digest, op. cit., paras 1067 and 1072].
  8. 446. The Committee expects that from now on the principles concerning consultation on legislation affecting the interests of trade unions and their members will be fully respected, and requests the Government to takes measures in this regard.

    Allegations concerning Royal Legislative Decree No. 3/2012 and (after consideration by the Congress of Deputies) Act No. 3/2012 of 6 July 2012

  1. 447. The Committee will now consider the substantive issues raised by the complainant organizations. At the outset, they allege that Royal Legislative Decree No. 3/2012 disregarded and repealed most of the points that had been negotiated and agreed in the II AENC, which was negotiated by the most representative unions and employers’ organizations. The complainant organizations point out that the Royal Legislative Decree establishes that: (1) enterprise collective bargaining agreements are given primacy of application over any sectoral agreement, so that it is not the negotiating parties who ensure coordination between different bargaining levels; furthermore, enterprise collective agreements (which are often concluded with non-union representatives) may be negotiated at any time during the period of validity of higher level agreements; and (2) enterprises can “disregard” – in other words, fail to implement – the provisions of a collective agreement on economic, technical, organizational or production-related grounds by imposing compulsory administrative arbitration by the National Advisory Committee on Collective Bargaining Agreements (a tripartite body) or an equivalent autonomous community body; and (3) internally negotiated flexibility in enterprise agreements has been replaced through a unilateral decision of the employer, who, without the consent of the workers, may decide not to apply working conditions agreed with the latter’s representatives, including on such important matters as, among other things, wages and working hours.
  2. 448. The Committee notes that, according to the complainant organizations, Royal Legislative Decree No. 3/2012 extensively revised the legal regime governing “significant changes in working conditions” within the meaning of article 41 of the Workers’ Statute by allowing employers to make unilateral changes in extremely important working conditions established in pacts or collective agreements concluded with the workers’ representatives empowered to negotiate comprehensive agreements in the event that several consultation sessions fail to result in agreement. However, in the Spanish system of labour relations, problems in the functioning of an enterprise do not justify empowering employers to modify unilaterally the provisions of collective conventions and agreements, an effect that is disproportionate and incompatible with the effectiveness to be expected of collective bargaining. Empowering employers to modify at will the working conditions established in a collective agreement or pact, including matters as important as wages and working hours, even against the wishes of the workers’ representatives is a violation of the guarantee of the effectiveness and binding force of collective agreements; in the complainants’ view, it is a violation of the provisions of ILO Conventions Nos 98 and 154 and of the Collective Agreements Recommendation, 1951 (No. 91), which confirm and ensure that the parties are bound by the provisions of agreements reached through collective bargaining.
  3. 449. The Committee takes note of the Government’s denial that giving enterprise agreements priority of application over higher level agreements (sectoral, State, autonomous community and higher level) as provided in Act No. 3/2012 (article 14, paragraph 2) constitutes a violation of the ILO Conventions on freedom of association because: (1) this priority extends only to certain matters; all others are still governed by the higher level agreement; (2) this priority on certain matters (including, among other things, wages and bonuses, overtime pay, working hours and distribution of working hours) was already established in previous legislation where the higher level agreement contains specific provisions on the bargaining structure or the concurrence of agreements; moreover, the previous legislation provides that a collective agreement adopted at a later date than a previous agreement may modify the rights set out in the former; (3) Act No. 3/2012 does not stipulate the level of negotiation; the latter is subject to the will of the parties, which may decide whether to negotiate an enterprise agreement or to apply a higher level agreement. However, if they choose the first of these options, the enterprise agreement will have priority of application on certain matters; (4) in the II AENC, which was also signed by two of the complainant organizations, the UGT and the CC.OO., the provisions on the scope of collective bargaining establish that sectoral agreements must encourage negotiations on working hours, functions and wages at the enterprise level, at the initiative of the affected parties, because this is the most appropriate level for dealing with such matters; and (5) the binding force of collective agreements is guaranteed under Spain’s Constitution and the changes made by Act No. 3/2012 do not affect the right to bargain collectively, but they do change the bargaining structure and the relationship between agreements of differing scope. Concerning the complainants’ allegation regarding the possibility, under the law, to negotiate enterprise agreements while higher level agreements are in force, the Committee notes that this has always been envisaged in Spanish labour law; Act No. 3/2012 merely preserves the possibility to negotiate enterprise agreements subsequent to higher level agreements; in addition, the new rule on the concurrence of collective agreements and the lawmakers’ decision to give enterprise agreements priority of application on certain matters does not affect the right to bargain collectively at higher levels; in fact, between the date on which Royal Legislative Decree No. 3/2012 entered into force and November 2012, 28 State or supra-autonomous community sectoral collective agreements, nine autonomous community sectoral agreements and 177 provincial sectoral collective agreements were registered. With regard to the complainants’ suggestion that the rules governing the concurrence of agreements should not be regulated by law, the Government mentions, in another part of