Report in which the committee requests to be kept informed of development - REPORT_NO283, June 1992

1. 191. The Confederation of Managerial Staff submitted a complaint alleging infringement of freedom of association in a communication dated 10 September 1991. It later sent additional information in a communication dated 20 November 1991. The Government sent its observations in a communication dated 26 February 1992.
2. 192. 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. The complainant's allegations

1. 193. In its communications of 10 September and 20 November 1991, the Confederation of Managerial Staff points out that in accordance with Act No. 4/1986 of 8 January concerning the transfer of accumulated trade union assets and with relevant jurisprudence, the goods and property of the former trade union organisation belonging to the previous regime were to have been distributed between existing trade union organisations in Spain so that, by means of these assets, they might fulfil the duties and functions incumbent upon them. The complainant points out that, after the Act was promulgated, the so called "most representative" trade unions at the national level were assigned the use of the above-mentioned assets belonging to the former trade union organisation, referred to as "accumulated trade union assets".
2. 194. The Confederation of Managerial Staff states that it is a trade union confederation grouping trade union organisations of managerial staff in various sectors of production and that it participates in the trade union electoral procedures in Spain in the same way as the other trade unions in the country. In these circumstances, the Executive of the Confederation of Managerial Staff felt that it should also be assigned the use of premises included in the accumulated trade union assets; if not, its exercise of freedom of association would be restricted and it would not be able to fulfil its duties on an equal footing with the other trade unions in Spain.
3. 195. The complainant points out that, for the above-mentioned reasons, the Confederation of Managerial Staff, in a letter from its President dated 1 February 1988, requested that it should have a share in the transfer of accumulated trade union assets "on an equal footing with other trade union organisations, in order to meet directly its operational and organisational needs". However, on 29 February 1988, the Under-Secretary of State of the Ministry of Labour and Social Security replied that the legislation only authorised the transfer of the assets in question to the "most representative" trade unions and that since the Confederation of Managerial Staff did not have this status, it was not entitled to have a share in them.
4. 196. The complainant states that, confronted with this situation and by view of the fact that the jurisprudence of the Spanish courts had acknowledged and declared the right of all trade unions to have a share in the transfer of the accumulated trade union assets - irrespective of whether they were the most representative or not - and since the Ministry of Labour deliberately passed over the above-mentioned jurisprudence, the Confederation of Managerial Staff lodged an administrative appeal against the Ministry of Labour's refusal, on the basis of Act No. 62/78 relating to the legal protection of the basic rights of individuals. Subsequently, a ruling was handed down on 16 November 1988 upholding the right of the Confederation of Managerial Staff to have a share, generally speaking, in the transfer of assets and to be entitled to specific accumulated trade union assets.
5. 197. The Confederation of Managerial Staff points out that, given the content of the court decision, it urged the Ministry of Labour and Social Security to enforce the ruling, requesting an actual transfer of specific premises that were part of the accumulated trade union assets (16 June 1989). However, the Under-Secretary of State of Labour and Social Security replied to this request using arguments to delay the process, by stating, for instance, that the Ministry had to guarantee the adequate distribution between the various bodies entitled to assets, taking into account their overall representativity and that it was therefore drawing up a list of the various organisations in order of preference, giving priority to those which appeared to be the "most representative"; he also claimed that the premises were not available at the time the request was made. The complainant considers that the Ministry of Labour and Social Security acknowledged the right of the Confederation of Managerial Staff, as this had in fact been recognised by the courts, but that it nevertheless insisted on establishing an order of preference and giving priority to the "most representative" organisations.
6. 198. The complainant states that, when it received the new reply from the Ministry of Labour and Social Security, it formally demanded that the court decision be enforced relying on the above-mentioned points, the court thus called upon the Ministry of Labour and Social Security to enforce its ruling; the Ministerial Department replied with further delaying tactics, alleging that the advisory committee on accumulated trade union assets (the body entrusted with dealing with requests for transfer) had not met since the ruling had been handed down, and that it was impossible to assign any premises for use until it had met once again.
7. 199. Finally, the complainant organisation points out that it is clearly being discriminated against because the Government, through the Ministry of Labour and Social Security, had authorised other trade unions to enjoy the use of premises which were part of the accumulated trade union assets, whether or not they had the status of the most representative trade unions.

