REPRESENTATION (article 24) - SPAIN - C131 - 1989

Report of the Committee set up to examine the representation submitted by the Trade Union Confederation of Workers' Commissions under article 24 of the Constitution of the ILO, alleging non-observance by Spain of the Minimum Wage Fixing Convention, 1970 (No. 131).

Decision

1. The Governing Body approved the final report and declared the procedure closed.

Complaint Procedure

1. 1. By a letter dated 12 January 1988 the Trade Union Confederation of Workers' Commissions, referring to article 24 of the Constitution of the International Labour Organisation, submitted a representation alleging non-observance by Spain of the Minimum Wage Fixing Convention, 1970 (No. 131).
2. 2. This representation refers to a Convention that has been ratified by Spain and is in force in that country.(Endnote_1)
3. 3. The provisions of the Constitution of the ILO that are relevant to the submission of representations are the following:
4. Article 24
5. In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
6. Article 25
7. If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
8. 4. The procedure to be followed in the event of a representation is governed by the revised Standing Orders adopted by the Governing Body at its 212th Session in March 1980.(Endnote_2)
9. 5. In accordance wi.th articles 1 and 2 of those Standing Orders, the Director-General acknowledged receipt of the representation, informed the Government of Spain and brought the representation before the Officers of the Governing Body.
10. 6. At its 239th Session (February-March 1988), on the recommendation of its Officers, the Governing Body declared the representation receivable and appointed a Committee to examine the representation, composed of Mr. Hector Charry Samper (Government member, Colombia; Chairman), Mr. Jean-Jacques Oechslin (Employer member, France) and Mr. Marc Blondel (Worker member, France).(Endnote_3)
11. 7. In accordance with article 4, paragraph 1, subparagraphs (a) and (c) of the Standing Orders, the Committee decided:
12. (a) to invite the complainant Confederation to communicate by 15 April 1988 any additional information that it wished to make known to the Committee;
13. (b) to invite the Government to present its observations on the representation by 31 May 1988, on the understanding that any additional information received from the complainant Confederation would also be communicated to the Government.
14. 8. The complainant Confederation supplied additional information in a letter of 5 April 1988, and this information was immediately communicated to the Government.
15. 9. In a communication dated 5 May 1988 the Government supplied its observations on the allegations made by the complainant Confederation. In a subsequent communication of 16 August 1988, the Government supplied further observations on the additional information submitted by the complainant Confederation. The Committee considered it advisable to take account of these additional observations in view of their relevance to the handling of the representation, despite their late communication.
16. 10. The Committee first met on 3 March 1988. After Mr. Hector Charry Samper resigned his post as permanent representative of Colombia to the international organisations in Geneva,(Endnote_4) and in accordance with article 3 of the Standing Orders concerning the procedure for the examination of representations under articles 24 and 25 of the ILO Constitution, the Governing Body designated Mr. Mozart Victor Russomano (Government representative, Brazil) to replace Mr. H. Charry Samper as Government member of the Committee.(Endnote_5) The Committee met again on 2 March 1989 and finally on 30 May 1989 to adopt its report.
17. Analysis of the representation
18. I. Allegations
19. 11. The complainant Confederation alleges that the Government is not giving effect to the provisions of Article 4, paragraphs 1 and 2 of the Minimum Wage Fixing Convention, 1970 (No. 131).
20. 12. The Confederation states that the provisions of Article 4 of the Convention are covered by Article 27 of the Workers' Statute, which states that "the Government shall, after prior consultation of the most representative trade union organisations and employers' associations, each year fix the minimum inter-professional wage taking account of: (a) the consumer price index; (b) the national average level of productivity achieved; (c) the increase in labour's share of national income; (d) the overall prevailing economic situation ...". In this connection, and as regards paragraph 1 of Article 4, the Confederation considers that for a number of years the Government has failed to take account of the elements set out in Article 27 of the Workers' Statute in fixing the minimum wage. The complainant organisation considers that these provisions lay down an obligation to revise that wage on a six-monthly basis whenever the forecasts relating to inflation prove inaccurate. It states further that the Government failed to revise the minimum level even though, on repeated occasions, the forecasts relating to inflation proved to be inaccurate.
