Interim Report - Report No 27, 1958

Case No 143 (Spain) - Complaint date: 15-APR-59 - Closed

1. 85. At its 134th Session (Geneva, March 1957) the Governing Body approved the recommendations made by the Committee on Freedom of Association in an interim report on Case No. 143 : Complaints presented on 4 May and 13 August 1956 by the International Confederation of Free Trade Unions, and on 25 July and 22 August 1956 by the General Union of Spanish Workers in Exile. The conclusions in the interim report related exclusively to two preliminary questions raised by the Spanish Government in its communication of 4 January 1957, namely as to the irreceivability of the complaint of the I.C.F.T.U, based on the argument that this organisation was not competent, and as to the lack of competence of the Committee on Freedom of Association, because of the application of the principle of res judicata. The Governing Body, adopting the recommendations of the Committee, decided to reject these objections and to request the Spanish Government to present its observations on the substance of the complaints submitted.
2. 86. Consequently, the Director-General, in a communication dated 12 March 1937, requested the Spanish Government to furnish its observations on the substance of the complaints transmitted to it and also on a new communication, dated 14 January 1957, from the General Union of Spanish Workers in Exile. On 12 April 1957 the Spanish Government forwarded preliminary observations relating only to the communication of 14 January 1957 from the General Union of Spanish Workers in Exile. On 16 May 1957 the Government presented its observations on the other complaints.
3. 87. At its 17th Session (Geneva, May 1957) the Committee took note of the contents of the communications from the Spanish Government referred to above and made a preliminary examination of the case. The Committee decided to request the Spanish Government to present further observations on various points, and, especially, on the questions raised on 25 July and 22 August 1956 by the General Union of Spanish Workers in Exile, concerning which the Government had not made known its views. The Director-General requested this further information in a communication addressed to the Spanish Government on 6 June 1957. The Government forwarded further observations by a communication dated 15 October 1957.

A. A. The complainants' allegations

• Complaint of the International Confederation of Free Trade Unions
  88. 88 The complaint of the International Confederation of Free Trade Unions, submitted in communications dated 4 May and 13 August 1956, contains the following allegations : the Spanish Government is said to have violated human rights by breaking the strikes that occurred in April 1956 in Bilbao and other towns and by arresting the strikers. The dictatorship is said to have ordered lockouts and thus endangered the livelihood of some 40,000 workers. Some employers are said to have tried to get production going again at a time when it was falling, by granting wage increases at rates higher than those set by the Government, which opposed such a step and ordered the closing of the establishments concerned. The Franco régime is also said to have resumed persecution of the workers who took part in the general strike of 1951. In the Basque provinces 11 people are said to have been sentenced to between three and six years' imprisonment for taking part in the strike. They were later set free but recently imprisoned again without any charge being laid against them. The Government strike-breaking system is said to constitute a violation of human rights, which Spain promised to respect when she joined the United Nations. To justify the Government's action the Head of State laid the blame on liberalism in the past.
  89. 89 In its second communication, the I.C.F.T.U states as follows:
  1. (1) The source of the trade union situation in Spain lies in the totalitarian character of the Spanish State. The results of this are, firstly, the non-existence of free trade unions and, secondly, the existence of trade unions created in every respect by the public authorities.
  2. (2) By virtue of a Decree of the Presidency of the Junta for National Defence dated 13 September 1936, all the political or social organisations which had been constituted by the Popular Front were declared illegal and their movable and immovable property was confiscated. Further, the Act of 9 February 1939 respecting political responsibility ratified the earlier decree and specifically declared illegal trade union organisations such as the General Workers' Union, the Association of Basque Workers and the National Confederation of Workers.
  3. (3) All these trade union organisations had been freely constituted by the workers in accordance with an Act of 1887. The leading members of these organisations were persecuted and sentenced, some to death and others to terms of from 20 to 30 years' imprisonment.
  4. (4) The conditions in which free trade union organisations are prohibited and free trade unionists are prosecuted were still further aggravated by the enactment of the Act of 29 March 1941 respecting the security of the State and of the Penal Code of 23 December 1944 (articles 172 and 173). The Penal Code provides that the act of constituting; organising or directing organisations other than those imposed by the régime is a crime punishable by as much as 16 years' imprisonment.
  5. (5) With respect to agricultural workers, an Act of 2 September 1941 incorporated in the national organisation all the agricultural trade unions, co-operatives, etc., which enjoyed a particular status under an Act of 23 January 1906.
  6. (6) Among the 26 points of the Falange, which were drawn up in October 1934 and became, in 1937, the political doctrine of the Spanish State, are found the principles governing the " trade union " régime in Spain. Thus, Point 6 provides " Our State shall be a totalitarian instrument for the integration of the homeland". Point 9 reads: " We conceive Spain in the economic order as a gigantic trade union of producers. We shall organise Spanish society on a corporative basis through a system of vertical trade unions according to the sectors of production, serving the integration of the national economy."
  7. (7) In accordance with these principles, the Decree of 4 August 1937 approving the Constitution and Rules of the Falange Española Tradicionalista (F.E.T.) and of the Juntas de Ofensiva Nacional-Sindicalistas (J.O.N.S) provided in its Chapter VII, entitled " Trade Unions ", that the F.E.T and the J.O.N.S will create and maintain trade union organisations suitable for incorporating labour in production and the distribution of property.
  8. (8) The Labour Charter approved by the Decree of 9 March 1938 defines the character of the trade union organisation created by the Government itself. It is stated in Chapter XIII of the Labour Charter that the national trade union organisation of the State shall be based on the principles of unity, totality and hierarchy, and that all factors in economic life shall be incorporated in vertical unions according to branches of production or services. The Labour Charter declares that the vertical union shall be a public body incorporating in a single organisation all elements which are engaged in the economic process in a specified service or branch of production. The Charter also provides that the heads of the unions will necessarily be chosen from among the militants of the F.E.T and the J.O.N.S and " that the vertical trade union shall be an instrument in the service of the State and shall constitute the principal medium through which the State will put its economic policy into effect".
  9. (9) The Act of 26 January 1940 respecting trade union unity reiterates the principles in the Labour Charter and provides, among other things, that all trade unions other than those within the system are prohibited, and that the functioning of trade unions is subject to the discipline of the movement under the inspection of the National Trade Union Delegation.
  10. (10) The Act of 6 December 1940 laying down basic rules for trade union organisation ensures, in an even more effective manner the subordination of the trade union organisation to the F.E.T.-J.O.N.S and the State. It provides that Spaniards, by the fact that they collaborate in production, constitute the National Syndicalist Community, forming a militant unit in the discipline of the Movement. It prescribes that the leaders of the trade unions will be appointed by the National Direction of the movement on the basis of proposals by the National Trade Union Delegation, and that they will, necessarily, have to be militants of the F.E.T and the J.O.N.S.
• The legislative provisions referred to above reveal clearly the nature of the trade union organisation of the State as a subsidiary organisation of the political régime. This legislation constitutes an instrument intended to strengthen the régime and to keep the Spanish workers in a state of complete dependence by denying them freedom of association in common with all other political freedom. Such a policy is contrary to the principles contained in the I.L.O. Constitution and in the Declaration of Philadelphia and also in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Right of Association (Agriculture) Convention, 1921 (No. 11).
• The provisions of the Penal Code and of the different laws prohibiting the Constitution of any organisations other than those imposed by the Franco régime are contrary to Articles 2, 3, 4 and 8 (respecting freedom of association) and 11 (respecting the protection of the right to organise) of Convention No. 87. The provisions of the Labour Charter and of the Act of 6 December 1940 laying down basic rules for trade union organisation are contrary to the same Articles of Convention No. 87 and to Article 4 of Convention No. 98. The Act of 2 September 1941 respecting agricultural workers violates Convention No. 11, which has been ratified by Spain.
  90. 90 In conclusion, the complaining organisation maintains that the Spanish trade union movement does not express the free aspirations of the workers but constitutes an authoritarian and totalitarian organisation which has been imposed on the workers and is wholly subordinate to the Head of State. The measures taken by the Spanish Government to cope with the strikes of April 1956 are said to prove this. It is stated that there is therefore no machinery enabling the workers to act freely with a view to securing an improvement in their living standards, since the so-called trade union organisation does not enjoy the workers' confidence ; the Government does not recognise the workers' right to bargain freely with employers, nor does it agree to the conclusion of collective agreements ; and the right to strike is not recognised and repressive measures are taken to break those that occur. Spanish trade union legislation, which is made worse by police intervention, is said to be incompatible with the basic principles of the International Labour Organisation and to constitute a challenge to the community of nations. The complaining organisation therefore requests the Governing Body to call on the Government of Spain to amend the existing legislation so as to restore freedom of association, and to cancel the sanctions imposed on the workers who took part in the strikes of April 1956.
• Complaint of the General Union of Spanish Workers in Exile
  91. 91 In its communication of 25 July 1956 this organisation states that during the strikes of April 1956 in Barcelona the workers José Ballbé, Julián Piñero, Francisco Fabregat, José Teixidor, Antonio Petit, Francisco Escrivá, José Castillo, José Ballaro, Antonio Muller and Antonio Senserich were arrested. The police are said to have brought the arrested men before Court No. 10. The judge is stated to have ordered the institution of proceedings against them on charges of unlawful association and distributing illegal propaganda. Although the judge ordered the release of the arrested men on bail, the Civil Governor of Barcelona, in order to prevent their being set free, ordered that they should be rearrested on government authority for a period of three months, renewable for a further period of three months. The complaining organisation states that this constitutes an infringement of the individual freedom of the workers and of the right to strike and interference by the civil authorities so as to nullify the decisions of the judicial authorities.
  92. 92 In its second communication, dated 22 August 1956, the General Union of Spanish Workers in Exile alleges that the policy carried on by the Franco regime against the workers since it seized power on 30 March 1939 is continuing. It submits a list of persons detained as political prisoners. They include Eduardo Villegas, who was sentenced in 1946 for having tried to reconstitute a free trade union organisation, the General Workers' Union, and Emilio Salgado, now in Ocaña prison, who was sentenced in 1947 for the same offence. Most of the other persons listed in the complaint are said to have been sentenced to imprisonment for as much as 30 years for the offence of " military rebellion ". According to the complaining organisation, the fact that those detained were sentenced for military rebellion should not mislead the reader : " That is how the Franco régime describes the efforts of the workers to regain their rights as citizens and their freedom of association ". The complaining organisation goes on to say that " freedom of association does not exist in Spain ; nor do there exist any of the guarantees prescribed by the Declaration of Human Rights ".
  93. 93 In its third communication, dated 14 January 1957, the General Union of Spanish Workers in Exile alleges that, by a Decree of the Ministry of Labour published in the Boletin Oficial of 25 December 1956, "all undertakings are authorised to apply the disciplinary sanction of dismissal to their workers, without the necessity of instituting legal proceedings against them or of submitting proposals to the Labour Courts ". The complainant adds that, as the workers are deprived of the right of free association because they are obliged to belong to trade unions dominated by the State, this new decree places them more than ever at the mercy of their employers by depriving them of any means of defending their legitimate interests. According to article 23 of the Universal Declaration of Human Rights, emphasises the complaining organisation, " everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment ", all these principles apparently being violated by the measures taken by the Spanish Government. The Catholic press itself is stated to have criticised this decree by affirming that the workers, thus deprived of all means of defence, have fewer rights than common law criminals.
  94. 94 In its fourth communication, dated 25 April 1957, the General Union of Spanish Workers in Exile forwards, as proof that strikes are prohibited, a photocopy of a notice put up at the factories of the Duro-Felguera Metallurgical Company of Sama de Langreo, the text of which is as follows:
• By order of the authorities the operatives of this unit are informed of the following
  1. 1 Acts connected with a strike are regarded as offences under the Criminal Code which is in force and the organisers, promoters or leaders of a strike are liable to be sentenced to imprisonment for between six years and a day and 12 years and to fines not exceeding 50,000 pesetas.
• Any persons who have recourse to intimidation or violence shall be liable to the same penalties. Persons who act as leaders or who are most notable for their standing, behaviour or record shall be regarded as leaders.
• Those who go on strike or take part in a strike are liable to imprisonment for a period not exceeding six years and to a similar fine.
• The Criminal Procedure Act provides that provisional imprisonment shall be imposed in connection with prosecutions on such charges.
  2. 2 A reduction in normal output will entail:
     • (a) if the workers are of military age, their joining a unit in the chief town of the region from where they will be transferred to a disciplinary unit in Africa ; and
     • (b) for workers not covered by the previous paragraph, termination of the contract of employment,
  3. all without prejudice to the criminal liability of those concerned for misconduct.
• The complaining organisation emphasises that note should be taken of the fact that responsibility for a strike is laid not only on those who participate in it but also on those whose records justify such a measure and that the workers are thus rendered liable to all kinds of repressive measures.
• ANALYSIS OF THE REPLIES
• Communication of 12 April 1957
  95. 95 The communication of 12 April 1957, analysed below, deals only with the allegations contained in the communication presented on 14 January 1957 by the General Union of Spanish Workers in Exile-allegations which were analysed in paragraph 93 above. The Government maintains that the decree concerning dismissals in undertakings constitutes an appreciable improvement of the régime for the legal protection of the workers. Accordingly, the Government states:
• The legal provisions applicable in this field continue to be mainly those of section 81 of the Contracts of Employment Act approved on 26 January 1944, in conjunction with section 77 of the same Act. These provisions list legitimate grounds for discharging a worker : repeated and unjustified lack of punctuality or absenteeism ; lack of discipline or failure to obey the statutory labour regulations; using improper language or behaving improperly or showing serious lack of respect and consideration for the employer, for members of his family living with him, for his representative, for superiors or for fellow workers ; unfitness of the worker for the occupation or job for which he was engaged ; fraud, disloyalty or breach of trust in carrying out instructions ; wilful and continuous reduction in normal output ; carrying out commercial or industrial negotiations on one's own account or on that of another person without the permission of the employer ; habitual drunkenness ; lack of cleanliness, provided that the worker's attention has been repeatedly drawn to the point and that it is such as to lead to justified complaints by those of his fellows who work on the same premises ; causing frequent quarrels or unnecessary wrangling with his fellow workers.
