Rapport définitif - Rapport No. 208, Juin 1981

Cas no 874 (Espagne) - Date de la plainte: 18-MARS -77 - Clos

1. 59. The Committee already examined this case at its May 1977 and November 1978 Sessions, and on both occasions submitted an interim report to the Governing Body. Since then, the Committee has received a communication from the Trade Union Confederation of Workers' Commissions dated 27 June 1979. Observations were received from the Government in communications dated 5 October 1979, 25 February and 5 May 1980, and 23 January and 11 May 1981.
2. 60. Spain has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 61. The International Confederation of Free Trade Unions (ICFTU) alleged that Royal Legislative Decree No. 17 of 4 March 1977 on labour relations, while recognising the principle that workers have the right to strike, contained provisions contrary to freedom of association which restricted this right in practice and even denied it altogether. The ICFTU also alleged that the Royal Legislative Decree maintained the provisions relating to the registration and approval of collective agreements by the government authorities.
2. 62. For its part, the Government mentioned the transitional nature of Royal Legislative Decree No. 17/1977 and referred to other legislation modifying the scope and application of some of its terms and to the provisions of the draft Constitution concerning strikes, labour disputes and collective agreements.
3. 63. After examining Royal Legislative Decree No. 17/1977 on labour relations, the Committee considered that some of its provisions relating to the exercise of the right to strike might raise problems regarding their consistency with the principles of freedom of association. It pointed out in particular that certain conditions required for calling a strike (section 3(1) and (2)) and for proceeding with it (section 5) might substantially limit the action of workers and the trade unions representing them in disputes of this kind.
4. 64. The Committee took note of the prohibition on strikes by workers performing services in strategic sectors for the purpose of disrupting production (section 7(2)) and of the power conferred on the Government, acting on the recommendation of the Ministry of Labour and having regard to the duration and consequences of a strike, the attitudes of the parties and any serious prejudice to the national economy, to order work to be resumed within such period as it may determine, either for a maximum of two months or permanently on the basis of compulsory arbitration (section 10). The Committee considered that these provisions gave the government authorities wide discretionary powers to decide whether a labour dispute was to be submitted to compulsory arbitration for a ruling, thus preventing strike action, and pointed out that, though strikes might well be limited and even prohibited in public services and essential sectors because of the serious harm which a work stoppage might cause to the national community, this principle would be rendered meaningless if strikes in undertakings not performing essential services in the strict sense were declared illegal.
5. 65. The Committee also noted that Royal Legislative Decree No. 17/1977 had not repealed the provisions allowing the authorities to refuse to approve collective agreements if they infringe a statutory provision or legislation stipulating that collective agreements are not to contain provisions that may cause serious prejudice to the national economy. The Committee mentioned the implications of the principle of voluntary negotiation.
6. 66. The Committee recommended the Governing Body to express the hope that the legislation being prepared would take into account the principles mentioned and to request the Government for information on the development of the situation.

B. Further allegations

1. 67. In its communication of 27 June 1979, the Trade Union Confederation of Workers' Commissions alleged that the Spanish State had infringed Convention No. 98 since, on approving the agreement which terminated the strike called by the workers' representatives during the negotiation of the eighth collective agreement with the National Telephone company, which was to become effective on 1 January 1979, the Directorate-General of Labour proceeded unilaterally, without consulting any of the employers or workers concerned, to delete or modify fundamental clauses contained in the agreement.

