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- 133. In a communication of 9 February 1988, the World Federation of Industry
- Workers (WFIW) presented a complaint against the Government of Spain alleging
- violations of freedom of association. In a subsequent communication of 26
- February 1988 this Federation sent additional information in support of its
- complaint, signed by four trade union sections representing the workers of the
- Alumina Aluminio enterprise, namely, the trade union sections of the National
- Inter-Trade Union Association of Galician Workers (INTG), the Trade Union
- Confederation of Workers' Committees (CCOO), the General Union of Workers
- (UGT) and the Trade Union of Workers (USO). The Government sent a reply to the
- allegations of the complainant organisations in a letter of 8 July 1988.
- 134. Spain has ratified the Freedom of Association and Protection of the
- Right to Organise Convention, 1948 (No. 87), as well as the Right to Organise
- and Collective Bargaining Convention, 1949 (No. 98).
A. The complainants' allegations
A. The complainants' allegations
- 135. The World Federation of Industry Workers (WFIW), itself an affiliate of
- the World Confederation of Labour (WCL), explained in its communication of 9
- February 1988 that, at the request of its affiliate, the Trade Union of
- Workers (USO), it was presenting allegations of trade union persecution and
- serious efforts to undermine freedom of association against the Government of
- Spain.
- 136. According to the WFIW, the facts are as follows: following the
- shipwreck of the "Cason", a Panamanian vessel which ran aground on the coast
- of Galicia causing the death of 25 seamen, while transporting barrels of toxic
- and dangerous substances, a wave of panic swept over the region. The
- inhabitants of entire villages fled; thousands of persons, led by the local
- authorities, vigorously opposed the transport of these barrels (which
- continued to surface near the coast of Galicia) for loading and shipment. It
- was in this climate of panic that a number of barrels containing radioactive
- substances turned up on the shipping docks of the Alumina Aluminio plant at
- San Ciprian, near Lugo, in Galicia. Frightened by the presence of these
- barrels, the workers of this plant abandoned their posts, thus paralysing the
- enterprise. Their concern was perfectly understandable, especially if one
- considers the fear and confusion which prevailed at that time.
- 137. The WFIW admits in its communication that the resumption of the
- aluminium plant's high-temperature furnaces entailed a cost of billions of
- pesetas. It explains that the Alumina Aluminio metallurgical plant is a
- semi-public entity which comes under the National Institute for Industry, as
- well as the Ministry of Industry and Economy and the Ministry of Finances. It
- denounces the fact that all members of the works council, in other words 23
- persons, were dismissed before an opinion was handed down by the labour
- authorities, especially since these persons were trade unionists who should
- have enjoyed trade union immunity. Moreover, according to the WFIW, 109
- workers were dismissed and restructuring measures threaten a further 600 jobs.
- The workers who have been unjustly dismissed were accused of sabotage and held
- to be exclusively responsible for the events which took place at the plant.
- However, according to the WFIW, it is management which is responsible for the
- damage and it is therefore unthinkable that the workers, the trade union
- organisation and its legitimate representatives should suffer from this series
- of reprisals.
- 138. In a subsequent communication of 26 February 1988, signed by the four
- trade union sections representing the plant's workers, the WFIW supplies
- additional information in support of its complaint, stating that the barrels
- unloaded from the shipwrecked vessel at Finisterre were transported over 200
- km by land to be shipped from the Alumina Aluminio complex, whereas they could
- have been shipped from a number of other ports in closer proximity, such as
- Corcubion, Cee or Muros.
- 139. The WFIW states that the public authorities had proceeded to evacuate
- the civilian population along the entire land itinerary of these barrels
- (although they claimed that the shipment posed no danger). It should be
- emphasised that the general public was given no information concerning the
- contents of these barrels. Their arrival at the Alumina Aluminio plant
- therefore provoked a perfectly understandable concern and commotion, as had
- been the case wherever the barrels had been stored or moved. Nor had the
- authorities given any advance notice of the arrival of the barrels (even to
- the workers' representatives). The WFIW views as extremely serious the bad
- faith shown by the authorities in supplying the workers of the plant in
- question with this "gift", especially since the same authorities had ordered
- and assisted in the evacuation of the entire population living in the area
- where the ship had run aground (since there had been 25 deaths among the
- members of its crew).