• The object of the aforesaid Decree of 26 October 1956 is quite clearly to provide for uniformity by unequivocally specifying that the grounds for discharge shall be exclusively those laid down in the above-mentioned section 77 of the Contracts of Employment Act.
• The introduction of such uniformity can only be advantageous in the light of the lists contained in the labour ordinances which, although in substance they concurred with these provisions, did occasionally give rise to certain misunderstandings owing to the way in which they were worded.
• The provision to which we have referred is also intended to secure clarity and simplicity and to ensure that the date of discharge and the reason for it shall be known, for which purpose a new rule has been introduced to the effect that employers, when deciding to discharge workers as a penalty, shall give the worker or workers concerned a written statement of the date on which the discharge takes place and of the reason for it. It is as clear as clear can be that this rule is extraordinarily advantageous to the worker himself, in so far as it avoids his being in an unprotected position as he sometimes was until now owing to the fact that he did not know in certain cases the date on which he had been discharged; moreover if a discharged worker thinks it desirable to challenge the penalty as being illegal he also has clear and precise knowledge of the act which he is to contest, namely the specific reason given in the statement, and the undertaking in opposing the claim must also necessarily restrict itself to this particular reason.
• As regards the strictly procedural aspect the fact that submission of a statement of the worker's disciplinary record in the particular undertaking is not mandatory cannot harm the worker's interests either, since in most cases such records, in spite of the fact that they are prepared with the best of intentions, were in fact serving as evidence already brought together, which it was very difficult for the worker to challenge in court.
• Moreover, as regards the effects of a court decision declaring a discharge to be unlawful, a distinction is still made in accordance with section 81 of the Contracts of Employment Act between two categories of undertakings according to whether the number of permanent workers is below 50 or above that figure. In the first case, which is that of an overwhelming majority of Spanish undertakings, the system continues to be the same as it was before the promulgation of the decree, and the employer can choose between taking on the worker or paying him the compensation specified in the court decision, which may amount to as much as one year's wages.
• Consequently in all these cases the amendment has been positively beneficial for the worker, both for the reasons already given and because, in addition, whereas until now, irrespective of the time that had elapsed between the discharge and the court decision only 24 days' wages were payable on this account, the worker now receives all his wages, whatever the number of days may be, if the discharge was unlawful, and the amount paid in compensation is not determined by the basic wage but by the worker's total income, including family allowances paid by the National Family Allowance Fund and by the undertaking.
• In the case of undertakings with more than 50 workers, when a discharge is declared to be unlawful the worker continues to have the choice of being taken on again or of receiving compensation in the same way and to the same amount as in undertakings with less than 50 workers. That is the general rule ; however, if the undertaking does not comply fully with the terms of the court decision in accordance with the worker's choice within the time specified in the decree the court summons the parties, without the worker's needing to institute proceedings again, to lay down the amount of compensation which the undertaking must pay for not fulfilling its obligation to take the worker on again, if the wage earner or salaried employee had in fact stated that he wished to be taken on again. Such compensation may amount to as much as four years' remuneration, in the broad sense that has been mentioned, in which remuneration includes all income.
• As clearly stated it is untrue that the employer is free to hire and fire, since in any case to discharge a worker an application must, in accordance with the abovementioned section 81 of the Contracts of Employment Act, be submitted to the court, which rules whether the discharge was lawful or unlawful. As regards cases in which it is unlawful, moreover, all the amendments tend towards clarity, precision and the worker's advantage, since the fact that an employer-only in undertakings with more than 50 workers-can, instead of taking a worker on again, pay him compensation that may amount to as much as four years' remuneration cannot be regarded as a retrograde measure of social legislation, in view of the fact that the payment of such compensation may be so costly that it is inconceivable that any employer would bear such a considerable financial loss without good reason.
• In short the new decree laying down statutory regulations on discharge is bound to lead to good results since the provisions in question guarantee the legitimate rights both of the worker and of the undertaking.
• Communication of 16 May 1957
  96. 96 This communication refers chiefly to the allegations made by the I.C.F.T.U in its complaints dated 4 May and 13 August 1956. The Government begins by stating that, whatever the grounds on which these complaints are based, the existence of a political motive cannot be left out of account, as indicated by the fact that one of the complainants is the General Union of Spanish Workers in Exile and the fact that both organisations display " unabated hostility " towards the Spanish trade union organisation. Furthermore, even if one accepts the view of the Committee that the vote by the 1956 Session of the International Labour Conference on the objection to the credentials of the Spanish Workers' delegate and advisers does not constitute a res judicata, it should nevertheless be noted, the Government says, that the arguments put forward by the I.C.F.T.U are identical with those advanced in that objection. The Government considers that the fact that the Conference voted down this objection by an overwhelming majority implies the tacit rejection of the arguments against the Spanish trade union set-up that were advanced at that time.
  97. 97 Apart from mistakes of fact in the complaints the Government states that the latter confuse two subjects that are devoid of any connection, namely the question of the unity or plurality of the trade union movement, and that of freedom of association. In the Government's view there can be plural unionism without implying a denial of freedom of association, either as the result of legislation to that effect or of the existence of powerful unions that have virtually attained unity of industrial organisation in individual countries. Examples of this are the Trades Union Congress in Great Britain and the trade unions in the United States. In the Spanish trade unions the workers elect representatives of their own choosing at the local, provincial and national levels, without any form of restriction, as stated in the Electoral Regulations of 22 May 1947. Offices of responsibility are held by people formerly active in the pre-1936 organisations. There are at present some 250,000 elective offices open to the workers in the trade unions. The workers have complete freedom of speech at the meetings of their trade unions, friendly societies, brotherhoods, guilds, and the like, and can exercise the rights of petitioning and protesting against any governmental measures that are not to their liking. They publish their resolutions in the press and also have trade union periodicals of their own. " Trade unionism in Spain ", the Government affirms, " is not an entelechy dominated by a coercive state machine ", but rather an open-minded movement which constantly reviews its objectives in collective discussions. This is proved by the number of meetings held in recent years ; in 1955 some 200,000 workers took part in approximately 3,200 meetings, and in 1956 the figures were 270,000 and 3,700 respectively.
  98. 98 Speaking of bias in the complaints the Government maintains that the attitude of the I.C.F.T.U towards countries in which freedom of association does not exist and the fact that it has no affiliates in Spain causes it to adopt a partial attitude, suggesting " that there are other than trade union motives underlying its attitude towards Spain and the Spanish unions ". The Government goes on to state that bias is evident in the case of the General Union of Spanish Workers in Exile, an organisation which is said to have gone to the lengths of advocating insurrection and personal violence. The members of the latter organisation are voluntary exiles who are free to return to their own country. " Political exile ", says the Government, " is not something which can be adduced or recognised in any international organisation."
  99. 99 The Government gives the following explanation regarding the specific facts mentioned in the I.C.F.T.U's complaint. In connection with the strikes that broke out at Bilbao it should be pointed out that " any labour dispute of this nature that affects a large number of workers in any country leads to a certain number of arrests ", since coercive acts, resistance to authority, assault and battery and various other offences are committed independently of the labour dispute itself. As the present case involved a wilful breach of the labour contracts the latter were automatically cancelled. However, once order was restored, the workers were fully reinstated without disciplinary penalties of any kind. The fact that a strike is followed by 11 arrests and a lockout of limited duration, cannot, in the opinion of the Government, be considered a violation of freedom of association. At the beginning of April 1956 wage increases were granted ; nevertheless, claims for further increases continued while at the same time there was a falling off in productivity and output. It was thus not a matter of wage demands alone. After this state of affairs had gone on for a fortnight, during which the activities of the trade union organisation and the Labour Office produced no results at all, action was taken at the end of April, in the interests of restoring discipline in the undertakings, to use the powers granted under the Labour Contracts Act to terminate contracts in the event of wilful slackening off in the work. In pursuance of these legal powers various undertakings sent out dismissal notices ; other workers made common cause with the dismissed men and came out on strike. Some of those striking in sympathy with the dismissed men were workers whose claims had already been granted. The number of strikers rose to some 25,000 and there were frequent brushes between them and men who wished to continue working. No workers, however, were the subject of disciplinary action, and none of the persons arrested was detained " on the grounds of membership of some particular organisation ". The authorities merely acted with the aim of preventing disturbances ; no striker was penalised for having taken part in the strike and the sentences of imprisonment in no case exceeded those provided for by law. The families of persons arrested received relief in the form of emergency grants and social insurance benefits, and the strikers continued to draw their family allowances and a special payment for the month of April.
  100. 100 With reference to the I.C.F.T.U allegation that " the source of the trade union situation in Spain lies in the totalitarian character of the Spanish State ", the Government replies that this is a political argument which implies interference in the domestic affairs of individual countries. The I.L.O has among its Members countries having a wide variety of systems. The organisations referred to in the complaint, viz. the General Workers' Union, the Association of Basque Workers and the National Confederation of Workers departed from their original aims of an exclusively trade union character to become aggressively political entities. Regarding the imprisonment of workers for the part they played in these dissolved organisations or in the Civil War, " it is common knowledge and has been for many years " that this question is a thing of the past.
  101. 101 With respect to the allegation concerning agricultural trade unions, the Government states that the complaint erroneously mentions the Act of 2 September 1941, whereas this Act did not affect agricultural workers but rather freeholders and leaseholders. The Co-operation Act of 1942 establishes the framework for the Spanish co-operative system and allows associations to be founded freely. This legislation, following on regulations dating from 1938, is designed to enhance the co-operative nature of the various organisations that previously existed in agriculture by co-ordinating them and reorganising their structure. The Act cited in the complaint-that of 2 September 1941-was only a provisional measure pending the preparation of permanent provisions applying to these co-operative institutions. The co-operative system set up under the Act of 2 January 1942 recognises the voluntary nature of these associations (section 5), while the elected General Committee is the organ for the expression of the members' will (section 23). Side by side with these co-operatives the Spanish trade union organisation has promoted the formation of trade union settlement groups and the creation of credit sections in the local agricultural unions. There are collective trade union farm undertakings engaged in the communal cultivation of large estates. At no time has the Spanish peasant had such powerful associations as those that exist at present. The total number of elective offices held by agricultural workers in the local agricultural unions (" brotherhoods of peasants and stockmen ") amounts to 54,000. In the provincial unions rural workers occupy some 2,550 trade union posts and hold a further 125 offices in the unions at the national level. The members of the local committees are appointed directly by the agricultural workers themselves ; the local committees appoint the representatives at the provincial level, and the members of the provincial committees appoint the members of the central committee at the national level. All the representatives must necessarily be wage-earning agricultural workers.
  102. 102 On the subject of allegations relating to the structure of the Spanish trade union system, the Government states that the legislation in force sets forth the specific requirements for the establishment of trade unions and the guarantees that they enjoy. Subject to compliance with these formalities, workers and employers may establish whatever type of organisation they desire within the national trade union organisation, namely local, provincial and national unions, fishermen's guilds and fraternities, brotherhoods of peasants, associations, and economic and social groups, in addition to other organisations outside the field of trade unionism (e.g. workers' pension funds, friendly societies, co-operatives, etc.). The right of association, together with other basic rights, is granted in the Spaniards' Charter (Fuero de los Españoles), but there are regulations on its exercise. The basic principles on the subject of trade unionism appear in Chapter XIII of the Labour Charter of 9 March 1938, which has been declared a fundamental or Constitutional law. The Constitution of the trade union system, therefore, is part of the supreme law which the Spanish people have ordained for the governing of their institutions, and it is therefore unassailable. The trade union unity existing in Spain, continues the Government, although it is opposed to the system of plural unionism, does not imply a lack of freedom of association : every worker or employer works quite freely " within the established trade union system ", i.e. within the 23 national unions, the provincial unions and the organisations at the local level, whatever may be the personal opinions he professes. The Act of 26 January 1940, though of primary importance, is not the only one " governing the trade union organisation in Spain : ... [this Act] was promulgated to bring unity into the previously existing pluralism and dispersion of the trade union movement ". " This Act does not abolish and remove the [previously existing] unions ... ; instead it amalgamates them into a unified movement ", in the process of which they lose the name of trade union " together with whatever else is redundant and out of place ". They lose " their strictly political leanings, and become powerful unions, attentive to the problems of production and labour and the balance between the rights of employers and employees. .". " From the latter years of the last century until the coming of the present régime, which is now on a proper legal footing, experience in Spain has shown that trade union diversity ... was the greatest incursion upon freedom, as our recent history is studded with incidents in which the frequent trials of strength between the rival unions and between certain of them and the community or the State, instead of serving the economy, production, the individual interest and the individual freedom of the members, had the effect very frequently, not to say on most occasions, of stirring up political unrest. ."