C. The Government's reply

1. 68. In its communication of 5 October 1979, the Government, after stressing the strictly transitional character of Royal Decree No. 17/1977 and referring to the provisions of the new Spanish Constitution relating to strikes, collective agreements and labour disputes, stated that the complex subject of labour relations was being approached in the light of the Constitution. In actual fact, the Government added, strikes are constantly taking place outside the conditions stipulated by Royal Legislative Decree No. 17/1977 in nearly every sector of production, in which various trade union organisations have participated or participate directly.
2. 69. In its communication of 5 May 1980, the Government stated that the workers' Statute recognising the right to strike was approved by law on 10 March 1980. The Government added that regulation of this right required, in accordance with the Constitution, a specific law; this would have the character of a basic law and would repeal the provisions of Royal Legislative Decree No. 17/1977 still in force. The Government specified that the bill would take into account the ILO doctrine on the subject and, in its communication of 23 January 1981, stated that the basic law was under preparation.
3. 70. The Government attached to its communication of 11 May 1981 a copy of the ruling given by the Spanish Constitutional Court on 8 April 1981 on the petition for repeal of Royal Legislative Decree No. 17/1977 on the ground of unconstitutionality.
4. 71. In its ruling, the Constitutional Court states that section 3 of Royal Legislative Decree No 17/1977 is not unconstitutional provided that the right of workers to strike is understood to mean that it may be exercised by them personally, by their representatives and by the trade union organisations established in the places covered by the strike. However, the provisions of the section requiring that the decision to call a strike must be taken in each workplace (subsection 1), that the meeting of the workers' representatives must be attended by a given percentage (subsection 2(a)) and that the decision to call a strike must be supported by 25 per cent of the workers (subsection 2(b)) were declared unconstitutional by the Court.
5. 72. The Court also ruled that the first paragraph of section 5 ("Only workers in the workplace who are affected by the dispute may be elected to membership of the strike Committee") is not unconstitutional when the strike is limited to a single workplace but is unconstitutional when the strike extends to more than one workplace.
6. 73. The ruling of 8 April 1981 adds that subsection 7 of section 6 is unconstitutional in assigning to the employer the sole right to designate the workers responsible during the strike for ensuring the upkeep of premises, machinery or plant.
7. 74. The ruling states that paragraph 1 of section 102 is unconstitutional in empowering the Government to order the resumption of work but is not unconstitutional in empowering it to institute compulsory arbitration provided the requirement of impartial arbitrators is observed.
8. 75. The ruling also states that paragraph 2 of section 103 which empowers the competent organ of government to order the necessary steps for ensuring the operation of essential public services, is not unconstitutional, provided the exercise of this power is subject to the jurisdiction of the courts of justice and to appeal to the Constitutional Court.
9. 76. Furthermore, the ruling states that the term "directly" in subparagraph (b) of section 11 ("A strike shall be unlawful if ... (b) it is intended to manifest solidarity or support, except where it is directly related to the occupational interests of the persons beginning or continuing it") is unconstitutional.
10. 77. Lastly, the Government states that section 164 of the Spanish Constitution provides that the rulings of the Constitutional Court "declaring a law or regulations with force of law to be unconstitutional, as well as any rulings not limited to a subjective appraisal of a right, shall be fully effective for all". The same section of the Constitution also stipulates that, except where the ruling provides otherwise, whatever part of the law that is not declared unconstitutional shall remain in force.