- 140. The WFIW communication adds that the public authorities were at fault
- in this matter, inasmuch as the labour authorities failed even to inspect the
- site and never opposed the decision taken by workers' representatives to
- recommend the staff's evacuation. According to the WFIW, this recommendation
- was made in full knowledge of the facts and with full responsibility, in the
- face of an exceptional situation. The WFIW vigorously condemns the
- representative of the Spanish authorities who now describes the workers'
- representatives as reckless revolutionaries (while the matter is still sub
- judice); they were acting in full knowledge of their responsibilities when
- they decided that it was incumbent on them to recommend the plant's evacuation
- in the same manner as the authorities themselves had ordered the evacuation of
- the areas through which the dangerous barrels had been transported.
- 141. The outcome of this affair was the massive dismissal of 110 workers and
- 24 workers' representatives. The WFIW adds that these measures are not
- consistent with the principles espoused by the International Labour
- Organisation and Spain, as one of its member States.
- B. The Government's reply
- 142. In its letter of 8 July 1988, the Government explains that a
- distinction should be made between
- a)the disciplinary measures adopted by the Alumina Aluminio enterprise
- against 111 workers and 23 members of the works council, and
- b)the suspension of the employment contracts of 574 workers within the
- framework of an employment restructuring programme authorised by the labour
- authorities.
- 143. As regards the first point, the Government states that it had nothing
- to do with the decisions taken; as regards the second point, the competent
- agencies of the Ministry of Labour and Social Security duly authorised the
- suspension of the contracts, which had been requested in accordance with
- proper procedures.
- 144. In connection with the first point concerning the disciplinary
- measures, the Government states that these measures were taken by the
- management of the Aluminio Español-Alumina Española Company, which owns the
- plant, as the employer of the workers in question. According to the
- Government, the legal status of this enterprise renders it completely
- autonomous from the National Institute for Industry, and thus from the
- Government. Therefore, the charges of trade union persecution and serious
- efforts to undermine freedom of association presented by the complainants
- against the Government are inaccurate, erroneous and legally unfounded. The
- Government claims that it has nothing to do with these measures, and that any
- complaint or charge should be filed against the enterprise which imposed these
- disciplinary sanctions. According to the Government, any decision on the
- legality of these measures falls under the jurisdiction of the labour courts
- (section 55 ff. of the National Charter, and section 97 ff. of the Act
- concerning labour courts). Moreover, the Government states that the Labour
- Court has already handed down two decisions concerning the appeals filed by
- the 111 workers and the members of the works council dismissed by the
- enterprise. The Government encloses copies of these decisions.
- 145. The Government refutes the allegation that members of the works council
- were dismissed before the labour authorities had handed down a decision,
- although as trade unionists they supposedly enjoyed trade union immunity, on
- the ground that the legislation does not provide that the public authorities
- have the right to intervene in connection with such measures. It does,
- however, admit that there are special provisions governing the dismissal of
- workers' representatives, in the sense that procedures for appeal are
- guaranteed in the event of disciplinary sanctions, and that the persons in
- question have priority to remain within the enterprise if their dismissal is
- considered unfounded. In this case, according to the Government, the
- disciplinary measures were taken by the employer and were submitted to a
- judicial procedure which provided both parties with full access to appeal
- machinery to guarantee the defence of their interests.
- 146. As regards the second point concerning the labour authorities'
- authorisation of the suspension of the employment contracts of 574 workers,
- the Government explains that by virtue of section 45(1) of the Workers'
- Charter, temporary instances of force majeure as well as economic and
- technological conditions which make the performance of work impossible are
- valid grounds for the suspension of employment contracts. According to the
- Government, no one has contested the fact that, following the events of 14 and
- 15 December 1987, the plant's two electrolysis units were paralysed for a
- certain time (in theory, for several months), making it impossible for the
- workers in this branch of the enterprise to perform their work. The Government
- attaches to its communication copies of resolutions on this matter issued by
- the Provincial Office of Labour and Social Security of Lugo, and by the
- Central Labour Office. According to the Government, the paralysis of these
- electrolysis units is an undisputable fact which was established by the Labour
- Court of Lugo in its above-mentioned decision.
- 147. Therefore, the suspension of the employment contracts in question was
- an inevitable consequence which the labour authorities duly authorised;
- moreover, although the works council in its appeal discussed the fate of
- workers who had been dismissed and the manner in which the work should be
- organised while the employment contracts remained suspended, it never
- challenged the legality of the suspension of the employment contracts, which
- is at the heart of this matter. Thus, the labour authorities merely authorised
- the suspension of the employment contracts pursuant to section 47 of the
- Charter, and neither of the parties has called this decision into question.
- 148. Lastly, concerning the failure of the labour authorities to intervene
- to bring an end to the paralysis of operations which resulted from the works
- council's decision, the Government states that this aspect of the case was
- addressed in sections 12 and 13 of the decision handed down by the Second
- Labour Court of Lugo on 23 March 1988, concerning the dismissal of members of
- the works council. The Government attaches copies of these items to its reply.
