Rapport définitif - Rapport No. 283, Juin 1992

1. 26. The complaint was submitted in a communication from the Workers' Union Confederation (USO) dated 18 December 1991. The Government replied in a communication of 10 March 1992.
2. 27. 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. 28. The Workers' Union Confederation explains in its communication of 18 December 1991 that the election system for representatives of Spanish workers in enterprises is governed by Act No. 8/1980 regulating the status of workers and that, although the system is not perfect, it is not the main reason behind this complaint. The significance of Act No. 8/1980 stems from the fact that, under Basic Act No. 11/1985 concerning freedom of association, the outcome of the election process has extremely serious repercussions on the exercise of basic trade union rights, such as participation in institutions, transfer of the so-called "accumulated trade union assets", collective bargaining, etc.
2. 29. The complainant states that the system under which representativity is determined in Spain suffers from numerous shortcomings. These shortcomings have been shown to allow the bodies responsible for supervising and following up the elections - the provincial commissions and the National Trade Union Election Commission (established and defined by Government Decree No. 1256/86 of 13 June) - to act in a biased and unfair manner. For example:
   • - competing organisations are represented on these commissions "in proportion to their representativity"; this means that it is the trade unions with the best results that oversee and verify the results of the elections both for themselves (and they have good reason to maintain or even improve their showing) and for the other trade union organisations;
   • - the public administration, which, as the largest employer, has every interest in dealing with certain social partners and not others, is also represented on the commissions; it is these commissions (the bodies in charge of examining and assessing election results are part of the bureaucratic maze of Spain's various public administrations) that ultimately determine and make public the election results of the various trade union organisations;
   • - employers' associations are represented as well, and they too have every interest in certain social partners winning the "trade union" elections.
3. 30. Thus, in the complainant's opinion, not only is there the obvious and direct involvement of organisations vying for votes in electoral supervision bodies, but there is also a clear lack of guaranteed impartiality and objectivity of the election results, since they are calculated and proclaimed by these bodies without the participation of any impartial representatives of the judiciary.
4. 31. The complainant adds that, as far as trade union representation in such electoral supervision bodies is concerned, the relevant provisions have been found to be contrary to the principle of freedom of association by two rulings of the Spanish Constitutional Tribunal (rulings Nos. 7 and 32 of 1990). The Tribunal rejected the principle of greatest representativity which had been used to determine the composition of these bodies in the 1986 elections for the overall calculation of representativity. It rejected this principle both because it was contrary to the principle of freedom of association and because the Tribunal considered that the presence of the trade unions which had received the most votes did not ensure the impartiality necessary for such bodies to be able to deal with electoral matters. In defiance of this constitutional ruling, the Government changed the criteria for determining trade union participation in electoral supervision bodies, establishing a vague rule based on proportional representation. This new rule once again gave those trade unions which had done best in the previous elections the exclusive right to supervise the electioneering activities of other trade union organisations. Not only did this contravene the ruling of the Spanish Constitutional Tribunal, it was also another direct breach of freedom of association and trade union pluralism. This is the opinion not only of the complainant, but also of all the Spanish courts which have had occasion to review the new rule of proportional representation. They have all rejected it as being too vague, an infringement of freedom of association, a violation of trade union pluralism and an attempt to distort and contravene the Constitutional Tribunal's ruling.
5. 32. The complainant further alleges that it was with this type of electoral supervision that elections were held at the end of 1990 to determine trade union representation for the next four years. Furthermore, some of the commissions which were to calculate trade union representativity were unable to discharge their duties because the rule for determining trade union representation within these commissions themselves had been disallowed by the judicial authority. In 1991 the National Trade Union Election Commission, which is part of the government administration and, as the supreme electoral supervision body, has as its main function to proclaim the overall election results of the various trade union organisations, did not hold a single meeting to verify or analyse the election returns until 31 October, i.e. ten months after the elections were held and the official vote-count period had ended in 1990. This was not the only serious irregularity. It was at that meeting, and at another held on 6 November 1991, that the Commission supposedly "analysed" 109,133 official election returns. The complainant doubts this "analysis" because the Government provided the National Trade Union Election Commission only with some "computer printouts" and because there was no way to make the official returns available to the Commission so that it could carry out its task faithfully and responsibly. The Government clearly interfered by preventing the Commission from examining the contents of the 109,133 official returns, which in fact it never received. Although this seriously impaired the credibility of the elections and undermined the impartiality of the supreme electoral supervision body, on 8 November the National Commission officially proclaimed the election results which it had been unable to examine except through material provided by the Spanish Government and which offered no guarantee of reliability whatsoever. The representatives of the government administration, of the UGT, of the ELA/STV and of the CSIF trade unions voted in favour of the official results, the employer representatives abstained; the CC.OO and USO representatives voted against them.
6. 33. The complainant concludes by stating that this concurrence of extremely serious irregularities and direct infringements of freedom of association detracts from the credibility of the election results, which are the outcome of a government-established system of determining trade union representativity that violates the principle of freedom of association.

