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Article 2 of the Convention. The Committee recalls that in its previous comments it noted with satisfaction Ruling No. 236/2007 of the Constitutional Court declaring unconstitutional section 11 of the Act respecting foreign nationals (Basic Act No. 8/2000 on the rights of foreign nationals in Spain and their social integration), which made the right of foreign nationals to organize or to join an occupational organization freely, under the same conditions as Spanish workers, subject to obtaining a permit to stay or reside in Spain. In this respect, the Committee notes with satisfaction the Government’s indication in its report of the adoption of Act No. 2/2009 of 11 December, reforming Basic Act No. 4/2000 and integrating into the provisions of the Act the contents of Rulings Nos 236/2007 of 7 November and 259/2007 of 19 December of the Constitutional Court, which found that the requirement imposed by Basic Act No. 4/2000 on foreign nationals to be legally resident in Spain in order to exercise the fundamental rights of assembly, association, trade union membership and strike constituted an unjustified restriction and are therefore contrary to the Constitution. The Committee observes that the new section 11 of Basic Act No. 4/2000, in accordance with the wording set out in Basic Act No. 2/2009, provides that foreign nationals shall have the right to organize freely or to join an occupational organization and to exercise the right to strike under the same conditions as Spanish workers.
The Committee recalls that for a number of years it has been commenting on 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.
The Committee notes with satisfaction the Government’s statement that, in Ruling No. 236/2007, the Constitutional Court declared unconstitutional section 11 of the Act respecting foreign nationals, which make the right of foreign nationals to organize or to join an occupational organization freely, under the same conditions as Spanish workers, subject to obtaining a permit to stay or reside in Spain.
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.
The Committee recalls that in its previous observation it referred to the Act respecting foreign nationals (Organic Act No. 8/200 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 requested the Government to provide information in its next report on any measures taken to amend this Act with the 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 various aspects of the Act in question have been amended by Act No. 14/2003 of 20 November, but that section 11, which covers freedom of association and the right to strike, has not been amended and continues to provide that: "Foreign nationals shall have the right to organize freely or to join an occupational organization, under the same conditions as Spanish workers, which they may exercise when they obtain the authorization to stay or reside in Spain".
In this connection, the Committee recalls once again that, under Article 2 of the Convention, workers must 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. Therefore, 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 measures adopted in this respect.
The Committee notes the Act respecting foreign nationals (Organic 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. The Committee draws the Government’s attention to the fact that that Article 2 of the Convention establishes the right of workers, without distinction whatsoever, to join organizations of their own choosing, with the sole exception of members of the armed forces and the police. The Committee therefore requests the Government to provide information in its next report on any measure 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.
With reference to its previous comments, the Committee expresses the firm hope that the Government will provide information in future reports on the adoption of any legislation respecting the minimum service which has to be maintained in the event of a strike, defined with the participation of workers’ organizations.
The Committee duly notes the approval of Royal Decree 1844/1994 approving the Regulations governing trade union elections to workers' representative bodies in an undertaking, and of Act No. 10/1997 respecting the rights of workers to information and consultation in companies and groups of companies, mentioned by the Government in its report.
The Committee expresses the firm hope that legislation will be adopted in the very near future concerning the minimum level of services to be maintained in the event of a strike, in the definition of which the trade union organizations should be involved, and requests the Government to inform it of any developments in this regard.
The Committee notes the Government's report and the comments by the Trade Union Confederation of Workers' Commissions (CC.OO.).
In its previous observations, the Committee expressed and reiterated the hope that the Bill concerning strikes and collective disputes would fully respect the principles of freedom of association with regard to strikes and, in particular, minimum services.
In this connection, the Committee notes that, according to the Government, the above-mentioned Bill has been sent to Parliament. Furthermore, the Committee notes with interest the "Agreement on the Extrajudicial Settlement of Labour Disputes (ASEC)" concluded on 25 January 1996 by two workers' confederations (UGT and CC.OO.) and two employers' confederations (CEOE and CEPYME), whose purpose is to create and develop a system for the settlement of collective labour disputes between workers and employers or their respective organizations.
The Committee asks the Government to inform it of any amendments to the legislation in this connection.
The Committee notes the Government's report and the comments of the General Union of Workers (UGT).