  103. 103 With reference to the allegations concerning penalties imposed under the Penal Code for the act of establishing organisations other than the official ones, the Government points out that the provisions cited by the complainant are applicable to all illegal associations, whether they are of an occupational character or not. Illegal associations are " those that do not comply with the higher regulations, on a par with the Constitution itself, governing the trade union movement in our country ". The clauses in question embody the principle laid down in earlier Penal Codes of 1932 and 1870, which in their turn had taken it from the French Penal Code. The offence of illegal combination and association is a consequence of the general principle that societies not constituted in accordance with the law are illegal, a principle which is laid down in the Spanish Civil Code of 1882 and in the Napoleonic Code. A number of codes, which the Government mentions by name, prescribe penalties for the offence of illegal combination, in conformity with the law on the right of association or organisation in the individual state.
  104. 104 As regards the relation between the Spanish trade union system and the provisions of Convention No. 87-a Convention which has not been ratified by Spain-it should be noted, the Government says, that the workers in Spain establish their own organisations and can join them or not (Article 2 of the Convention) ; the organisations have the right to draw up their Constitutions and rules, subject only to the requirement of registration in the Central Register of Trade Unions. Not a single case can be cited of a trade union organisation being dissolved or suspended by an administrative authority. The trade union associations can meet freely without the presence of emissaries of the security agencies or the constabulary. The various groups may affiliate to federations or Confederations, although the nomenclature used may perhaps be misleading.
  105. 105 The Government concludes by stating that the right to bargain collectively is guaranteed by the Act of 16 October 1942. The Government reserves the power to act in the event of a deadlock, but in practice the regulations governing labour are prepared by the trade unions themselves by means of round-table discussions with the employers' groups. If agreement is reached, the Ministry of Labour confines itself to certifying and enforcing the said agreement. The initiative in elaborating terms of employment has lain with the trade unions, which have kept to the lines laid down by joint committees at the local, district, provincial and national levels.
• Communication of 15 October 1957
  106. 106 The first part of the communication from the Spanish Government dated 15 October 1957 is devoted to procedural considerations. The Government accepts the conclusions already reached by the Committee and approved by the Governing Body (see paragraph 1 above) as to the capacity of the International Confederation of Free Trade Unions and as to the applicability of the principle of res judicata with respect to certain of the matters raised in the complaints. At the same time, the Government considers that the Committee should still have regard to the arguments already put forward on the issue of res judicata when it reaches the stage of formulating its conclusions to the Governing Body. The Government declares, however, that it cannot agree that the General Union of Spanish Workers in Exile is competent to present a complaint. It considers that complaints by that organisation should not be receivable on the ground that it is not a union of Spanish workers or of workers at all, but a " phantom " organisation operating for purely political ends and, declaredly, for the purpose of disturbing public order in Spain, that it has never carried out any of the functions of a workers' trade union organisation, and that it has presented its complaints with the sole intention of stirring up political problems. The Government adds that the organisation in question is one without any affiliates, either in Spain or elsewhere. Nevertheless, while maintaining throughout the position which it has taken up on this issue, the Government states that it has seen fit to present observations on the substance of all the complaints which have been presented.
  107. 107 With reference to the complaint presented on 4 May 1956 by the International Confederation of Free Trade Unions, the Government makes the following observations.
  108. 108 In Bilbao and other Spanish cities strikes affecting an unspecified number of workers did in fact take place in April 1956. The organs of the Government competent in labour matters offered their good offices as mediators to examine the matters in dispute and to try to help in an understanding being reached between the employers and workers concerned on the principal issue, which related to overtime work. In Spain, states the Government, workers are entirely free to work overtime or not ; if they do, the extra hours are paid at rates varying from 25 to 150 per cent above the normal hourly rate. For some time it had become established custom in Northern Spain, accepted by both employers and workers without intervention by any state organ, for workers to perform one or two hours of overtime work as a normal practice, provided that such extra rates were paid. Since 1950, their standards having improved, there had been a trend against overtime among the workers. This movement away from old custom caused friction in industrial relations which terminated in the strikes of April 1956. The Government denies that it, or any of its organs, decreed a lockout, but explains that a situation characterised by partial strikes and interruptions of production made it difficult for employers to maintain continuous operations ; the latter therefore sought and obtained authorisation to close their undertakings pending settlement of the dispute. The Government denies that it or any of its organs " broke " the strike or ordered any persecution of strikers. Loss of seniority rights, authorised as a sanction against workers in specific cases, was merely the result of the workers who engaged in strikes having broken their contracts of employment, causing serious economic and legal damage to their employers. They were nevertheless re-engaged, in a normal manner and without any incidents, the employers not making use of their right to replace them. The Government declares that no exceptional measure or coercion was used and that the settlement of the dispute involved the disappearance in practice of the old custom under which the working of overtime hours was regarded as normal usage.
  109. 109 The Government denies also that it has "resumed its persecution of workers who took part in the 1951 general strike ", stating that in 1951 there were specific strikes and not a general strike and that it has neither persecuted nor resumed persecution of workers in respect of strikes in past years.
  110. 110 For the rest, the Government considers that the complaint of the I.C.F.T.U consists of gratuitous statements, not related to specific issues and not supported by any proof of violation of freedom of association or of non-observance of human rights or of fraud in respect of wages increases. While it considers that this would justify it in not replying to these allegations, the Government states with respect to the wages issue that the increases granted were enthusiastically welcomed by the workers and represented a real improvement in their standard of living ; while the increases did have some repercussions on prices, as they increased manufacturing costs, they were high enough to amount to a raising of real earnings. Hence, concludes the Government, the I.C.F.T.U complaint of 4 May 1956 should be dismissed because it is unfounded and because the complainant, having no affiliates in Spain, has used incorrect information and does not know the facts.
  111. 111 With respect to the complaint of the I.C.F.T.U dated 13 August 1956, the Government considers that the complaint makes no specific allegations but consists of general criticisms of the Spanish trade unions as a whole, and repeats its view that the question was decided in essence when the International Labour Conference considered the credentials of the Spanish Workers' delegate at its 39th Session. The Government is willing, however, to comment on the complaint, but thinks it appropriate to remind the Committee of its own doctrine that it is not called upon " to formulate general conclusions concerning the position of trade unions in particular countries " but that its function is simply " to evaluate specific allegations ". The Government then goes on to clarify a number of different points.
  112. 112 The Government states that the Act of 6 December 1940 is still in force but that it must be taken together with a number of considerations. The Government declares that the grouping of workers and employers in the national trade union organisation is compulsory only to the extent that the affiliation of all workers or of certain of them to a system of social security is compulsory in Spain and in other countries. Adherence to the trade union organisation gives the workers a number of welfare rights : the right to call on trade union conciliation services in the case of a dispute ; the right to the services without charge of trade union lawyers where a dispute is not settled and becomes a legal issue to be adjudged by a labour court (which is entirely independent) ; the right to long-term housing credits ; the right to use the recreation and sports facilities provided by the organisation ; the right to use the cheap-rate holiday hostels which it maintains, etc. The Government declares that grouping in the national organisation is no obstacle to the Constitution within it (en el seno de la misma) of workers' social sections and employers' economic sections, and that it has submitted to the Cortes (Parliament) a Collective Agreements Bill providing for the regulation by collective agreements of wages, hours and conditions of work and in the negotiation of which the sections in question would represent the parties. There is no government interference in discussions between sections of the different trade unions grouped in the national organisation and the workers' representatives in their sections are elected freely by secret ballot. The Government denies that the provisions in the Act under which trade unions co-operate in public functions affect their independence or that they imply governmental interference in their internal affairs. The Government simply recognises the importance of the trade unions, as did the United States when it sought trade union co-operation in its defence and mobilisation programme. Hence, states the Government, the Act of 6 December 1940 in no way violates freedom of association.
  113. 113 The Decree of 28 November 1941 establishing the so-called trade union contribution is still in force. The Government sees in it no possible infringement of freedom of association. The contribution is one-half of 1 per cent of the workers' earnings and helps to pay for the various assistance services maintained by the Organisation and offered gratis or almost gratis to its members.
  114. 114 The Government states that the Decree of 24 April 1938 was an emergency measure dictated during the Spanish war and is no longer in force.
  115. 115 The Act of 23 June 1941 respecting the classification of trade unions is still in force. Its sole purpose is to divide the national trade union organisation into 24 industrial branches. The Government states that the Act has not prevented the development of trade union sectors, groups and subgroups, each with its independent social and economic sections. They exist in far greater variety than the classification in the Act would indicate.
  116. 116 The Decree of 17 July 1944 respecting agricultural workers' unions is still in force. The origin of this decree lay in the rudimentary degree to which such workers were organised. It organised them into local agricultural workers' brotherhoods in areas where it had not yet been possible to set up agricultural workers' unions. Account should be taken of the large number of peasant farmers in Spain and of the various kinds of leasehold tenures on the basis of which the land was utilised. The formation of organisations to group them and to defend their interests has progressed far. They were recently given the duty of administering social insurance in the sector of agriculture. The brotherhoods function on the basis of free elections as do the industrial unions.
  117. 117 The Government concludes this part of its reply with a number of specific observations : (1) that none of the foregoing provisions infringes freedom of association and that they have been applied in practice with much greater regard for the wishes of workers and employers and their representatives than the literal texts might seem to authorise ; (2) that the complaint of 13 August 1956 is just a general appreciation of the situation of the Spanish trade unions with which the Committee, as mentioned in paragraph 111 above, is not competent to deal.
  118. 118 With respect to the complaint dated 25 July 1956 presented by the General Union of Spanish Workers in Exile, the Government refers again to its reasons why it considers that the complaint should not be received and then makes the following observations on such parts of the complaint as it does not consider to have been covered in its observations on the complaints of the I.C.F.T.U.
  119. 119 The Government begins by explaining that article 18 of the Spaniards' Charter recognises freedom of the person within the limits allowable in situations of emergency as provided for in the Act of 28 July 1933 respecting public order, according to which, during a legally proclaimed " period of alarm ", which the Government may proclaim in times when public order is disturbed, the civil authorities may detain any person if they think it necessary for the preservation of order. Persons detained in this way shall not be considered as being detained on the same basis as persons detained in respect of common-law offences." At the time of the strikes referred to in the complaints, the suspension of articles 14 and 18 of the Spaniards' Charter had been proclaimed for three months, together with the possibility that the provisions of the Act respecting public order might be applied. When such application extends to all persons and not just to workers or to persons in that capacity and takes place only in connection with acts disturbing public order, there can be no infringement of freedom of association. The Civil Governor was entitled to order detentions when he thought it necessary for the sake of public order ; the magistrate was right within his own province when he ordered their conditional liberation ; the Governor again was right, states the Government, when he once more ordered the detentions in the continuing belief that the liberty of the persons concerned might endanger public order.
  120. 120 The Government states that the records show no persons named José Castillo or Antonio Senserich as having been detained. The reasons for the detentions of other persons named in the complaint were not only lawful but also had no relation to their trade union activities or to occupational activities in company with fellow-workers. The purpose of these persons, declares the Government, was not to improve working conditions or to discuss any labour dispute but only to disturb public order ; they were members or sympathisers of a Communist organisation which organised " cells ". These considerations caused the Civil Governor to fear breaches of public order-a fear all the more justifiable, claims the Government, inasmuch as one of the persons, José Teixidor Vila, had entered Spain secretly in 1944 as a member of an armed band, in consequence of which he had been sentenced by the courts and liberated in 1951 after serving his sentence.
  121. 121 The Government, after making the same reservations in principle as were referred to earlier, then presents its observations on the complaint of the General Union of Spanish Workers in Exile dated 22 August 1956. The Government declares that there is no truth in the statements that there exists in Spain neither freedom of association nor any of the rights embodied in the Universal Declaration of Human Rights or that " the fact that those detained have been sentenced for military rebellion should deceive no one ; that is how the Franco régime describes the efforts of the workers to regain their rights as citizens and their freedom of association ". The Government has had recourse to the records concerning the different people alleged to have been sentenced t states that all were found guilty, according to a procedure attended by all judicial guarantees, including the right to choose counsel or to have counsel appointed by the court where they did not exercise this right of choice. In all cases sentence was passed by the judicial authorities after the persons concerned had been found guilty of crimes punishable under the penal law ; in no case, states the Government, were they sentenced because of any trade union activities. The Government then gives details of specific cases, explaining that any persons named in the complaint to whom it does not refer are not traceable in the records and that it must be assumed that the allegations relating to them are a fabrication.
