Definitive Report - Report No 308, November 1997

Case No 1919 (Spain) - Complaint date: 31-JAN-97 - Closed

Allegations: Non-compliance with a clause of a collective agreement in the public sector

1. 273. The complaint appears in a communication dated 31 January 1997 from the Federation of Public Services of the General Union of Workers (FSP-UGT), the State Federation of Teaching Staff (GETE-UGT) and the Federations of the Public Area of the Trade Union Confederation of Workers' Commissions (CC.OO).
2. 274. The Government replied in a communication dated 5 June 1997.
3. 275. Spain has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Services) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants' allegations

1. 276. In their communication of 31 January 1997, the Federation of Public Services of the General Union of Workers (FSP-UGT), the State Federation of Teaching Staff (FETE-UGT) and the Federations of the Public Area of the Trade Union Confederation of Workers' Commissions (CC.OO) allege that the Government unilaterally took the decision not to increase the remuneration of public employees for the 1997 exercise and to keep the salaries of these employees at the same levels as those of 1996. These resolutions were communicated on 19 September 1996 to the General Bargaining Committee and incorporated into the text of the draft budget for 1997. This decision, adopted in an authoritarian manner, without the possibility of any appeal, implies a real negation of the right of collective bargaining - which is recognized by Spanish law and by ILO standards - and is contrary to a pre-existing pluri-annual agreement concluded on 15 September 1994 between the previous Government and all the trade unions of public employees participating in the General Bargaining Committee. This agreement includes an increase in remuneration for civil servants for 1997, subject to the evolution of certain economic indicators, and the scope of which would be determined by collective bargaining. The Government does not deny the validity of the agreement but - in a flagrant disregard of its contents - has already incorporated in the draft budget a zero increase for civil servants and a clause invalidating any pact or agreement contrary to this measure.
2. 277. This unilateral imposition is illegal as well as unjust, since it discriminates against public employees as regards other workers and excessively increases the salary sacrifices which these officials have already been making and which have resulted in a serious deterioration in their standard of living in recent years.
3. 278. The complainants state that the Government maintains that its decision is part of a supposed austerity plan required for the convergence at the Community level of the economies of the European Union towards a single currency. However, this is a mere pretext, since the same pluri-annual agreement, which has now not been implemented, already provided for a significant wage moderation based on these economic circumstances: according to the agreement, "Remuneration shall be linked to the development of economic indicators and the achievement of targets which, set forth in the Convergence Programme, shall be included in the General State Budgets. This will ensure the establishment of a framework of stability in which remuneration is linked to the real capacities of our economy, while the improvement of the situation in the public sector, the achievement of better results in the different programmes and a general increase in productivity should pre-suppose the existence of incentives and additional salary growth."
4. 279. The complainants state that after a process of negotiation between the Spanish State Administration and the most representative trade union organizations in the public sector, held in 1994 in accordance with the provisions set forth in Act No. 7 of July 1990 respecting collective bargaining and participation in the determination of conditions of employment of staff in the service of the public administrations, an Administration-Trade Unions Agreement on conditions of employment in the public service was concluded for the period 1995-97, which was signed on 15 September 1994. The objectives of the Agreement - which were endorsed at the time by all parliamentary groups in Congress - were to modernize the careers of public officials and adapt them to the new legal framework of the autonomous State, to establish a framework for the evolution of salaries for the period 1995-97 which was balanced and in line with the overall economic situation of the State and, finally, to establish a link between all these aspects and the convergence programmes of the European Union.
5. 280. The Administration-Trade Union Agreement for the period 1995-97 is the result of concessions by both parties (Administration and Trade Unions), and should be seen as a bilateral contract containing mutual concessions and the programming of other matters to be examined in a spirit of good faith throughout the period in which the Agreement remains in force, as specified in paragraph 4 of Title I (Chapter I): "This Agreement shall enter into force on the day following its publication and shall remain in force throughout the years 1995, 1996 and 1997."
6. 281. The matters to be examined in this respect include the increase in salaries for 1997, as set forth in Title II (Chapter VI), paragraph 2, of which expressly stipulates that increases in remuneration shall be the subject of negotiation between the Administration and the Trade Unions: "Increase in remuneration for 1996 and 1997. (1) The remuneration of public employees for 1996 and 1997 shall be increased in accordance with the budgetary forecast of the increase in the consumer price index for the respective periods. Furthermore, account shall be taken of the following: the accuracy of the forecasts of the previous exercise and achievement of the objectives on which the previous increase in remuneration was based; the forecast of economic growth and the financing capacity of the General State Budgets as determined in the light of the forecast of the budgetary deficit of the public administration as a whole; the assessment of the increase in productivity in public employment resulting from the development of specific actions or programmes; the evolution of wages and employment in the country as a whole. (2) The application of increases in remuneration shall be the subject of negotiation between the Administration and the Trade Unions. (3) For each exercise a fund shall be set up for ensuring the maintenance of purchasing power in line with the characteristics established in Chapter III of this Agreement, and subject to the evolution of the GDP and the budgetary deficit of each year."