In its previous observation, the Committee noted that the basic Bill in relation to strikes and collective disputes had been sent to Parliament with the agreement of the Trade Union Confederation of Workers' Commissions (CC.OO) and the UGT; the text provided that responsibility for determining those who are to provide minimum essential services will be shared between the employers and the trade unions, or the representatives of the workers who have called the strike.
The Committee expresses the hope that the future basic law respecting strikes and collective disputes will fully respect the principles of freedom of association in relation to strikes and, in particular, minimum services.
The Committee notes the Government's report and the comments of the Trade Union Confederation of Workers' Commissions (CC.OO.) and the General Union of Workers (UGT).
The Committee recalls that on many occasions it has pointed out the need for occupational organizations to be able to participate in the determination of the minimum service to be maintained in the event of a strike.
In this context, the Committee notes that the CC.OO. and the UGT criticize in their comments the contents of a Bill respecting strikes which has been submitted to Parliament. The Committee also notes that according to the Government a new basic text respecting strikes and collective disputes has been sent to Parliament with the agreement of the CC.OO. and UGT. The Committee also notes the Government's indications that in future regulations it is envisaged that responsibility for determining those who are to provide minimum essential services will be shared by the employers and the trade unions, or the representatives of the workers who have called the strike.
The Committee expresses the firm hope that the future basic law respecting strikes and collective disputes will fully respect the principles of freedom of association in respect of strikes and, in particular, minimum services. The Committee requests the Government to supply the above text once it has been adopted.
The Committee takes note of the Government's report and of the Decrees determining the minimum services to be maintained during a number of strikes that have occurred in various sectors since 1988.
The Committee observes that from reading the above Decrees, it is not clear that the occupational organisations which called the strikes participated in determining the minimum services.
Furthermore, the Committee notes the contents of Act No. 7/1990 of 19 July 1990 on collective bargaining and participation in determining the working conditions of public employees, section 32, subsection (h) of which provides that "proposals on trade union rights and participation" shall be subject to negotiation. The Committee asks the Government to indicate whether the above subsection constitutes a legal basis for collective negotiation to determine the minimum services to be maintained in the event of strikes in the public sector, and to inform it of any initiatives in this respect.
The Committee again expresses the hope that, in future, occupational organisations will be able to participate in determining the minimum services to be maintained in the event of strike and ask the Government to report on any developments in this respect.
The Committee takes note of the comments made by the Trade Union Confederation Committees (CC.00.) to the effect that the Government frequently adopts decrees to maintain a mimumum service in services that are not essential in the meaning of the Convention, such as education, public administration, radio and television, with the aim of impeding the exercise of the right to strike. The CC.OO. goes on to stress that the Government has never consulted the trade union organisations on the introduction of these measures.
In its reply, the Government refers to the information already provided in the context of the cases examined by the Committee on Freedom of Association, and during the discussions at the Conference Committee on the Application of Standards and within the Governing Body.
The Committee has taken note of the conclusions of the Committee on Freedom of Association regarding Case No. 1466. See 268th Report, approved by the Governing Body in November 1989.
In this connection, the Committee recalls that the purpose of trade union organisations is to defend the interests of their workers and that the strike is one of the essential means available to them to achieve this objective. However, the exercise of the right to strike may be restricted or prohibited: (a) in the case of public servants acting in their capacity as agents of the public authority; (b) in essential services, namely, services the interruption of which would endanger the life, health or personal safety of the whole or part of the population and, (c) in the event of an acute national crisis and then only for a limited period.
With regard to the maintenance of a mimimum service, the Committee has pointed out in paragraph 215 of its 1983 General Survey on Freedom of Association and Collective Bargaining that, if a total and prolonged stoppage of work in a major sector of the economy is liable to endanger the life, personal safety or health of the population and cause an acute national crisis, the maintenance of a minimum service - concerning a specified category of workers - would seem to be justified. For such a measure to be acceptable, the minimum service should be restricted to operations that are strictly necessary to avoid endangering the life, personal safety or health of the whole or part of the population and, at the same time, the workers' organisations should, if they wish, be able to participate in defining the minimum service along with the employers and public authorities. Such a system could also be used in the case of essential services in order to avoid a total ban on strikes in these services.
The Committee therefore trusts, like the Committee on Freedom of Association in the context of Case No. 1466, that, in future, workers' and employers' organisations will be able to participate in defining the minimum service to be maintained in the event of a strike. It requests the Government to provide a copy of any Decree adopted for this purpose, indicating the role played by the above organisations in the setting up of such services.