  122. 122 Eduardo Villegas was sentenced for having taken part in revolutionary activities in 1934, before the Spanish war ; in the period 1936-39 he savagely persecuted certain employees of the Mortgage Bank, for which he received another sentence which terminated in 1944 ; he was again proceeded against in 1946 for incitement to violence in writing and trying to foment rebellion ; he ran a secret printing press which put out subversive leaflets of a political nature having nothing to do with trade union matters. Emilio Salgado Moreira detained many people, searched houses and " requisitioned " jewellery belonging to private persons in the period 1936-39. Alfred Allende Gros was sentenced for aiding and sheltering bandits. José Bustamante Pérez caused the detention and murder of several persons at Santander, for which the courts declared him a rebel ; he was taken, finally, in 1950, in possession of a revolver and ammunition. José Pérez Cuenca was sentenced for preparing and taking part in robberies. Gervasio Rubio (this should be Rubín) is in prison for banditry. Emilio Ramirez Saiz, when a serving soldier, sold arms to bandits. Francisco Santander Santiago was sentenced in 1945 for armed robbery ; he was freed on 22 January 1957, after serving his sentence. Ramón Rubial Cavia was prosecuted before 1936 for revolutionary activities ; he was sentenced for his activities as a " political commissar " during the Civil War, escaped from prison, and was recaptured when using false documents. Julio Molinero Fernandez was sentenced for offences in the years 1936-39, finished his term in 1943, went abroad and then illegally entered the country with three machine-guns and ammunition. Benjamin Fernández was sentenced as a member of a band which committed violent assaults ; he had a pistol, an automatic rifle and hand grenades. Manuel Corral was sentenced to death-commuted to 30 years' imprisonment-for banditry, having fired on the police. Julián Castro de la Cruz was sentenced to death -commuted to 30 years' imprisonment-for repeated acts of banditry and terrorism in association with others ; he was provisionally liberated after serving his sentence on 2 June 1957. Antonio Noriega González was sentenced for desertion from the army ; he belonged to a band of terrorists and surrendered carrying a rifle, a pistol and hand grenades. Manuel de Silva was sentenced for armed robbery. Santiago Chacón López was sentenced for banditry and terrorism. Domingo López González secretly entered Spain with an armed band in 1944 ; he was liberated on 6 February 1955, after serving his sentence. Miguel Fidalgo Fernández (this should be Angel Fidalgo Fernández) was sentenced for his participation in robberies and assaults in the province of Avila ; he was freed on 14 April 1956, after serving his sentence. José Fidalgo Fernández (this should be Jiménez) was sentenced for participation in various arrests and murders ; he escaped from prison in 1945 and took part in further robberies and assaults for which he was again sentenced. José (or Juan ?) Rodriguez Garrido is completing a term for armed assault. Aberlardo Tena escaped from prison and joined a party of bandits who fired on the police ; he is serving his sentence. Manuel Trujillo was sentenced for arson, looting and burglary ; he was liberated on 10 June 1956, after serving his sentence. Antonio Corrales Trujillo was sentenced for aiding and plotting with bandits ; he was freed on 29 April 1956 after serving his sentence. José Abad Muñiz was sentenced for banditry and had in his possession when arrested two revolvers and two sticks of dynamite. José Albizu was sentenced for murder ; he murdered a woman in November 1944 in order to rob her of 140 pesetas. Juan Gaevin was sentenced to death-commuted to 30 years' imprisonment-for armed assault. Celedonio Azcoitia Agudo was sentenced in 1939 for fomenting rebellion ; when arrested he had pistols and ammunition ; he was freed in 1944 ; he was again sentenced in 1947 for acts of violence and writing anonymous letters demanding money with menaces. Daniel Puerto Pardo (Daniel Prieto Pardo ?) was sentenced for armed assault in a private house and firing on the police. Eladio Gómez Ronda was sentenced for forgery. Gabriel Homár Miralles was sentenced to three years' imprisonment for subversive activities and was liberated on 13 January 1957 after serving his sentence. The Government states that all these persons were sentenced by the competent courts, in accordance with the regular procedure, in respect of serious or very serious crimes, and that no one mentioned in the complaint was sentenced for anything connected with freedom of association.
  123. 123 With regard to the complaint of the General Union of Spanish Workers in Exile dated 25 April 1957 the Government makes the following observations. Investigation by the Government has not shown that any such notice as alleged was posted up by the Duro-Felguera Company. The Government declares that no proceedings were taken against any person nor was any person sentenced because of the strike which took place at the company's Maria Luisa mine in support of pieceworkers' demands.

Preliminary Question as to the Political Nature of the Complaints and the Partiality of the Complainants

1. 124. In its communication dated 16 May 1957 the Government declares that the complaints of the International Confederation of Free Trade Unions and the General Union of Spanish Workers in Exile have a political motive, and states that these two organisations " display unabated hostility " towards the Spanish régime. Because it has no affiliated organisations in Spain, the I.C.F.T.U, declares the Government, adopts a partial attitude which does not accord with the attitude that it adopts with respect to countries in which freedom of association does not exist. In the Government's view, this suggests " that there are other than trade union motives underlying its attitude towards Spain and the Spanish unions ". The partiality of the General Union of Spanish Workers in Exile is evident, declares the Government, this organisation having gone so far as to advocate insurrection and personal violence. The members of this organisation are voluntary exiles, a circumstance which prevents them from having recourse to any international organisation. In its communication dated 15 October 1957 the Government again states that the General Union of Spanish Workers in Exile serves purely political ends and performs no real trade union functions.
2. 125. In its interim report on this case, the Committee has already reached conclusions concerning the question as to the political partiality of the complaints raised by the Spanish Government. In that report the Committee referred to the views which it had expressed in earlier cases and, in particular, to the conclusions which it reached in Case No. 67 (Egypt), that the fact that the motives for a complaint are political should not be regarded as grounds of formal irreceivability " whatever the real motives inspiring the complainant ". In Case No. 78 (Switzerland), the Committee concluded that the fact that a complaint has been presented by a trade union organisation which has no branch in the country complained against is a factor which " should not be taken into account when deciding as to the receivability of the complaint ".
3. 126. In view of the foregoing, the Committee reaffirms its conclusions already approved by the Governing Body, that the political partiality of the complainants does not constitute a reason which prevents it from examining the substance of the allegations.
4. Preliminary Question as to the Competence of the Committee Having Regard to the Nature of the Allegations made by the I.C.F.T.U.
5. 127. The Government states that certain parts of the complaint of the I.C.F.T.U dated 4 May 1956 and the whole of its complaint dated 13 August 1956 contain no specific allegations but consist of general criticisms of the Spanish trade union system as a whole and that, for this reason, they should not be considered by the Committee, in view of the fact that, under the procedure for the examination of complaints alleging infringements of trade union rights, the Committee is not called upon " to formulate general conclusions concerning the position of trade unions in particular countries " but that its function is simply " to evaluate specific allegations ".
6. 128. The Committee considers, in the first place, that it should regard the two communications from the I.C.F.T.U as constituting a single complaint in the sense that the allegations made in them are interdependent and that the one is supplementary to the other. The Committee observes that, while the I.C.F.T.U certainly makes a number of general statements regarding the trade union system in Spain, a considerable proportion of its complaint consists of references to specific enactments and events-regarding which the Government has specifically replied--and that it seeks to justify its general assessment on the basis of these specific alleged criteria. The Committee considers that, where a complaint lays a considerable number of specific alleged matters before it, the fact that the complainant goes on to make general appreciations on the basis of these matters cannot preclude the Committee either from evaluating the specific allegations or from formulating conclusions based on each particular allegation and also on the allegations taken together in their entirety. In these circumstances the Committee recommends the Governing Body to decide that this objection to its competence made by the Government is not well-founded.
7. Allegations relating to the Integration of Trade Union Organisations in the Machinery of the State
8. 129. The International Confederation of Free Trade Unions alleges that the political programme of the Falange, drawn up in 1937, establishes the principles governing the trade union régime in Spain. Point 6 in that programme provides that " our State shall be a totalitarian instrument for the integration of the homeland ", and Point 9 provides that " we conceive Spain in the economic order as a gigantic trade union of producers ; we shall organise Spanish society on a corporative basis through a system of vertical trade unions according to the sectors of production, serving the integration of the national economy ". The Constitution and Rules of the Falange provide that it will create and maintain trade union organisations suitable for incorporating labour in production and the distribution of property. The Labour Charter of 1938 defines the character of the state trade union organisation. It is stated in Chapter XIII of the Charter that " the national trade union organisation of the State " will be based on the principles of " unity, totality and hierarchy " ; all elements in the economy will be incorporated, according to branches of production or services, in vertical trade unions. The vertical trade union is a corporation under public law, constituted by the integration within a unitary organisation of all the elements who participate in the economic process. The heads of the trade union will necessarily be chosen from among the militants of the Falange. The Labour Charter provides that the trade union is an instrument " in the service of the State, through which the State, in the main, will put its economic policy into effect ". The Act of 26 January 1940 respecting trade union unity prohibits the formation of trade unions other than those within the system and subordinates the activities of the authorised trade unions " to the discipline of the Movement ". Finally, the Act of 6 December 1940 respecting the Constitution of trade unions subordinates the trade union organisation to the party in power. It provides that all Spaniards who collaborate in production constitute the " National Trade Union Community "; the leaders of the trade unions, chosen from among the militants of the Falange, must be appointed by the National Direction of the Movement on the basis of proposals by the National Trade Union Delegation. These legislative provisions, continues the I.C.F.T.U prove that the Spanish trade union organisation is subordinated to a political régime, and keep the Spanish workers in a state of complete dependence by denying them freedom of association. It is alleged that this system is contrary to the principles contained in the I.L.O. Constitution and in the Declaration of Philadelphia and also contrary to the International Labour Conventions dealing with freedom of association, and that the Spanish trade union movement does not express the aspirations of the workers but constitutes an authoritarian and totalitarian organisation which has been imposed on the workers and is wholly subordinate to the Head of State.
9. 130. The Spanish Government declares that the complainant confuses two questions-that of the unity or plurality of the trade union movement and that of freedom of association. In the Government's view there can be trade union unity without this constituting a denial of freedom of association. The workers can exercise their trade union rights in the Spanish trade unions and elect their representatives, present petitions, protest against governmental measures, etc. " Trade unionism in Spain is not an entelechy dominated by a coercive state machine.." The Government states that the legal provisions in force prescribe the conditions for setting up trade unions and the guarantees enjoyed by the unions. Subject to compliance with these formalities, workers and employers may establish various kinds of organisations within the national trade union organisation : local, provincial and national unions, fishermen's guilds and fraternities, brotherhoods of peasants, economic and social groups, etc. The basic principles of trade unionism are contained in Chapter XIII of the Labour Charter, which has been declared a fundamental or Constitutional law. The trade union system, therefore, is part of the supreme law which the Spanish people have ordained for the governing of their institutions and it is therefore unassailable. The trade union unity in force in Spain does not prevent workers and employers, whatever their personal ideologies may be, from working freely " within the established trade union system ". The Act of 26 January 1940, which the Government considers to be of primary importance, has brought unity to the previously existing pluralism and dispersion of the trade union movement. The previously existing unions have not disappeared but have been amalgamated into a unified movement, in which they have lost the name of trade union together with " whatever else is redundant and out of place ". Spanish experience, affirms the Government, has shown that trade union diversity " was the greatest incursion upon freedom ", because the organisations devoted themselves to political agitation. Finally, the Government maintains that the Spanish régime, like Convention No. 87, recognises the right of workers to establish organisations of their own choosing and to join or not to join such organisations. The trade unions have the right to draw up their Constitutions and rules, subject only to the requirement of registration in the Central Register of Trade Unions. Not a single case can be cited, according to the Government, of a trade union organisation being dissolved or suspended by administrative authority ; trade unions may meet freely and affiliate with federations and Confederations.
10. 131. In its communication dated 15 October 1957 the Government states that the Act of 6 December 1940 is still in force, but that it must be regarded in conjunction with certain other considerations. The Government declares that the grouping of workers and employers in the national trade union organisation is compulsory only to the extent that the affiliation of all workers or of certain of them to a system of social security is compulsory in Spain and other countries. Adherence to the trade union organisation, the Government explains, carries with it a number of social advantages for the workers : the assistance of trade union conciliation services ; the right to free legal aid in cases not settled by negotiation which come before the labour courts ; the right to long-term credits for housing ; access to recreational and sports facilities and to cheap holiday accommodation. The Government states that grouping in the national organisation is no obstacle to the Constitution within it (en el seno de la misma) of workers' social sections and employers' economic sections and that, under the provisions of a Collective Agreements Bill now being considered, these sections would represent the parties in the negotiation of collective agreements regulating wages, hours and conditions of work ; the Government does not interfere in discussions between sections and the workers' representatives for this purpose are elected freely by secret ballot. The Government states further that the co-operation of the trade unions in public functions does not affect their independence and is merely a recognition of their practical importance, such as has occurred in many countries where the unions have co-operated in defence and other programmes. The Government adds that the Act of 23 June 1941 respecting the classification of trade unions is still in force, that its sole purpose is the division of the national organisation into 24 industrial branches, but that it has not prevented the development, in far greater variety, of trade union sectors, groups or subgroups, each with its independent social and economic section.
11. 132. The provisions in the Labour Charter relating to trade unions are the following:
12. Chapter XIII. National Trade Union Organisation
13. 1. The national trade union organisation of the State shall be based on the principles of unity, totality and hierarchy.
14. 2. All factors of economic life shall be incorporated in vertical unions according to branches of production or services. The liberal and technical professions shall be organised in a similar system, in conformity with the provisions to be laid down by law.
15. 3. The vertical union shall be a public body incorporating in a single organisation all elements which are engaged in the economic process in a specified service or branch of production ; the union shall be organised in hierarchic grades under the direction of the State.
16. 4. The direction of the unions shall devolve necessarily upon the militant members of the Spanish Traditionalist Falange and the J.O.N.S.
17. 5. A vertical union shall be an instrument in the service of the State and shall constitute the principal medium through which the State will put its economic policy into effect. It shall be the duty of the union to study problems of production and recommend solutions, in accordance with the national interests. The vertical union may take part in the regulation, supervision and application of conditions of employment, through bodies specially equipped for the purpose.
18. 6. A vertical union may set up, maintain or supervise institutions for research, for moral, physical and vocational education, for welfare and relief and for other social purposes affecting persons engaged in production.
19. 7. Employment exchanges shall be set up with a view to providing employment for workers according to their ability and merits.
20. 8. It shall be the duty of the unions to furnish the State with the data requisite for the compilation of statistics of production.
21. 9. The law respecting the organisation of trade unions shall specify the manner in which the existing economic and industrial associations shall be incorporated in the new organisation.
22. 133. The Act of 26 January 1940 respecting trade union unity provides as follows:
23. 1. The trade union organisation of the F.E.T and the J.O.N.S shall be the sole organisation which the State recognises as competent to transmit to it the economic and social aspirations and requirements of the elements of the Nation which are engaged in production, and in turn to transmit to them its economic rules ; the State shall not permit the existence of any other organisation with similar aims.