7. 282. This important Agreement has not only been applied and developed to date within the geographical sphere and workforce for which it was conceived, but, through a process of adhesion and extension, now covers many other groups (including most of the institutions of local and provincial administration and health institutions) and bodies of public employees. Hence non-compliance with the Agreement will have prejudicial effects of a general nature for the public sector as a whole and result in a widespread climate of frustration and loss of confidence in the collective bargaining machinery and the process for the peaceful settlement of labour disputes.
8. 283. There is no doubt whatsoever about the legitimacy and legal force of the Administration-Trade Union Agreement for the period 1996-97; neither is there any doubt that this contract makes it an obligation for the Administration to negotiate with the trade unions concerning the increase in salaries for 1997. The Government has failed to apply the Agreement by eluding its obligation to bargain and by unilaterally ordering a zero increase in remuneration for public employees.
9. 284. Chapter VI quoted above does not specify the amount of the salary obligation for 1997. But the Administration agreed to undertake negotiations with the trade unions, including on an increase - to some extent - of the salaries of public employees for 1997 in relation to the consumer price index (section 1, paragraph 1); the conditioning of this increase on specific economic indicators (section 1, paragraph 1); and the determination of the applicable increase in remuneration by collective bargaining (section 2). However, this bargaining process has not been respected by the Government, which decided not to increase the salaries of public employees in the year 1997, disregarding its own commitments, despite the fact that all the economic indicators, to which the above-mentioned salary increase should be subject, are favourable. This favourable evolution can be seen as follows:
   • - "The accuracy of the forecasts of the previous exercise and achievement of the objectives on which the previous increase in remuneration was based": these provisions have been fully met, since the increase was 3.5 per cent and the estimated increase in the consumer price index for the year was also 3.5 per cent.
   • - "The forecast of economic growth and the financing capacity of the General State Budgets as determined in the light of the forecast of the budgetary deficit of the public administration as a whole": the forecasts for growth for 1996 and 1997 (2.6 per cent and 3.1 per cent of the GDP respectively) confirm the 1995 trend towards growth and recovery.
   • - "The assessment of the increase in productivity in public employment resulting from the development of specific actions or programmes": the increase in productivity for 1996 was 1.34 per cent as a result of wage moderation and a net reduction in public employment resulting from the application of the Agreement.
   • - "The evolution of wages and employment in the country as a whole": the wage moderation process under way in the public sector has resulted in recent years in a loss of purchasing power as compared with the private sector (in 1996 the average increase for the private sector was 3.7 per cent (August 1995-August 1996) and only 3.5 per cent in the public sector).
10. 285. The complainants add that the process of blocking and paralyzing negotiations on the part of the Government, which resulted in a serious labour dispute and a one-day general strike in the sector on 11 December 1996, began with an initial statement of intentions which seemed positive and hopeful. Indeed, on 19 July 1996, the General Bargaining Committee held a meeting at which the representatives of the authorities and the trade unions expressed in written form that the Administration-Trade Unions Agreement for the period 1995-97 should continue to provide an adequate framework for dialogue and consensus in the sector. On the basis of this it was agreed: "to negotiate within the General Bargaining Committee in September the increase in remuneration to be included in the draft legislation for the General State Budgets for 1997, and to examine and discuss the content of the texts affecting the civil service and to be included in the respective legislation".
11. 286. After this initial meeting, a second meeting was held on 24 July 1996, followed by work programmes for the proposed bargaining process. However, surprisingly, on the following day - 25 July 1996 - the officials of all the trade unions in the public services were summoned and informed by the Secretariats of State (for Public Administration, Budget and Expenditure) of the decision adopted by the Government not to increase the salaries of public employees for 1997. The communication of what was called "a salary freeze" for public employees in 1997 was in fact a unilateral decision by one of the parties which was not subject to appeal or to any reservation or any other alternative. In such a situation, all the trade unions of the public sector took action which resulted in the general strike in the sector on 11 December 1996 - noted above - calling for a resumption of negotiations and compliance with the pluri-annual Agreement in force. Furthermore, the complainant trade unions initiated legal proceedings in the administrative courts, demanding compliance with the above-mentioned Agreement by the Government.
12. 287. The complainants then go on to describe in detail the criticisms made against the Government's attitude by three parliamentary groups and the call for negotiation by another group.
13. 288. Precisely because it lacks the political will to negotiate, both within and outside Parliament - despite the clear demands of the trade unions and the parliamentary groups - the Government maintained its unchanging position in its draft budget proposals for 1997, which state that: "With effect from 1 January 1997, the full remuneration of staff in the public sector may not undergo any variation with respect to that of 1996, with homogeneity being maintained for the two periods of comparison, both as regards staff numbers and seniority. Agreements, conventions or pacts which result in increases in remuneration should be adapted accordingly, failing which any clauses which are contrary to the present section shall become null and void."
14. 289. In the same way, in support of their complaint, the complainants explain in detail Spanish legislation and case-law as regards collective bargaining.