its reply, that – contrary to the practice of other European countries – Spain’s system of labour relations has opted for erga omnes application of higher level State collective agreements; thus, such agreements apply to all enterprises and workers, even where the enterprise did not negotiate the collective agreement and the employer is not a member of an employers’ organization involved in the negotiations. The Committee notes that, with respect to the issues raised, the Government stresses that the rules governing concurrent collective agreements of differing scope follow a number of principles established by law (such as, among others, the principle of the most favourable standard, the principle of the derogable or non-derogable nature of rights, the principle of previous or subsequent norms and the pro operario principle); and that, in line with the lawmakers’ preference, since 1994, for decentralized bargaining levels, Act No. 3/2012 calls for application of the norm closest to the situation and to the circumstances of the labour relations, the enterprise and the workers.
  4. 450. Concerning the allegation that, under Act No. 3/2012 (article 14, paragraph 1, and Additional Provision 5), employers can decide that, henceforth, they will not apply (“disregard”) the provisions of a collective agreement on economic, technical, organizational or production-related grounds, without needing to reach agreement with the negotiators of the agreement, by imposing compulsory arbitration, the Committee takes note of the Government’s statement that, under Spain’s erga omnes collective bargaining system, contrary to the practice of other European countries, State collective agreements apply to all enterprises that fall within their scope, even those that were not members of the signatory employers’ organizations, and that this makes it far more logical for a binding agreement to be “disregarded”. The Committee also takes note of the Government’s statement that the complainant organizations are objecting to the new procedure for such “disregard” (the grounds for which were already established under the law) and that, under Act No. 3/2012, the new procedure to be followed in the event of a dispute between the parties regarding disassociation from (“disregard for”) certain provisions, is applicable only where the parties fail to reach agreement during the consultation periods envisaged in that Act or where they have not followed the collective bargaining dispute settlement procedures (on this point, the Government stresses that, according to the Workers’ Statute, collective agreements must, at a minimum, establish “procedures for the effective settlement of disputes arising from the non-application of working conditions ..., using, where necessary, the procedures established for that purpose in State or autonomous community interprofessional agreements ...”); the Government therefore emphasizes that, in so far as a collective agreement includes effective dispute settlement procedures, the parties are required to follow these procedures and there is no need to bring proceedings before the new mechanism established in Act No. 3/2012, to be considered below.
  5. 451. The Committee takes note of the Government’s statement that, as a last resort (where the parties have failed to reach agreement during consultations or a collective agreement does not include a dispute settlement mechanism), Act No. 3/2012 provides for the intervention of the CCNCC, a tripartite collegiate body comprising representatives of the State Administration and the most representative unions and employers’ organizations, which may settle the dispute itself or appoint an arbitrator, who shall be an impartial, independent expert (following the procedure agreed by the parties or, where they fail to agree, selected by the Advisory Committee). Where the parties to the dispute agree to the appointment of an arbiter, it is preferable for the appointment to be made by mutual agreement. Failing such agreement, a procedure is envisaged whereby each of the three groups of representatives proposes two arbiters and, through rounds of voting in an order to be established in advance, one arbiter at a time is eliminated until only one remains. The Committee notes that, in the Government’s view, the system establishes sufficient mechanisms to ensure that the arbitration system is genuinely independent and allows the arbitrator to uphold the claim and reject in its entirety the request for permission not to apply the working conditions; to propose non-application of the working conditions, but to a lesser extent; or to prohibit non-application of the collective agreement. The Committee takes note of the Government’s statement that, since the entry into force of Act No. 3/2012 on 31 October 2012, 477 agreements (between the negotiating parties) not to apply working conditions established in collective agreements have been registered with the authorities.
  6. 452. With regard to the alleged replacement of negotiated internal flexibility by a unilateral decision of the enterprise’s management, which, following consultations in which no agreement with the workers is reached, may decide not to apply (by suspending or replacing) working conditions established in enterprise agreements, the Committee notes that this issue is addressed in articles 12 and 13 of Act No. 3/2012 and that, according to the Government: (1) the employer’s decision may be appealed before the labour courts and that this provision is based on the 1994 legislative reform; and (2) with respect to such substantial modifications, Act No. 3/2012 provides for the establishment of specific collective bargaining procedures and for the holding of consultations with the workers’ representatives on the reasons for the employer’s decision, the possibility of preventing or reducing its impact and the measures needed in order to mitigate its effects on the workers concerned. During the consultations, the parties must negotiate in good faith in an effort to reach an agreement; they may also agree to replace the consultations by mediation or arbitration. The Committee notes the Government’s statement that this legislation does not restrict the potential for negotiation in response to changes in collectively agreed working conditions and observes that, under article 12, paragraph 1, of Act No. 3/2012, the significant changes in working conditions mentioned in the previous paragraph may include the content of collective agreements or pacts.