24. Notwithstanding the provisions of the preceding paragraph, public corporations and official bodies which by an order of the public authority represent the economic interests of an occupation shall continue to exercise their functions until a decision to the contrary is taken by Act or Decree in the cases decided on by the Council of Ministers.
25. The Council of Ministers shall fix likewise the date when and the functions which the trade union organisation shall take over from the governing boards (comisiones reguladores).
26. 2. From the date of publication of this Act all associations which were created to protect or represent economic or class interests wholly or in part, whether they are called trade unions, workers' associations, employers' associations, guilds, etc., shall become incorporated in the trade union organisation of the Movement.
27. 3. From the said date the activities of the said associations shall be subject to the discipline of the Movement, under the supervision of the National Trade Union Office (Delegación National de Sindicatos).
28. 134. The Act of 6 December 1940 to lay down basic rules for trade union organisation reads as follows
29. 1. All Spaniards engaged in production shall constitute the National-Syndicalist Community (Comunidad Nacional-sindicalista), forming a militant unit in the discipline of the Movement.
30. 2. The National Trade Union Office of the Spanish Traditionalist Falange and the National-Syndicalist Youth Shock Brigades shall assume the leadership of the Community and shall exercise its duties of direction through the national trade unions and the national-syndicalist centres in the different territorial areas.
31. 3. The trade union bodies shall be responsible for the representation and discipline of all producers within their territorial or economic jurisdiction.
32. 4. When economic circumstances permit, local trade unions and trade union brotherhoods shall be formed within the various national-syndicalist centres for the purpose of the aforesaid discipline and with a view to the accomplishment within their respective occupations of the tasks assigned to them by the competent national-syndicalist centres.
33. The local trade unions and trade union brotherhoods - and through them the national-syndicalist centres - shall group producers personally in sections corresponding to the various social categories engaged in production.
34. A trade union board (junta sindical) consisting of representatives of the said sections shall be constituted as a permanent advisory body for the various heads.
35. 5. The local trade unions and trade union brotherhoods shall be deemed to be bodies corporate in public law, as soon as their rules have been approved by the National Trade Union Office and they have been entered in the register to be kept by the said Office.
36. The provincial trade union offices shall give notice to the respective civil governments of the Constitution of such bodies.
37. 6. Authority over all the socio-political services of the National-Syndicalist Community shall be exercised by the National Trade Union Officer (Delegado Nacional de Sindicatos) through a central body.
38. Authority over the provincial national-syndicalist centre shall be exercised by the provincial trade union officer of the Spanish Traditionalist Falange and the National-Syndicalist Youth Shock Brigades.
39. 7. The various social categories engaged in production in an undertaking shall be united in community of purpose and solidarity of interests, based on principles of mutual loyalty and aid in the service of the country.
40. The management of the undertaking shall lie with the head of the undertaking, who shall be responsible for the application of trade union standards, without prejudice to his higher responsibility to the State.
41. For these purposes, the head of the undertaking shall be assisted by duly appointed representatives of the employees of the undertaking.
42. 8. The socio-economic ordering of production shall be carried out through the national trade unions.
43. 9. In conformity with the principles laid down by the Labour Charter, a national trade -union shall be a body corporate in public law, constituted by the incorporation in a unitarian body of all the elements which are engaged in the accomplishment of the economic process within a particular service or branch of production ; hierarchically the national trade unions shall be under the supreme direction of the State.
44. For the purpose of this Act, each national trade union shall cover the economic process of the manufacture of a particular product or two or more similar products, or of derivatives of such product or products, from the first stage of production until the product or products in question reach the consumer.
45. The classification of the national trade unions shall be prescribed by a decree issued on the recommendation of the National Trade Union Office.
46. 10. The national trade unions shall be organised with reference to:
47. (a) the nature of the products which constitute the object of economic activities ;
48. (b) the diversity of the various geographical zones and the special features of each;
49. (c) the various fundamental stages of the economic process : production, working-up (industrial stage) and distribution (commercial stage).
50. The rules of each national trade union shall prescribe its internal organisation on the basis of the principles laid down in this section.
51. 11. The rules of each national trade union shall be approved by the supreme National Authority (mando nacional) of the Movement on the recommendation of the National Trade Union Office.
52. A decree shall be issued in Council of Ministers to give official recognition to the Constitution of each national trade union.
53. 12. The head of each national trade union shall be appointed by the National Authority of the Movement on the recommendation of the National Trade Union Office.
54. 13. The head, who shall have full authority and responsibility for the management of the union, shall be assisted by the subordinate administrative bodies provided for by the rules of the national trade union concerned. The members of these bodies shall be appointed by the General Secretariat of the Movement on the recommendation of the National Trade Union Office of the Spanish Traditionalist Falange and of the National-Syndicalist Youth Shock Brigades. A central trade union board (junta central sindical) shall be constituted by these bodies and representatives of the various economic circles, sections and groups of the branch of industry organised in a trade union ; the method of Constitution and the number of members shall be prescribed in the rules of each trade union. The members shall be appointed and removed from office by the National Trade Union Officer, on the recommendation of the head of the national trade union concerned.
55. In order that the central trade union board may keep in constant touch with the various Ministries, it shall comprise likewise, in conformity with the rules of the trade union concerned, one representative each of the Ministries of Agriculture, Industry and Commerce, and Labour, and of any other Ministries directly affected on account of the nature of the trade union in question.
56. 14. Trade union offices for particular economic spheres shall also be set up under the provincial trade union office concerned.
57. These offices shall be constituted on the same lines as the corresponding national trade union.
58. 15. The bodies responsible for the direction of these offices, under the chairmanship of the provincial trade union officer of the Spanish Traditionalist Falange and the National-Syndicalist Youth Shock Brigades, shall constitute the provincial trade union council. This council may also sit under the chairmanship of the provincial head of the Movement or, where appropriate, of the Civil Governor of the province.
59. 16. The national-syndicalist centres, acting directly or through the local trade unions and trade union brotherhoods, as the case may be, shall have the following duties:
60. (1) to establish the social discipline of producers on the basis of the principles of unity and co-operation, and to issue the rules requisite for this purpose ;
61. (2) to act as the legal representative of their members;
62. (3) to bring about conciliation in individual labour disputes, by way of compulsory preliminary procedure prior to the reference of the dispute to a labour court;
63. (4) to provide for vocational training and a proper distribution of labour ;
64. (5) within their sphere of action, to assist in the working of institutions set up for the placing of workers, co-operation, social welfare, credit, etc., and, if necessary, to establish such institutions in conformity with rules laid down by the National Trade Union Office ;
65. (6) to co-operate in the compilation of statistics relating to conditions of employment and production, the market situation and other socio-economic matters, in order to provide the trade union organisation and the Government with the information requisite to enable them to take their decisions ;
66. (7) to carry out, within their sphere of action, any other duties entrusted to them by their superior national authority ;
67. (8) to guide and supervise the working of the local trade unions, which, within their sphere of action, shall assist the corresponding national trade unions, and, if necessary, to perform the duties of local trade unions in places where local trade unions have not been formed.
68. 17. For the purpose of carrying out their duties the national-syndicalist centres, acting, where appropriate, through the local trade unions and trade union brotherhoods, may collect contributions from all producers within their respective spheres of action, taken individually, whether members of a union or not, in conformity with rules to be laid down by the National Trade Union Office.
69. 18. The duties of the national trade unions shall be as follows:
70. (1) to recommend to the Government the measures requisite for the discipline and development of the production, preservation and distribution of products and the regulation of prices at the various stages of production ; to issue the regulations and take the measures requisite for these purposes ;
71. (2) to assist the National Trade Union Office in the drafting of recommendations and reports relating to the regulation of employment ;
72. (3) to exercise disciplinary powers over trade unions of the subordinate grades, in the manner prescribed by the regulations for trade unions;
73. (4) to promote and encourage any initiative for the better organisation of production, in particular scientific research work in the branch of economic activity concerned ;
74. (5) to promote, direct and, if necessary, carry on co-operative activities for production and distribution in connection with the branch of industry concerned;
75. (6) to organise the financial contribution of the undertakings in the branch of production concerned to the funds and the institutions of the National-Syndicalist Community.
76. 19. All persons holding posts of direction in a trade union must necessarily be active members of the Spanish Traditionalist Falange and the National-Syndicalist Youth Shock Brigades.
77. 20. The activities of the trade unions in the national, provincial and local spheres shall be subject to the discipline of the Movement and shall be carried on under the control of the competent trade union authorities of the Spanish Traditionalist Falange and the National-Syndicalist Youth Shock Brigades ; the said authorities shall be subordinate to the political authorities of the Party as laid down in the Rules thereof.
78. 21. Instruments and contracts to which the National Trade Union Office is a party liable for payment, either directly or through its subordinate bodies in the national-syndicalist network, shall be exempted from stamp duty and fees, in so far as the said instruments and contracts are directly concerned with the fulfilment or carrying out of purposes assigned by this Act to the trade union organisation.
79. Real estate belonging to the said Office or its subordinate bodies shall be exempted from the tax on the property of bodies corporate without the necessity for procuring a special declaration for the purpose, provided that the said real estate is used for the purposes specified in the last preceding paragraph.
80. Transitional provision. The official Constitution of each national trade union shall entail:
81. (1) the abolition of the corresponding committee to regulate production or trade union committee set up in conformity with the Act of 3 May 1940 ;
82. (2) the definitive incorporation in the trade union of the bodies mentioned in the second paragraph of section 1 of the Act of 26 January 1940 respecting trade union unity.
83. 135. By virtue of the laws cited above there exists in Spain a corporative system-the " national-syndicalist " system. According to the preamble to the Act of 6 December 1940 to lay down basic rules for trade union organisation, " Constitution into trade unions becomes the political form for the whole Spanish economy ", a principle implying the corollary of " subordination of the trade union organisation to the Party " and " subordination to and discipline by the organs of State ". This being a question appertaining to the " political form " of the economy of the State, all Spaniards who participate as workers or employers in production are incorporated by law in the " national-syndicalist community ", for the direction of which the Falange Party is responsible. The vertical trade unions are, as the Labour Charter declares, public bodies incorporating in a single organisation all elements which are engaged in the economic process ; " the vertical trade union shall be an instrument in the service of the State and shall constitute the principal medium through which the State will put its economic policy into effect ".
84. 136. All workers and employers are obliged to belong to this state trade union organisation (sections 1, 3 and 9 of the fundamental law). Under the provisions of the Decree of 28 November 1941 all workers (" producers "), Spanish or alien, of more than 14 years of age, who carry on any economic activity whatsoever are obliged to pay a trade union contribution, which is deducted from their earnings. (In its communication dated 15 October 1957 the Government states that this requirement does not infringe freedom of association, that it amounts to only one-half of 1 per cent of the workers' earnings, and that it helps to defray the cost of the various services afforded by the national trade union organisation-see paragraph 131 above.) In the preamble to the fundamental law it is further stated that " the law ensures the subordination of the trade union organisation to the Party, because the latter can impart to it the discipline, unity and spirit necessary to ensure that the national economy shall serve national policy ; as this is logical, subordination to and discipline by the organs of State are fully ensured ".
85. 137. Section 1 of the Act of 26 January 1940 respecting trade union unity provides : " The trade union organisation of the Spanish Traditionalist Falange and of the J.O.N.S shall be the sole organisation which the State recognises as competent ... the State shall not permit the existence of any other organisation with similar aims...." According to the Spanish penal code any attempt to set up occupational associations outside the state trade union organisation constitutes an offence.
86. 138. The Committee considers it appropriate, in this connection, as it has already done in a number of previous cases, to affirm the principle expressed by the International Labour Conference at its 31st Session (1952) in the resolution concerning the independence of the trade union movement that "governments should not attempt to transform the trade union movement into an instrument for the pursuance of political aims, nor should they attempt to interfere with the normal functions of a trade union movement because of its freely established relationship with a political party ".
87. Allegations relating to the Imposition of Penal Sanctions in Respect of Attempts to Organise Trade Union Associations
88. 139. The I.C.F.T.U alleges that, by virtue of the Act of 29 March 1941 respecting the security of the State and of sections 172 and 173 of the Penal Code of 23 December 1944, the act of constituting, organising or directing organisations other than those imposed by the régime is a crime punishable by as much as 16 years' imprisonment. The General Union of Spanish Workers in Exile refers to various cases in which sentence has been passed pursuant to these provisions.
89. 140. The Government states that the provisions cited by the complainant are applicable to all illegal associations, whether of an occupational character or not. The Government explains that illegal associations " are those that do not comply with the higher regulations ", on a par with the Constitution itself, which govern state trade unionism. Organisations set up outside the official trade union organisation are illegal by virtue of the general principle that all societies set up outside the law are illegal. The Government claims that numerous foreign codes prescribe similar penalties for the offence of illegal combination.
90. 141. The text of the provisions cited by the complainant is as follows:
91. (a) In the Act of 29 March 1941 respecting the security of the State:
92. Section 28. Whosoever founds, organises or directs associations or groups constituted for the purpose of overthrowing by force or destroying the political, social, economic or juridical organisation of the State shall be punishable by imprisonment for a term of from 12 to 16 years. For the purposes of this section, where the identity of the leaders or promoters has not been established with certainty, the most likely of the accused will be regarded as such and, in similar circumstances, the oldest among them. Mere accomplices shall be punishable by imprisonment for from three to six years. When the acts referred to in the preceding clauses are not of a serious nature, the court may reduce the penalty to a period of six months and one day, to two years' imprisonment or to exile and a fine of from 2,000 to 20,000 pesetas.
