Rapport définitif - Rapport No. 268, Novembre 1989

1. 24. The complaint is contained in a communication from the State Federation of Banks, Savings and Insurance Institutions and Offices (FEBASO), dated 23 September 1988. The Government replied in communications dated 15 December 1988 and 16 May 1989. At its meeting in May 1989, the Committee asked the Office to obtain supplementary information from the Government so that it might examine this case in full knowledge of the facts (see 265th Report, para. 5). The Government sent this information in a communication dated 28 September 1989.
2. 25. Spain has ratified the Freedom of Association and Protection of 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. 26. The State Federation of Banks, Savings and Insurance Institutions and Offices (FEBASO), which claims to be the most representative trade union in the private banking sector, alleges that the 1984-85 collective agreement for the private banking sector concluded between trade union and employers' organisations contained, in section 39, a provision on the length of the working day and hours of work, specifying that the uninterrupted working day of seven hours (from 8 a.m. to 3 p.m.) was to be the general rule; it only provided for some specific exceptions. The documentation sent by the complainant shows that the uninterrupted working day is a trade union conquest. One of the subsections in the above-mentioned section stipulates that:
   • Notwithstanding that it has been agreed that the continuous working day from 8 a.m. till 3 p.m. shall be of general application, another schedule in which the working day is of equal length and which averages the same number of working days over a year may be adopted in workstations where the staff have so requested through their staff representatives, in agreement with the enterprise in this case - or also at the enterprise's initiative. In order for this change to be adopted, it is necessary that two-thirds of the staff voting in the workplace concerned should be in favour: if the change is to be made throughout the enterprise as a whole, it must be voted by two-thirds of the staff in all the workstations.
2. 27. FEBASO adds that in July 1986, when the validity of the 1984-85 collective agreement had been extended by virtue of the national legislation and because of failure to reach a new agreement, the Bank of Biscay (an enterprise in the private banking sector), represented by the employer's association AEB (a party to the 1984-85 collective agreement), sent a "circular letter" to its offices, branches and departments of the "Central Administration" and "Special situations or working groups in credit centres". The circular stated: "We inform the staff that anyone who belongs to the above-mentioned department, and wishes to do so, may work a special schedule which differs from the present one, of general application, stipulated in the collective agreement in force." This special work schedule basically consists of a new timetable (Monday to Friday from 8.30 a.m. to 5.30 p.m.) with a one-hour break for lunch and a lunch bonus of 500 net pesetas; the enterprise may also oblige workers to work on Saturdays if they have previously volunteered to do so. In order to be bound by the new schedule the workers must sign a note of acceptance, an example of which is included with the circular letter.
3. 28. FEBASO points out that the "offer" of the new work schedule, contrary to that established by the collective agreement in force, was made to all the staff in the above-mentioned departments and to all categories of workers in these departments. In October 1987, 615 workers had "accepted" the enterprise's proposal, in accordance with the example attached to the circular, which gives an idea of the "massive" response to the Bank's initiative. A complaint against this employers' initiative was made by the works committee and the Committee of the International Banking Division to the Labour Inspectorate in Madrid. On 13 April 1987, the Labour Inspectorate issued an injunction to the Bank of Biscay ordering it to comply immediately with the schedule and length of working day established by collective agreement, pointing out that this could only be amended in two ways: by having recourse to the procedure laid down in section 41 of Act No. 8 of 10 March 1980 called the Workers' Statute (administrative authorisation), or by following the procedure laid down in section 39 of the collective agreement. This injunction was not obeyed by the enterprise. In these circumstances, one of the most representative trade unions brought an action before the labour courts, as a result of which the board of conciliation upheld the claim in a ruling of 9 December 1987. The enterprise appealed against this ruling and the Central Labour Court handed down a judgement, dated 7 March 1988, in which it declared the ruling of the conciliation board null and void. An application for amparo (enforcement of constitutional rights) against the ruling of the Central Labour Court was submitted to the Constitutional Court on 4 May 1988; however, as yet, no ruling has been pronounced.
4. 29. FEBASO also alleges that a new collective agreement covering the private banking sector entered into effect on 19 May 1988; this agreement regulated the length of the working day and work schedule, establishing the continuous working day but also providing for the possibility of a divided timetable that each enterprise might offer to its employees who so wished. In such a case:
   • The requests for this new schedule may be granted in no more than 25 per cent of the workstations in each enterprise and affect no more than 25 per cent of the employees in each bank. The AEB shall communicate the name of the workstations applying the divided work schedule and the list of employees concerned in each workstation to the trade unions party to the collective agreement, as each new schedule with its corresponding changes is introduced. In the case of employees working with a divided schedule in workplaces in towns with more than 50,000 inhabitants, they shall be granted 500 pesetas for every day worked on this schedule to cover their meal expenses.