    Specific conclusions

  1. 453. The Committee has considered the arguments of the complainants and the Government concerning Act No. 3/2012, and, although it has taken due note of the need to respond urgently to an extremely serious and complex economic crisis and to address the serious unemployment problem (the highest unemployment rate in the European Union), the Committee recalls the principle that mutual respect for the commitment undertaken in collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground [see the Digest, op. cit., para. 940]. The Committee stresses that articles 12, 13 and 16 of the Act authorize significant changes in working conditions (including, among other things, the length of the working day, working hours and shift work) not only on economic grounds (particularly in the event of current or anticipated losses or where the enterprise has seen a decline in revenue or sales for two consecutive quarters), but also on technical, organizational or production-related grounds without the need, as in the past, for the existence of an emergency or force majeure situation; under Act No. 3/2012, which applies not only during temporary periods of economic crisis but in perpetuity, where a disagreement arises during consultations and related bargaining, any of the parties may refer the dispute for arbitration. The Committee underlines that the elaboration of procedures systemically favouring decentralized bargaining of exclusionary provisions that are less favourable than the provisions at a higher level can lead to an overall destabilization of the collective bargaining machinery and of workers’ and employers’ organizations and constitutes in this regards a weakening of freedom of association and collective bargaining contrary to the principles of Conventions Nos 87 and 98 [see 365th Report, Case No. 2820 (Greece), para. 997]. In the Committee’s view, the question of whether serious economic problems of enterprises may, in certain cases, call for the modification of collective agreements must be addressed, and, since it can be handled in various ways, the way to proceed should be determined within the framework of social dialogue.
  2. 454. The Committee further notes that article 14, paragraph 2, of Act No. 3/2012 introduces new rules for private sector collective bargaining and the structure thereof, including by giving enterprise collective agreements priority of application over higher level collective agreements on certain matters, which, as the Government points out, were not covered by the previous legislation. The Committee also notes that the complainant unions and other complainant organizations have clearly expressed their opposition to this new legislation and recalls its position that the determination of the bargaining level is essentially a matter to be left to the discretion of the parties.
  3. 455. Under these circumstances, the Committee stresses the importance of ensuring that the essential rules governing the system of labour relations and collective bargaining are shared, to the maximum extent possible, by the most representative workers’ and employers’ organization. It therefore invites the Government to promote a tripartite dialogue on Act No. 3/2012 in order to achieve this goal from the perspective of the principles established in the ILO Conventions on collective bargaining that Spain has ratified.