93. (b) In the Penal Code of 23 December 1944:
94. Section 172. The following shall be considered to be illegal associations ... (3) those which are prohibited by the competent authority ; (4) those which are constituted without compliance with the conditions or formalities prescribed by law.
95. Section 173. The definition in the preceding section shall include : ... (3) associations, organisations, political parties or other organs declared to be outside the law and organs of similar tendencies, even where they may have been reconstituted in a different form and under a different name ; (4) any bodies or organs for the purpose of introducing a régime based on the division of Spaniards into political or class groups.
96. 142. The provisions of the Act of 29 March 1941 cited above apply to persons who attempt to overthrow by violence the economic-social organisation of the State, which must be understood to mean the National-Syndicalist Community by reason of the text of the Labour Charter and of the Act of 6 December 1940 to lay down basic rules for trade union organisation. On the other hand, the sections of the Penal Code, in particular paragraphs 3 and 4 of section 172, apply to persons who may have attempted to set up associations other than under the law. According to section 7 of the Decree of 24 April 1938, trade unions other than the official trade unions fall within this category.
97. 143. In its reply, the Government declares to be unlawful-and, therefore punishable-the Constitution of organisations outside the official Organisation.
98. 144. The Committee considers that this intimation is not compatible with the generally accepted principle that workers and employers should have the right to establish and to join organisations of their own choosing without previous authorisation.
99. Allegations relating to the Dissolution of Trade Union Organisations in 1936-39
100. 145. The International Confederation of Free Trade Unions alleges that by virtue of a Decree of 13 September 1936 all the political or social organisations which had been constituted by the Popular Front were declared illegal and their property confiscated, and that the Law of 9 February 1939 respecting political responsibility specifically dissolved the General Workers' Union, the Association of Basque Workers and the National Confederation of Workers, all three of which were trade union organisations. These organisations had been set up freely by the workers in accordance with an Act of 1887 ; their leaders were prosecuted and sentenced, some to death and others to imprisonment for from 20 to 30 years. In its communication dated 22 August 1956 the General Union of Spanish Workers in Exile gives the names of persons sentenced in 1946 and 1947 for having attempted to reconstitute the General Workers' Union.
101. 146. In its communication dated 16 May 1957 the Government states that the organisations mentioned in the complaint-the General Workers' Union, the Association of Basque Workers and the National Confederation of Workers- abandoned their original trade union objects and became political organisations. According to the Government, " it has been common knowledge for many years " that the question of the imprisonment of workers because of their membership in the dissolved organisations is a thing of the past. The Government presents no observations on the part of the communication from the General Union of Spanish Workers in Exile, dated 22 August 1956, which gives the names of various persons sentenced for having attempted to reconstitute the General Workers' Union.
102. 147. When the Committee, in Case No. 138 (United States and Greece), examined a complaint relating to facts which had occurred a long time prior to the presentation of the complaint, it declared that " while no formal rules fixing any particular period of prescription are embodied in the procedure for the examination of complaints alleging infringements of trade union rights, where a complaint is presented with respect to matters which occurred as many as 10 years prior to the date of the complaint, not only may it be difficult for a Government to reply in detail but it may even be unreasonable in some cases to expect it to be able to furnish a fully satisfactory reply ". The present case arises on somewhat different facts. The allegations do not relate primarily to facts which it may now be difficult to verify but to the texts of laws which are still in force and which are alleged to have a continuing application.
103. 148. In these circumstances, while considering it purposeless to formulate conclusions with regard to the dissolution of trade union organisations in 1939 and the following years in view of the time which has since elapsed, the Committee considers that as it is alleged that certain persons are still serving sentences passed because they were leaders or members of the dissolved organisations or attempted to reconstitute those organisations and that workers who may attempt to reconstitute trade union organisations other than the official organisations are still liable to penal sanctions, the Spanish Government should be asked to state whether members or leaders of the General Workers' Union, the National Confederation of Workers or the Association of Basque Workers are still held in Spanish prisons.
104. Allegations relating to " Social Detainees "
105. 149. The General Union of Spanish Workers in Exile alleges that, continuing its policy of repression against the workers, the Spanish Government is holding certain persons in prison as " social detainees ", the majority having been sentenced to imprisonment for as much as 30 years for the offence of " military rebellion " ; this, states the complainant, is the name given by the régime in power to the efforts of the workers to regain their rights as citizens and their freedom of association. The list of persons given by the complaining organisation in its communication dated 22 August 1956 includes Eduardo Villegas, stated to have been sentenced in 1946 for having attempted to reconstitute a free trade union organisation, the General Workers' Union, and Emilio Salgado Moreira, stated to have been sentenced in 1947 for the same offence.
106. 150. The Government declares that Eduardo Villegas was sentenced for revolutionary activities in 1934 ; that in the period 1936-39 he savagely persecuted certain employees of the Mortgage Bank, for which he received another sentence which expired in 1944 ; that in 1946 he was sentenced for incitement to violence and fomenting rebellion, he also having operated a secret printing press which put out subversive leaflets having no connection with trade union matters. Emilio Salgado Moreira, states the Government, detained persons, searched houses and " requisitioned " jewellery belonging to private persons in the period 1936-39.
107. 151. The Government goes on to list the other persons mentioned by the complainants and the common law crimes for which it states they were sentenced murder, banditry, armed robbery, illegally entering the country, desertion from the army, armed assault and forgery. It refers to some cases of death sentences having been passed which were commuted to 30 years' imprisonment and names some of the persons as having been liberated after serving their sentences. In many cases, declares the Government, the persons in question, when arrested, were in possession of pistols, machine-guns, hand grenades or ammunition and, in one case, dynamite.
108. 152. The Government states that all the persons concerned were sentenced by the competent courts, in accordance with the regular procedure attended by all judicial guarantees, including the right to choose their own counsel, in respect of serious crimes, and in no case because of any trade union activities.
109. 153. The Committee notes that a full reply has been given by the Government, from which it would seem that the persons concerned were sentenced by the competent courts in accordance with judicial procedure. In these circum stances, while emphasising again the importance which it has always attached to the right of trade unionists, like all other persons, to enjoy the guarantees afforded by due process of law, the Committee considers that no sufficient evidence has been offered in the present instance to show that such guarantees were not afforded to the accused or that they were sentenced because of their trade union activities.
110. Allegations relating to Agricultural Trade Unions
111. 154. The I.C.F.T.U alleges that the Act of 2 September 1941 incorporated in the state trade union organisation-the only authorised organisation-the co-operatives and other agricultural organisations which had been constituted in accordance with the Act of 28 January 1906. In the view of the complainant, the Act of 1941 mentioned above constitutes a violation of the Right of Association (Agriculture) Convention, 1921 (No. 11), ratified by Spain on 29 August 1932.
112. 155. In reply, the Spanish Government declares that the Act of 2 September 1941 affected freeholders and leaseholders and not agricultural workers properly so-called. The co-operative system is governed by an Act of 1942, which permits co-operatives to be formed freely. The latter Act emphasises the co-operative nature of rural organisations. In this connection, the Act of 2 September 1941 was only a provisional measure.
113. 156. The co-operatives set up in accordance with the Act of 2 January 1942 are voluntary associations ; the elected general assembly expresses the wishes of the members. Side by side with these co-operatives the Spanish trade union organisation has encouraged the formation of trade union groups. The vigour of this movement, the Government emphasises, is evident from the number of agricultural workers who occupy high office in the local, provincial and national agricultural trade unions.,
114. 157. In its reply dated 15 October 1957 the Government explains that the Decree of 17 July 1944 respecting agricultural workers' unions, which is still in force, originated in their rudimentary degree of organisation at that time. The decree organised these workers in brotherhoods in areas in which it had not yet been possible to set up agricultural workers' trade unions. These brotherhoods operate, states the Government, on the same basis of free internal elections as do the industrial unions.
115. 158. The Act of 2 September 1941 respecting agricultural trade unions provides as follows:
116. Section 1. Pursuant to section 4 of the Act of 26 January 1940 (3bis) respecting trade union unity, the effective integration in the trade union organisation of the Movement of the Spanish Traditionalist Falange and the J.O.N.S of all agricultural trade unions, rural funds, co-operatives and other related bodies set up in accordance with the Act of 28 January 1906, together with their federations and Confederations, is hereby decreed.
117. Section 2. The agricultural trade unions and their federations and Confederations covered by the present Act will be regarded as having been integrated as from the date of promulgation of this Act, the trade union organisation of the Movement assuming all the functions of the said trade unions, federations and Confederations and all the property and rights of the dissolved organisations, of whatever nature, being transferred to the property of the National-Syndicalist Community.
118. ......................................................................................................................................................
119. Section 6. The persons affiliated to the different trade unions covered by this Act will be incorporated automatically in the respective local trade unions or agricultural trade union brotherhoods of the trade union organisation of the Movement.
120. Section 7. The local agricultural trade unions and trade union brotherhoods of the Spanish Traditionalist Falange and the J.O.N.S will perform the functions of the agricultural trade unions and will enjoy the benefits which were accorded to them by the Act of 28 January 1906.
121. Section 8. The Act of 28 January 1906 respecting agricultural trade unions is hereby repealed.
122. 159. The Act of 2 January 1942 respecting co-operatives contains the following provisions:
123. Section 1. The co-operative society consists of an association of physical or legal persons who undertake to combine their efforts in order to attain, with varying capital and not for the purpose of profit, common objectives of an economic-social character, submitting themselves specifically to the provisions of this Act.
124. ......................................................................................................................................................
125. Section 3. In so far as this does not conflict with this Act, co-operative societies will be governed in full activities by their rules, provided that they respect the discipline of the trade union organisation of the Movement and the authority of the State.
126. Section 4. The co-operative societies will be represented in general in the different national trade unions and in the official organs set up for the purpose of supervising the system for prices, taxes, distribution and supplies.
127. ......................................................................................................................................................
128. Section 10. The members of co-operatives are automatically members of the corresponding brotherhoods or local trade unions.
129. ......................................................................................................................................................
130. Section 25. The general assembly delegates to the executive committee the functions of management and representation.
131. Section 26... the executive committee is answerable to the State and to the Trade Union Organ for Co-operation for the manner in which it manages the co-operative.
132. ......................................................................................................................................................
133. Section 53. The National Trade Union Delegation, through the Trade Union Organ for Co-operation, which the State recognises as having legal personality by virtue of this Act, shall organise on a hierarchical basis the whole Spanish co-operative movement, maintaining the desired separation of the different types of co-operatives recognised by this Act.
134. 160. According to the Act of 2 January 1942 respecting co-operatives, the co-operative organisations set up in agriculture are incorporated in the state trade union organisation ; all members of co-operatives are incorporated automatically in the corresponding local trade unions ; the co-operative system organised by the " Trade Union Organ for Co-operation " is a branch of the corporative trade union system.
135. 161. According to section 2 of the Act of 2 September 1941 (a transitional provision), all the previously existing agricultural trade unions were " integrated " in the trade union organisation of the Movement ; section 6 of the same Act automatically incorporated the members of the existing trade unions in the new state trade unions.
136. 162. These provisions are repeated in the Decree of 17 July 1944 to establish trade union unity in agriculture, which incorporates rural workers and their co-operatives in the trade union system. This decree provides among other things:
137. 1. In conformity with the provisions of sections 4, 16 and 17 of the Act of 6 December 1940, the National Trade Union Office (Delegación Nacional de Sindicatos) shall form rural trade union brotherhoods (Hermandad Sindical del Campo) throughout the national territory for the purpose of enrolling therein all producers engaged in the various economic branches of agriculture and of the industries inseparably connected with agriculture and auxiliary thereto, except in concrete cases where the considerable local development of a particular product or industry makes it possible to form a special trade union or association for the product or industry in question.
138. As soon as the requirements of the above-mentioned Trade Union Organisation Act have been complied with, the said brotherhoods shall have the legal status and capacity to act requisite for the fulfilment of their purposes and the development of their resources,
139. ......................................................................................................................................................
140. 4. After obtaining recognition in conformity with the provisions of section 5 of the Act of 6 December 1940, the trade union brotherhoods shall be responsible for the performance within their sphere of jurisdiction of the duties assigned to the trade union bodies by the legislation in force and also of the duties hitherto performed by the bodies which, under this decree, are wound up, or amalgamated with or incorporated in the brotherhoods, and in particular the duties laid down by the Act of 8 July 1898, the Regulations thereunder dated 23 February 1906, the Acts of 30 July 1941, and 2 September 1941, and the Ministerial Orders of 14 November 1890 and 29 January 1942, and any other provisions to supplement, or provide for the administration of the aforesaid measures.
141. 5. As from the date of the valid Constitution of a brotherhood, the agricultural co-operative societies lawfully established within the area of its jurisdiction and the trade union groups set up by the Land Settlement Foundation (Obra de Colonización) shall be incorporated in the brotherhood in question and subject to its control, provided nevertheless that they shall retain their own property and legal status in so far as is requisite for the carrying out of their special purposes.
142. By virtue of section 2 agricultural co-operatives are incorporated in the trade union brotherhoods and they must comply strictly "with the orders issued by the various state authorities, each in matters within its competence ".
143. Allegations relating to Collective Bargaining
144. 163. The I.C.F.T.U alleges that the Government does not recognise the right of the workers to bargain freely with employers and does net permit the conclusion of collective agreements.
145. 164. The Government declares that the right to bargain collectively is guaranteed by the Act of 16 October 1942. While the Government reserves the right to intervene in the event of a deadlock in the negotiations, the regulation of labour is drawn up in practice through the trade unions, by means of joint discussions with employers. The initiative rests with the trade unions.