5. 30. Nevertheless, on 20 May 1988, the Bank of Biscay issued a circular in which, after recalling that there was a collective agreement reducing the working day calculated on an annual basis, it "offered" a work schedule which did not comply with the provisions established by collective agreement for staff working on a "special timetable with morning and afternoon hours"; the contents of the circular were as follows:
   • In view of the fact that the new collective agreement reducing the working day calculated on an annual basis entered into effect on 19 May 1988 and taking into account that there are staff in this department that voluntarily accepted to work to a special morning and afternoon timetable which freed them every Saturday throughout the year, it is necessary to adjust the work schedules valid until now for the said staff so that the new schedules drawn up do not contain a higher number of days calculated on an annual basis than that established by collective agreement.
   • Consequently, the following schedule is suggested to replace that valid until present:
   • (A) For the period from 1 January to 14 June and between 16 September to 31 December (inclusive): Morning: arrival: between 8 a.m. and 9 a.m. (flexible). departure: between 2 p.m. and 3 p.m. (flexible). Break of at least one hour. Afternoon: arrival: between 4 p.m. and 5 p.m. (flexible). departure: once a working day of 7 hours 45 minutes has been completed.
   • (B) For the period between 15 June and 15 September (inclusive): Morning: arrival: between 8 a.m. and 9 a.m. (flexible). departure: between 2 p.m. and 3 p.m. (flexible). Break of at least one hour. Afternoon: arrival: between 4 p.m. and 5 p.m. (flexible). departure: once a working day of 7 hours has been completed.
   • (C) On working days during a standard week in which a local public holiday is celebrated, the working day should be calculated on the basis of four hours per actual working day.
   • The other improvements in working conditions agreed upon by the enterprise to apply to those willing to work on the new schedule shall naturally remain the same. They are as follows:
     • - financial compensation for every day of work divided up between morning and afternoon hours;
     • - the right to decide unilaterally to withdraw from the agreement and thus to return to an uninterrupted work schedule, as established by collective agreement.
   • 20. 5.88
6. 31. FEBASO is of the opinion that these actions infringe the Spanish Constitution (which particularly guarantees the principle of the binding force of collective agreements), national legislation and Conventions Nos. 87 and 98.

B. The Government's replies

1. 32. The Government, in its reply, starts by referring in detail to the various constitutional and legal provisions pertaining to freedom of association and collective bargaining and to the various judicial guarantees and ways open to workers or trade unions who consider that their rights have been undermined - including the use of injunctions to put an immediate end to anti-trade union action and remedial measures for the consequences of unlawful action - or who believe that legislation, including ILO Conventions, has not been applied correctly. The Government therefore points out that it would be erroneous to say that Spain has poor or inadequate legislation pertaining to freedom of association and collective bargaining or that there is not adequate machinery to guarantee the rights of freedom of association and collective bargaining.
2. 33. Apart from judicial supervision, the Spanish legal system provides for the administrative supervision of rights - such as the right to join a trade union and bargain collectively - through the Labour Inspectorate. What is more, the labour authority may impose penalties for default on the part of the employers implying an infringement of legal standards or clauses contained in collective agreements. In this context, it should be stressed that the administration's power to penalise actions implying the failure to comply with standards or collective agreements should not be confused with the judicial responsibility of interpreting standards or settling conflicts arising from their application. The role of the administration is merely to take note of de facto situations and to apply, if need be, sanctions; indeed, if the dispute between an enterprise and the workers' representatives is not to determine whether a specific event has occurred or not, or whether it infringes the law, but to decide upon the interpretation that must be given to a specific clause in an agreement in relation to a general standard (which is in fact the issue involved in this case), it is not up to the administration to settle this dispute by applying a penalty but is a matter for the courts, which follow one of the procedures mentioned above. Similarly, if in a specific case, a party which believes it has been wronged by default on the part of the employers brings the matter before the courts (and again this is what has happened in the present complaint), the administration may take no action on this matter before a ruling has been made because the role of interpreting standards is within the exclusive jurisdiction of the courts. The administration could not justifiably make such an interpretation itself by imposing a penalty; it would be even less justified in taking a decision penalising an employer's action considered by the court as being in line with the standard or collective agreement, after the ruling has been made - irrespective of the criteria contained in the ruling.