B. The Government's reply

1. 34. In its communication of 10 March 1992, the Government states that the regulations governing trade union elections are in two parts. As far as the election of workers' representatives in enterprises is concerned, the regulations are found in Title II of Act No. 8 of 10 March 1980, which approved the Workers' Charter, and in Royal Decree No. 1311 of 13 June 1986 concerning standards for the holding of elections for worker representation bodies in the enterprises, which enlarges upon the said Act. As for the regulations concerning the election of workers' representatives to public administration bodies, these appear in Act No. 7/1990 of 19 July concerning collective bargaining and the participation of public employees in the definition of working conditions, and in the 10 September 1990 resolution of the President of the Supreme Council for the Civil Service, which contains the Supreme Council's decision to call elections to designate staff delegates in the public administration and establishes a general elections board. The two sets of provisions complement one another and have been enlarged upon by other orders, as well as by decisions of the National Trade Union Election Commission (the tripartite body composed of representatives of workers' and employers' organisations and of the government administration) which set out the election regulations in more detail and resolve specific questions of interpretation and consultation. The Government also includes a summary of the decisions reached by the National Trade Union Election Commission and its Standing Committee, which applied to the 1990 elections.
2. 35. The Government adds that the way in which representativity is measured and freedom of association regulated is governed by Basic Act No. 11 of 2 August 1985 concerning freedom of association. This Act recognises the right to join the trade union of one's choice, the defence of workers' collective interests and, more generally, the right of freedom of association. Title III of this Act defines trade union representativity, i.e. the representation of trade unions on the representative bodies of the public administration, as opposed to workers' representation in enterprises which applies only at that level. Trade union representativity and, accordingly, representation of trade unions on representative bodies are spelled out in sections 6(2) and 7(1) of the Act. For the most representative trade unions at the state level, section 6(2) deems to be most representative:
   • (a) Those trade unions having special recognition evidenced by their covering, at the state level, 10 per cent or more of the total number of staff representatives, of members of works committees, and of the corresponding organs of public administrations ...
     • Similarly, under section 7(i) at the autonomous community level a trade union shall be considered most representative if: (a) it can show that at that level it has a special recognition evidenced by its covering at least 15 per cent of the staff representatives and of the workers' representatives on the works committees and on the corresponding organs in public administrations, provided that it has at least 1,500 representatives and is not federated or confederated with state-wide trade union organisations; (b) it is a trade union or trade union body affiliated to or federated or confederated with a trade union organisation whose scope covers the autonomous community and which is deemed to be most representative within the meaning of clause (a).
     • The said organisations possess representative capacity for performing and exercising, within the specific scope of the autonomous community, the functions and powers enumerated in subsection (3) of the preceding section, and the capacity to appear as institutional representative in dealings with public administrations or other state bodies or agencies.
     • The Government states that this definition of representativity is based on the representation obtained for both the national and the autonomous community levels, which in turn is based on election results which that are the outcome not of a whim, but of the will of the workers as freely expressed through the ballot box.
   • 36. The Government points out that the rulings of the Constitutional Tribunal referred to by the complainant concerned appeals lodged by the USO trade union that challenged the order issued by the regional Labour and Social Security Commission of Valencia establishing provincial trade union election commissions and challenged the National Trade Union Election Commission's decision to deny the USO trade union membership in that body. These rulings do not in any way invalidate the representativity set out in sections 6(2) and 7(1) of the Basic Act concerning freedom of association, which remain "constitutionally valid". Inasmuch as they refer to such bodies (i.e. the National Trade Union Election Commission and the provincial trade union election commissions) as bodies in charge of the "calculation of election returns and proclamation of election results", these rulings signify that they are not strictly speaking bodies of institutional representation governed by sections 6(2) and 7(1) of the Basic Act and that there is accordingly no cause to establish "institutional representation" in them. Although they do not prescribe how such collegiate bodies are to be composed, the rulings do, however, stipulate that they should be subject to the principles of "proportionality, objectivity, reasonableness and purpose".
3. 37. The Government states further that the charter of the National Trade Union Election Commission and of its provincial commissions is governed by Royal Decree No. 1256 of 13 June 1986, establishing the National Trade Union Election Commission. Section 3 of this instrument stipulates that the National Trade Union Election Commission, which is a tripartite collegiate body - and as such conforms with the basic principles of the ILO as its fundamental structure is defined as "tripartism" - is composed of 13 representatives of the government administration, 13 from employers' organisations and 13 from the most representative trade union organisations, "in proportion to their representativity as determined by sections 6(2) and 7(1) of the Basic Act concerning freedom of association". Similarly, section 16 of the Royal Decree stipulates that provincial trade union election commissions are tripartite collegiate bodies, composed of three representatives of the government administration, three from employers' organisations and three from the most representative trade union organisations, "in proportion to their representativity as determined by sections 6(2) and 7(1) of the Basic Act concerning freedom of association".