- 149. In these sections of the court decision in question, the judge states
- that the parties support diametrically opposed positions in this matter
- concerning section 19(5) of the Charter, which states that where there is
- imminent danger of an accident, a decision to stop work may be taken by the
- competent safety authorities within the undertaking or by all the workers'
- representatives, in the case of an undertaking engaged in a continuous
- process. It further provides that any such decision shall be immediately
- communicated to the enterprise and to the labour authority, which shall,
- within 24 hours, cancel or confirm the decision taken. The judge considers
- that the conditions required by this text were not met: it is true that the
- plaintiffs and the defendants had initially agreed to halt the plant's
- equipment; that the labour delegate of the province of Galicia attended the
- meeting between the parties, thus fulfilling the requirement concerning
- communication to the labour authority; and that the labour authority had full
- knowledge of the events since its delegate was present in the plant and held
- meetings with the interested parties. However, the judge noted that the first
- requirement established by the legislation for the implementation of this
- provision, is the imminent risk of accident. According to the judge, while the
- risk of accident may have been imminent early on, given the concern which the
- shipment had caused, it was no longer such when the barrels had been loaded
- aboard the "Galerno" and when this ship was at a sufficiently safe distance
- from the plant (some 1,000 or 2,000 nautical miles), and when the enterprise
- requested the members of the works council to ensure the provision of a
- minimum service on the grounds that the situation of the electrolysis units
- was critical and might well lead to the plant's paralysis. The works council
- failed to take action, although the enterprise merely wanted to avoid the
- paralysis of 256 electrolysis tanks (which is precisely what happened
- subsequently). In the opinion of the judge, it was no longer possible to
- maintain that there was an imminent danger or risk of accident; the works
- council, however, refused to comply with the enterprise's requests to resume
- operations.
- 150. In his written opinion, the judge also states that the behaviour of the
- plantiffs, as from the moment when the "Galerno" sailed from the port of San
- Ciprian, and at least from the moment when the vessel dropped anchor in the
- area known as "Las Farralones", was completely unfounded from a legal
- standpoint since the alleged danger or risk to the physical safety of the
- workers had disappeared, and the civil protection authorities had issued a
- certificate of safety for the plant. Moreover, as regards the conditions laid
- down by the works council on 15 December concerning the payment of hours not
- worked, and as regards the works council's demand that the management give a
- signed undertaking to the effect that the vessel would not return to the port,
- the judge considers that these questions could have been discussed after the
- workers had returned to their posts, thus avoiding the subsequent damage to
- the tanks. The judge notes that the employer next urged the works council to
- have the workers return to their posts immediately in order to save the B
- unit, as well as the rest of the plant, but that this request went unheeded;
- since the causes which might have justified the works council's attitude, at
- least in part, had disappeared, the judge finds it difficult to understand the
- works council's decision to maintain the work stoppage, unless it was intended
- exclusively to force the enterprise to pay for the hours not worked.
C. The Committee's conclusions
C. The Committee's conclusions
- 151. The Committee notes that the allegations in this case concern measures
- of dismissal which the complainants consider as discriminatory. These measures
- have affected 23 workers' representatives of a works council, as well as 111
- workers who participated in an interruption of work, and subsequently, 574
- workers whose contracts were suspended owing to the paralysis of equipment as
- a result of the work stoppage in an aluminium plant in December 1987.
- 152. According to the complainants, these dismissals constitute measures of
- trade union persecution and serious efforts to undermine freedom of
- association. The Government, on the other hand, draws a distinction between
- (1) disciplinary measures against striking workers' representatives and
- workers, taken by the employer and not by the Government, which the persons
- concerned have the right to challenge and have indeed appealed, and (2) the
- suspension of employment contracts on economic grounds which the public
- authorities have authorised owing to temporary force majeure and economic and
- technological conditions which prevent the performance of work, inasmuch as
- the initial paralysis of work led to the shut-down of two electrolysis units,
- which, in theory, should last for several months.
- 153. The complainants do not contest the shut-down of the electroylsis
- units, but consider that responsibility for the shut-down lies with the other
- party.
- 154. The Committee has reviewed the substantial documentation sent by the
- Government and by the complainants, and in particular the texts of court
- decisions which uphold the dismissals of members of the works council, but
- which overturn those of the 111 workers accused of having refused to maintain
- a minimum service, and the text of a sworn document supplied by the
- complainants.