3. 34. In more precise terms, as regards the issues that prompted the present complaint, the Government observes that they centre on the possibility of establishing, through individual agreements concluded with each worker, on the length of the working day, regulations separate from those contained in the collective agreement. The problem in hand, which resulted from the ruling of the Central Labour Court, was a dispute between the collective labour system and individual contract; in other words, the matter was to determine whether an individual contract could regulate questions already dealt with under a collective agreement. It was also necessary to determine which aspects of the agreement were of a legal nature that could not be changed by individual agreements and which aspects were not of this nature and to determine if provisions of an individual nature were an improvement over those contained in the collective agreement and, on account of this, legally valid. This was therefore obviously a dispute involving an interpretation of standards and not a typical case likely to be settled by administrative channels, by instigating a procedure to determine an infringement and impose the corresponding penalty. The best proof of this is that the complaint centres on incidents which prompted an action on the part of the complainants, which did not consist - apart from that described later in the text - in bringing a grievance before the administration so that the enterprise might be punished, but in requesting the labour courts to interpret the standards and declare null and void the individual contracts if found to be contrary to the collective agreement. Once this judicial procedure has commenced, and an interpretative ruling has already been made, it is obvious that the administration can no longer take any steps that might be detrimental to the content of the future ruling. It is even less able to consider measures that the courts have ruled to be correct procedure in the application of a specific standard as an infringement of the law.
4. 35. The Government adds that the complainant organisation did not initially submit its complaints through administrative channels but through judicial channels. Indeed, the labour administration was asked to make a pronouncement on these matters at the time when a complaint was made to the Labour Inspectorate in Madrid about various measures adopted by the enterprise; not only was this complaint dealt with in accordance with the proper procedures but an injunction was issued on the enterprise ordering it not to change the work schedules established by collective agreement. However, as the basic issue underlying the dispute is more a matter for the judiciary, since it involves an inconsistency between the contents of the collective agreement and that of individual contracts, the complainant organisation embarked upon legal proceedings which resulted in the ruling of the Central Labour Court - with which this complaint is concerned. This ruling cannot justifiably be overlooked by the administration when taking subsequent action, even if the judgement applies a criterion which is contrary not only to trade union views but also to those of the administration itself, as manifested in the above-mentioned injunction.
5. 36. Consequently, the Government is of the opinion that when a government is called upon to interpret obligations that might be incumbent upon it with respect to ILO Conventions, this does not automatically mean that it may be held jointly responsible for alleged infringements of freedom of association and collective bargaining committed by employers, as this would create a sort of objective responsibility for acts committed by a third person and make the government responsible for any action taken by employers that was contrary to provisions in force. It is another matter to determine whether a particular government has actively supported certain practices of employers, thereby acting as an accomplice or co-author, or has infringed its obligations by failure to act, adopting a passive attitude when a complaint is made or failing to set up or set in motion machinery guaranteeing the respect of standards. None of these cases is mentioned in the complaint because the Spanish legal system does contain judicial and administrative machinery allowing for an adequate supervision of rights protected by ILO Conventions; neither is there any mention that the administrative bodies called upon to carry out supervision of this nature failed to do so. In the final analysis, the text of the complaint contains enough elements to be able to conclude that the complainant is questioning either the employer's failure to adhere to the collective agreement or the judicial criteria for interpreting standards; nowhere is there any indication that the Government or administration actually supported - either directly or indirectly or in an active or passive way - these events and actions.
6. 37. With its last communication, the Government attaches a copy of the judgement issued on 26 September 1988 by the Constitutional Court with respect to the amparo proceedings filed by FEBASO-UGT against the decision rendered by the Central Labour Court on 7 March 1988.
7. 38. With respect to the request for supplementary information made by the Committee at its May 1989 meeting, the Government sent a detailed communication in which the following points should be underlined: (1) the Bank of Biscay employed 9,500 workers in March 1987 - the date upon which it offered a group of employees a special timetable of a divided working day; it offered this possibility of working a morning and afternoon schedule to approximately 620 employees (i.e. 6.5 per cent of the total payroll), of which 615 employees accepted; (2) the enterprise's offer was only made to a limited group of employees, all belonging to special units, departments or workstations, so that they might attend to needs arising and requests made outside the divided work schedule established under the collective agreement of general application; (3) the collective agreement contained provisions on the length of working day and hours of work, specifying that the uninterrupted working day of 8 a.m. to 3 p.m. was to be the general rule but did not exclude the possibility of other schedules for special work situations; (4) in March 1987, the Bank of Biscay informed the trade union organisations of its proposal for a special timetable for a limited number of workers with a view to reaching agreements on this subject; these finally were not reached, and until today, it has not been possible to determine the actual reasons for the trade union disagreement; it would rather seem that these reasons were due to the special situation prevailing throughout the private banking sector between 1 January 1986 and 5 May 1988 (there was a special situation during this period because on 31 December 1988 the applicable collective agreement in force came to an end; it