B. The Government's reply

1. 200. In its communication of 26 February 1992, the Government states that the Confederation of Managerial Staff had requested in writing on 18 March 1986 - referring to Act No. 4/1986 concerning the transfer of accumulated trade union assets - that it should be assigned the assets to which it was due. The Government replied in writing on 18 April 1986 to the effect that it would deal with this request after the advisory committee had been set up, but that the outcome would depend entirely on the availability of the assets once the preferential entitlements of other trade union organisations had been met, according to the criterion established by Act No. 4/1986. The Government points out moreover that on 23 January 1987 the Confederation of Managerial Staff reiterated the terms of its earlier letter, asking for information on its request, and that it replied in writing on 4 February 1987 that the Confederation's request would be included in the agenda of the next meeting of the advisory committee.
2. 201. The Government points out that on 6 April 1987, the complainant organisation once again asked for information on the request pending and that it replied that it had been impossible to convene the advisory committee as the trade union election results had not been officially announced. The Government adds that on 10 December 1987, the secretary of the advisory committee on trade union assets informed the Confederation of Managerial Staff that its request had been examined at the advisory committee's meeting held on 26 and 27 November and that the committee's report on the matter was negative since the preferential rights of the most representative trade union and employers' organisations were being examined at that time and the premises mentioned in the request were not available. The Government also states that the Confederation of Managerial Staff requested in writing on 27 January 1988 that the organisation's right to be a member of the advisory committee and participate in its work be acknowledged, as well as its right to have a share of the accumulated trade union assets. It replied to this request in writing on 29 February 1988, referring to the provisions of Royal Decree No. 1671/1986 concerning the composition of the advisory committee; at the same time, however, it did not deny the organisation's entitlement to have a share in the accumulated trade union assets, even if it failed to have the status of the most representative trade union.
3. 202. The Government points out that on 29 February 1988, the Confederation of Managerial Staff lodged an administrative appeal requesting that it should have its share in the transfer of accumulated trade union assets. A ruling was handed down on 16 November 1988. The organisation acknowledged this ruling in writing on 16 June 1989, asking that it might be assigned the use of specific premises which were part of the trade union assets accumulated in the cities of Madrid and Barcelona. The Government adds that a reply to this was sent on 14 July 1989 acknowledging that the Ministry of Labour and Social Security fully accepted the contents of the ruling establishing the right of the Confederation of Managerial Staff to have a share - both in a general and specific way - in the accumulated trade union assets; however, it drew the organisation's attention to the fact that this right could only be granted once the matter had gone through the procedure stipulated by Act No. 4/1986 and that it depended upon the organisation's representativity as, in all events, it was the advisory committee which was competent to decide upon the requests submitted by employers' and trade union organisations to participate in the transfer of accumulated trade union assets.
4. 203. The Government points out that on 9 October 1990, the Confederation of Managerial Staff requested that, given the time that had elapsed since the last advisory committee meeting had been held, it should be assigned a share that would allow it to defray the expenses of its rent. A reply to this request was sent on 13 November 1990 to the effect that it was up to the advisory committee to decide in advance on requests for a transfer, taking into account representativity and the availability of existing premises. Furthermore, on 5 July 1990, the Provincial Union of the Confederation of Managerial Staff in Palencia requested that it be assigned premises which were part of the trade union assets. This request was examined at the meeting of the standing committee held on 21 November 1991, with a view to its being submitted for examination at the plenary meeting of the advisory committee.
5. 204. The Government states that the Ministry of Labour and Social Security did not have a negative attitude towards the Confederation of Managerial Staff's request that it should be assigned premises forming part of the accumulated trade union assets. The requests were duly dealt with and processed in accordance with the statutory procedure under Act No. 4/1986 of 8 January and the regulations made under this Act, approved by Royal Decree No. 1671/1986 of 1 August. The first time that the advisory committee examined this request, along with others, its report was negative because it was dealing at the time with the preferential rights of the most representative trade union and employers' organisations and because the premises requested were not available. The request was then examined in due form; the outcome was negative at the time, as the criteria governing the level of trade union representativity were strictly applied, in accordance with the above-mentioned Act and regulations.
6. 205. The Government adds that the ruling of the national court referred to by the complainant organisation adds nothing new to the legal and administrative situation that has just been described. The court recognises the entitlement of the Confederation of Managerial Staff, an entitlement which had already been recognised by the above-mentioned legal provisions; indeed, it was under these provisions that a request for a share in the assets had been made, with the actual result indicated above. Consequently the Ministry, in accordance with the law, irrespective of jurisdictional recognition, had at no time denied the right of the Confederation to have a share in the distribution of accumulated trade union assets, on the grounds that it was less representative than other trade unions. However, this concept of level of representativity is the basic criterion contained in the Act, which is applied by the advisory committee and enforced by the Ministry; and the failure to apply this principle in practice might give rise to allegations such as are made in this very case that there was discrimination in the distribution of assets.
7. 206. The Government states that as a result of the trade union elections which took place at national level in 1990, meetings of the advisory committee were temporarily suspended. As the legal criterion governing the redistribution of trade union assets is that of representativity, it was appropriate that these proceedings be suspended until this representativity was actually established. Trade union elections took place between 1 October and 15 December 1990 but, given that the provincial electoral committees and the national electoral committee had to deal with a large number of complaints, the results - although not final - were only officially published on 14 November 1991. Immediately after this date, on 21 November 1991, the standing committee of the advisory committee met to continue examining requests for the transfer of assets submitted by the trade unions, whatever their level of representativity, to the advisory committee. None of these actions can be interpreted as delaying tactics designed to obstruct or delay the redistribution of accumulated trade union assets, and even less as infringements of freedom of association.
8. 207. The Government concludes by pointing out that the request of the Confederation of Managerial Staff will be re-examined by the advisory committee, set up legally for this purpose.

C. The Committee's conclusions

1. 208. The Committee notes that both the national court (its ruling of 16 November 1988) and the Government consider that the Confederation of Managerial Staff is entitled to have a share, both in a general and specific way, in the transfer of accumulated trade union assets.
2. 209. The Committee notes the Government's explanations of the delay in handling the Confederation of Managerial Staff's request to be assigned these assets (relating to the legal criteria of priority in dealing with requests based on trade union representativity, and the temporary suspension of meetings of the advisory committee on trade union assets - the body set up to deal with the trade unions' requests - because of the trade union elections organised at the national level). Nevertheless, the Committee must express its regret that a number of years have passed since the Confederation of Managerial Staff submitted its request to be assigned a share of these assets, without the advisory committee having yet reached any decision on the matter.
3. 210. The Committee notes with interest that, according to the Government, the advisory committee will decide shortly on the request submitted by the Confederation of Managerial Staff. In the circumstances, the Committee hopes that this organisation will be assigned in the very near future a share in the accumulated trade union assets, and it requests the Government to take the necessary measures to this effect.