Rapport intérimaire - Rapport No. 95, 1967

Cas no 461 (Espagne) - Date de la plainte: 15-NOV. -65 - Clos

1. 238. In a communication dated 15 November 1965, the International Confederation of Free Trade Unions (I.C.F.T.U.) submitted a complaint relating to alleged violations of trade union rights in Spain. Subsequently, by a letter dated 10 December 1965, I.C.F.T.U and the International Federation of Christian Trade Unions (I.F.C.T.U.) made the letter dated 15 November 1965 a joint communication. These two communications were transmitted to the Government of Spain by letters dated 10 and 20 December 1965 respectively.
2. 239. The Spanish Government sent its observations in a communication dated 13 April 1966.
3. 240. Spain has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Dispute of October 1965 at the Sociedad Española de Construcción Naval (Sestao)
  241. 241 The complainants state that on 11 October 1965 a strike began in the Sociedad; Española de Construcción Naval works at Sestao in the province of Vizcaya, and that the authorities reacted by sending large contingents of police and civil guards to the factory. Some days later a lockout was ordered which affected the entire personnel of the factory, some 4,000 persons. The complainants state that the strike was due to the failure of the undertaking to comply with a clause of the collective agreement specifying how and at what intervals the profits made by the undertaking were to be distributed. As a result of this dispute the Civil Governor of the province of Vizcaya imposed fines ranging from 25,000 to 37,500 pesetas on more than 50 workers, and it is estimated that some 200 workers suffered financial loss on resuming their work, through forfeiting bonuses and other benefits for which they had qualified. The complainants give the names of 14 workers who had been fined and point out that since the workers concerned did not have the money to pay the fines they would inevitably be imprisoned for such term as the law prescribed. The complainants attach a photocopy of the official document which they state was sent by the Civil Government of Vizcaya to each of the fined workers notifying them of the imposition of the fine. Part of the notification, which is dated 20 October 1965, says: " On the occasion of the collective stoppage of work on 11 October in the works of the Sociedad Española de Construcción Naval you distinguished yourself as one of the principal instigators of the dispute, participated actively therein and exerted pressure on the other employees of the said undertaking, and were guilty of a dangerous offence against public order, for which reason you are liable to the penalties prescribed in subsection (1) of section 23 of the Act of 30 July 1959. Since it appears from the facts stated hereinbefore that you were guilty of an offence under section 2, subsection (c), of the Act respecting public order of 30 July 1959, I have ordered, in virtue of the powers conferred on me by sections 18 and 19 of the said Act, that you be fined the sum of 37,500 pesetas." The notification also states that the workers may appeal against the penalty to the Civil Government, and in a subsidiary manner to the Minister of the Interior, subject to deposit of one-third of the amount of the fine. If no such appeal is made the total fine must be paid within ten days, after which " the subsidiary powers conferred on the authorities for ensuring the effectiveness of the penalty will be exercised ".
  242. 242 The complainants state that, in this dispute and the two others to which the complaint refers, the General Workers' Federation, a clandestine trade union organisation affiliated to the I.C.F.T.U, has publicly condemned the abuses committed by the authorities and the undertakings against the workers and the utter ineffectiveness of the vertical trade union organisation, through which it has been impossible, as usual, to secure the suspension of the penalties and the reinstatement of the workers fined or dismissed. According to the complainants, the information contained in the complaint shows that action by the workers in defence of their interests continues to be regarded by the Spanish Government as a crime and that those engaging in such action continue to be liable to penalties under the legal provisions in force; that the Spanish Government also continues to favour the management policy of taking reprisals against the workers; and that, despite the many recommendations made by the Governing Body of the I.L.O to the Spanish Government that the exercise of trade union rights be effectively safeguarded, there has been no de jure or de facto change, and that the present restrictive legislation " continues to be applied in all its severity ".
  243. 243 With reference to the dispute in the Sociedad Española de Construcción Naval the Government states that on 11 October 1965 work was interrupted in the model department and other essential sections, which gradually paralysed the other departments, but that neither the government authorities nor the undertaking ever shut down the works. It adds that the trade union representatives rapidly intervened to find out the reasons for the dispute, but failed to receive any grievances or petitions from the workers. No petition was found to have been submitted to the liaison authorities, the works council, the management or the labour or trade union authorities. The stoppage of work should be considered unlawful, since there was no known justification for the incidents connected with a labour problem and no use was made of the processes laid down by legislation for submission of labour disputes and their settlements. The undertaking suspended the workers involved in the stoppage until 21 October 1965. On that date normal work was resumed and all the suspended employees returned to work, thanks to the active steps taken by the labour authorities and trade union representatives, with the exception of four workers who themselves requested the termination of their employment. The government authorities on their part, in view of the unlawful nature of the dispute, fined the persons found to have instigated it, and no appeal against those fines was lodged within the time limit granted by the law.
  244. 244 The Government states in its communication that the disputes mentioned in the complaint are clearly unlawful, no due cause having been shown why they should occur and no use having been made of the established legal procedure. The authorities did not intervene, merely taking elementary precautions in some cases to forestall any possible disturbance of public order. The Government also points out that the incidents took place before the recent amendment of Spanish legislation with regard to collective labour disputes. Following the amendment of section 222 of the Spanish Penal Code, which is now adjusted to conform to the regular practice whereby disturbances of work based on employment aspects are not treated as offences, the safeguards guaranteed to workers in the defence of their interests have been finally clarified.
  245. 245 The Committee has always applied the principle that allegations respecting the right to strike are not outside its competence in so far as they affect the exercise of trade union rights) It has frequently pointed out that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised.
  246. 246 The Committee has also emphasised the importance it attaches, when strikes are prohibited or subject to restriction, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending their occupational interests, and observed that such restriction should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures in which the parties concerned can take part at every stage.
  247. 247 From the information supplied by the Government it appears that the dispute at the Sociedad Española de Construcción Naval which occurred in October 1965 ended after ten days, during which the works had never been shut down and no worker had been dismissed. The workers involved were suspended during that time and then returned to work, with the exception of four, who themselves requested the termination of their employment. However, the fines imposed on the instigators of the strike were maintained. It appears that the workers did not make use of the processes laid down by legislation for the submission of labour disputes for conciliation and arbitration. The Committee understands that the Government refers to the procedure laid down in Decree 2354/62 of 20 September 1962, which the Committee already had occasion to examine in connection with Case No. 294 (Spain).
  248. 248 This decree provides that in accordance with the Collective Agreements Act of 24 April 1958 the labour courts are empowered to initiate proceedings, settle labour disputes and enforce their decisions (paragraph 1 of section 1). The labour courts shall direct legal proceedings in collective disputes under special procedure based on-(a) absolute priority over all other matters; (b) proceedings automatically initiated upon presentation of the case before the courts by the labour delegation; (c) presentation only after an attempt by the trade union organisation to conciliate the parties or mediate the dispute; (d) summary procedure, an oral hearing of both parties by the magistrate, whose decision shall be binding; (e) decisions of the courts to be executory upon issue, although an appeal may be lodged with a special chamber of the Central Labour Court, whose decision will be final (paragraph 2 of section 1). Any dispute arising from the application of a valid collective agreement must be brought before the courts and settled by both parties under the decision of the Collective Agreements Committee (paragraph 1 of section 2). If such a committee does not exist or is unable to reach an agreement or if the dispute concerns matters not dealt with in the agreement, the litigants will attempt to reach mutual understanding. Should they fail to agree, they will submit their dispute to the labour authority recognised in the agreement, which will take the case to court or male the corresponding compulsory award after hearing both sides and attempting conciliation, summarily and in any case making the corresponding award within a maximum period of 20 days (paragraphs 2 and 3 of section 2). In a collective dispute not covered by a collective agreement the labour authority will be empowered to set up immediately, at the request of either of the parties and after an attempt at conciliation, a bargaining committee to operate under procedure established in the Collective Agreements Act. As an alternative, the labour authority may, at its own initiative or at the request of either party, take the case to court after an attempt has been made to conciliate and mediate the dispute (section 3). In any collective dispute the labour inspectorate, at its own initiative or at the request of either of the parties, is responsible for attempting mediation or negotiation (paragraphs 1 and 2 of section 4). If the dispute does not arise from a labour conflict directly affecting persons involved in it, or if it arises due to non-observance of procedure provided in this decree, or if it occurs after a decision has been handed down by the labour authority or the labour courts, or where there exists a valid collective agreement affecting° only one undertaking, proceedings will be handled by the government authority, without prejudice to the right to apply the sanctions provided for by the regulations for labour delegations (paragraph 1 of section 5). In the cases indicated in the said paragraph 1 persons who have taken part in the dispute are considered to be subject to dismissal and the employing undertakings may use their right of resiliation (paragraph 2 of section 5). In any event, the government authority may take emergency measures required for the maintenance of public order in conformity with the legislation in force (paragraph 3 of section 5). Proceedings may be suspended at any phase and the dispute will be considered settled if the litigants reach an agreement through the mediation of the trade union organisation and this agreement is approved by the labour authority (section 6).
  249. 249 The complainants, for their part, state that the reason for the stoppage was the failure of the undertaking to comply with a clause of the collective agreement, which seems to indicate that there was a " labour problem " to justify the dispute which directly concerned the workers. The Government does not refer specifically to this part of the allegations, nor does it mention whether the question was dealt with when the dispute was ended by the intervention of the labour authorities and trade union representatives, even though it states categorically that the stoppage was not preceded by any petition or grievance communicated to the competent bodies.
  250. 250 As regards the fines which, according to the complaint, were imposed on more than 50 workers, the Committees duly notes that the workers concerned did not lodge any appeal, as they could have done. However, some of the charges on which the administrative authorities' ruling appears to be based (having been one of the principal instigators of the dispute, participated actively therein and exerted pressure on the other employees) could be related to the exercise of ordinary trade union activities. Furthermore, in view of the apparent severity of the fines and the fact that the lodging of an appeal was subject to the deposit of one-third of the amount of the fine, the Committee feels that it would be advisable, to enable it to examine this aspect of the case with a full knowledge of all the facts, to ask the Government to specify what procedural rules were applied by the administrative authorities for the imposition of the fines and, in particular, what safeguards were available to the workers concerned for their defence, and whether any of them have been imprisoned or are liable to imprisonment for non-payment of fines.
  251. 251 In the circumstances the Committee recommends the Governing Body:
       • (a) to take note of the Government's statement that the dispute was settled after ten days without any workers having been dismissed;
       • (b) bearing in mind that allegations relating to strikes are not outside the competence of the Committee in so far as they affect trade union rights, to request the Government to be good enough to supply the additional information referred to in paragraph 250 above.
  252. Dispute of October 1964 at the Aguirena S.A. Undertaking (Bilbao)
  252. 252 The complainants add that experience has shown that, besides repressive measures taken by the authorities against the workers, each dispute leads to the dismissal of many workers, especially those whom the authorities consider to be instigators. In this connection they mention that, as a result of the disputes occurring in October 1964 in the Aguirena S.A. undertaking in the province of Vizcaya, dozens of workers were dismissed in a most arbitrary fashion and have not yet been reinstated. They supply the names of 17 such workers.
  253. 253 In its reply of 13 April 1966 the Government states that while a new collective agreement affecting the workers of Aguirena S.A. was being negotiated the normal course of work was disturbed when a certain number of workers began to slow down their rate of work and a few days later stopped work completely. No petition or claim had previously been submitted to the competent authorities and there was, therefore, no known legal reason for this dispute, which thus had to be considered unlawful, since it was presumed to have been intended exclusively to impede the free negotiation of the collective agreement while creating unrest among the workers. Without any government intervention, the undertaking decided to suspend those involved for five days in the first instance and then to dismiss them in view of their persistence in pursuing their attitude, which was followed by temporary closure of the works. A few days later, thanks to the intervention of the labour authorities and the trade union representatives, the undertaking reopened the works, and the great majority of those previously dismissed were re-engaged, except for a small number of workers including those mentioned in the complaint; of the latter, one was re-engaged and another failed to follow the undertaking's call to resume work. None of the workers who were refused re-engagement submitted any appeal to the labour authorities competent to deal with the case or submitted any plea against dismissal as provided for in the Employment Procedure Act of 17 January 1963, which empowers the labour courts to deal with cases of dismissal as a result of individual or collective disputes.
  254. 254 The Committee observes, on the basis of the information given by the Government, that the dispute was settled after a few days, 15 of the 17 workers named in the complaint being among the workers dismissed by decision of the undertaking. From these observations by the Government it appears that the workers concerned had recourse to a gradual slowing down of production and eventual stoppage of work without having first submitted any petitions or grievances that might have served as a basis for the conciliation and arbitration procedure referred to in paragraph 248 above and that the workers dismissed as a result of the dispute did not appeal to the judiciary authority against their dismissal. Under these circumstances the Committee considers that the complainants have not supplied sufficient proof that the dismissal constitutes a violation of trade union rights; it therefore recommends the Governing Body to decide that there would be no purpose in pursuing further the examination of this aspect of the case.
• Dispute of October 1965 in the Nueva Montaña Quijano S.A. Undertaking (Santander)
  255. 255 The complainants also state that at the end of October and beginning of November 1965 a dispute took place in the Nueva Montaña Quijano S.A. factory in the province of Santander; the workshops were occupied by the police and 17 workers were dismissed as a result of the dispute.
  256. 256 The Government replies that on 27 October 1965 normal work in the undertaking was disturbed at the instigation of one of the employees upon being informed by the management of a sanction in respect of faults committed in the performance of his functions. The worker concerned attempted to coerce the management by causing work to be interrupted, but only four workers stopped work and had to be removed from the premises together with the instigator of the incident. These four workers were dismissed after the legal proceeding had begun. The labour court upheld the decision by the undertaking, disallowing the appeal by the workers concerned, whom it found to have been dismissed on justifiable grounds since the elements of the case consisted essentially of the proof of the unlawful nature of the dispute and the active participation of the dismissed workers in the unjustified disturbance of normal work in the undertaking.
  257. 257 The Committee observes that the Government's communication contains fairly detailed information concerning the nature and magnitude of the dispute. In view of that information and of the fact that the brief allegations made by the complainants do not contain any elements showing that the incident in question raised a problem connected with the exercise of trade union rights, the Committee recommends the Governing Body to decide that this aspect of the case does not call for further examination.

The Committee's recommendations

1. 258. With respect to the case as a whole the Committee recommends the Governing Body:
   • (a) with regard to the dispute which occurred in October 1964 in the Aguirena S.A. undertaking (Bilbao), to decide, for the reasons set forth in paragraph 254 above, that there would be no purpose in pursuing the examination of this aspect of the case;
   • (b) with reference to the dispute which took place in October 1965 in the Nueva Montaña Quijano S.A. undertaking (Santander), to decide, for the reasons set forth in paragraph 257 above, that this aspect of the case does not call for further examination;
   • (c) with regard to the dispute which took place in October 1965 in the Sociedad Española de Construcción Naval undertaking (Sestao), which according to the complainants arose out of the failure of the undertaking to give effect to a clause of a collective agreement:
   • (i) to take note of the Government's statement that the dispute was settled after ten days without any workers having been dismissed;
   • (ii) bearing in mind that allegations relating to strikes are not outside the competence of the Committee in so far as they affect the exercise of trade union rights, to request the Government to be good enough to specify what procedural rules were applied by the administrative authorities for the imposition of the fines on the instigators of and participants in the dispute and, in particular, what safeguards were available to the workers concerned for their defence, and also whether any of them have been imprisoned or are liable to imprisonment for non-payment of fines;
   • (d) to take note of the present interim report, on the understanding that the Committee will report further to the Governing Body when it has received the additional information from the Government referred to in subparagraph (c) of this paragraph.