15. 290. The complainants point out that one of the contradictions of the Government lies in its statement that it recognizes the validity of the pre-existing Agreement and that it is ready to negotiate within the framework of this Agreement, whilst at the same time establishing within its budget proposals a zero increase for the 1997 exercise and declaring the non-applicability of any pact or agreement which is contrary to this decision. Such conduct is contrary to both positive labour law and the standards of administrative and civil law. The Agreement which has not been implemented was not concluded by the present Government but by a previous Government of a different political orientation, although such circumstances in no way diminish its validity or its effects. There seems no doubt that the party with which the trade unions concluded the Agreement is the administration, the State itself, and of which the signatory Government was at the time merely a representative and agent. The respect of collective bargaining agreements - including that of the salary increases of public employees for 1997 - should at least be the same as that applicable to any civil, administrative or labour contract. The complainants believe that the Government has infringed the exercise of the right to collective bargaining for public employees by blocking any negotiation on salary increases for 1997. It has merely informed the political officials of the trade unions that the salary increase for 1997 will be zero and that this decision is not subject to discussion.
16. 291. According to the complainants, the Government has violated the Administration-Trade Unions Agreement for the period 1995-97 which it none the less recognizes as valid and in force, and has thus infringed ILO Conventions Nos. 98, 151 and 154.

B. The Government's reply

1. 292. In its communication of 5 June 1997, the Government states that the complaint indiscriminately refers to the supposed infringements of international commitments entered into by Spain with the signature of ILO Conventions Nos. 98, 151 and 154 - which may be denounced before the Committee on Freedom of Association - and the alleged infringements of the internal standards of Spanish law, established on the basis of these international principles, and which fully apply the above-mentioned Conventions up to the maximum limits allowed by the Constitution and the rational organization of the administrations of the country. In these circumstances, the Government's reply to the complainant will be systematically divided into two parts: first, as regards the non-existence of infringements to the general principles of the International Labour Organization for the determination of the conditions of employment for public employees, which is the only relevant part as regards the analysis of the substance of the complaint in question. Second, the lack of any infringements of the Spanish legal system established in application and development of these principles, an irrelevant aspect as regards the real question at stake which, however, the Government says it will take up in its reply, since the Spanish administration wishes to establish clearly its strict respect of the legislation in force in its own country.
2. 293. The Government adds that in order to examine whether there have been infringements of ILO principles respecting collective bargaining, it is necessary to establish clearly first what these principles are in the light of all the Conventions of the Organization respecting freedom of association which have been ratified by Spain. The Government then lists the basic principles of Conventions Nos. 87, 98, 135, 151 and 154. It indicates that an analysis of these Conventions and, in particular of Convention No. 98, with respect to workers in the service of the administration, and No. 151, as regards public officials, shows that collective bargaining freedom is not an absolute principle and is subject to specific limitations resulting from the public nature of the employer. Thus, Article 7 of Convention No. 151, which is applicable to the General Bargaining Committee, which determines the conditions of employment of public employees, merely establishes the following: "Measures appropriate to national conditions shall be taken, when necessary, to encourage and promote the full development and utilization of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees' organizations, or of such other methods as will allow representatives of public employees to participate in the determination of these matters."
3. 294. In order to clarify the content and scope of this principle, the clear and didactic classification criterion established by the French treaty expert, Saint-Jours, should be used to distinguish between the various degrees of such participation by public employees: a first level would be mere "consultation" or the granting of a hearing of a preceptive but not binding kind. Another higher degree of intervention would be that of "concertation" or agreement between the parties, the content of which would only constitute an obligation or take the form of a gentleman's agreement whereby the Administration undertakes to reflect the content of any such agreement in regulatory standards. The highest degree of participation would consist of "bargaining" proper, in which what has been agreed between the parties acquires a normative value and is applicable directly at the juridical level without the need for any legalization by any formal standard.
4. 295. A careful analysis of the text of the above-mentioned Article 7 of Convention No. 151, in the light of these classification criteria, clearly shows that the international commitments entered into by Spain do not oblige it to engage in any "bargaining", in the strict sense of the term, of the conditions of employment of public employees, since, apart from "bargaining" in the strict sense, "other methods" of participation are allowed, including those which are covered by "consultation" or "concertation" defined above.
5. 296. Following this clarification of the basic principles maintained by the International Labour Organization with respect to the systems for determining the regulation of the conditions of employment of public employees, an analysis should be made of the degree to which the Spanish administration is complying with these principles, including the degree of compliance with such international requirements, both in the general policy adopted by the Government of the nation in its collective relations with its employees and in the specific measures concerning the salary freeze for 1997.
