Interim Report - REPORT_NO187, November 1978

1. 469. The Committee already examined this case in May 1977, when it submitted interim conclusions which are contained in paragraphs 257 to 2¢4 of its 168th Report. The Governing Body approved this report at its 203rd Session (May-June 1977).
2. 470. Spain has ratified both 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. A. The complainants' allegations

1. 471. According to the ICFTU, Royal Legislative Decree No. 17 of 4 March 1977 on industrial relations, which recognises the principle that workers have the right to strike, restricts this right in practice, and even denies it altogether, through a series of provisions which are contrary to the principles of freedom of association. According to the complainants, the Legislative Decree allows the government authorities to use their discretion in determining whether or not a strike is lawful; it does not permit the representative workers' organisations to intervene by declaring or organising a strike; it does not recognise the right of organisations to call a strike with the range and impact necessary for the defence of the workers; it imposes severe restrictions due to the procedure that must be followed in order to declare a strike; it deems to be unlawful strikes and various forms of collective action to which recourse is frequently had in countries where the right to strike is fully recognised; it declares to be unlawful strikes with a view to securing the amendment of clauses in a collective agreement while that agreement is in force; it authorises employers to designate workers who will be required to keep essential services functioning in the undertaking, thus restricting the effective exercise of the right to strike; it does not recognise the legality of strike pickets; it maintains the provisions requiring government approval for collective agreements, and makes job security depend on recognition of the right to strike.
2. 472. In reply, the Government stated that the legislation in question had been promulgated, during a period of transition, in order to recognise the right of workers to strike within the general context of labour relations. The Legislative Decree was not intended to prevent or obstruct, but on the contrary to legalise and guarantee the exercise of the right to strike by workers and their organisations through the representatives of these organisations. There was no other meaning - continued the Government - that could be read into the powers conferred upon these representatives in respect of the declaring and organising of strikes. Furthermore, added the Government, with the promulgation of Act No. 19 of 1 April 1977 to regulate the right to associate in trade unions, the terms of the legislation criticised by the complainants would necessarily have to be brought into line with the standards embodied in this later enactment, the more so since it contains a provision to the effect that "all provisions contrary to the rules laid down by this Act are hereby repealed". The Government concluded by expressing its firm intention to give effect, in law and in practice, to all the standards embodied in Conventions Nos. 87 and 98.
3. 473. In May 1977, the Committee noted, in particular, that according to the Government the new Legislative Decree on industrial relations guaranteed the exercise of the right to strike by trade union organisations through their representatives. The Committee added that it had always considered the right to strike to be one of the essential means through which workers' organisations might promote and defend the workers' occupational interests. In more general terms, the Committee noted the Government's statement that this legislation had been promulgated during a period of transition, that its terms would have to brought into line with the new trade union legislation, and that the Government intended to give effect to all the standards embodied in the freedom of association Conventions.
4. 474. In these circumstances, the Governing Body on the recommendation of the Committee, requested the Government to supply information with regard to any decision taken to this effect. The latter replied by letters dated 15 February and 10 May 1978.
5. 475. In the first of these communications the Government refers to the promulgation of a Royal Legislative Decree, No. 31 of 2 June 1977, putting an end to the obligatory organisation of employers and workers into associations, and a Royal Decree, No. 3149 of 6 December 1977, respecting the election of workers' representatives in the undertaking. The two houses of the Cortes, adds the Government, have approved an agreement between the Government and the various political parties represented in Parliament (known as the "Covenant of la Moncloa") which envisages the transformation of the present system of industrial relations.
6. 476. In its letter of 10 May 1978 the Government refers to trade union elections organised in undertakings. It adds that it has submitted to Parliament a Bill for the regulation of the representative bodies of workers in the undertaking, and it quotes a number of provisions of this Bill. It also mentions the provisions of the draft Constitution regarding the recognition of freedom of association, the right to bargain collectively and the right to strike. Finally, states the Government, in its wish to advance the legislative process, and taking account of all the aspirations of the social partners, it holds working meetings with representatives of the most representative trade unions for the discussion of major questions concerning the regulation of collective industrial relations.