21. 13. In addition, it seems from the information communicated by the complainant organisation that in 1984 and 1986 the Confederation considered it necessary to adopt a guarantee clause establishing a system for the automatic revision of the minimum wage where it was noted that, six months after the annual revision, the price index had risen by more than a certain percentage. The Confederation submitted an appeal to the Supreme Court of Administrative Appeal against Royal Decree 2474/1985 of 27 December 1985, whereby the minimum inter-professional wage was set for 1986, on the grounds that the Decree did not respect the provisions of Article 27 of the Workers' Statute regarding the procedure for the six-monthly adjustment of the minimum wage.
22. 14. The complainant .Confederation considers that, in carrying out the consultation envisaged in Article 4, paragraph 2 of the Convention and by national legislation (Article 27 of the Workers' Statute), the Government has not conducted them with the necessary degree of seriousness ("Such consultation has been reduced to a parody or a farce"); that it does not take account of the proposals made by the Confederation; and that the Government does not agree to meet or negotiate directly in adjusting minimum wages. The Confederation states in particular that, as regards the increase for 1988, the Ministry of Labour confined its consultation to the sending of a note requesting the Confederation to communicate in writing, within a period of ten days, its position regarding the minimum inter-professional wage, without enclosing any other documentation or information regarding the Government's intentions regarding the increase in the wage for the year in question.
23. II. The Government's observations
24. 15. In its observations the Government begins by stating that, in its view, Article 4, paragraph 1 of Convention No. 131 requires a State ratifying it to take action of a legislative or standard-setting nature in order to determine the manner in which minimum wages shall be fixed, and in addition, to provide for a procedure for the revision of minimum wages at the necessary intervals.
25. 16. According to the Government, the obligations deriving from Article 4, paragraph 2 of the Convention are given effect by the consultations that have to be carried out with employers' and workers' organisations when (a) the machinery referred to in Article 4, paragraph 1 of the Convention is established, or modified; and (b) when that machinery is applied to determine the minimum wage.
26. 17. In the light of these considerations, the Government considers that in no case has it failed to comply with the obligation to establish machinery for the fixing or adjustment of minimum wages deriving from Article 4, paragraph 1, or to carry out the necessary consultation for the establishment of such machinery, an obligation deriving from Article 4, paragraph 2. Those obligations were honoured in the elaboration, approval and enactment of the Workers'. Statute, Act No. 8/80 of 10 March 1980. Finally, according to the Government, what is important is to determine whether, when the machinery for the fixing and adjustment of minimum wages is applied - by the approval of the Royal Decrees concerning minimum wages -the Government held consultations with employers' and workers' organisations.
27. 18. The Government states in this respect that the obligation contained in the provision of the Convention in question - Article 4, paragraph 2 - is of a formal or procedural nature, that is, the holding of consultations. The Government considers that consultations were carried out, and that thereby compliance was ensured with the provisions of the Convention and of national legislation, and that the complainant organisation recognises this.
28. 19. The Government states that the term "consultation" is not defined by the Convention, and that the latter makes no requirements regarding the form in which the consultation is to be carried out, whether verbally or in writing. In this respect it mentions one of the grammatical meanings of the term and states that, in view of the nature of the subject of consultations the latter are to be carried out in written form.
29. 20. Finally, the Government refers to the elements which, according to Article 27 of the Workers' Statute, must be taken into account in adjusting the minimum wage, and states that the complainant Confederation based its reply to the consultations on those elements, submitting in addition concrete proposals regarding the revised amount of the minimum wages. However, the Confederation did not, according to the Government, consider it necessary to request additional information before proceeding with the consultations.
30. 21. The Government considers that the real objective of the complainant organisation is to negotiate the contents of the Royal Decree fixing the minimum inter-professional wage, which is clearly reflected in the Confederation's demand that "rigorous discussions" and "real negotiation" be carried out on the elements taken into account in order to fix the minimum wage, and in its statement that in past years "the minimum inter-professional wage has been fixed in a unilateral manner and the proposals made by trade union organisations have not been taken into account". Finally, the Government states that neither the provisions of Convention No. 131 nor those of national legislation entail an obligation to discuss or negotiate the decree setting the amount of minimum wages, which, according to the Government, is the objective of the complainant Confederation.
31. III. The Committee's conclusions
32. 22. The Committee observes that the Convention is intended to ensure the protection of workers against the payment of extremely low wages through the establishment of a system of minimum wages to protect groups of workers whose conditions of work are such that it is necessary to ensure their protection. Article 3 of the Convention sets out the elements that must be taken into consideration in determining the minimum levels of wages in so. far as this is possible and appropriate in relation to national practice and conditions. Article 4, paragraphs 1 and 2 of the Convention read as follows:
33. Article 4
34. 1. Each Member which ratifies this Convention shall create and/or maintain machinery adapted to national conditions and requirements whereby minimum wages for groups of wage earners covered in pursuance of Article 1 thereof can be fixed and adjusted from time to time.
35. 2. Provision shall be made, in connection with the establishment, operation and modification of such machinery, for full consultation with representative organisations of employers and workers concerned or, where no such organisations exist, representatives of employers and workers concerned.
36. 23. In order to analyse the allegations of the complainant Confederation in terms of the above provisions of the Convention, the Committee considers it appropriate to recall the background and objectives of the Article in question.
37. 24. The adoption of Convention No. 131 derived from the recommendations made by the Meeting of Experts held in October 1967, which was convened by the Governing Body in that year with the purpose, inter alia, of examining "ways in which the ILO minimum wage fixing machinery Conventions and Recommendations might be revised ...".(Endnote_6)
38. 25. On the basis of the preparatory work and the discussions that took place in the Conference Committee and during the plenary sitting of the latter,(Endnote_7) the Committee wishes to state that Article 4, paragraphs 1 and 2 of the Convention provide an obligation for States ratifying the Convention to establish machinery for the fixing of minimum wages, leaving them free to determine the nature of such machinery, although they should do so after consulting the representative organisations of employers and workers. Such consultations should take place not only when the machinery is established, but also when it is applied or modified.
39. 26. As regards paragraph (1) of the Article in question and the adjustment of minimum wages that must take place from time to time, the Office commented on the observations made by a number of governments with regard to the draft Convention that: "the reference to the adjustment of minimum wages from time to time includes no mention of any automatic mechanism."(Endnote_8)
40. 27. As regards Article 4, paragraph 2, the Office stated in its comments that: "this paragraph calls for consultation in connection with the establishment, operation and modification of machinery for fixing minimum wages. It does not appear to call for consultation in regard to routine day-to-day administration nor in regard to application of a more or less automatic indexing system laid down by law".(Endnote_9)
41. 28. Finally, the Committee wishes to recall that, when the draft Convention was discussed, an amendment was submitted by the Workers' group to strengthen the provisions of Article 4, paragraph 2. It was then proposed to add the term "full" to qualify the word "consultation". The spokesman for the Workers1 group stated that "too often consultation by governments with employers' organisations and trade unions was perfunctory",(Endnote_10) and it was therefore sought to guarantee effective consultation.
42. 29. The Committee therefore considers that, first, the Convention does not in Article 4, paragraph 1, establish any specific period within which the governments of States ratifying the Convention are required to adjust established minimum wages. Secondly, the Committee considers that the obligation to consult representative organisations of workers and employers, laid down in Article 4, paragraph 2 of the Convention, should be fulfilled at the time of establishing or modifying the minimum wage fixing machinery, and also throughout the period of its operation. However, such consultation should be comprehensive, that is, it should not be carried out merely as a matter of form or procedure, nor does this mean that such consultation should assume the form of negotiation. Finally, such consultation is not required to cover the economic indices used in the fixing of minimum wages.
43. 30. The Committee notes the provisions of Article 27 of Act No. 8 of 10 March 1980, the Workers' Statute, which give effect to Articles 3 and 4, paragraphs 1 and 2 of the Convention. According to paragraph 1 of Article 27, the Government is required to fix each year, following consultation with the most representative organisations of workers and employers, the minimum inter-professional wages, taking into account the consumer price index, the national average level of productivity achieved, the increase in labour's share of national income and the overall prevailing economic situation. Similarly, six-monthly revisions must be made where the consumer price index forecasts prove inaccurate. The ILO's supervisory bodies have not yet commented on these provisions.(Endnote_11)
44. 31. The Committee recalls that the obligation incurred by a member State of the ILO on ratifying a Convention is, according to article 19 of the Constitution, the obligation to take such action as may be necessary to make effective, the provisions of the Convention. In the present case, those obligations consist in the establishment and maintenance of machinery for the fixing and adjustment of minimum wages in accordance with certain modalities. Article 27 of the Act mentioned above sets out these methods, and fixes the manner of their operation, their frequency, the elements that must be taken into consideration in fixing minimum wages and consultation with employers and workers.