6. 297. As regards the general compliance of Spanish policy regulating collective relations in the public service with ILO principles, it should be noted that although its international commitments require it only to establish a system which provides some degree of participation by public servants in the fixing of their conditions of employment, the Spanish State has developed much more advanced collective relations than the minimum levels required by establishing at both the theoretical and legislative levels, as well as in everyday practice, a system of "social dialogue" which is one of the most progressive in Europe and the world. In this respect, as regards legal regulation, the Spanish Parliament has opted for a more advanced position than that required under its international commitments set forth in the text of Chapter III of Act No. 9 of 12 June 1987 (in particular following its amendment under Act No. 7 of 1990), through a genuine "bargaining" (i.e. with force of law) of practically all the aspects which may affect the conditions of employment of its employees. Thus, the new wording of section 32 of the above-mentioned legal text established a genuine "universalization of negotiable subjects", in which matters concerning collective relations which are not subject to legal reserve shall be subject to a genuine "bargaining reservation", except for a minimum number of specific exceptions to the obligation to bargain, which are contained in section 34(1) of the above-mentioned Act. The Spanish standards on the subject can be summarized as follows: the current regulations contained in Chapter III of Act No. 9 of 12 June 1987 not only comply with the minimum requirements concerning the autonomy of bargaining required by articles 7 and 28 of the Spanish Constitution and by ILO Conventions Nos. 151 and 154, but in fact exceed these minimum standards and establish an absolute freedom of collective bargaining (practically equivalent to that existing at the labour level), as a result of both the above-mentioned almost universal nature of the matters which may be negotiated (section 32 of this chapter, in listing these matters, establishes in paragraph K an open-ended and fully comprehensive generic supposition) and the binding force of what is agreed as established in section 35 of the above-mentioned Act No. 9 of 1987, provided that in the agreements - in which the bargaining is not with the titular authority holding such power but with a representative of the same with decision-making powers - there exists an express and formal ratification by such titular authority.
7. 298. Furthermore, the standards in force on this subject establish the maximum limit which can be granted by the government body within its powers, namely the negotiation of the content of draft legislation. Indeed, in matters subject to "legal reserve", the present wording of Act No. 9 of 1987 establishes - without extra limitations - the maximum degree to which the social partners in the bargaining committees can participate in negotiations with the Administration, namely the content of draft legislation on such matters, which the latter - through the Executive - is authorized to place before Parliament (Cortes generales) under section 10(2) of the Act respecting the juridical regime of the state administration. In this respect, the role of the social partners may not exceed this limit and they may not negotiate with the Administration on a matter which is not within the power of the latter, in accordance with the obvious and traditional principle of "nemo dat quod no habet" (one cannot give what one does not have) - such as the final content of an Act, since this remains within the sovereign competence of Parliament.
8. 299. As regards the practice of bargaining in the public service, there has over the last ten years - that is since the publication of the above-mentioned Act No. 9 of 1987 - been a veritable "Copernican revolution" in staff policy. Before the promulgation of this Act, a strictly statutory regime was in place in which the Administration unilaterally determined the conditions of employment of its employees, without there being even any kind of non-binding consultation with the representatives of the latter, whereas with the introduction of this legal reform, a genuine "social dialogue" has been established with its staff.
9. 300. Thus in the last decade, negotiations have been held on not only almost all the possible aspects directly concerning the conditions of employment of public employees (salary increases, administrative careers, continuous training, hours of work and work schedules, occupational safety, etc.), but on those organizational matters which indirectly affect such conditions of employment (public employment vacancies, workplace relations, administrative situations, provision of workplaces, employment plans, etc.). This has resulted in the establishment of a progressive system of labour relations which in some cases has led to a "participatory democracy" in the management of public services, tantamount to a veritable "co-management" with the Administration.
10. 301. As proof of this intense and profound negotiation activity, mention may be made of the fact that in the central services of the State Administration alone, following the signature of the Agreement of 16 November 1991 - which contained standards for the organization and promotion of collective bargaining - a total of 331 meetings have been held by the (general and sectoral) bargaining committees, or the various commissions and work groups set up. As a result of this bargaining activity, since that time - i.e. over a period of five and a half years - 20 major standard-setting agreements at the state level have been signed, 38 meetings have been held providing information on proposed administrative provisions (Royal Decrees, ministerial orders, instructions, etc.) and 16 other meetings have dealt specifically with employment plans in public bodies, etc.
11. 302. This bargaining activity continues today and within the sphere of competence of the Directorate General of the Civil Service (i.e. excluding the sectoral committees), 16 bargaining forums have been established and are fully operational, as follows: General Negotiation Committee; Central Administration Committee; General Committee on Continuous Training; Committee on Remuneration and Employment Committee; Joint Committee on the Framework Agreement for External Staff; Joint Committee on Occupational Health and Social Action; Working Group on Competitions; Working Group on Consolidation; Working Group on the Public Service Statute; Working Group on Remuneration and Employment; Working Group on Titularization; Working Group on Working Time and Schedules; Working Group on External Staff; Working Group on Promotion; Working Group on the Extra-judicial Settlement of Disputes; and the Working Group on Transfers.
12. 303. In conclusion, the general policy of the Spanish Administration not only respects the principles of the ILO concerning freedom of association and collective bargaining, but has established a genuine "social dialogue" which has radically changed the system of labour relations with its employees, as can be seen clearly in the ruling of the National High Court (Audiencia Nacional) of 11 December 1990.
