Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Spain (Ratification: 1977)

The Committee notes the observations of the Trade Union Confederation of Workers' Commissions (CCOO) and the General Union of Workers (UGT), the Spanish Confederation of Employers' Organizations (CEOE), and the Spanish Confederation of Small and Medium-Sized Enterprises (CEPYME), forwarded by the Government, and the comments by the Government on all these observations.

The Committee notes with regret that it has not received the Government’s comments on the observations of the International Trade Union Confederation (ITUC), received in 2018, which raised issues on the application of the Convention in practice, including the exercise of the right to strike and the remittance of union dues. The Committee once again requests the Government to provide its comments on the above-mentioned observations.

Trade union rights and civil liberties. The Committee notes the indication by the Government and the trade union confederations concerning the repeal of section 315.3 of the Penal Code on the offence of coercion to initiate or continue a strike, which established that “those who, acting as a group or individually, but in agreement with others, coerce other persons to initiate or continue a strike, shall be punished by imprisonment for a term of one year and nine months to three years or by a fine of 18 months to 24 months”. Recalling that all penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed and that the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike, the Committee notes with satisfaction the above-mentioned repeal. In this regard, the Committee notes the closure of Case No. 3093 before the Committee on Freedom of Association (400th Report of the Committee on Freedom of Association, November 2022, paragraphs 28-36).

In its previous comments, the Committee noted the concerns expressed by the trade union organizations regarding the impact on the freedom of assembly and demonstration of Basic Act No. 4/2015 protecting public safety (LPSC) and section 557 ter of the Penal Code, also adopted in 2015. The Committee considered that it was necessary to verify the application in practice of the broad, indeterminate legal concepts contained in this legislation to ensure that they do not limit the exercise of freedom of association as protected by the Convention, and requested the Government to: (i) submit to social dialogue the issue of the application of the LPSC and of section 557 ter of the Penal Code with a view to considering the measures that could be necessary to ensure the full exercise of civil liberties in relation to trade union rights; and (ii) provide information on specific cases in which the LPSC and section 557 ter of the Penal Code have been applied in relation to trade union activities.

The Committee notes the Government’s indication that: (i) no amendment to the above-mentioned provisions is being or has been pursued; and (ii) the information on their application in practice from the Ministries of Justice and the Interior will be relevant. The Committee notes the observations of the trade union confederations, according to which: (i) the processing of legislative proposals aimed at reforming the above-mentioned legislation and provisions remains blocked in Parliament; and (ii) they consider it necessary for this legislation to be revised in order to avoid undue restrictions on the freedom of assembly, expression and demonstration of trade union organizations.

The Committee observes that it was not informed that the application of the LPSC and section 557 ter of the Penal Code had been the subject of social dialogue processes. The Committee also notes with regret the absence of specific information from the Government on the application in practice of the above-mentioned legislation. In light of the above, the Committee is bound to request the Government once again to: (i) submit to social dialogue the issue of the application of the LPSC and of section 557 ter of the Penal Code with a view to considering the measures that could be necessary to ensure the full exercise of civil liberties in relation to trade union rights; and (ii) provide information on the specific cases in which the LPSC and section 557 ter of the Penal Code have been applied in relation to trade union activities.

Article 3 of the Convention. Observations of the social partners on the exercise of the right to strike. In its previous comments, having received diverging observations from the trade union organizations on one hand and employers’ organizations on the other, the Committee requested the Government to address, with these organizations, the operation of the machinery for the determination of minimum services and the other issues and concerns raised by these organizations in relation to the exercise of the right to strike. The Committee observes that the Government merely provides a series of court decisions on the matter. The Committee notes that the CEOE and the CEPYME suggest that: (i) the possibility of establishing a new regulation on the exercise of the right to strike, which dates back to 1977, be examined, in order to address new circumstances; (ii) at least the situation of strikes in public services and strategic sectors, in particular the establishment of minimum services, be considered, with provision made for the possibility of using other workers in the event of non-performance of these services; and (iii) the use of dialogue and mechanisms for the autonomous settlement of labour disputes, including after a strike has begun, be increased. The Committee lastly notes that the CCOO alleges that the rules on the determination of minimum services continue to be repeatedly violated by the government authorities, and that the CCOO cites, in this regard, 13 recent court rulings that determine, in relation to minimum services, a violation of the right to strike.

Noting with regret the absence of a specific reply by the Government to its previous requests, and observing the frequent recourse to the courts on issues related to the right to strike, the Committee once again requests the Government to encourage tripartite social dialogue on the regulation of the right to strike in general, and on the definition of minimum services in particular. The Committee also requests the Government to provide its comments on the allegations of the CCOO on the frequent failure by the government authorities to comply with the rules on minimum services.