45. 32. Taking account of these elements, the Committee examined whether the attitude of the Government of Spain in the procedure for the fixing of minimum wages was compatible with the provisions of the Convention. For this purpose the Committee analysed not only the texts of the representation made by the complainant Confederation and the Government's observations, as well as the additional information and the related documentation.
46. A. Frequency of minimum wage adjustment
47. 33. It seems from the information supplied by the Government that, since 1982, minimum wages have been fixed annually on the first day of the year. The Government states in this respect that the consumer price index forecasts that have to be taken into account for the six-monthly adjustment of the wage refer to the expected increase in prices over the period for which the new minimum wage rate is in force, that is, a period of one year as from 1 January 1982. The Government has supplied figures showing the difference between the evolution of the minimum inter-professional wage and the consumer price index during that same period, ranging from a reduction of 3 points in 1982 to an increase of 1.5 points in 1988. The Government recognises that the growth of the minimum wage over the period 1979-1988 has been less than the growth in the consumer price index, the difference being 9.75 points, and not 14.1 points as stated by the complainant organisation. The Government states that the overall prevailing economic situation, particularly in a crisis period, can influence the fixing of wages, and that the latter may be set at a lower rate than the price index, particularly where economic policy is aimed at combating unemployment and improving the competitivity of industry, which has been the subject of priority attention on the part of the economic authorities over the last few years.
48. 34. The Committee recalls that the provisions of the Convention do not require a ratifying State to adopt any particular method of fixing minimum wages, or any specific frequency for their adjustment, and this contrasts with the provisions of Article 27 of the Workers' Statute, which provides for the annual revision of the minimum inter-professional wage and six-monthly revisions in certain circumstances. The Committee also recalls that the methods for the fixing and adjustment of minimum wages are in accordance with the provisions of the Convention in so far as they respond to the principal objective of the Convention.
49. 35. Taking account of the information available, the Committee concludes in this respect that the Government has not failed to comply with the provisions of Article 4, paragraph 1 of the Convention in maintaining machinery whereby "minimum wages ... can be ... adjusted from time to time". The Committee emphasises in this connection that the information supplied to it in its examination of this aspect of the representation could have been supplied to those concerned as part of the consultation envisaged in Article 4, paragraph 2 of the Convention.
50. B. Consultations to be carried out by the Government and their scope
51. 36. In this respect the Committee wishes to state that, while the Convention offers no definition of the term "consultation", it is obvious that the term should be understood in the grammatical sense of "consultation" within the context of the Convention's provisions and its overall objectives. According to the terms of the Convention, consultation must be carried out with the representative organisations of employers and workers concerned when the machinery for the fixing of minimum wages is established, applied or modified, and this no doubt has the aim of offering an opportunity to the parties directly concerned to express their opinion on the subject so that their opinion can be taken into account when a decision is taken, in the present case, in the fixing of the corresponding minimum wage. This view is strengthened by the statement made by the Committee of Experts in its general survey of tripartite consultation. The Committee observed on that occasion that the term "consultation" "has a different connotation both from mere 'information' and from 'co-determination'". It also stated that, although "the views expressed in the course of consultations are not a form of participation in decision making ...," consultation "must be able to have some influence on the decision to be taken".(Endnote_12)
52. 37. In accordance with this reasoning, the Committee had to consider whether the Government had given effect to the provisions of the Convention in relation to the workers' and employers' organisations concerned in applying the minimum wage fixing machinery.
53. 38. The Committee states that the consultation in question should be aimed at more than just obtaining the opinion of the interested organisations. The party responsible for carrying out the consultation, in this case the Government, should take into consideration what is stated or proposed by the party it consults, in this case the Confederation, but this does not mean that the Government has to comply with all the requests of the Confederation consulted, particularly those concerning the economic indices that are taken into consideration in fixing the minimum wage or the amount proposed by the organisation consulted, still less that it should enter into negotiations, as this is not foreseen by the Convention either in letter or in spirit. This view can be strengthened by the consideration that Article 4, paragraph 2 of the Convention states that "provision shall be made for full consultation" with representative organisations of employers and workers concerned. In this respect the Committee recalls that the adjective "full" derives from an amendment proposed to the paragraph in question in order to ..) prevent consultation by governments with employers' organisations and trade unions from being "perfunctory",(Endnote_13) which means therefore that it was wished to guarantee that the consultation had a real effect.