    • The above-mentioned Act No. 9 of 1987, which introduces general and sectoral bargaining committees and determines the scope of matters which may be placed before them, has resulted in a "labourization" of the statutory relationship; this produces a series of important effects, with pacts or agreements now forming part of the framework of sources of civil service law. The relationship is therefore no longer based only on statute but on bargaining; without doubt the history of the public service has been and continues to be one of negotiation between the Administration and its officials, although this relationship is now different; previously agreements could be incorporated into a standard; now these agreements are part of the sources and have a binding force in themselves; previously bargaining was carried out with separate bodies, whereas now it is with representatives of all the democratically elected officials.
13. 304. As regards the compliance of the decisions respecting the "salary freeze" for 1997 with the principles of the ILO in this specific case, the Spanish Administration did not limit itself to mere consultation or concertation - which would be the minimum common denominators required by the ILO - but undertook a genuine process of negotiation in two phases:
    • - the establishment of guidelines for salary increases by means of a pluri-annual agreement for 1995, 1996 and 1997, contained in Chapter 6 of the text adopted on 15 September 1994, which stipulated that such increases would be based on the anticipated consumer price index, corrected upwards or downwards in the light of the situation of certain economic indicators; and
    • - the annual fixing through negotiation of the specific increases in each of the said exercises, in application of the said criteria, which was done for 1995 and 1996 but which proved impossible with regard to the present 1997 exercise, even though the respective negotiations had been held for this purpose.
14. 305. In this sense, there was a genuine process of bargaining for the fixing of the above-mentioned increase in remuneration for 1997 in which, however, the Administration was obliged to maintain a strictly restrictive interpretation of the guidelines previously agreed in 1994. Thus it was understood that the situation regarding the economic indicators on which the final fixing of the annual increase depended required sacrifice - painful but necessary - from its public employees, in order to meet the minimum criteria of economic convergence with the European Union. In this way, this decision was not a caprice by the Administration but was part of the public deficit adjustment policy which must be observed and which other members of the Union have had to adopt for the same reasons.
15. 306. This process of determining by consensus the conditions of employment of public employees began with the meeting of the General Bargaining Committee on 19 June 1996, which established a timetable for negotiations and comprised an initial exchange of views on the subject, which was continued by the meeting of the Committee on 19 September 1996, which examined the matter in greater detail, with the Secretaries of State responsible for the budgets and expenditure of the public administration setting forth the reasoned arguments of the Administration on the matter in a debate in which all the representative trade unions took part. This negotiation process concluded with a meeting of the Committee on 3 December 1996, in which the Administration made an alternative proposal concerning remuneration to break the deadlock in the negotiations, but which was not accepted by the trade unions.
16. 307. The above-mentioned description of events shows that in this specific case the Spanish Administration not only complied with the provisions of the above-mentioned Article 7 of ILO Convention No. 151, which merely prescribes, as a minimum, "methods as will allow representatives of public employees to participate in the determination of these matters", but engaged in genuine negotiation based on its conviction of the need for a genuine "social dialogue", but necessarily limited by its obligation to protect the predominant general interests which required moderation of the public deficit.
17. 308. In this respect, the conduct of the Spanish Administration with regard to this matter did not infringe the principles of freedom of association defended by the ILO and endorsed by Spain. Indeed, the Government has not infringed any final agreement with the representatives of its staff, since what was agreed on a pluri-annual basis in Chapter VI of the text of 15 September 1994 did not specify the actual amount of the increases in remuneration for the various years - including 1997 - but established only guidelines for determining such annual increases. Such criteria, which were based on a reference parameter (the consumer price index forecast for the exercise) and which were subject, in their turn, to correcting indicators either upwards or downwards, depending on the evolution of certain prescribed economic factors, were interpreted by the Administration in a restrictive manner which was not accepted by the trade unions in the negotiations held to reach an agreement on the subject. In the same way, even if, for the purposes of the argument, the hypothesis was adopted that the agreement of Chapter VI of the text concluded on 15 September 1994 was of a final and firm nature, what was agreed was subject to modification in the light of priority factors of general interest which have arisen in the meantime, such as those concerning the need to meet the requirements of European convergence, as interpreted by the Government.
18. 309. Although the public administrations are "employers" with respect to the legal and statutory relationship with its public officials or as regards the labour and contractual link with its dependent workers, they are employers of a sui generis kind which do not have the same bargaining freedom as that of private employers who manage their own funds, because in addition to being employers they are also the legitimate representatives of broader interests which take precedence over those of their own employees, such as the general interests of all citizens.
19. 310. This means that an agreement which has been concluded, perfected and endowed with all the requirements for its application - which is not the case here - may legitimately prove to be inapplicable in a given economic context because its application would be contrary to the above-mentioned general interests. In this respect it can be stated as an undeniable - and even evident - prior theoretical principle that the commitments entered into by the Administration with its public employees (which reflect the legitimate but limited and corporative interests of the latter) must be subject to the higher interests of the State (such as the general interests of all citizens, which did not exist at the time of the negotiations but which emerged subsequently).