- 155. According to the judgement of 23 March 1988, which upheld the dismissal
- of 23 members of the works council, without compensation or wages, and
- absolved the employer, the facts are as follows: on the morning of 5 December
- 1987, the "Cason", a vessel flying the Panamanian flag, ran aground near the
- fishing port of Finisterre; several members of the crew were found dead, and
- several explosions took place on board the ship. Subsequently, on 11 December
- at 9. 15 p.m., the General Secretary of the Civil Government of Lugo informed
- the manager of the Alumina Aluminio SA plant in San Ciprian that a restricted
- shipment was travelling by lorry to the plant's port for loading onto a ship
- which would dock at midnight. The lorries failed to arrive at the specified
- time. However, on the following day, at 8.45 a.m., a convoy of three lorries
- hauling the containers and barrels rescued from the "Cason" arrived at the
- plant's main gate and stopped near the beach at Aro, near the site known as
- Portiño de Moras, by the auxiliary port which had been utilised during the
- plant's construction. This port is at some distance from the more recently
- built port which is now in full use. The convoy was escorted by 20 or so
- police officers.
- 156. On 12 December, around 10.50 a.m., the works council held a meeting
- with the plant's general manager to find out what the general manager knew
- about the shipment. The general manager merely stated that he had met the day
- before with the General Secretary of the Civil Government of Lugo. The works
- council noted with regret the decision of the Civil Government and stated that
- it considered that this decision posed a threat to the plant's workers. The
- works council proposed that the barrels should be evacuated, and the general
- manager communicated this message to the authorities in Lugo. The authorities
- then informed the general manager that they would send the provincial head of
- civil protection to the plant for the purpose of describing the contents of
- the shipment. In a meeting with the plant's general manager, the works council
- and the local authorities, the official in question explained that the
- shipment was to be evacuated through San Ciprian, and that it contained
- aromatic compound organic substances such as aniline (a benzene derivative
- used in synthetic colouring agents) and orthocresol (an extract of coal tar).
- He stated that although these substances were flammable, they could be
- handled without danger. After a number of statements by several persons
- attending the meeting, the works council announced that all the workers and
- their families would hold a meeting at the plant at 4 p.m. The general manager
- and the authorities received a telex stating that the decision to evacuate the
- "Cason's" shipment through the port of San Ciprian had provoked a strong
- reaction among the staff, that there was a risk that the plant's operations
- might be interrupted, and that owing to the nature of the plant, such an
- interruption might have serious and irreversible consequences. The telex
- therefore requested that the decision be reconsidered and pledged the writers'
- collaboration in the search for solutions to avoid these risks.
- 157. A further meeting between the general manager and the works council was
- held on the same day, during which the general manager stated that the
- Governor himself was prepared to come to the plant to furnish explanations.
- The works council continued to object to the loading of the barrels at the San
- Ciprian port; although it did not object to the Governor's visit, it stated
- that if the Governor persisted in his decision to load the barrels at this
- port, or to have the ship in question enter the port, the workers would leave
- their posts and block the entrance to the plant, owing to the fact that they
- did not know what the barrels contained, and that the presence of the barrels
- had led to the evacuation of the port of Finisterre and given rise to several
- incidents and a general panic. The plant's general manager agreed to the
- barricades and authorised workers to use the plant's lorries to transport the
- materials needed to block the entrances to the plant. The Governor arrived at
- the plant around 9.30 p.m. and explained the reasons for his decision to the
- general manager and the works council. The works council explained its
- opposition to the shipment. No agreement was reached at the meeting. On 13
- December the general manager again met with the works council to explain that
- the shipment did not contain hazardous materials. The works council replied
- that no worker would load the barrels. This meeting was followed by lengthy
- discussions between the management and the local authorities. However, on 14
- December at 12.30 p.m., the general manager notified the works council in
- writing that he considered the strike to be illegal and formally requested
- that the works council designate the staff that would maintain a minimum
- service. The works council replied in writing at 5 p.m., requesting the
- immediate evacuation of all workers from the plant. On 15 December, after
- another enterprise had loaded the barrels on the "Galerno" on 14 December at
- 9. 30 p.m., and after this vessel had left the port and reached the area known
- as "Las Farallones", some 2,000 nautical miles from the port, the enterprise's
- general manager at 10 p.m. again requested the members of the works council to
- guarantee a minimum service so that the paralysis of the plant might be
- avoided, given the serious situation of the tanks. The works council refused,
- arguing that the situation of the electrolysis tanks was not critical, and
- stated that workers were taking care of the tanks and that the management only
