Definitive Report - REPORT_NO202, June 1980

1. 37. The Committee has already examined this case at its November 1979 Session, when it submitted an interim report to the Governing Body and requested the Government to supply certain information.
2. 38. Since then the Government has addressed a communication to the ILO dated 17 March 1980.
3. 39. 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. Previous examination of the case

1. 40. The matter still outstanding relates to the non-recognition of the right to bargain collectively of the National Confederation of Labour (CNT), which considers itself to be the organisation most representative of the province of Barcelona in the service station sector.
2. 41. In its communication of 6 October 1978 the CNT referred to a complaint by the strike Committee for the service station workers of the province of Barcelona alleging that there had been serious infringements of the right of representative unions of workers to conclude collective agreements.
3. 42. The complainants explained that the labour relations between service station workers and employers in the province had for eight years previously been governed by a provincial collective agreement, it being the desire of the workers to seek a framework for negotiations which simultaneously maintained the unity of the branch, ensured the protection of the specific socio-economic conditions in the province and enabled the rank and file to exercise direct control over their representatives.
4. 43. The complainants added that in March 1978 an absolute majority of the delegates elected directly by a general assembly of the workers at the various service stations and members of the different trade union Confederations had drafted a statement of claims (the text of which the complainants supplied) requesting an agreement at provincial level. A joint Committee for the negotiation of this collective agreement composed of nine members of the CNT as the majority union, one independent member, one member representing the Workers' Committees and one member of the General Union of Workers (UGT) had been set up in May 1978. In July, according to the CWT, the two last-mentioned Confederations, overriding the agreement reached by the vast majority of the workers in the province and by the members of the bargaining Committee, decided to subscribe to the inter-provincial service station agreement.
5. 44. The CNT also attached to its complaint copies of three communications. The first had been sent to the Collective Agreements Office in Barcelona on 29 March 1978, denouncing the collective agreement in force. In the second communication, dated 22 June 1978, the CNT had transmitted to the Provincial Labour Delegation a list of the members of the bargaining Committee. The third communication, dated 23 August 1978, was from the spokesman for the bargaining Committee to the Provincial Labour Delegation and stated that it was the wish of the vast majority of the workers in the sector to continue under an agreement for the province of Barcelona alone. This last communication also claimed that the adherence to the national agreement by certain trade union Confederations was arbitrary and illegal, since the genuine representatives of the workers were the members of the bargaining Committee previously elected.
6. 45. The CNT stated in its complaint that although the Minister of Labour was aware of the request for a provincial agreement made by the service station workers and the irregularities and breaches of the law committed by the other trade union Confederations in associating the province of Barcelona with the inter-provincial agreement, he had urged the signing of the interprovincial agreement. It added that within one month of the denunciation presented by the Committee set up to negotiate the provincial agreement, the Ministry had published its endorsement of the inter-provincial agreement, as applicable to the province of Barcelona, thus violating the right to free bargaining. According to the CNT there had been delays of six to nine months in the endorsement of some inter-provincial agreements.
7. 46. In a communication dated 8 September 1978, the Catal Workers' Solidarity (SOC) expressed the view that there was nothing in the present legislation to prevent the negotiation of a provincial agreement and that there were, moreover, precedents for this.
8. 47. At its November 1979 Session the Committee observed, in the first place, that the CNT had made a number of allegations against two ether trade union organisations on the grounds that the latter had signed an inter-provincial collective agreement which, in the opinion of the CWT, had been used by the employers and the authorities as a pretext for refusing to negotiate at provincial level with a bargaining Committee appointed by the workers' General Assembly and consisting of a majority of CNT representatives. The Committee pointed out that in previous cases it had drawn attention to the desirability of taking appropriate measures to ensure the free exercise of the right to organise of workers and employers even in their relations with other organisations or third parties. Nevertheless, the purpose of the Committee had been to consider whether or not, in each particular instance, the Government had ensured the free exercise of trade union rights within the country concerned in the present case the complainant organisation had presented no proof that the other trade union organisations which it mentioned had violated freedom of association as regards collective bargaining. On the latter point the Committee considered that the exercise by these organisations of their own right to bargain and secure the endorsement of a national agreement if they could give evidence of the necessary representative ness at this level must be distinguished from any right enjoyed by another representative organisation of workers in a given occupation, region or locality to participate in collective bargaining within its areas of competence.
9. 48. The Governing Body accordingly requested the Government to send its observations regarding the allegations that the authorities had favoured the conclusion of an inter-provincial agreement, obstructing or preventing the negotiation of a provincial agreement.

B. The Government's reply

1. 49. In its communication of 17 March 1980, the Government states that, as far as collective bargaining is concerned, the labour authorities scrupulously uphold the principle of freedom of bargaining whereby it is for the parties to confer upon one another the necessary legal status recognition, and the power to negotiate agreements.
2. 50. The Government explains that by virtue of this principle, the collective labour agreement was signed by the organisation representing the employers - namely the Spanish Service Station Confederation - and by the organisations representing the workers - the trade union Confederations in question being the workers' Committees and the General Union of workers - without any objection being raised at any time to the negotiations taking place in the presence of the labour authorities.
3. 51. The Government goes on to state that the agreement in question is now in force for the whole of the Spanish territory, including the Balearic Archipelago, which was governed by a provincial agreement until the end of August 1978. The Government points out that, in the case of this territory, when the provincial agreement expired the employers' and workers' representatives adhered to the national agreement.

C. The Committee's conclusions

1. 52. The Committee notes that the issue involved in this case concerns the level at which collective bargaining should take place, i.e. the question as to whether it should take place at the provincial level rather than at the national level.
2. 53. The Committee is of the opinion in this connection that the determination of the bargaining level is essentially a matter to be left to the discretion of the parties. Thus, the Committee does not consider the refusal by employers to bargain at a particular level as an infringement of freedom of association. The Committee has indeed always held the view that collective bargaining must, if it is to remain effective, assume a voluntary character and not entail recourse to measures of compulsion which would alter the voluntary nature of the bargaining .9
3. 54. In the present case, the Committee observes that the legislation in force at the time the complaint was lodged allowed collective bargaining to take place at any level, and it was accordingly possible for the parties to determine the scope of the negotiations by mutual agreement. The Committee further notes that the new labour legislation (Act No. 8/1980 of 10 March 1980 (Workers' Statute)) confirms this principle. This Act declares collective bargaining to be lawful at both the lower and the upper level (section 87(1) and (2)), and provides that agreements shall have such scope as the parties agree to give them (section 83(1)).