20. 311. Another different matter which could hypothetically be raised - although it does not affect the case in question - concerns whether a decision by the Executive not to apply what had been previously agreed with its staff - by being a discretional but not arbitrary act - should take the form of an administrative act with reasons adduced, pursuant to the provisions of section 89(3) in conjunction with section 54(1)(f) of Act No. 30 of 26 November 1992, respecting the juridical regime of the public administrations and the common administrative procedure, and thus subject to appeal before the courts, if the latter declared themselves competent to examine a "political act".
21. 312. Furthermore, it must be clearly established that the Government may not - as a result of the existence of prior commitments - sidestep its non-renounceable right to exercise the powers of the State in determining "the general planning of economic activity", which are assigned to it under article 149.1.13 of the Spanish Constitution.
22. 313. The principles set forth in this paragraph have been clearly and expressly recognized by the jurisprudence of the Constitutional Court, which in the third legal grounds of its ruling No. 96/1990 indicated limitations to the principles of collective bargaining affecting public employees, which do not constitute - as compared with private workers - an infringement to the principle of equality, by stating literally that:
    • ... the justification of a different wage and bargaining regime between different workers lies in the evident distinguishing features which exist between the Administration or a public enterprise as compared with private enterprises, a situation which in this case makes it possible to modify the right to collective bargaining typical of private enterprise and make it subject to the superior pressure of public interests and general services to which economic policy is directed, so that the actual existence of any such different regime, as a consequence of the Act respecting budgets, does not constitute an infringement of the principle of equality, since the situations in themselves are not identical.
23. 314. This position is also confirmed by the ruling of the Constitutional Court of 8 April 1981, which establishes with respect to collective agreements - a doctrine which may also be applied by analogy to agreements with public employees - that the non-application of the contents of such agreements does not constitute an infringement of the constitutional rights to freedom of collective bargaining and the respect of the binding force of the agreements, established in article 37 of the Constitution, if reasons arise resulting from the priority which must be accorded to the highest interests of the State. The ruling states:
    • The idea that this article (37 of the Constitution) enshrines the right to collective bargaining in such terms that no other instrument may replace it as regards the establishment of labour standards is a thesis which cannot be accepted, since it would be paradoxical for there to be a pocket of absolute and total autonomy within an organization, such as the State, which, by definition, rules on subjection to an external law for its subjects. What in fact seems to occur is somewhat similar to what happens with the so-called principle of autonomy in the field of private law. It is a principle of the law which governs juridical activity, but there is no reason why there should not occasionally be exceptions, provided that the restriction on individual freedom which they entail is justified. The justification may lie in the prejudice which the free interplay of particular interests and the situations resulting from such interplay may have on general interests.
    • Furthermore, several rulings of the ordinary courts establish that what is agreed and perfected at the labour level - and by extension as regards public employees - may be derogated by the standards of necessary law, issued in the general interest, such as the ruling of the Supreme Court of 9 June 1991, as well as numerous rulings by the higher courts of justice.
24. 315. Finally, and for the purpose of the argument, even if it were assumed that the principles of the ILO required genuine collective bargaining (an interpretation which does not match reality, in the light of Article 7 of the above-mentioned Convention No. 151), the Spanish Administration would appear to have met this requirement, since it engaged in a genuine bargaining process, although it was not possible to reach an agreement during this process.
25. 316. Indeed, in the light of the events described, the Administration made an effort to reach an agreement - including through the proposal of alternative solutions - by adopting an attitude which in Anglo-Saxon law is called the "duty to bargain", i.e. an active approach encouraging bargaining, although no final agreement may be reached. In this respect, it should be noted that the duty to bargain - which does not exist in the principles of the ILO, although it does exist in the Spanish legal system - does not necessarily imply the duty to reach an agreement, since this would invalidate the freedom of the parties to engage in collective bargaining.