54. 39. The Committee recalls that the objective of consultation is specifically to obtain the maximum possible amount of information ("full consultation") from all parties, and not only to obtain their opinion, even where that opinion is well documented.
55. 40. The Committee therefore concludes that, in the circumstances of this case, the letter by the Government to the complainant organisation requesting its opinion on fixing the minimum inter-professional wage for 1988, when the Government did not even supply an indication of its position, is not fully in accordance with the provisions of Article 4, paragraph 2 of the Convention, which requires the full consultation of employers' and workers' organisations. The Committee considers it advisable to draw the Government's attention to the need to carry out consultation not only as a purely formal or procedural act, but with the object of taking effective account of the opinion of one of the social partners regarding the matter forming the subject of the consultation, in the present case the minimum inter-professional wage.
56. 41. The Committee recommends the Governing Body:
57. (a) to adopt this report, and in particular the conclusions contained in paragraphs 35 and 40 thereof;
58. (b) to declare closed the procedure initiated as a result of the representation made by the Trade Union Gonfederation of Workers' Commissions, alleging non-observance by Spain of the Minimum Wage Fixing Convention, 1970 (No. 131).
59. Geneva, 1 June 1989.
60. (signed)
61. M.V. Russomano,
62. Chairman.
63. J.-J. Oechslin
64. M. Blondel
65. Point for decision: Paragraph 41.
66. Endnote 1
67. Convention No. 131 was ratified on 30 November 1971.
68. Endnote 2
69. Official Bulletin, Vol. LXIV, 1981, Series A, No. 1, pp. 93-95.
70. Endnote 3
71. GB.239/18/15 and GB.239/PV(Priv.)(Rev.).
72. Endnote 4
73. GB.242/13/7.
74. Endnote 5
75. GB.242/PV.IV, pp. 13-14.
76. Endnote 6
77. Extract from the Report of the Meeting of Experts on Minimum Wage Fixing and Related Problems, ... in International Labour Conference, Geneva, 1969, Report VII(l): Minimum Wage Fixing Machinery and Related Problems, with Special Reference to Developing Countries, pp. 76-91.
78. Endnote 7
79. International Labour Conference, 53rd Session, Geneva, 1969, Reports VII(1) and VII(2); and 54th Session, Geneva, 1970, Reports V(l) and V(2): Minimum Wage Fixing Machinery and Related Problems, with Special Reference to Developing Countries.
80. International Labour Conference, 53rd Session, Geneva, 1969, Record of Proceedings, pp. 467-473 and 678-687.
81. International Labour Conference, 54th Session, Geneva, 1970, Record of Proceedings, pp. 378-385 and 440-446.
82. Endnote 8
83. International Labour Conference, 54th Session, Geneva, 1970, Report V(2): Minimum Wage Fixing Machinery and Related Problems, with Special Reference to Developing Countries, p. 18.
84. Endnote 9
85. ibid., p. 18.
86. Endnote 10
87. International Labour Conference, 54th Session, Geneva, 1970, Record of Proceedings, p. 381.
88. Endnote 11
89. The comments of the Committee of Experts on the Application of Conventions and Recommendations have since 1983 referred to the application of these provisions to domestic workers, but not to their content. See International Labour Conference, Report III (Part 4A): Report of the Committee of Experts on the Application of Conventions and Recommendations: 1983 (p. 260); 1984 (pp. 291-292); and 1985 (pp. 339-342).
90. Endnote 12
91. International Labour Conference, 68th Session, Geneva, 1982, Report III (Part 4B): Tripartite Consultation (International Labour Standards), paras. 42 and 44 (pp. 13-14).
92. Endnote 13
93. International Labour Conference, 54th Session, Geneva, 1970, Record of Proceedings, p. 381. This was the only amendment proposed to the text of Article 2, paragraph 4 of the Convention, and apparently the only discussion it received.