Observation (CEACR) - adoptée 2006, publiée 96ème session CIT (2007)

The Committee notes the Government’s report.

The Committee recalls that for many years it has been referring to the Act respecting foreign nationals (Basic Act No. 8/2000 on the rights of foreign nationals in Spain and their social integration), which prohibits “irregular” foreign workers (those without proper work papers) from exercising the right to organize. It further recalls that it has requested the Government to provide information on any measures taken to amend this Act with a view to securing the right of all foreign workers to join organizations to further their interests as workers.

The Committee notes the Government’s indication that: (1) the law in force, Basic Act No. 4/2000 of 11 January on the rights and freedoms of foreign nationals in Spain and their social integration, sets out and recognizes the rights and freedoms of foreign nationals in Spain, including those of freedom of association and the right to organize, for foreign residents who are lawfully in Spain; (2) the inclusion in the legislation in force on foreign nationals and immigration of the requirement of legal residence responded to the fact that, when formulating Basic Act No. 8/2000, the legislature considered it appropriate not to recognize the exercise of such rights for those foreign nationals whose residence in Spain involved an infringement of the provisions of Spanish legislation respecting foreign nationals and immigration on the grounds of their irregular presence on Spanish territory, and their consequent liability to a compulsory order to leave the Spanish territory or a repatriation measure; (3) freedom to organize, article 28 of the Constitution, is regulated by Basic Act No. 11/1985 of 2 August respecting freedom to organize, and the freedom of association, article 22 of the Constitution, is developed, among other provisions, by Act No. 191/1964 of 24 December; and (4) the latter laws do not cover foreign nationals who are not legally in Spain. The Government adds that various appeals have been lodged calling for Basic Act No. 4/2000 of 11 January on the rights and freedoms of foreign nationals in Spain and their social integration, in the version contained in Basic Act No. 8/2000 and in the version set out in Basic Act No. 14/2003, to be declared unconstitutional. The appeals against the constitutionality of Basic Act No. 4/2000, in the version contained in Basic Act No. 8/2000, constitute a fundamental challenge to the notion that the exercise of the right of assembly, the right to strike, freedom of association and the right to organize, and the right to free legal assistance, can be made conditional upon the administrative situation of a foreign national.

Finally, the Committee notes the Government’s indication that Royal Decree No. 2393/2004 of 30 December approved the regulations issued under Act No. 4/2000 of 11 January on the rights and freedoms of foreign nationals in Spain and their social integration. It notes that, in the context of foreign nationality and immigration, and with regard to the defence of the interests of immigrants, section 69 of Basic Act No. 4/2000 establishes the obligation for the public authorities to promote the strengthening of associative initiatives among immigrants.

In this regard, while noting the measures adopted in relation to the rights of foreign nationals and immigrants, the Committee recalls once again that, in accordance with the obligations deriving from Article 2 of the Convention, workers have to be accorded the right, without distinction whatsoever, to join organizations of their own choosing, with the sole exception of members of the armed forces and the police. Under these conditions, the Committee requests the Government to take measures to amend the Act respecting foreign nationals as indicated above and to provide information in its next report on any measure adopted in this respect and on the rulings of the judicial authorities on this issue in relation to the appeals that are currently under examination.