26. 317. The matter must be examined on the basis of the fact that the ILO Committee on Freedom of Association may and must examine alleged infringements of the general principles respecting freedom of association established at the international level, but logically it does not have the power to rule on possible specific infringements of positive law resulting from the development of such principles by countries which have signed the respective international agreements, especially when, as in the case of Spain, such principles have been developed in such a way that conditions are granted which are more favourable than the minimum conditions required by the ILO in this respect. Thus, it can be considered that the complaints presented by the complainant trade unions have been sufficiently addressed with the remarks set forth in the previous paragraph. However, the Spanish Administration would also like to establish clearly (although it is not essential to the substance of the complaint presented) that neither has there been any infringement of the Spanish legal system established in application and development of the international Conventions which regulate the subject. In this respect, recapitulating some of the arguments and allegations expressed above, the matter can be summarized in the following manner:
    • - There has been no infringement of the provisions of the third paragraph of section 35 of Act No. 9 of 12 June 1987 as regards the normative value of the agreements, resulting from the alleged non-compliance with the agreement contained in Chapter VI of the "Administration-Trade Unions Agreement for the period 1995-97, respecting conditions of employment in the public service", dated 15 September 1994, expressly and formally approved by the Council of Ministers of 16 September 1994 and published in the Official Gazette (Boletín Oficial Del Estado) on 20 September 1994, for the following reasons: (a) because there was no such non-compliance, either as regards paragraph 1 of the said chapter - which did not consist of a specific and firm commitment, since it did not specify any specific and final amount for the increase in remuneration for 1997, as the complainants themselves recognize in their complaint - or as regards paragraph 2 of the said chapter, which established that the annual determination of the increases in salaries would be the subject of negotiation between the Administration and the trade unions - since a bargaining process existed, although it did not result in an agreement, since the "duty to bargain" should not be confused with the "duty to reach an agreement", especially when the Administration maintains a firm position required by the protection of the general interests of the State, which take precedence over the individual interests of its employees; (b) because, in any event, such an agreement - to use the terms of labour law - was not endowed with "normative value" but had an "obligational value", since it concerned a matter subject to legal reserve, which means that in the event of a supposed infringement of the agreement, the direct implementation of the commitment could not be enforced at the legal level - as has been the case with other claims - but only compensation could be claimed for the resulting moral prejudice. Indeed, the agreed text - even assuming that there existed a specific negotiated quantification of the increases - at all events could only have the character of an obligational commitment by the Administration to incorporate what was agreed into the preliminary draft legislation respecting the General State Budgets. But it could not at any time acquire the normative effect of being directly applicable at the legal level, since the final fixing of the salary increases in the public service is a matter subject to legal reserve and therefore, in the final analysis, a matter which falls within the competence of Parliament (Cortes generales) and not that of the Council of Ministers.
    • - There has been no infringement of the provisions of section 32(a) of Act No. 9 of 12 June 1987, which stipulates the following: "the following matters shall be subject to bargaining at the respective level and in the light of the functions of each public administration: increases in the remuneration of officials and statutory staff of the public administrations which should be included in the draft General State Budgets each year, as well as increases in the other remunerations to be established, for their respective staffs, in the respective draft budgets at the autonomous and local levels". Indeed, there was no legal violation since, contrary to the allegations which the complainants present as facts, there was a genuine bargaining process, although during that process the Government was obliged to adopt a position of firmness in order to comply with its duty to protect the general interests, in the exercise of the functions of the State in determining "the general planning of economic activity", conferred on it by article 149.1.13 of the Spanish Constitution.
27. 318. Thus the Spanish Administration was obliged as a result of its political responsibilities to apply, as regards the salary increases for 1997 - in the corresponding negotiations - a salary freeze in the light of the economic indicators affecting the convergence criteria of the Maastricht Treaty, a position which does not appear to have been unjustified in terms of political timeliness, in the light of various subsequent events, including: the most recent statements by the political officials of the European Union on the improvement and practical application by Spain of the conditions for convergence, a situation which has undeniably been affected by this measure, especially as regards the "public deficit"; and the endorsement of such measures by the Spanish Parliament, which represents the legislative power, and is an expression of the general will and the only body which has final decision-making powers on this matter.
28. 319. The Government concludes by pointing out that the Spanish Administration has not infringed any salary agreement respecting a specific increase in remuneration for 1997 - for the simple reason that there was no such agreement - but that during the negotiations to determine the increase in salaries for the said exercise, it was obliged to maintain a restrictive interpretation of the guidelines adopted on a pluri-annual basis in the agreement of 15 September 1994 respecting the remuneration of public employees and that it was required to do so in a firm and resolute manner since the general interests (of which the Government is the legitimate representative and agent in the application of the basic principles of democracy) must take precedence over the individual interests (which are legitimate, but of a more restricted and corporative nature) of its own employees. For all these reasons, the Spanish Administration believes that it has fully complied with its international commitments entered into with the signature of ILO Conventions Nos. 98, 151, 154 and that it has not infringed in this case or in any other the rights to freedom of association or collective bargaining which it has freely undertaken to respect, and that the complaint presented by the complainants should be declared unreceivable.

C. The Committee's conclusions

1. 320. The Committee observes that in this case the complainants allege that the Government has not complied with the clause concerning the increase in remuneration for 1997 under the "Administration-Trade Unions Agreement for 1995-97, respecting conditions of employment in the public service", concluded on 15 September 1994. The complainants emphasize that this Agreement obliges the Administration to negotiate with the trade unions the salary increase for 1997, the amount of which would be fixed within the framework of bilateral negotiations and subject to specific economic parameters. However, the complainants add, the Government prevented any kind of bargaining in this respect and merely informed the trade unions that the wage increase was zero and that this decision was not subject to any discussion.