    Allegations concerning Royal Legislative Decree No. 20/2012 and (after consideration by the Congress of Deputies) Act No. 20/2012 of 13 July 2012

  1. 456. The Committee notes the complainant organizations’ allegation that Royal Legislative Decree No. 20/2012 of 13 July 2012 provides for a reduction in the wages of public administration employees by eliminating the December 2012 bonus, and for a reorganization of working time by, among other things, reducing the length of the annual paid holiday and the number of personal days, reducing other forms of leave beyond the legal minimum (the Royal Legislative Decree authorizes the negotiation of agreements on this matter in the Public Administration Negotiating Committees; according to the complainants, this is a permanent structural change) and reducing trade union leave.
  2. 457. According to the complainants, the foregoing measures have resulted in the unilateral suspension or repeal of the clauses of all public sector agreements on these matters, which it will no longer be possible to improve, and this was done without holding consultations with the unions as required by law (the complainant organizations recognize, however, that, under the previous legislation, collective agreements could be suspended or modified in exceptional cases on the grounds of “significant changes in the economic situation”, in which case “the administrations shall inform the unions of the reasons for the suspension or modification”). Furthermore, according to the complainant organizations, Royal Legislative Decree No. 20/2012, in its Additional Provision 2, provides that, in the event of serious threats to the public interest resulting from a significant change in the economic situation, the public administrations must adopt adjustment, rebalancing of public accounts or economic or financial measures or plans in order to ensure budgetary stability (as the European Union requires) or reduce the public deficit; in such cases, the unions must be informed but the Administration is not required to hold consultations before disassociating itself from the clauses of agreements.
  3. 458. The Committee takes note of the Government’s statements regarding the economic crisis (see above) and of its position that, in light of the economic situation and the need to reduce the public deficit, it was forced to adopt the structural reforms and additional measures to reduce public spending contained in Royal Legislative Decree No. 20/2012 of 13 June 2012, which – as the Government stresses – were adopted within the framework of Spain’s commitments to the European Union (recommendation of the European Council giving Spain an extra year to correct its excessive deficit, adopted by ECOFIN on 10 July 2012) and of the National Reform Programme in order to rationalize the public administrations with a view to reducing staffing costs and increasing the quality and productivity of public servants. The Committee takes note of the Government’s statement that the constitutionality of the Royal Legislative Decree’s provisions on (union) leave, holidays and non-payment of the December 2012 bonus has been challenged before the Constitutional Court. The Government considers that the Royal Legislative Decree does not violate ILO Conventions owing to the existence of an urgent and extraordinary need which, under the Constitution, authorized the issuance of provisional legislation that was submitted to the Congress of Deputies immediately for discussion and voting, after which it was no longer provisional (Royal Legislative Decree No. 20/2012 was consolidated on 19 July 2012); thus, contrary to the complainant’s claims, it does not constitute, de facto or de jure, a “unilateral decision of the Government”.
  4. 459. The Committee also takes note of the Government’s statement that the provisions of Royal Legislative Decree No. 20/2012 are fully consistent with the constitutional principles and with the jurisprudence on collective bargaining and are fully justified by an extraordinary and exceptional economic situation that poses a threat to the public interest, taking into account the obligation of the public administrations to inform the unions of grounds for an inspection or modification. It adds that both the legislation and the courts have established the primacy of law over collective agreements.
  5. 460. With respect to the provisions of Royal Legislative Decree No. 20/2012 and Act No. 20/2012 on time credits granted to unions (trade union leave) which repeal the collective agreements on these matters, the Committee takes note of the Government’s statement that: (1) the Royal Legislative Decree merely corrected administrative excesses resulting from the implementation of pacts that went beyond the provisions of the Workers’ Statute, the EBEP and the Freedom of Association Organization Act with no monitoring whatsoever; (2) these provisions concern time off with pay for the conduct of union activities and full-day waivers of attendance at the workplace and must be brought into line with the aforementioned legislative acts; (3) collective agreements that go beyond these provisions are repealed; (4) the goal is to rationalize staffing costs; and (5) the Royal Legislative Decree does not hinder the negotiation of new agreements on these matters with unions; it expressly states that they may be negotiated only within the general negotiating committees, thereby encouraging collective bargaining.
  6. 461. The Committee also notes the Government’s statement that on 25 October 2012, it signed an agreement with the most representative unions, in which it undertook to: (1) convene the State Administration’s various negotiation and technical committees in order to give new momentum to, among other things, training, prevention of occupational hazards, social responsibility and equality of opportunity; and (2) move forward within the framework of collective bargaining and in the various areas envisaged in the legislation while rationalizing the participation and negotiation structures. Furthermore, on 25 October 2012, the Government and the most representative unions (including the complainant unions) signed an agreement giving the unions the necessary resources to rationalize their representation and negotiation functions by determining the number of credit hours granted to union leaders. The Committee welcomes the agreements to which the Government refers but notes that they cover only some of the issues raised in the complaint. The Committee stresses the importance of ensuring that the negotiating committees address all issues raised in the complaint in relation to the public administrations.