B. B. The Committee's conclusions

1. 477. As already pointed out by the Committee, Article 3 of Convention No. 87 recognises the right of trade union organisations to formulate their programmes and organise their activities: this entails not only the right to negotiate with employers but also the right to express their point of view on economic and social questions affecting their members' interests. In view of this right which trade unions are thus recognised as having, the Committee has always considered that the right to strike is an essential means whereby workers may promote and defend their occupational interests.
2. 478. The Committee has examined Royal Legislative Decree No. 17 of 4 March 1977 on industrial relations. It considers that, regarding the exercise of the right to strike, certain of the provisions of the Decree raise problems of conformity with the principles of freedom of association. In particular, certain conditions on which a strike may be called (in particular the quorum required and the signature of the record by all the representatives present) and on which it may proceed (role and composition of the strike Committee) might substantially limit the action of the trade unions and the workers whom they represent in disputes of this kind.
3. 479. The Committee has also noted the prohibition on strikes which workers serving in "vital" sectors may call with a view to interrupting the production process (section 7(2)). Likewise, under section 10, the Government may, on the recommendation of the Ministry of Labour, taking account of the duration or the consequences of the strike, the attitude of the parties and the seriousness of the harm done to the national economy, order the resumption of work for a maximum period of two months, or permanently through compulsory arbitration. The Committee has recognised that strikes may be restricted, and even prohibited, in the public service, essential services or a key sector of a country's economy because - and to the extent that - a work stoppage may cause serious harm to the national community. With regard to legislation which leaves a government a good deal of latitude in deciding which activities are to be considered public services and which in certain cases might not coincide with those that come under the heading of "essential services", it has taken the view that its principle regarding the prohibition of strikes in the essential services might be set aside if a strike were declared illegal in undertakings which were not performing an "essential service" in the strict sense of the term. Likewise, in the present case, the Committee considers that the above-mentioned provisions leave the government authorities wide discretion as to whether to submit a labour dispute to compulsory arbitration and thus prevent strike action.
4. 480. The Committee also notes that the above-mentioned Legislative Decree has not repealed the provisions of Act No. 38 of 19 December 1973 respecting collective trade union agreements, which allow the authorities to refuse to ratify agreements if they infringe a legislative provision and stipulate that collective agreements shall contain no provisions that may be seriously prejudicial to the national economy (sections 14 and 4 of Act No. 38 of 1973).
5. 481. The aforesaid provisions raise questions of economic policy in relation to the practice of voluntary negotiation respecting wages and other working conditions. The Committee holds the view that if, as part of its stabilisation policy, a government considers that wage rates cannot be settled freely through collective bargaining, such a restriction should be imposed as an exceptional measure and only to the extent that is necessary, without exceeding a reasonable period, and it should be accompanied by adequate safeguards to protect workers' living standards.
6. 482. In addition, as regards permanent restrictions on collective bargaining, the Committee has suggested that they be replaced by procedures designed to ensure that the parties to collective bargaining have regard voluntarily in their negotiations to the considerations relating to the economic or social policy of the Government and the safeguarding of the national interest. In this respect it would be necessary first of all that the objectives to be recognised as being in the general interest should have been widely discussed by the public authorities and workers' and employers' organisations, in accordance with the principles laid down in the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113). If employers and workers are to have greater regard for the national interest in their actions, it is essential that their respective organisations should be closely associated in defining what is to be considered as the national interest. The Committee has nevertheless stressed that the final decision rests with the parties to the agreement. Moreover, their support and co-operation remain decisive factors in the efficacy of such policies.
7. 483. The Committee notes with interest from the Government's reply that discussions are taking place between the government authorities and the most representative trade union organisations on the major problems of regulating collective labour relations.