2. 321. The Committee observes that the Government states on the other hand that there was negotiation with the trade unions and refers in this respect to a bargaining process with a timetable of discussions, various meetings, the opening of a debate in which it explained its position and an alternative proposal on the matter of remuneration made on 3 December 1996. The Government denies that it has not complied with the Administration-Trade Unions Agreement (which made bargaining obligatory but did not specify the precise and negotiated amount of the increase in remuneration) but points out that it maintained a strictly restrictive interpretation of the guidelines contained in the Agreement for determining the annual increases, and that it maintained the salary freeze for 1997 in the negotiations and that its interpretation of these criteria was not accepted by the other party. The Government denies that it has infringed the principles of collective bargaining, national legislation and ratified ILO Conventions, makes a distinction between the duty to bargain (i.e. an active approach which encourages bargaining) and the duty to reach an agreement, and justifies its position as regards the salary freeze on the basis of: (1) the requirements of the Maastricht Treaty (in particular the necessary adjustment of the public "deficit"); (2) the precedence which must be given to the general interests of all citizens (such interests did not exist when the Administration-Trade Unions Agreement was negotiated but arose subsequently) over the interests of public employees; and (3) the powers of the State in the general planning of economic activity established by the Constitution. Finally, the Government recalls that the Labour Relations (Public Service) Convention, 1978 (No. 151), apart from negotiation, permits other methods for determining the conditions of employment of public employees, and states that Spanish legislation has opted for negotiation, has considerably extended the matters covered by collective bargaining and has given binding force to such agreements, placing the country in an advanced position with respect to the provisions of the above-mentioned Convention, making it one of the most progressive systems in the world.
3. 322. Before examining the specific questions raised by the complainants, the Committee would like to point out that Article 7 of Convention No. 151 does indeed enable States to choose between "machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees' organizations" and "other methods as will allow representatives of public employees to participate in the determination of these matters". However, the Committee emphasizes that when national legislation opts for the negotiation machinery, as in the case of Spain, the State must ensure that such machinery is applied properly and that it is for the ILO supervisory bodies to monitor this application.
4. 323. More specifically, as regards the allegations concerning the non-compliance by the Government of the clauses of the Administration-Trade Unions Agreement on the increase in remuneration for 1997, the text of the relevant parts of the agreement is as follows:
   • Introduction (...)
   • Remuneration shall be linked to the evolution of economic indicators and the achievement of targets which, set forth in the Convergence Programme, shall be included in the General State Budgets. This will ensure the establishment of a framework of stability in which remuneration is linked to the real capacities of our economy, while the improvement of the situation in the public sector, the achievement of better results in the different programmes and a general increase in productivity should pre-suppose the existence of incentives and additional salary growth.
   • CHAPTER VI
   • Increase of remuneration for 1996 and 1997
5. 1. The remuneration of public employees for 1996 and 1997 shall be increased in accordance with the budgetary forecast of the increase in the consumer price index for the respective periods.
   • Furthermore, account shall be taken of the following: the accuracy of the forecasts of the previous exercise and achievement of the objectives on which the previous increase in remuneration was based. The forecast of economic growth and the financing capacity of the General State Budgets as determined in the light of the forecast of the budgetary deficit of the public administrations as a whole. The assessment of the increase in productivity in public employment resulting from the development of specific actions or programmes. The evolution of wages and employment in the country as a whole.
6. 2. The application of increases in remuneration shall be the subject of negotiation between the Administration and the Trade Unions.
7. 3. For each exercise a fund shall be set up for ensuring the maintenance of purchasing power in line with the characteristics described in Chapter III of this Agreement and subject to the evolution of the GDP and the budgetary deficit of each year.
8. 324. In this respect, the Committee has noted earlier that the Government pointed out that it adopted a strictly restrictive interpretation of the guidelines contained in the Administration-Trade Union Agreement and that during the respective negotiations it maintained the salary freeze (a position which furthermore was finally incorporated into the draft legislation for the General State Budgets of 1997 and subsequently adopted into law). The Committee cannot but note however that the agreement concluded between the Administration and the unions expressly mentions salary increases for 1995, 1996 and 1997 without nevertheless indicating a strict quantification or definitive obligation for 1997 salaries. This is indicative of why the unions considered that the pluri-annual agreement concluded for the period 1995-97 had not been respected for 1997. In these circumstances, the Committee regrets that no increase whatsoever in the remuneration of public servants for 1997 was conceded, not even for those who have the lowest salaries.
9. 325. In this context, the Committee recalls that the right to bargain collectively is one of the procedures mentioned in Convention No. 151, ratified by Spain, and that this procedure has been retained in Spanish legislation for determining the labour relations in the public service. The Committee therefore expresses the firm hope that the Government, in accordance with its own national legislation, will have recourse to collective bargaining in order to determine the conditions of employment of public servants. Furthermore, the Committee must emphasize that mutual respect for the commitment undertaken in the collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground.

The Committee's recommendations

1. 326. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee regrets that no increase whatsoever in the remuneration of public servants for 1997 was conceded, not even for those who have the lowest salaries.
   • (b) The Committee expresses the firm hope that the Government, in accordance with Spanish legislation, will have recourse to collective bargaining in order to determine the conditions of employment of public servants. Furthermore, the Committee must emphasize that mutual respect for the commitment undertaken in the collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground.