Definitive Report - Report No 405, March 2024

Case No 3447 (Spain) - Complaint date: 26-MAY-23 - Closed

Allegations: The complainant organization alleges violations of the right to collective bargaining and the right to strike of registrars in the administration of justice

1. 328. The complaint is contained in communications dated 29 May and 4 July 2023 submitted by the Association for the Defence of the Professional Rights of Registrars in the Administration of Justice (RECLAMALAJ).
2. 329. The Government sent its observations in a communication dated 10 October 2023.
3. 330. 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 Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

The complainant’s allegations

1. 331. In its communications of 29 May and 4 July 2023, the complainant organization alleges violations of ILO Conventions Nos 87, 98, 151 and 154 with regard to the collective bargaining, right to strike and wage adjustment of registrars in the administration of justice. To provide some context for its allegations, the organization indicates that the Spanish administration of justice consists of various bodies of officials: judges and magistrates, prosecutors, state lawyers and registrars in the administration of justice (all of whom have legal training), as well as other general bodies, which include administrators, case managers and assistants (staff with training that is not necessarily legal). The organization reports that, historically, the role of a registrar in the administration of justice (“Letrado de la Administración de Justicia”, formerly known as “secretario judicial”) was not clearly distinguishable from that of general staff; it was that of an official in the judicial office who, under the authority of the judge, was responsible for the authenticity of public acts, statistics and the control of the public accounts and registers, which could be delegated to the administrators of the office. Registrars in the administration of justice were thus included with general staff for collective bargaining purposes. The organization then states that, as a result of various reforms to Spanish legislation, registrars in the administration of justice have been given specific, non-delegable and exclusive duties, as well as their own system of access, superior bodies and disciplinary system. It points out that these reforms have led to a distinction within the judicial office between registrars in the administration of justice and general staff (administrators, case managers and judicial assistants), making registrars in the administration of justice responsible for the supervision and technical and procedural management of this staff.
2. 332. The complainant organization begins by alleging a violation of the right to collective bargaining of registrars in the administration of justice. It states, in this regard, that the organizations for this group do not have their own trade union representation, as few officials fall into this category and, therefore, cannot engage in collective bargaining on matters that are specific and exclusive to them.
3. 333. The organization explains that, according to sections 31 to 36 of the Basic Statutes for Public Employees (EBEP),  the representative bodies of the officials are the staff representatives (in electoral units with less than 50 officials) and staff boards (in units with at least 50 officials). Referring to the various legal provisions governing collective bargaining in the administration of justice, the complainant organization points out that, under section 444.1 of Organic Act No. 6/1985 on the judiciary,  registrars in the administration of justice “shall have the same individual and collective rights and duties as those established in Book VI [of the Act], supplementing the provisions of the Basic Statutes for Public Employees and the other state regulations on the public service” and that section 496(e) of the Act adds that “the appropriate frameworks shall be established to allow broader and increased participation by the representatives of officials in the administration of justice, through working groups, roundtables or any other forum for dialogue and negotiation”. In this regard, the complainant organization refers to the requirements of representativeness for collective bargaining provided for in sections 30 and 31 of Act No. 7/1990 on collective bargaining and participation in the determination of working conditions of public employees,  section 36.1 of EBEP and sections 6 and 7 of Organic Act No. 11/1985 on freedom of association.  In particular, it points out that, under these provisions, the most representative trade union organizations at the state and autonomous community level have the right to take part in bargaining tables, as well as any trade unions that have obtained at least 10 per cent of the representatives in the elections for staff representatives and staff boards in the electoral units included in the specific scope of each bargaining table.
4. 334. The complainant organization alleges that the current interpretation of the criteria of representativeness effectively deprives registrars in the administration of justice of the right to collective bargaining.
5. 335. The complainant organization explains that, currently, collective bargaining in the sector occurs at the sectoral bargaining table for staff in the administration of justice, which includes both registrars in the administration of justice (of whom there are few) and other staff in the judicial office (who are their subordinates and of whom there are many). In this regard, it specifies that registrars in the administration of justice account for only 7.08 per cent of all officials in the administration of justice. According to the complainant organization, it is therefore the general unions, whose members are primarily administrators, case managers and judicial assistants, who are tasked with engaging in collective bargaining and safeguarding the professional interests of registrars in the administration of justice.
6. 336. The organization alleges that this clearly renders registrars in the administration of justice defenceless: since they cannot have their own union representation because there are so few of them, they cannot engage in collective bargaining on matters that are specific and exclusive to them. It also alleges that there is a conflict of interest insofar as, on the one hand, registrars in the administration of justice are the directors of the judicial office and give instructions to the officials who report to them and, on the other hand, it is these officials, who are their subordinates, who represent registrars in the administration of justice and negotiate, for their hierarchical superiors, improvements to work that they are unfamiliar with, do not control or in which they have conflicting interests. The complainant organization adds that “the general unions have negotiated nothing at all in relation to the working conditions and development of duties of registrars in the administration of justice and have even contested the few wage increases obtained by the registrars, on the official pretext that they were not involved the so-called sectoral table”. The organization also states that “the current situation, whereby the staff managed by [registrars in the administration of justice], namely the administrators, case managers and assistants in the general unions, are responsible [for negotiating working conditions] cannot continue. These unions have zero interest in the fate of judicial registrars, quite the contrary. They contest and sabotage any improvement in working conditions, no matter how small, that has been secured by registrars in the past 30 years”.
7. 337. The complainant organization also refers to the right to take part in “general bargaining tables” (to negotiate all matters and working conditions that apply to all officials, statutory and ordinary staff of each public administration). It indicates that, under section 36.3 of EBEP, one must obtain 10 per cent in the elections for the representatives of officials and ordinary staff. The organization alleges that the interpretation of this section under case law, which requires that the quota of 10 per cent be reached separately for officials and for ordinary staff, instead of 10 per cent for all staff, undermines the right to collective bargaining and that officials are under-represented.
8. 338. The organization also indicates that there is a difference in organizational dependence between registrars in the administration of justice and general staff. While registrars in the administration of justice belong to the State Administration (Ministry of Justice), administrators, case managers and judicial assistants depend on the various autonomous administrations in the autonomous communities where the management of the competencies in the administration of justice has been transferred in terms of staff and material resources. The complainant organization refers, in this regard, to certain court decisions and arbitration proceedings that have considered excluding registrars in the administration of justice from the electoral list for the union elections in several autonomous communities, on grounds that they could not be properly represented because they do not depend on that administration, but on the Ministry of Justice.
9. 339. In view of the foregoing, the complainant organization alleges the violation of Conventions Nos 98, 151, and 154. In this regard, it requests the recognition of a collective bargaining framework that is specifically and exclusively for registrars in the administration of justice.
10. 340. The complainant organization also reports that on 24 January 2023, the registrars in the administration of justice began an indefinite strike with a view to securing their own collective bargaining agreement.
11. 341. The complainant organization then provides a summary of events related to the organization of strikes by the registrars in the administration of justice. According to this information, they began a strike in early 2022, after which the Ministry of Justice published, in April 2022, a communique in which it undertook to link, proportionally, the remuneration of registrars in the administration of justice to that of judicial professions (judges and magistrates). The complainant organization states that on 24 January 2023, the registrars began an indefinite strike due to the failure of the Ministry of Justice to honour the commitments that it had made to them in April 2022 and with a view to securing their own collective bargaining agreement.
12. 342. The complainant organization indicates that, in response to this strike, the Secretary-General of the Administration of Justice established, by Instruction No. 1/2023, that: (1) as of the entry into force of the strike, all pending leave and holidays for 2023 for registrars in the administration of justice can only be enjoyed on days when there are no reports (that is, acts that must be authenticated by a registrar, such as assistance with entries and registration or the removal of corpses), thus preventing officials from having full weeks of rest; and (2) a colleague from the judicial district who is not on strike must be designated to cover the holidays, which the complainant organization alleges is a direct attack on the free exercise of the right to strike, given that employees have no individual obligation to give prior notice of the days on which they are going to exercise their right to strike, once the strike committee has legally called the strike and given prior notice. The organization reports that an administrative appeal was filed against this Instruction on the grounds that it violated the fundamental right to strike.
13. 343. The complainant organization requests that the indefinite strike of registrars in the administration of justice be authorized, and that leave, substitutions and holidays be guaranteed in accordance with the exercise of the right to strike, and without any cover, as this would entail a violation of the right to strike.
14. 344. The organization points out in its additional information that on 28 March 2023, the strike committee and the State Administration signed an agreement to put an end to the strike of the registrars in the administration of justice. In this regard, the complainant organization attaches a note dated 20 June 2023, in which it states that the Government has failed to comply with the content of the agreement by paralysing, for no objective reason, the formalities for the reform of the system of remuneration for registrars in the administration of justice.
15. 345. The complainant organization alleges that, although registrars in the administration of justice have taken on many procedural duties as a result of various legislative reforms, these have not been remunerated. The organization refers to several legislative provisions adopted to modify the systems of remuneration for registrars in the administration of justice and to bring them into line with those of judicial professions. It also provides a breakdown of remuneration levels according to the category of officials, indicating that, at present, the wages of judges exceed those of registrars in the administration of justice by more than 30 per cent (with registrars in the administration of justice and judges in category “A1”), while the wages of administrators, who are managed by registrars in the administration of justice and belong to group “A2”, and the wages of registrars in the administration of justice differ by less than 5 per cent, at most.
16. 346. The complainant organization requests recognition of a legitimate salary adjustment for registrars in the administration of justice, and fulfilment of the commitments made in April 2022, linking the remuneration of registrars in the administration of justice to the remuneration of judicial and prosecutorial professions.

B. The Government’s reply

1. 347. In its communication of 10 October 2023, the Government submitted its observations. The Government begins by emphasizing that the problems put forward by the complainant association correspond to the arguments put forward by the main associations of registrars in the administration of justice in the early stages of the indefinite strike called by them on 24 January 2023, and that the complaint was based on incorrect analyses and conclusions.
2. 348. The Government also draws attention to the signing of the agreement of 28 March 2023 between the State Administration and the strike committee of the registrars in the administration of justice. The Government states, in this respect, that the complaint presented should be considered resolved by the events that led the registrars to call off their strike following the agreement of 28 March 2023.
3. 349. The Government states that, under sections 444.1 and 496(e), Organic Act No. 6/1985 on the judiciary, far from infringing registrars’ right to collective bargaining, simply recognizes this right in a generic manner for all officials in the administration of justice.
4. 350. The Government indicates that, in the absence of specific regulations, the right to collective bargaining is exercised through the bodies and systems regulated in EBEP and Organic Act No. 11/1985 on freedom of association. In this regard, the Government refers to section 33.1 of EBEP, according to which collective bargaining for public servants “shall be undertaken through the exercise of representative capacity”, and specifies that this capacity is attributed, under the same provision, to “the most representative trade union organizations at state level, the most representative trade union organizations of the autonomous communities, as well as the trade unions that have obtained ten per cent or more of the representatives in the elections for staff representatives and staff boards, in the electoral units included in the specific scope of their constitution”. In the light of these texts, the Government points out that the composition of the negotiating tables is based on the outcome of the elections for staff representatives and staff boards.
5. 351. The Government therefore stresses that the trade union representation of registrars in the administration of justice for collective bargaining purposes is ensured by their participation as voters (and candidates) in trade union elections, the outcome of which determines the composition of the various bargaining tables and the representation of trade union organizations at such tables.
6. 352. In this regard, the Government specifies that the fact that the number of officials in the body of registrars in the administration of justice is lower than that of other bodies does not prevent registrars from being duly represented by the trade unions present at the bargaining tables.
7. 353. Moreover, the Government states that it does not see the conflict of interest alleged by the complainant organization, as the technical and procedural management of the judicial office should not prevent the most representative trade union organizations from defending the interests of registrars and negotiating their working conditions as it does for general staff. The Government also indicates that the situation described is common to any other group of public employees where there is no separate bargaining for staff with management duties.
8. 354. The Government recalls that, as a result of the strike of the registrars in the administration of justice, an agreement was reached with the strike committee on 28 March 2023, which demonstrates that the registrars in the administration of justice can effectively exercise the right to strike. The Government points out that, in this agreement, the signatory associations withdrew their appeal before the administrative dispute court against Instruction No. 1/2023 of the Secretary-General of the Administration of Justice, which established the circumstances in which holidays and leave should be granted during the strike. The Government also points out that this Instruction lost its purpose when the strike was called off.
9. 355. With regard to the commitments made in April 2022 mentioned by the complainant organization, the Government specifies that the Ministry of Justice undertook only to promote regulatory changes in the area of remuneration, which it did within the scope of its powers, which do not extend to the adoption of laws.
10. 356. The Government stresses that the agreement of 28 March 2023 contains a commitment to increasing the remuneration of registrars in the administration of justice, and thus the substantive demands have been met.
11. 357. In this regard, the Government refers to the publication of Royal Decree No. 774/2023 of 3 October, which amends Royal Decree No. 1130/2003 of 5 September, regulating the system of remuneration for registrars, and Royal Decree No. 2033/2009 of 30 December,  determining the standard posts assigned to registrars for the purposes of the general post allowance, the initial allocation of the specific allowance and the remuneration for substitutions involving the joint performance of another duty, with a view to compliance with the agreement between the State Administration and the strike committee of the registrars in the administration of justice. This text establishes increases in the specific allowance in the remuneration of registrars in the administration of justice.

C. The Committee’s conclusions

1. 358. The Committee notes that in the present case the complainant organization alleges a violation of the right to collective bargaining and the right to strike of registrars in the administration of justice. The Committee notes that the Government provides a response to these issues and claims that the present complaint, based on the arguments put forward by the associations in the early stages of the indefinite strike that began on 24 January 2023, should be considered resolved by the events that led the registrars to call off their strike following the agreement of 28 March 2023.
2. 359. With regard to the right to collective bargaining, the Committee takes note of the complainant organization’s allegations that there is a violation of the right to collective bargaining of registrars in the administration of justice, as there are too few of them to be represented by their own organizations in the negotiating bodies. The organization alleges that, as a result, they are represented by general unions which, when negotiating working conditions or work-related improvements, find themselves in a conflict of interest, as the unions primarily consist of administrators, case managers and judicial assistants, who are subordinate to registrars in the administration of justice. It also alleges that, in practice, these unions have acted against the interests of registrars in the administration of justice by contesting any improvements that they have secured to their wages and working conditions. In this respect, the Committee notes that the Government states that: (i) the trade union representation of registrars in the administration of justice for collective bargaining purposes is guaranteed by their participation in trade union elections, the outcome of which determines the composition of the various bargaining tables; (ii) the fact that the number of officials in the body of registrars in the administration of justice is lower than that of other bodies does not prevent registrars from being duly represented by the trade unions present at the bargaining tables; (iii) it does not see a conflict of interests, insofar as the technical and procedural management of the judicial office by the registrars in the administration of justice should not prevent trade union organizations from defending their interests; and (iv) the situation described is common to any other group of public employees where there is no separate bargaining for staff with management duties.
3. 360. The Committee notes that, according to the complainant organization’s allegations and the Government’s reply: (i) the Spanish legal system establishes a system of collective bargaining, whereby various bargaining tables are set up at different levels of the public administration; (ii) under the representation criteria established in the legislation, the trade union organizations participating in these tables are required to be considered the most representative at the state or autonomous community level, or to have obtained 10 per cent or more of the representatives in the elections for staff representative and staff boards; (iii) the bargaining tables for staff in the administration include registrars in the administration of justice and general staff in the administration of justice, such as administrators, case managers and assistants of the judicial office, in the same bargaining unit; (iv) as a result of various legal reforms, registrars have taken on new duties in the judicial office, including the technical procedural management of the office and its staff; and (v) registrars in the administration of justice make up a fraction of total staff in the administration of justice and, consequently, it is difficult for their own organizations to meet the criteria of representativeness required to participate directly in collective bargaining tables.
4. 361. The Committee recalls that systems based on a sole bargaining agent (the most representative) and those which include all organizations or the most representative organizations in accordance with clear pre-established criteria for the determination of the organizations entitled to bargain are both compatible with Convention No. 98. It also recalls that the granting of exclusive rights to the most representative organization should not mean that the existence of other unions to which certain involved workers might wish to belong is prohibited. Minority organizations should be permitted to carry out their activities and at least to have the right to speak on behalf of their members and to represent them [see Compilation of decisions of the Committee on Freedom of Association, sixth decision, paras 1360 and 1388]. Moreover, with regard to the criteria of representativeness, the Committee recalls that it has previously considered that a required 10-per-cent representation for a trade union organization to be able to participate in the negotiating commission is not in violation of the principles of freedom of association and collective bargaining [see Compilation, para. 1378].
5. 362. As to the specific issue of the scope of the bargaining unit covering registrars and their demand to have their own bargaining table, the Committee duly notes that, in accordance with the legislation in force, bargaining tables in the Spanish public administration exist at the central, regional and local level and then by administration. The Committee also notes the Government’s indication that the registrars’ situation is common to any other group of public employees where there is no separate bargaining for staff with management duties The Committee nevertheless notes the complainant organization’s allegations that, in practice, the interests of its members are not defended by the general unions in the administration of justice. In this respect, the Committee notes that: (i) this situation gave rise to the strike movement of January 2023; and (ii) the agreement signed by the strike committee and the administration of justice on 28 March 2023 provides, in its “fourth” point, for the establishment of joint working groups to address various issues relating to registrars in the administration of justice, including mechanisms to ensure that the registrars’ associations are effectively heard on all matters relating to remuneration, statutes, organization of the judicial office or legal changes affecting their service. The Committee notes that the establishment of such working groups provides an additional opportunity for dialogue and for the registrars’ associations to defend the interests of their members. In this context, the Committee encourages the Government to maintain an active dialogue with all stakeholders to ensure that, both through their associations and through more general trade union organizations, registrars in the administration of justice are truly able to voice their concerns and defend their interests in the bodies that concern them.
6. 363. With regard to the exercise of the right to strike, the Committee notes that the complainant organization alleges that the right to strike of registrars in the administration of justice was violated by the adoption, during the indefinite strike that began in January 2023, of Instruction No. 1/2023 restricting requests for leave and holidays during the strike. The complainant organization also points out that the strike ended with an agreement between the strike committee and the State Administration, signed on 28 March 2023. In this respect, the Committee also notes the Government’s indications that: (i) Instruction No. 1/2023 lost its purpose when the strike was called off; (ii) the “sixth” point of the agreement of 28 March 2023 reflects the commitment of the signatory associations to withdraw the administrative appeal filed against Instruction No. 1/2023; and (iii) Royal Decree No. 774/2023 of 3 October was published, establishing certain increases in the system of remuneration for registrars in the administration of justice with a view to compliance with the agreement between the strike committee and the State Administration.
7. 364. The Committee notes that, according to the complaint and the Government’s reply: (i) the registrars in the administration of justice called an indefinite strike in January 2023; (ii) during the strike, the Secretary-General of the Administration of Justice issued Instruction No. 1/2023 on the system for taking leave on the strike days of the registrars in the administration of justice, the text of which established certain requirements for taking pending leave and holidays, and against which an administrative appeal was filed; (iii) the indefinite strike ended with the signing of an agreement between the strike committee and the Administration of Justice on 28 March 2023. The Committee notes that this agreement includes provisions to increase the remuneration of the registrars in the administration of justice, and to establish joint working groups to address various issues relating to this group.
8. 365. The Committee notes that the registrars in the administration of justice effectively staged an indefinite strike, which was put to an end by an agreement between the strike committee and the State Administration, and that Instruction No. 1/2023 suddenly lost its purpose. In the light of the above, the Committee will not pursue its examination of this aspect of the complaint.
9. 366. The Committee notes that the complainant organization requests recognition of a legitimate salary adjustment for registrars in the administration of justice, and fulfilment of the commitments made in April 2022, linking the remuneration of registrars in the administration of justice to the remuneration of judicial and prosecutorial professions. The Committee also takes note of the Government’s reply that: (i) in 2022, the Ministry of Justice undertook only to promote regulatory changes in the area of remuneration, which it did within the scope of its powers; and (ii) in accordance with the agreement reached with the strike committee on 28 March 2023, measures have been adopted to establish increases in the remuneration of registrars in the administration of justice through Royal Decree No. 774/2023 of 3 October 2023. Recalling that agreements should be binding on the parties [see Compilation, para. 1334], the Committee trusts that this Decree has given full effect to the agreements reached in March 2023.

The Committee’s recommendations

1. 367. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee encourages the Government to maintain an active dialogue with all stakeholders to ensure that, both through their associations and through more general trade union organizations, registrars in the administration of justice are truly able to voice their concerns and defend their interests in the bodies that concern them.
   • (b) The Committee trusts that Royal Decree No. 774/2023 of 3 October 2023 has given full effect to the agreements reached in March 2023 regarding wages.
   • (c) The Committee considers that this case is closed and does not call for further examination.