146. 165. The determination of conditions of work in Spain is governed by the Act of 16 October 1942 to lay down rules governing the drawing up of employment regulations, which provides, among other things
147. 1. All matters relating to the regulation of employment, which shall be deemed to mean the systematic regulation of the minimum conditions to which the employment relations stipulated between employers and their employees in different branches of industry and activities must conform, shall be within the exclusive jurisdiction of the State, which shall exercise its powers in this connection, without right of delegation, through the Ministry of Labour and within the Ministry through the General Labour Directorate, under the conditions laid down in this Act.
148. ......................................................................................................................................................
149. 4. The employment regulations shall apply to all establishments, factories, workshops and dependencies in the branch of industry or occupation concerned, irrespective of their importance, size and extent ; where necessary, the requisite differentiations shall be made for this purpose.
150. ......................................................................................................................................................
151. 5. In order to maintain the principle of " unity of undertaking " the regulations shall be applicable to all persons who perform work of any kind whatsoever in the branch of industry or production concerned, subject, nevertheless, to such differences as may be necessary having regard to the different occupational categories.
152. 6. The examination and drawing up of employment regulations may be undertaken on the initiative of the Ministry of Labour, on the recommendation of any other Ministerial Department or on the proposal of the trade union organisation. In the last two cases an application with a statement of reasons must be submitted, accompanied by the data or circumstances which have been taken into consideration and which justify the amendment or revision of the rules hitherto applicable.
153. ......................................................................................................................................................
154. 9. If the regulations are national in scope, the Ministry shall request the National Trade Union Office to appoint a number of assessors (the number varying according to the circumstances of the case) who are experts in the branch of industry to which the regulations are to apply ; these assessors shall include representatives of all elements of the various occupational groups of which the union concerned consists in the section or sections which may be affected.
155. The Minister may likewise request that representatives be appointed by any Departments which are in a position to supply information on the matter in question, in view of the special nature of their work or of the interest which the proposed regulations may have for their respective services. The Ministry may also invite all persons or bodies whom or which it considers competent in the matter to give their assistance.
156. ......................................................................................................................................................
157. 15. Industrial or commercial undertakings which employ as a rule not less than 50 permanent employees, including all those employed in the various branches of the undertaking, even if they are situated in different localities, shall be bound to draw up rules of employment for the purpose of bringing the organisation of work in the undertaking into conformity with the rules laid down in the employment regulations applicable to it and with the principles underlying the Labour Charter and the Act respecting trade union organisation.
158. ......................................................................................................................................................
159. Pending the issue of rules governing the method of appointment and induction of heads of undertakings, for the purposes of section 7 of the Act respecting trade union organisation, the rules of employment shall be drawn up by the person who in fact acts as head of the undertaking.
160. ......................................................................................................................................................
161. 20. Decisions relating to employment regulations which are adopted by any body or authority other than the Ministry of Labour and which may involve encroachment upon the powers reserved to the said Ministry, inasmuch as they relate to a total or partial modification of conditions of employment in a specified industry or locality, shall be invalid and of no effect and shall not be enforceable in the courts.
162. 166. According to this Act the regulation of conditions of employment is a function which " the State ... shall exercise ... without right of delegation " (section 1), the drawing up of regulations being undertaken on the initiative of the Ministry of Labour (section 6) and, at the level of the individual undertakings, the heads of the undertakings having the right to draw up the internal regulations. In this connection, Chapter III, paragraph 4, of the Labour Charter provides:
163. The State shall lay down principles for the regulation of employment and the relations between employees and employers shall be established on the basis of these principles....
164. 167. In accordance with section 20 of the Act of 16 October 1942 decisions adopted by any body other than the Ministry of Labour shall be invalid. Under section 9 the participation of the trade union organisations is limited to the appointment of assessors at the request of the Ministry. In certain circumstances, the trade unions may request the Ministry to consider issuing new regulations (section 6). However, the Government states that in practice the regulations are drawn up through joint discussions in which the trade unions take part.
165. 168. As noted in paragraph 131, the Government states in its communication dated 15 October 1957 that a Collective Agreements Bill is under consideration, according to the provisions of which the workers' and employers' sections set up within the different branches of the national trade union organisation would be empowered to negotiate with a view to the conclusion of collective agreements regulating wages, hours and conditions of work.
166. 169. The Committee has expressed the view on several occasions that the right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association and has emphasised the fact that "trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof ". In Case No. 111 relating to the U.S.S.R, the Committee declared " that it is not called upon to express a view on systems of collective agreements in force in different countries except in so far as such a system may impair the right of trade unions to assume freely the defence of the workers. ".
167. 170. The Committee, having noted the Government's statement that a Collective Agreements Bill is now under consideration, recommends the Governing Body to emphasise the importance which it attaches to the principle that measures appropriate to national conditions should be taken to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements, and to express the hope that full account will be taken of this principle in the Bill now under consideration and that such Bill will be enacted at an early date.
168. Allegations relating to the Decree of 26 October 1956 to Amend the Revised Text of the Contracts of Employment Decree
169. 171. The General Union of Spanish Workers in Exile declares, in its communication dated 14 January 1957, that under a decree published in the Boletin Oficial of 25 December 1956 "all undertakings are authorised to apply the disciplinary sanction of dismissal to their workers, without the necessity of instituting legal proceedings against them or of submitting proposals to the Labour Courts ". Thus, it is contended, the workers are deprived of a means of defending their rights and are left at the mercy of the employers. It is alleged that such measures are contrary to the principles of the Universal Declaration of Human Rights that " everyone has the right to just and favourable conditions of work and to protection against unemployment ".
170. 172. The Government, in its communication dated 12 April 1957, declares that the Decree of 26 October 1956 criticised in the complaint modifies and codifies the Contracts of Employment Act of 26 January 1944 and amends, in particular, sections 77 and 81 thereof. The first of these sections enumerates the " sufficient reasons for which the employee may be dismissed by the employer ". The Decree of 26 October 1956 specifies that the reasons for dismissal are limited to those indicated in section 77 of the Act and thus avoids any misunderstandings arising through enumerations being included in other labour ordinances. Moreover, it is with the object of clarity and simplification that the decree complained against obliges the employer to notify in writing the dismissal, the date thereof and the reasons therefor. The worker who is dismissed may claim that the sanction has been applied without sufficient reason. The suppression of the previous institution of proceedings, claims the Government, does not harm the worker but suppresses preconstituted proof that would be difficult to refute. The new decree maintains the distinction made in the Act of 1944 with regard to dismissals without sufficient reason : in under takings in which less than 50 persons are employed, the employer who has ordered a dismissal declared to be without sufficient reason has the right to choose between reinstating the worker or compensating him ; in undertakings employing more than 50 persons the choice lies with the worker. Finally, the decree complained against raises the amount of compensation payable to the worker in the event of dismissal without sufficient reason, because it is no longer calculated with respect to the basic wage only but with respect to the total sums received, including family allowances and the "plus familiar". It cannot therefore be affirmed, states the Government, that dismissal is free ; by virtue of section 81 of the Contracts of Employment Act a demand must always be presented to the competent courts so that they may pronounce as to whether there is or is not sufficient reason for the dismissal. The amendment made by the Decree of 26 October 1956, according to which, in undertakings in which more than 50 persons are employed, the employer may, instead of reinstating a worker who has been dismissed without sufficient reason, pay him compensation, cannot, in the Government's view, be regarded as a retrograde step in social legislation the total amount of the compensation (a maximum of four years' wages) makes it unthinkable that employers will lay themselves open to such a heavy economic burden without very serious reasons. The new decree, concludes the Government, guarantees the legitimate rights of the worker and of the undertaking.
171. 173. Sections 77 and 81 of the Contracts of Employment Act of 26 January 1944 read as follows
172. 77. The following shall be deemed to be sufficient reasons for which the employee may be dismissed by the employer:
173. (a) repeated and unjustifiable unpunctuality or failure to attend for work;
174. (b) insubordination or disobedience to the rules of employment issued in accordance with the laws ;
175. (c) ill-treatment in word or deed or serious lack of respect and consideration towards the employer, the members of his family who live with him, his representative or the superiors or fellow-workers of the employee ;
176. (d) the unsuitability of the employee for the occupation or work for which the contract was made ;
177. (e) fraud, disloyalty, or breach of trust in the transactions entrusted to him ;
178. (f) voluntary and persistent reduction in the normal output of work ;
179. (g) the carrying on of commercial or industrial transactions on his own account or on account of another person without the permission of the employer;
180. (h) habitual drunkenness ;
181. (i) dirty habits, provided that the employee has been repeatedly warned respecting this and that the said habits are such as to justify complaints from fellow-workers who perform work in the same premises ;
182. (j) if the employee is repeatedly responsible for unjustifiable brawls or quarrels with his fellow-workers.
183. 81. If the employee is dismissed for reasons attributable to himself he shall not be entitled to any compensation.
184. If he is dismissed for reasons which are sufficient but over which he has no control, he shall be entitled to claim the wages due for the normal period of notice as prescribed by the employment regulations or in default thereof by custom.
185. If the employee is dismissed without sufficient reason, he shall be entitled either to reinstatement in a post equivalent to that from which he was dismissed and under identical conditions or to compensation in an amount to be fixed by the labour judge at his discretion, with due regard to the opportunities available for finding other suitable employment, family liabilities, period of employment in the undertaking, etc., provided that the compensation shall not exceed one year's wage or salary. If the undertaking in question has less than 50 permanent employees, the above-mentioned choice shall lie with the employer, and if the number of employees exceeds 50, it shall lie with the employee.
186. 174. The main provisions of the Decree of 26 October 1956 amending the Contracts of Employment Act are as follows
187. 1. The contract of employment may be terminated by dismissal where the worker becomes subject to one of the reasons for dismissal enumerated in section 77 of the revised text of the Contracts of Employment Act.
188. 2. All undertakings are authorised to apply the disciplinary sanction of dismissal to their workers, without the necessity of instituting legal proceedings against them or of submitting proposals to the labour courts. If a works committee exists, the employer must notify it before exercising the right accorded to him in the previous paragraph.
189. 3. In order to exercise the right accorded under paragraph 1 above, the management must inform the worker in writing of his dismissal, indicating the date thereof and the reason therefor.
190. 4. When the worker regards it as being without sufficient reason, he may appeal to the labour court against the dismissal ordered by the management of the undertaking. In that event, he must present his claim to the competent labour court within the time limit prescribed by section 82 of the Contracts of Employment Act.
191. 5. The labour court shall follow the ordinary procedure in so far as it is compatible with the rules prescribed below:
192. ......................................................................................................................................................
193. Thirdly: The judge, in making his award, shall observe the following rules (a) he shall declare the dismissal to be "with sufficient reason" when one of the reasons referred to in section 1 of this Decree has been duly alleged and proved ; in other cases, he shall declare it to be "without sufficient reason" (b) if he finds the dismissal to be " with sufficient reason " he shall declare the contract of employment to be broken without the worker having any right to compensation ; in the contrary case, he shall order the undertaking to reinstate the worker or to pay compensation to an amount to be fixed by the judge but not in any event to exceed one year's salary or wages ; the choice between the two shall belong to the employer in the case of an undertaking in which less than 50 persons are permanently employed and to the worker in the case of an undertaking in which more than that number are employed ; (c) in all cases in which the dismissal is declared to be " without sufficient reason ", he shall accord to the worker who is dismissed supplementary compensation equal to the amount of wages that he would have received during the current year.
194. ......................................................................................................................................................
195. 7. A request for reinstatement made at the hearing or in writing shall be brought immediately to the notice of the other party, in order that the employment relationship may be resumed within the five days following on conditions identical with those which subsisted before the dismissal. The undertaking shall notify the court that reinstatement has been effected within five days of the date on which it has taken place. If the undertaking allows the time-limit prescribed to expire without carrying out its obligation the judge shall, ex officio, order execution of the judgment in the form of " compensation by way of damages for non-reinstatement ". The judge shall take the same step if the worker, within 30 days from the date on which he exercised his right of option, or, according to the case, of the date on which the undertaking has notified him that it has utilised this right, appears before the court stating that there has been no reinstatement or that reinstatement has been made subject to conditions that he does not accept.
196. ......................................................................................................................................................
197. 10. For the period of the procedure of " compensation by way of damages for non-reinstatement ", the contract of service will be regarded as at an end and the worker will receive the compensation fixed by the decision terminating the procedure. When the final judgment terminates the " damages " procedure, it will include an adjudication on this point.
198. 11. For the purpose of this provision, salary or wages means the total of the payments made to the worker for his services or labour, including the " plus familiar " and the sums that he would receive as social insurance.
199. ......................................................................................................................................................
200. 13. Workers may have recourse to the competent labour court against sanctions other than dismissal imposed upon them by undertakings for serious or very serious offences within the time-limits fixed by the law in the case of actions relating to dismissal ; the action will be subject to the rules of ordinary procedure. If the penalty imposed by the undertaking should be regarded as excessive, the court will order in its award the penalty which it regards as proportionate to the importance or seriousness of the offence proved. Awards made in such cases are final awards.
201. 14. All provisions incompatible with the provisions of this decree are repealed, with the exception of those at present in force with respect to : ... (2) workers who perform duties of a trade union character to which they are elected ; (3) members of works committees, and (4) representatives of the female section of the Spanish Traditionalist Falange and of the J.O.N.S. In the cases referred to in paragraphs (2), (3) and (4) of this section, the exception laid down will continue in force for a period of three years after the person concerned ceases to perform the functions in question.
202. 175. In these circumstances the matters raised in the allegations examined with respect to the Decree of 26 October 1956 amending the Contracts of Employment Act would appear to fall outside the competence of the Committee ; in fact, they relate solely to the question of the breaking of the contract of employment by dismissal, a question on which the Committee is not called upon to pronounce, except in cases in which the circumstances of dismissal imply anti-union discrimination. In the present case, the legislative text which is the subject of the complaint is a regulating decree of general application to all workers, with the specific exclusion from the application thereof, by virtue of section 14, paragraph 2, of workers who " perform duties of a trade union character to which they are elected ".
203. Allegations relating to the Prohibition of Strikes
204. 176. In its communication dated 25 April 1957 the General Union of Spanish Workers in Exile alleges that striking in Spain constitutes a crime punishable by imprisonment for from six to 12 years. Responsibility for a strike is laid not only on those who participate in it but also on those whose records appear to justify it. In support of its allegations, the General Union of Spanish Workers in Exile produces a copy of a document emanating from the Duro-Felguera Metallurgical Company, which informs its workers of the fact that striking is a penal offence punishable by severe terms of imprisonment and by fine and that the Criminal Procedure Act provides for the preventive imprisonment of persons guilty of this offence before trial. According to the same document, reduction in normal output entails for the workers concerned service in a disciplinary unit in Africa and termination of the contract of employment. In its communication dated 13 August 1956 the International Confederation of Free Trade Unions alleges that the Government does not recognise the right to strike and has recourse to repressive measures to break any movements in support of demands.
205. 177. The Government states that its investigations have not shown that any such notice as alleged was posted up by the firm in question and denies that any proceedings were taken against any person or that any person was sentenced because of the strike which took place at the Company's Maria Luisa mine. The Government does not comment on the allegations as to penalties which may be imposed under penal legislation on persons who engage in strikes.
206. 178. In these circumstances the Committee has asked the Director-General to obtain further information from the Government on this aspect of the case before it makes its recommendations to the Governing Body.
207. Allegations relating to the Strike of April 1956 in Bilbao
208. 179. In its communication dated 4 May 1956 the International Confederation of Free Trade Unions alleges that the Spanish Government ordered lockouts in order to put an end to the strikes which broke out in April 1956 in Bilbao and other towns in Northern Spain. It is contended that this movement originated in the refusal of the workers to perform a considerable amount of overtime work. Although some employers had agreed to increase wages in order to normalise production, declares the complainant, the Government opposed this course ; 40,000 workers were affected by the order to impose lockouts ; the Government instituted further prosecutions of the workers who had taken part in the general strike of 1951 ; because of their participation in the strike, 11 persons in the Basque provinces were sentenced to terms of imprisonment of from three to six years. When they were liberated, it is alleged, they were again cast into prison without cause. According to the I.C.F.T.U the policy of the Government of breaking strikes constitutes a violation of human rights. In its communication dated 13 August 1956 the I.C.F.T.U alleges that, following the strike mentioned, workers in the factories in which the disputes broke out were deported to other parts of the country. Workers who were provisionally set free by the examining magistrate are stated to have been put in prison again.
209. 180. In its communication dated 16 May 1957 the Government declares, with respect to this allegation, that it is normal for a labour dispute of the kind that broke out in Bilbao to give rise to arrests. The 11 detentions which were made were intended to prevent acts of violence having no direct connection with the labour dispute properly so-called. Wage increases had been granted in April 1956. (In its communication dated 15 October 1957 the Government maintains that, despite some repercussions on prices, these increases were not fraudulent as alleged, but represented a genuine advance in the real earnings of the workers.) In spite of a falling off in productivity the workers continued to demand new increases. The efforts of the trade union organisation and the Labour Delegation to settle the dispute achieved no result. In order to restore discipline action was taken at the end of April to use the powers given by the Labour Contracts Act to terminate contracts in the event of wilful diminution of production. In various undertakings, therefore, dismissals were effected. Some 25,000 workers came out on strike in sympathy with those who had been dismissed. Brushes occurred between strikers and employees who wished to continue working. Nevertheless, the Government declares, no workers were preventively detained because of their participation in the strike, and when order was restored all the strikers were readmitted to their employment without penalty. During the strike the families of those detained received relief in the form of social benefits. Sentences of imprisonment in no cases exceeded those prescribed by law.
210. 181. In its communication dated 15 October 1957 the Government states that in the case of the strikes of April 1956, in which the question of overtime was the main issue, its competent services offered their good offices as mediators. The Government explains that while workers were free to work overtime or not, which was remunerated at a rate higher than paid for normal work, the custom grew up in the industries in Northern Spain whereby it came to be established practice, accepted by both sides, that workers performed one or two hours of overtime as a regular thing, on condition that the extra rates were paid. Since 1950, when the workers had become more prosperous, the Government states that there has been a trend away from this practice, which caused some friction, culminating in the strikes in question. The Government denies that it ordered a lockout but that, when the employers had difficulty, because of strikes and interruptions of production, in maintaining continuous operations, they sought and were given authorisation to close their undertakings pending settlement of the dispute. The Government denies that it broke the strike or ordered the persecution of strikers. Loss of seniority rights, according to the Government, was the result of strikers breaking their contracts of employment. Nevertheless, the Government states, the strikers were re-engaged " in a normal manner and without any incidents ", no exceptional measures were taken, and the settlement has meant the disappearance of the old custom of overtime for one or two hours being regarded as normal usage. The Government adds that in 1951 there were a number of strikes but not a general strike, and that it has neither persecuted nor resumed persecution of workers in respect of strikes in past years.
211. 182. In a considerable number of cases, the Committee has expressed the view that the right of workers and workers' organisations to strike as a legitimate means of defence of their occupational interests is generally recognised ; the Committee attaches importance, where the right is restricted, to the existence of a procedure to ensure a peaceful settlement of disputes and affording appropriate guarantees to the workers who may not have recourse to strikes. In the present case, without expressing any precise view as to the general legality of the right to strike -a question raised in an allegation examined above (see paragraph 176)--the Government declares that, although all the contracts of employment of the participants in the strike were at first terminated, all the strikers were readmitted to their employment when order had been restored and that no worker has been punished by reason of his participation in the strike. The Government admits, however, that detentions intended to prevent contraventions of the law took place.
212. 183. The Committee considers that the preventive detention of trade unionists on the ground that breaches of the law may take place in connection with a strike involves a serious danger of infringement of trade union rights. In view of the fact, however, that the Government has given assurances that no worker has been punished or suffered prejudice by reason of his participation in the strike movements which broke out in Bilbao and other towns in April 1956, the Committee, while drawing the attention of the Spanish Government to this danger, considers that it is unnecessary to examine further the allegations relating to the exercise of the right to strike made under the present head.
213. Allegations relating to the Strike of April 1956 in Barcelona
214. 184. In its communication dated 25 July 1956 the General Union of Spanish Workers in Exile alleges that a number of workers, whose names are given, were detained in connection with the strikes which broke out in Barcelona in April 1956, the police having placed these workers at the disposal of the judicial authorities. It is alleged that the judge ordered their indictment on charges of unlawful association and distribution of illegal propaganda, but also ordered that those detained should be released on bail. In order to prevent their liberation, it is alleged, the Civil Governor of Barcelona ordered the arrest of the workers concerned for a period of three months, renewable for a further three months.
215. 185. In its communication dated 15 October 1957 the Government states that article 18 of the Spaniards' Charter recognises freedom of the person within the limits allowable in situations of emergency as provided for in the Act of 28 July 1933 respecting public order, according to which, during a period in respect of which the Government has exercised its lawful power to proclaim a state of alarm when public order is disturbed, " the civil authorities may detain any person if they think it necessary for the preservation of order ". At the time of the strikes in question the suspension of the above article 18 for three months had been proclaimed. Thus, contends the Government, the Civil Governor was entitled to order detentions when he thought it necessary for the preservation of order ; the magistrate was right within his own province when he ordered the conditional liberation of the persons concerned ; the Governor again was in the right when he once more ordered detentions in the continuing belief that the liberty of the persons concerned might endanger public order. The Government states that its records show no persons named José Castillo or Antonio Senserich as having been detained, and that the reasons for the detentions of the other persons mentioned in the complaint were not only lawful but had no relation to their trade union or occupational activities. These persons, states the Government, were members of cells of a Communist organisation whose sole purpose was to disturb public order and not to promote the settlement of a labour dispute. The Government claims that, among the justifiable reasons for the fears of the Civil Governor, was the fact that one of the persons named -José Teixidor Vila-had entered Spain secretly in 1944 as a member of an armed band, in consequence of which he had been sentenced by the courts and then liberated in 1951 after serving his sentence.
216. 186. In several previous cases which have come before the Committee in which it was alleged that trade union officers or members had been preventively detained, the Committee has expressed the view that such measures of preventive detention involve a serious interference with the exercise of trade union rights which it would seem necessary to justify by the existence of a serious emergency and which would be open to criticism unless accompanied by adequate judicial safeguards applied within a reasonable period, and that it should be the policy of every government to take care to ensure the observance of human rights and, especially, of the rights of all detained persons to receive a fair trial at the earliest possible moment. While the Committee considers that it is not in a position to express an opinion on the justification or otherwise for proclaiming a state of alarm at the time in question, as this would involve a knowledge of the particular circumstances prevailing at that time which it does not possess, it recalls that in a number of previous cases it has pointed out that in most countries strikes are recognised as a legitimate weapon of trade unions in furtherance of their members' interests so long as they are exercised peacefully and with due regard to temporary restrictions placed thereon, and that it has also expressed the hope that governments, desiring to see labour relations develop in an atmosphere of mutual confidence, will have recourse, when dealing with situations resulting from strikes and lockouts, to measures provided for under common law rather than to emergency measures, which involve a danger, by reason of their very nature, of certain restrictions being placed on fundamental rights. The Committee recommends the Governing Body to draw the attention of the Spanish Government to the importance which it attaches to the principles referred to above.

The Committee's recommendations

1. 187. In all the circumstances the Committee recommends the Governing Body:
   • (a) to decide, for the reasons contained in paragraph 128 above, that the objection made by the Government to the competence of the Committee having regard to the nature of the allegations made by the International Confederation of Free Trade Unions is not well-founded ;
   • (b) to draw the attention of the Spanish Government to the fundamental contradiction between the legislation in force in Spain and the principles relating to freedom of association which are enunciated in the Preamble to the Constitution of the I.L.O and the Declaration of Philadelphia, and in the Freedom of Association and Protection of the Right to Organise Convention, 1948, and the Right to Organise and Collective Bargaining Convention, 1949 ; to urge the Government to amend its legislation in order to render it compatible with these principles, and, in particular, with the principles that: (i) workers should have the right to establish and join organisations of their own choosing without previous authorisation; (ii) such organisations should have the right to draw up their Constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes, and the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, and (iii) such organisations should not be liable to be dissolved or suspended by administrative authority ;
   • (c) to draw the attention of the Government to the principle expressed by the International Labour Conference at its 35th Session (1952) in the resolution concerning the independence of the trade union movement that " governments should not attempt to transform the trade union movement into an instrument for the pursuance of political aims, nor should they attempt to interfere with the normal functions of a trade union movement because of its freely established relationship with a political party " ;
   • (d) to note the Government's statement that a Collective Agreements Bill is at present under consideration ; to draw the attention of the Government to the importance which the Governing Body attaches to the principle that measures appropriate to national conditions should be taken to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements : to express the hope that full account will be taken of this principle in the Bill now under consideration and that such Bill will be enacted at an early date ; and to request the Government to be good enough to keep the Governing Body informed of further developments in this connection ;
   • (e) to decide, with respect to the allegations relating to " social detainees ", to draw the attention of the Spanish Government to the importance which it has always attached to the right of trade unionists, like all other persons, to enjoy the guarantees afforded by due process of law ; but subject to this reservation, to decide that the complainants have not offered sufficient evidence in the present instance to show that such guarantees were not afforded to the accused or that they were sentenced because of their trade union activities ;
   • (f) to decide, for the reasons indicated in paragraph 175 above, that it is unnecessary to examine further the allegations relating to the Decree of 26 October 1956 to amend the Contracts of Employment Decree ;
   • (g) to decide, with respect to the strikes which broke out in Bilbao and other towns in April 1956, to draw the attention of the Government to its view that preventive arrests on the ground that breaches of the law may take pace in connection with a strike involves a serious danger of infringement of trade union rights ;
   • (h) to decide, with respect to the allegations relating to the strike of April 1956 in Barcelona, to draw the attention of the Government to its view that measures of preventive detention involve a serious interference with the exercise of trade union rights, which it would seem necessary to justify by the existence of a serious emergency, and which would be open to criticism unless accompanied by adequate judicial safeguards applied within a reasonable period, and that it should be the policy of every government to take care to ensure the observance of the rights of man and especially of the rights of all detained persons to receive a fair trial at the earliest possible moment ; to express once again the hope that governments desiring to see labour relations develop in an atmosphere of mutual confidence will have recourse, when dealing with situations resulting from strikes and lockouts, to measures provided for under common law rather than to emergency measures, which involve a danger, by reason of their very nature, of certain restrictions being placed on fundamental rights ;
   • (i) to decide to request the Spanish Government to state whether members or leaders of the General Workers' Union, the National Confederation of Workers or the Association of Basque Workers are still held in penitentiaries or other places of detention, and pending the receipt of this information, to take note of the present interim report ;
   • (j) to take note of the present interim report with respect to the allegations relating to the exercise of the right to strike referred to in paragraph 176 above, it being understood that the Committee will report further thereon when it has received further information from the Government.