Rapport définitif - Rapport No. 217, Juin 1982

1. 123. The complaint is contained in a communication from the Open Group of Federations (GAF) dated 17 June 1981. The Government replied in a communication dated 5 February 1982.
2. 124. 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. 125. The Open Group of Federations (GAF) alleges that the National Agreement on Employment of 9 June 1981 - the text of which it attached - signed and ratified by the Government, the Spanish Confederation of Employers' Organisations (CEDE), the General Union of Workers (UGT) and the Trade Union Confederation of Workers' Committees (CCOO), constitutes a glaring infringement of Conventions Nos. 87 and 98, openly discriminates against the entire body of trade unions and workers not represented in the said Agreement and entails numerous serious consequences in the field of trade union representation.
2. 126. The complainant refers in particular to sections VI.3 (Assistance in training), and VI.4 (Social Institute for Leisure) of the Agreement, which give preference to members of the signatory trade unions, thus indirectly interfering with the right to organise.
3. 127. Finally, the complainant points out that while the Agreement can appropriately be interpreted within the contractual limits of the signatory parties, because of its importance and immediate significance it will take concrete form in legislation, according to statements by the most representative figures who have participated in the said Agreement.

B. The Government's reply

1. 128. In its communication dated 5 February 1982 the Government states that the contents of the National Agreement on Employment are far from discriminatory in nature, having been adopted on a tripartite basis by the Government (since a large part of its contents had to be translated into legal standards) and the most representative trade union and employers' organisations. The Government adds that there was nothing to prevent the draft Workers' Statute or Basic Employment law from being drawn up by the Government so as to give them the contents set out in the Agreement, provided that this was done with due respect for the legal standards to which the executive is generally subject, as has in fact been the case. Neither did anything prevent employers and workers - and this is an expression of freedom of association - from bargaining through their most representative organisations.
2. 129. The Government points out that careful examination of the complainant organisation's study of the National Agreement on Employment reveals the expression of some entirely subjective opinions, which include, moreover, hypotheses showing disagreement with the contents of the Agreement; while this is perfectly legitimate, it has nothing to do with the exercise of freedom of association or with the allegedly discriminatory treatment which is being denounced.
3. 130. Concerning sections VI.3 (Assistance in training) and VI.4 (Social Institute for Leisure) of the Agreement, whereby 50 per cent of the budget for training courses of certain institutes and 50 per cent of places in residences of the Social Institute for leisure are reserved for the signatory trade unions, the Government states that such reservations cannot be regarded as discriminatory, since the signatory trade union organisations account for a total of more than 60 per cent of workers' representatives, according to the official results of the last trade union elections, which means that 50 per cent of the budgets or places are at the disposal of organisations accounting for less than 40 per cent of workers' representatives.

C. The Committee's conclusions

1. 131. The Committee notes the allegations of the complainant regarding the discriminatory nature of certain provisions of the National Agreement on Employment of 9 June 1981, as well as the Government's reply.
2. 132. Having undertaken a thorough study of the National Agreement on Employment entered into between the Government, the CEDE, UGT and 0000, the Committee observes that the clauses of the said Agreement stipulate that representatives of the signatory trade union organisations will sit on the Council which will administer, on a tripartite basis, the fund for special and urgent services in aid of unemployed persons; that the parties undertake to analyse and propose within four months the implementation of new measures to regulate the periodicity of wage payments with a view to subscription payments and to improving the collection of social security contributions; that the administration will, in order to undertake a study of the present social security system with a view to improving and rationalising it, draw up a proposal to be submitted to a Committee comprised of the parties who signed the Agreement, who will present their proposals to the Government, which will take them into account in any proposed legislation which may be drawn up on this subject; and that the Government will promulgate the standards governing the various recruitment arrangements provided for in the Workers' Statute, following consultation with the trade union and employers' organisations which signed the Agreement.
3. 133. On previous occasions the Committee has stated that the mere fact that legislation or practice in a country draws a distinction between the most representative trade union organisations and other organisations for the purpose of granting certain privileges or advantages to the former, for example, regarding representation or consultation, is not in itself a matter for criticism, nor does it give rise to objections from the viewpoint of the principles of freedom of association, provided that such a distinction is based on objective criteria, such as majority of members, and that the fundamental rights and guarantees of the less representative organisations are not brought into question. In this respect, the Committee notes that the trade union organisations which signed the National Agreement on Employment obtained a total of over 60 per cent of representatives in the last elections, and that the privileges granted in the sections referred to do not extend beyond priority in representation or consultation; these sections therefore do not appear to violate the principles of freedom of association.
4. 134. The Committee observes in addition that the advantages granted in sections VI.3 and VI.4 of the National Agreement on Employment to the signatory trade union organisations, regarded as discriminatory by the Open Group of Federations, include the reservation of 50 per cent of places in vacation residences of the Social Institute for Leisure and 50 per cent of the budget for training courses at the Institute for Social Studies and the Institute for Health and Social Security Studies and Research in Cooperative Training, as well as allocation of permanent premises for these activities, to the signatory trade union organisations. In this respect, the Committee notes that, according to the Government, the organisations which did not sign the National Agreement on Employment obtained less than 40 per cent of workers' representatives in the last elections, and that 50 per cent of the budgets and available places are left at the disposal of these organisations. Consequently, taking into account the principle set out in the previous paragraph and the fact that, from the elements at the Committee's disposal, it cannot be inferred that the advantages granted in these matters to the organisations which signed the National Agreement on Employment have brought into question the fundamental rights and guarantees of the other trade union organisations, the Committee considers that sections VI.3 and VI.4 do not violate the principles of freedom of association.