was nevertheless extended by virtue of the legislation because of failure to reach a new collective agreement and this was to continue until 5 May 1988); (5) it is perhaps for this reason that immediately after the signing and publication of the new collective agreement in force, that ran from 1 January 1986 to 31 December 1989, a compromise was reached with the trade unions at enterprise level which served to ratify the work schedules that had previously been proposed by the enterprise, by including the maximum percentage of 25 per cent of employees with a divided schedule established under collective agreement - those who would have agreed to the proposal made by the enterprise; (6) it is only understandable and right that the Bank of Biscay, for reasons of competitiveness, should bring its general regulations on work schedules in line with those which in fact had already become commonplace in the enterprises in the sector covered by the same collective agreement; (7) the fact that the proposal only affected a limited number of workers in the enterprise (approximately 6.5 per cent of its staff) and that practically all those concerned willingly accepted it, is sufficient to prove that the action taken by the Bank of Biscay did not exceed the limits of the rights of workers which cannot be infringed. The same conclusion can also be reached by comparing the conditions contained in the proposal made by the Bank of Biscay with those contained in the collective agreement of general application; (8) finally, the Government points out the main arguments contained in the rulings of the Central Labour Court and the Constitutional Court. The latter points out -
   • the compatibility between individual autonomy and collective autonomy - which represents an aspect of collective bargaining - does not prevent an improvement in the terms and conditions of employment of the workers, provided that the minimum conditions provided for by the collective agreement are respected; quite evidently, this improvement of working conditions allows for a certain subjective judgement but, as far as these conditions are "offered" to all the workers and broaden their personal decision autonomy - autonomy which, furthermore, cannot be curtailed by the collective bargaining process - it cannot constitute a breach of article 28.1 of the Constitution.

C. The Committee's conclusions

1. 39. The Committee thanks the Government for having sent the supplementary information it requested at its May 1989 meeting. The Committee notes that in the present complaint the complainant organisation alleges that the Bank of Biscay infringed the last two collective agreements by making an offer on two occasions to all categories of workers at its central administration and credit centres proposing that workers might - through individual agreements freely entered into and which could be revoked at any time - accept to work a special work schedule (i.e. a divided day), which differed from the timetable agreed upon for general use in the collective agreement in force in the private banking sector - i.e. a continuous working day.
2. 40. The first collective agreement required that the staff must request a change in the working day (either continuous or divided) through staff representatives and obtain the vote of two-thirds of the staff voting in the workstation concerned. The second collective agreement stated that in the case of such a change, the divided schedule should not be applied to more than 25 per cent of the workstations in each enterprise and affect no more than 25 per cent of the employees in each bank.
3. 41. As regards the second collective agreement, the Committee notes that there is no evidence that there was an infringement of its provisions on the work schedule, given that the Government pointed out that the percentages mentioned were respected and that the management of the Bank of Biscay and the trade union organisations reached a compromise ratifying the work schedules that had previously been proposed by the enterprise.
4. 42. It therefore remains to be seen whether the offers of a divided work schedule made by the enterprise whilst the first collective agreement was in force complied with the provisions. In this respect, the Committee notes that although in the first case the judicial authority considered that the collective agreement had been infringed, the Central Labour Court later came to the opposite conclusion and the Constitutional Court rejected the application for enforcement of constitutional rights (amparo) made by the trade union organisations, pronouncing also on the substance of the case on the same lines as the Central Labour Court.
5. 43. The Committee notes that the two above-mentioned courts stated: that the divided work schedule (provided for in the collective agreement itself subject to certain proceedings) did not exceed the duration of the work day agreed upon under the applicable collective agreement and, in fact, the number of hours worked over a whole year were less; that establishing a continuous working day should not deprive the enterprise of the right to decide upon special schedules when work needs arise in a specific period, provided that they do not infringe the rights of workers and comply with the collective agreement in force as to the minimum conditions established therein and that the undertaking only made an offer (freely accepted and able to be revoked freely) without ordering or unilaterally establishing a compulsory or partial amendment of the working day. According to the Constitutional Court:
   • The compatibility between individual autonomy and collective autonomy - which represents an aspect of collective bargaining - does not prevent an improvement in the terms and conditions of employment of the workers, provided that the minimum conditions provided for by the collective agreement are respected; quite evidently, this improvement of working conditions allows for a certain subjective judgement but, as far as these conditions are "offered" to all the workers and broaden their personal decision autonomy - autonomy which, furthermore, cannot be curtailed by the collective bargaining process - it cannot constitute a breach of article 28.1 of the Constitution.
6. 44. The Committee is aware that the relationship between individual employment contracts and collective agreements are dealt with differently according to the countries and types of collective bargaining systems concerned. The basic task of the Committee is to decide whether the facts of the case are compatible with the Conventions and principles concerning freedom of association which guarantee a level of protection that can be different to that provided for in national legislation. In the present case, the relationship between individual contracts and the collective agreement seems to have been agreed between the parties to the latter and the Committee consequently considers that this case does not call for further examination.