D. The Committee's conclusions

1. 78. The Committee takes note of the Government's statements, in particular that it is in the process of preparing a basic law to regulate the exercise of the right to strike, which will repeal the provisions of Royal Legislative Decree No. 17/1977, that the bill will take into account the ILO doctrine on the subject and that in actual fact strikes are constantly taking place outside the conditions provided for by Royal Legislative Decree No. 17/1977 in nearly every sector of production. The Committee has taken note with interest of the ruling given by the Constitutional Court on 8 April 1981 on the petition for repeal of Royal Legislative Decree No. 17/1977 on the ground of unconstitutionality and the fact that the ruling declares unconstitutional some of the provisions of sections 3, 5 and 10 which had been objected to by the Committee.
2. 79. The Committee observes, in particular, that in relation to section 3 of Royal Legislative Decree No. 17/1977 (conditions for calling a strike), the Constitutional Court's ruling of 8 April 1981 recognises that trade union organisations are entitled to exercise the right to strike and declares unconstitutional the provisions requiring that the decision to strike must be adopted in each workplace, that meetings of workers' representatives must be attended by at least 75 per cent of the representatives and that the decision to call a strike must be supported by at least 25 per cent of the workers.
3. 80. In relation to section 5 of Royal Legislative Decree No. 17/1977 (concerning the conduct of the strike and the function and membership of the strike Committee), the Committee observes that the first paragraph ("Only workers in the workplace who are affected by the dispute may be elected to the membership of the strike Committee") is unconstitutional when the strikes include more than one workplace.
4. 81. The Committee notes that the Constitutional court has declared unconstitutional section 6, subsection 7, in assigning to the employer the exclusive right to designate the workers responsible during the strike for ensuring the upkeep of premises, machinery or plant. The Committee also notes that the term "directly" in subparagraph (b) of section 11 of Royal Legislative Decree No. 17/1977 ("A strike shall be unlawful if ...(b) it is intended to manifest solidarity or support, except where it is directly related to the occupational interests of the persons beginning or continuing it") is unconstitutional.
5. 82. The Committee observes, however, that the Government may still, in the event of a strike, order work to be resumed by establishing compulsory arbitration, in accordance with the pro visions of the first paragraph of section 10 (". on the recommendation of the Ministry of Labour and having regard to the duration and consequences of a strike, the attitudes of the parties and any serious prejudice to the national economy"), although the Constitutional Court has ruled that such an order is subject to observance of the requirement of impartial arbitrators and has declared unconstitutional the power conferred on the Government to order work to be resumed within such period as it may determine, for a maximum of two months. In this respect, the Committee considers that the first paragraph of section 10, as examined by the competent judicial authority with respect to its Constitutionality, and subsection 2 of section 7 (to which the ruling of the Constitutional Court does not refer) under which strikes by workers performing services in strategic sectors for the purpose of disrupting production are deemed to be unlawful or unwarranted, still allow the government authorities in some cases discretional power to submit a labour dispute to compulsory arbitration, which might prevent strike action. Accordingly, considering that in normal circumstances recourse to compulsory arbitration or prohibition of strikes should be permissible only in the case of public services or essential services in the strict sense, the Committee considers that, in the interest of a harmonious development of labour relations and freedom of action by trade union organisations, it would be well for the future basic law on strikes, now being prepared, to specify what services are really essential services, i.e. whose interruption could endanger the existence or well-being of the whole or part of the population.
6. 83. The Committee also notes that, according to the Constitutional Court, the second paragraph of section 10 empowering the competent organ of government to order the necessary steps to be taken to ensure the operation of essential public services "is not unconstitutional provided that the exercise of this power is subject to jurisdiction of the courts of justice and to appeal to the Constitutional Court". The Committee observes that the Court's reference to this paragraph would seem to limit its scope to essential public services and consequently to attach a restrictive interpretation to those services, unlike the tenor of the section in question which refers to "any kind of public or recognised essential service".
7. 84. Concerning the allegation relating to the procedure for approving collective agreements and the restrictions on collective bargaining, in respect of wages in particular, the Committee has examined the law on the workers' Statute of 10 March 1980 and observes with interest that the law merely attributes to the labour authority registration functions, thus eliminating the requirement for approval of collective agreements. The Committee also observes that, at its meeting in March 1981, the Committee of Experts on the Application of Conventions and Recommendations noted that the provisions restricting collective bargaining in respect of wages were no longer effective.
8. 85. The Committee observes that the Government has not replied to the allegation concerning the deletion or modification of certain clauses by the General Directorate of Labour in the text of the agreement terminating the strike held during the negotiation of the eighth collective agreement with the National Telephone Company. In view of the time elapsed since the complaint was submitted, and having corroborated that the law on the Workers' Statute eliminates the procedure for approval of collective agreements and establishes a system for encouraging and promoting voluntary bargaining procedures and that, consequently, the parties may, if they have not already done so, modify the terms of the agreement to which the complainant referred, the Committee considers that this aspect of the case does not call for further examination.

The Committee's recommendations

1. 86. In these circumstances, the Committee recommends the Governing Body to approve this report, and in particular the following conclusions;
   • The Committee takes note of the ruling given by the Constitutional Court on 8 April 1981 on the petition for repeal of Royal Legislative Decree No. 17/1977 on the ground of unconstitutionality and observes that some of the criteria adopted by the court in its ruling concur with those mentioned by the Committee in its last report on this case in relation to sections 3 and 5 and, in certain respects, in relation to the first paragraph of section 10 of Royal Legislative Decree No. 17/1977.
   • The Committee notes a basic law on strikes is now being prepared, which will repeal the provisions of Royal Legislative Decree No. 17/1977 which are still in force, and that the bill will take into account the ILO doctrine on the subject.
   • The Committee considers that in the interest of a harmonious development of labour relations it would be well for the future basic law on the right to strike to specify the essential services where this right may be restricted or prohibited.
   • The Committee notes with interest that the procedure for approval of collective agreements has been eliminated and that the provisions restricting collective bargaining in respect of wages are no longer effective.