Informe definitivo - Informe núm. 299, Junio 1995

1. 23. The complaint is contained in a communication from the Federal Executive Committee of Public Services of the General Union of Workers (EFSP-UGT) dated 20 November 1990. The Government replied in a communication dated 8 March 1991.
2. 24. In paragraph 8 of its 278th Report (May-June 1991) the Committee requested the Government to send the text of the verdict that the judicial authority was due to hand down regarding the facts of this complaint. Following several letters on developments in the proceedings, the Government sent the text of the verdict and a range of documents in communications dated 14 and 28 March 1995 explaining the judicial authority's delay in passing sentence.
3. 25. Spain has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant's allegations

1. 26. The complainant organization alleges in its communication dated 20 November 1990 that on 11 April 1990 the General Union of Workers (UGT), the Trade Union Confederation of Workers' Committees (CC.OO.) and representatives of the municipal council of Alzira, Province of Valencia, signed a collective agreement on working conditions for the years 1990 to 1992, entirely in accordance with legislation in force, which contained the standards regulating relations between the municipal council and its officials. This agreement was adopted at a plenary meeting of the municipal council of Alzira at an extraordinary session on 20 April 1990.
2. 27. Nevertheless, continues the complainant, when the government delegate in the autonomous community of Valencia read the agreement, he declared that it was unlawful. In a communication dated 1 June to the presiding mayor of the municipal council of Alzira, he requested that the agreement be revoked within one month, on the basis of what was hardly an exhaustive analysis of some of the terms which, in the opinion of the government delegation, violated legislation in force. The complainant organization does not share this opinion.
3. 28. The complainant organization points out that it is common knowledge in the autonomous community of Valencia that the government delegate does not agree that officials working in the local administration should be allowed to negotiate their working conditions with the municipal councils. He unequivocally denies these officials the right to collective bargaining as provided for under the legislation in force.

B. The Government's reply

1. 29. The Government states in its communication dated 8 March 1991 that this complaint is rooted in the fact that the government delegate had felt that the agreement on the working conditions of officials of the municipal council of Alzira for the years 1990, 1991 and 1992 was at odds with the Spanish legislation in force and had therefore requested the presiding mayor of the municipal council of Alzira to revoke the agreement.
2. 30. The Government adds that both the allegations made by the complainant trade union and the documentation from the government delegation to the autonomous community of Valencia (enclosed with the Government's reply) show that the matter in hand is basically a legal dispute in so far as a decision was needed on whether the government delegate's position had a legal basis or not. For this reason, the delegate himself ordered the State Prosecutor to begin the necessary proceedings before an administrative court to prove that specific clauses of the aforementioned agreement were not in conformity with the law and that the agreements were therefore unlawful. The delegate was thus withholding his decision pending the verdict of the competent courts. The action taken went through the channels established under Spanish legislation currently in force. Section 65 of Act No. 7/85, on local government, provides that: "(1) When the state administration considers, within its sphere of competence, that an act or agreement of any local body violates legislation, it may request that body, invoking this section, to revoke the said act or agreement. (2) The request must be justified and state which legislation appears to have been violated. The request should be lodged within 15 working days after the communication of the agreement has been received. (3) The state administration may contest the act or agreement before the administrative court either directly, once the communication of the agreement has been received, or once the deadline stated in the request addressed to the local body has elapsed, if it has decided to make use of the possibility considered in the previous two subsections." The Government points out that there are similar provisions for the courts to monitor the legality of collective agreements in the Workers' Charter.
3. 31. In short, the Government states that the government delegation to the autonomous community of Valencia has acted in strict accordance with the law and did not revoke the agreement in question but instead requested the municipal authority that signed and adopted it to do so. Since the government delegation has contested the agreement before the competent courts (which will decide whether the agreements are legal or not), and particularly since it has gone through the legal channels, there are no grounds for assuming that it has in any way abused its power.
4. 32. In its communications dated 14 and 28 March 1995, the Government sent the text of Ruling No. 161/95 of 23 February 1995 of the High Court of the community of Valencia (third section, administrative litigation division) on the situation described in the complaint and encloses documents explaining the judicial authority's delay in handing down its ruling on the matter.
5. 33. The judicial authority, in its ruling, took account of legislation and case- law and, above all, the process of negotiations at the various levels of the public service, and decided:
6. 1. To revoke the terms of the collective agreement on the working conditions of officials of the municipal council of Alzira where it provides for:
   • - additional standards on issues not covered by the collective agreement (article 2);
   • - longer holidays than required by law (article 9(b));
   • - cases in which time off for trade union activities may exceed statutory limits (article 10(g)) and permission for two days' extra leave for officials who have to travel more than 100 km (section of article 11);
   • - improved overtime arrangements, a wage increase (over and above the 5 per cent granted to the public sector as a whole) and a clause on wage reviews which would take account of the consumer price index (articles 33 and 34). Nevertheless, the ruling specifies that officials should be given financial compensation when they have worked more than the statutory number of hours over the year or their timetable has been heavier than provided for under the terms governing compensation for services provided to the administration.
7. 2. To reject the other objections raised by the government delegate and retain the following provisions of the collective agreement:
   • - paid time off for union activities (article 10);
   • - increased leave for officials obliged to change domicile (subsection, article 11);
   • - advance payments (article 16);
   • - appointment of career officials to sit on the credentials tribunal (article 25).
8. 34. The explanatory introduction to the ruling points out that, whereas in industrial negotiations the representatives of workers and employers discuss private assets, in the public administration they focus on matters of direct consequence to the public at large. This means that the labour laws, and regulations that constitute the "essential rights" of workers provide for the freedom to negotiate and reach agreements, whereas public administrations, pursuant to article 103 of the Constitution, must at all times act in accordance with the legal and judicial system. The regulations governing the right of public officials to engage in collective bargaining were set out in Act No. 9/1987 of 12 June 1987 (which were in force when the situation referred to in this case arose) and in Act No. 7/1990 of 18 July 1990 (which came into force later) and provide for considerable restrictions under the legal and judicial system. The contractual framework (in the public administration) depends on the nature of the standard-setting authority and the organizational independence of the corresponding administrative body and also the content, rigidity and uniformity of the regulations in force. Although, pursuant to section 32(e) of Act No. 7/1987 or section 32(a) of Act No. 7/1990, officials of local administrations may negotiate pay increases with their local councils, the municipal autonomy provided for in article 140 of the Constitution does not mean that the central Government may not impose ceilings or limits on the overall wage bill of public employees, regardless of the administration they work for. This subject has come up time and again before the Constitutional Court, and Ruling No. 96/1990 of 24 May 1990 (Official Gazette of 20 June 1990) confirms that the competence of the State to determine the fundamental aspects of regulations governing public officials may extend to provisions relating to officials' remuneration, which is common to all public administrations; this, in turn, is rooted in the constitutional principles of equality and solidarity and in the competence of the State to manage general economic activity. That being so, the State is justified in imposing overall ceilings on the public employees' wage bill. However, from the point of view of general economic policy, there seems to be no justification for the State to predetermine maximum increases in the remuneration of every official working for an autonomous community or local councils. The upper limit refers to the total wage mass corresponding to each group, and not to the remuneration of each individual concerned.

C. The Committee's conclusions

1. 35. The Committee observes that the complainant organization contests the decision of the government delegate in the autonomous community of Valencia declaring illegal some of the articles of the agreement on working conditions of officials of the municipality of Alzira (signed on 11 April 1990 by the trade union organizations UGT and CC.OO. and the representatives of the municipal Council of Alzira, and subsequently endorsed at a plenary meeting of the Council) and ordering the municipality to revoke the agreement.
2. 36. The Committee notes that, according to the Government: (1) the allegations originate in a juridical controversy over whether or not the government delegate's decision has a legal basis; (2) the government delegate, who did not revoke the agreement himself but ordered the municipality to do so, initiated court proceedings to determine the legality of the agreement; (3) in doing so the delegate abided strictly by the law, and specifically by article 65 of Act No. 7/85 of 2 April (basic law respecting local government). The Committee observes that one of the documents from the administrative authorities communicated by the Government stipulates that the basic remuneration of local officials shall have the same structure and be of the same amount as that established in general throughout the public service, but that under certain conditions this principle does not apply to supplementary remuneration.
3. 37. Regarding the authority of the (national) government delegate to order the annulment of a collective agreement between the municipality of Alzira and the trade unions representing the public servants of the municipality, the Committee observes that it is apparent from the ruling that the municipality did not comply with the government delegate's order and that the collective agreement was implemented in practice for the period during which it was in force, which is why the government delegate, who deemed certain provisions of the agreement to be illegal, initiated proceedings to have them revoked. In the Committee's opinion, the fact that the government delegate expressed his point of view on the legality of certain provisions of the collective agreement and ordered the public administration that approved it to revoke them does not violate the principles of collective bargaining in the present case, in so far as his order was not binding - as can be deduced from the fact that the government delegate, in accordance with the law, lodged an administrative appeal to have the judicial authority rule on the legality of the contested provisions.
4. 38. With regard to the ruling (which the Government communicated at the request of the Committee and regarding which the complainant organization has neither commented nor raised any objection), the Committee observes that the judicial authority ruled that certain provisions of the collective agreement contested by the government delegate did conform to the law and that it revoked others the most important of which basically refer to matters having economic implications - such as the more than 5 per cent increase in officials' remuneration, a clause on wage reviews which would take account of the consumer price index, and longer paid holidays. In this respect the Committee wishes to refer to the following principle, laid down by the Committee of Experts and shared by the Committee, concerning the budgetary limits of negotiated clauses that have economic implications:
   • While the principle of autonomy of the parties to collective bargaining is valid as regards public servants covered by the Convention, the special characteristics of the public service described above require some flexibility in its application. Thus, in the view of the Committee, legislative provisions which allow Parliament or the competent budgetary authority to set upper and lower limits for wage negotiations or to establish an overall "budgetary package" within which the parties may negotiate monetary or standard-setting clauses (for example: reduction of working hours or other arrangements, varying wage increases according to levels of remuneration, fixing a timetable for readjustment provisions) or those which give the financial authorities the right to participate in collective bargaining alongside the direct employer are compatible with the Convention, provided they leave a significant role to collective bargaining. It is essential, however, that workers and their organizations be able to participate fully and meaningfully in designing this overall bargaining framework, which implies in particular that they must have access to all the financial, budgetary and other data enabling them to assess the situation on the basis of the facts.
   • This is not the case of legislative provisions which, on the grounds of the economic situation of a country, impose unilaterally, for example, a specific percentage increase and rule out any possibility of bargaining, in particular by prohibiting the exercise of means of pressure subject to the application of severe sanctions. The Committee is aware that collective bargaining in the public sector "... calls for verification of the available resources in the various public bodies or undertakings, that such resources are dependent on state budgets and that the period of duration of collective agreements in the public sector does not always coincide with the duration of budgetary laws - a situation which can give rise to difficulties." The Committee therefore takes full account of the serious financial and budgetary difficulties facing governments, particularly during periods of prolonged and widespread economic stagnation. However, it considers that the authorities should give preference as far as possible to collective bargaining in determining the conditions of employment of public servants; where the circumstances rule this out, measures of this kind should be limited in time and protect the standard of living of the workers who are the most affected. In other words, a fair and reasonable compromise should be sought between the need to preserve as far as possible the autonomy of the parties to bargaining, on the one hand, and measures which must be taken by governments to overcome their budgetary difficulties, on the other (see 297th Report, Case No. 1758 (Canada), para. 228).
5. 39. In the present case the Committee observes that the law permitted collective bargaining with respect to the remuneration of public servants, other conditions of work and the scope of trade union rights at the time the collective agreement was concluded (Endnote 1) (and does so under the new legislation of 1990). The Committee also observes that, according to the judicial ruling, there are limits to the scope of negotiations on the remuneration of public officials - and other matters with economic implications - and that these limits are determined by the general budget of the State. The Committee understands that the intention is to ensure the economic equilibrium of the State, guarantee the principle of solidarity and avoid possible discrimination resulting from thousands of bargaining units in the public service being completely free to negotiate economic matters. Furthermore, the Committee is aware that, according to the law, any increase in the overall wage-bill of public servants provided for in the general state budget may be a matter for negotiation between the most representative organizations at the national level (one of which is the complainant organization, i.e. an organization that is a party to the collective agreement of the Alzira municipality) prior to the adoption of the budget and that there was an agreement concerning the revision of wages during the period referred to in the allegations. Under these circumstances and taking into account those matters which should be negotiated at each level of collective bargaining in the public service, the Committee considers that in the present case the aforementioned principle regarding the budgetary limits on negotiated clauses of an economic nature has not been violated.
6. 40. Finally, the Committee observes that the legislation on collective bargaining in the public service which was in force at the time the complaint was submitted (Act No. 9/1987 of 12 May 1987) was amended by Act No. 7/1990 of 19 July 1990, which defines the matters that are subject to collective bargaining as follows:
   • Article 32. The following matters shall be the subject of negotiation in their respective sphere, and according to the terms of reference of each public administration:
     • (a) increases in remuneration of officials and other established staff of public administrations, which should be covered by the draft general state budget for each year, as well as increases in remuneration that autonomous regions and local authorities provide for with respect to their own staff in their respective draft budgets;
     • (b) the determination and application of the remuneration of public servants;
     • (c) the preparation and design of plans with respect to vacant posts in the public service;
     • (d) the classification of posts;
     • (e) the determination of programmes and funds for promotion, training and further training activities;
     • (f) the determination of retirement benefits and pensions and, in general, all matters relating in any way to the improvement of the living conditions of retired officials;
     • (g) the recruitment, assignment and promotion of public servants;
     • (h) proposals with respect to trade union and participation rights;
     • (i) measures concerning occupational health;
     • (j) all matters that relate in any way to access to the public service, administrative careers, remuneration and social security, or to the working conditions of public servants whose terms of office have to be regulated by standards having force of law;
     • (k) matters of an economic nature, the provision of services, trade union questions, welfare and, in general, all other matters that concern working conditions and the relations of public servants and their trade union organizations with the administration.
   • The Committee considers that this provision complies fully with the conventions on collective bargaining ratified by Spain.