- had to schedule rest-breaks for the supervisory staff who had volunteered to
- maintain the equipment. At 1.45 a.m., management sent the works council a
- written order to return to work; the works council refused to accept this
- communication on the grounds that management had failed to reply to the points
- which the works council had raised. At 6.30 a.m., and again at 8 a.m., the
- works council was again requested to set up a minimum service, and calls were
- sent out to workers at 9 a.m. by radio. At 10 a.m., the A unit automatically
- shut down when its safety system cut off the intake of gas in order to slow
- down the cooling of the tanks. News of this shut-down was communicated in
- writing to the works council and to the public authorities. At 12.45 p.m., 14
- of the 18 persons working on the unit were requested to take a break for
- medical reasons, leaving only four persons who could continue to work for at
- most one hour or two. At 3 p.m., the B unit was ordered evacuated and its
- automatic safety system came into action; news of these events was also
- communicated to the works council and the authorities. From 3 p.m. to 5.30
- p.m., a delegate from the labour directorate sought to mediate between the
- works council and management. Management reported to the delegate that it was
- necessary for the crew to return to work immediately in order to save the B
- unit, since the A unit was already hopelessly lost. Management proposed: (1)
- an immediate return to work; (2) to regard the works council's actions as
- serious, rather than as very serious; (3) that the sanctions concerning the
- works council be submitted for arbitration by the labour directorate's
- delegate; (4) that the dispute concerning the payment for hours not worked be
- submitted to the general director of the province of Galicia for arbitration.
- The works council replied through the delegate that it agreed with two of the
- four proposals, but that it would not accept the loss of wages for hours not
- worked, and it demanded a written commitment that the ship would not come back
- to the port. Following further discussions, management announced that the B
- unit had automatically shut off at 5 p.m., and that the only offer it could
- still make was that workers immediately return to work to save whatever could
- be saved. The works council agreed to allow the workers to enter the plant and
- reconnect the units with a view to starting them up, but management took
- exception to this proposal, stating that it was impossible to connect either
- unit without endangering the power plant, and therefore that it was no longer
- possible to start up the equipment in the normal fashion. At 10 p.m., the
- electrolysis units were beyond rescue by normal means.
- 158. The complainants contest this version of the facts. They state that as
- early as 7.30 p.m. on 15 December, the members of the works council had
- proposed to management to return to work and postpone negotiations; however,
- management refused to grant them access to the plant. On 16 December, when
- management allowed certain workers to enter the plant, they noted that the
- electrolysis tanks were still in good working order, and that the aluminium
- had not solidified, but was still liquid (which is normal), at a temperature
- of 735 Celsius in the A unit, and at 760 Celsius in the B unit (the normal
- operating temperature is 960 Celsius). In this connection, they attach a sworn
- document dated 17 December 1987, in which a notary attests to their report of
- the above-mentioned temperatures, adding that he saw the workers introduce a
- metallic rod into the tanks to show him that the rod would penetrate some 30
- or 40 cm into the liquid, although he could not see the direction in which the
- 159. Referring to the judgement of the Second Labour Court of Lugo, the
- Committee considers that, in the particular circumstances of this case, the
- dismissal of the members of the works committee does not infringe freedom of
- association.
- 160. As regards the 111 dismissed workers, the Committee notes that in a
- decision of 9 March 1988, the court invalidated these dismissals and ordered
- the Aluminio Español-Aluminia Española Company immediately to reinstate the
- persons concerned and to pay back wages from the time of their dismissal until
- that of their reinstatement, on the grounds that the enterprise had failed to
- comply with procedural requirements before dismissal, and that the enterprise
- had failed to inform workers individually that they would be dismissed. The
- judge therefore concluded that the enterprise had adopted an arbitrary
- attitude in singling out 111 of the 240 workers in this plant for dismissal,
- while all workers had participated in the work stoppage.
- 161. Concerning the dismissal of these 111 workers, the Committee notes with
- interest that the court cancelled their dismissal and ordered their
- reinstatement owing to the arbitrary attitude adopted by the enterprise in
- dismissing certain workers rather than others, and in failing to notify each
- worker individually that he would be dismissed. Consequently, the Committee
- considers that this aspect of the case does not call for further examination.
The Committee's recommendations
The Committee's recommendations
- 162. In the light of its foregoing conclusions, the Committee invites the
- Governing Body to approve the following recommendations:
- a) Referrring to the judgement of the Second Labour Court of Lugo, the
- Committee considers that, in the particular circumstances of the case, the
- dismissal of the members of the works council does not infringe freedom of
- association.
- b) The Committee notes with interest that the dismissal of 111 workers was
- cancelled by a court decision and that the persons concerned have been
- reinstated in their jobs.