    Specific conclusions

  1. 462. Having considered the arguments of the complainants and the Government concerning Act No. 20/2012, and while taking due note of the need to respond urgently to an extremely serious and complex economic crisis and to address the serious unemployment problem (the highest in the European Union), the Committee notes with concern that Royal Legislative Decree No. 20/2012, which was challenged by the complainants, directly suspended the collective agreements contrary to it or repealed their provisions in the following areas: the Christmas bonus, holidays, benefits for temporary inability to work and public sector union leave and time credits (the Government reports that the provisions on union leave were renegotiated through an agreement). The Committee also notes that Act No. 20/2012 reiterates the provisions of previous legislation, which authorized the suspension or modification of collective agreements in the event of a “significant” change in the economic situation.
  2. 463. The Committee stresses that all of the above gives rise to problems with respect to the principles of freedom of association and collective bargaining laid down in the relevant ILO Conventions. The Committee must therefore recall the principle that “State bodies should refrain from intervening to alter the content of freely concluded collective agreements” and that “[collective] agreements should be binding on the parties” [see Digest, op. cit., paras 939 and 1001].
  3. 464. The Committee recalls that, in an earlier case, it underlined that:
    • The suspension or derogation by decree – without the agreement of the parties – of collective agreements freely entered into by the parties violates the principle of free and voluntary collective bargaining established in Article 4 of Convention No. 98. If a government wishes the clauses of a collective agreement to be brought into line with the economic policy of the country, it should attempt to persuade the parties to take account voluntarily of such considerations, without imposing on them the renegotiation of the collective agreements in force. [See Digest, op. cit., paras 1000, 1005 and 1008.] While it is not its role to express a view on the soundness of the economic arguments invoked to justify government intervention to restrict collective bargaining, the Committee must recall that measures that might be taken to confront exceptional circumstances ought to be temporary in nature having regard to the severe negative consequences on workers’ terms and conditions of employment and their particular impact on vulnerable workers. The Committee asks the Government to provide full information on the evolving impact of these measures on the overall environment and to keep it informed of the efforts made for their duration to be temporary. [See 365th Report, Case No. 2820 (Greece), para. 995.]
  4. The Committee therefore invites the Government to encourage social dialogue on these issues with a view to finding, to the fullest possible extent, solutions agreed with the organizations.

The Committee’s recommendations

The Committee’s recommendations
  1. 465. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
    • (a) The Committee draws the Government’s attention to the principles concerning consultation of the most representative workers’ and employers’ organizations with sufficient advance notice of draft laws and draft Royal Legislative Decrees prior to their adoption by the Government, and hopes that these principles will be fully respected in the future.
    • (b) With regard to the new provisions contained in Acts Nos 3/2012 and 20/2012, the Committee stresses the importance of ensuring that the essential rules governing the system of labour relations and collective bargaining are agreed, to the maximum extent possible, with the most representative workers’ and employers’ organizations. It therefore invites the Government to promote a tripartite dialogue in order to achieve this goal from the perspective of the principles of freedom of association and collective bargaining laid down in the relevant ILO Conventions.
    • (c) The Committee requests the Government to transmit to it the Constitutional Court and Supreme Court rulings on Acts Nos 3/2012 and 20/2012.
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