4. 38. The Government explains that because the Royal Decree describes representativity in such bodies in terms of the "institutional representativity defined in the Basic Act concerning freedom of association", and because the National Trade Union Election Commission and the provincial trade union election commissions were not such bodies according to the aforementioned constitutional ruling, their composition had to be modified. The Spanish Government, with due regard for the ruling of the Constitutional Tribunal, accordingly adopted Royal Decree No. 953 of 20 July 1990 whereby it amended Royal Decree No. 1256 of 13 June 1986 creating the National Trade Union Election Commission. Specifically, after declaring in its preambular paragraphs the non-applicability of the criterion of greatest representativity for the composition of such collegiate bodies (i.e. as provided for in the Basic Act concerning freedom of association, since they do not fulfil a specific function of institutional participation), and in the light of the ruling of the Constitutional Tribunal, the Decree stipulated that these tripartite collegiate bodies should be constituted on the basis of strict proportional representation based on the results obtained by each trade union at both the national and the provincial level, due account being taken of the arithmetic remainder so as to make up the maximum of 13 representatives in the National Trade Union Election Commission and three in the provincial trade union election commissions. In accordance with Royal Decree No. 953 of 20 July 1990 the National Trade Union Election Commission, as a tripartite representative body, consists of 39 members - 13 from the government administration, 13 from employers' organisations and 13 from trade union organisations. As for the trade union organisations, the 13 representatives are as follows: five representatives from the General Union of Workers (UGT), five from the Trade Union Confederation of Workers' Committees (CC.OO), one from the Workers' Union Confederation (USO), one from the Basque Workers' Solidarity Movement (ELA/STV) and one from the Civil Servants' Independent Trade Union Confederation (CSI-CSIF). As stipulated in this official instrument, this distribution applies the criterion of strict proportional representation based on the election results of the various trade unions in the various geographical units of the country.
5. 39. The new standard, which is in keeping with the Constitutional Tribunal's ruling, is considered by the complainant as having been established "in defiance of this constitutional ruling" (paragraph 4, clause 3, of the written complaint). The complaint also states that the new rule "once again gave only those trade unions which had done best in the previous elections the exclusive right to supervise the electioneering activities of other trade union organisations". This claim calls for detailed analysis. If one takes a careful look at the content of the Constitutional Tribunal's rulings, which do not prescribe how such bodies are to be composed but merely stipulate that they should be subject to the principles of "proportionality, objectivity, reasonableness and purpose", it is quite clear that the criterion adopted (i.e. the application of the rule of strict proportional representation based on each trade union's election results at the previous trade union elections and at every geographical level at which they contested the elections) complies perfectly well with the principle of "strict proportional representation, due account being taken of the arithmetic remainder", as well as with the criteria of "objectivity and reasonableness". There is indeed nothing more objective or reasonable than to submit to the will of the workers, freely expressed in trade union elections, the determination of the number of delegates of each trade union. It also fulfils the criterion of purpose, inasmuch as it establishes a cause-and-effect relationship between the freely expressed will of the workers and the level of representation of each trade union, based on this freely expressed will. Whether or not this will coincides with the election of delegates from a given trade union confederation is an entirely different matter which is not at issue.
6. 40. Furthermore, once the criterion of strict proportional representation described above is applied, the fact that the same trade unions may have the majority in the provincial trade union election commissions is no ground for claiming that the Spanish Government has contravened the rulings of the Constitutional Tribunal, let alone that it is attempting to control the electoral process, as the complainant subjectively states. On the contrary, the recurrence of the same situation is attributable to the fact that some trade unions enjoy greater representativity and win more votes than others at the various geographical levels, which reflects the greater or lesser acceptance by the workers of certain trade union options. If such acceptance does not coincide with the majority desired by the complainant trade union, it is not the Spanish Government that is to be blamed. It is rather a question of the USO's trade union activity, a responsibility which cannot be shifted to other issues by complaining about specific situations which reflect the greater or lesser acceptance by the workers of trade unions as freely expressed through their votes.
7. 41. The Government points out that, considering that the basic argument of the USO's complaint is so completely groundless, the complainant's accusations of partiality and abuse by bodies in charge of counting votes and proclaiming election results and of collusion between the government administration and employers' organisations should be seen merely as the expression of a biased opinion and as such should be given only such weight as they legitimately carry. Clearly then, positions every bit as legitimate which oppose those of the complainant must be acknowledged too, since they merely represent opinions with no justification other than their own affirmation, judging from the evidence furnished by the complainant. In this specific context, the only value of such partial statements is as an expression of the complainant's opinion and as a reflection on the representativity that the complainant is entitled to - and which is significantly lower than that of other more representative trade union organisations, which have an opinion that differs from that of the complainant but one of equal legitimacy.
8. 42. As for the complaint that the impartiality of the bodies responsible for the election returns is not guaranteed because they have no representatives of the judiciary, the Government states that to have such judicial representation on these collegiate vote-counting bodies it would be necessary to change the current legislation governing trade union elections. It points out that the National Trade Union Election Commission, at its meeting on 7 September 1990 (before the elections began), adopted by majority vote a decision to the effect that the elections would be governed by the rules in force at that time and as stipulated. This decision was adopted in the presence of the complainant trade union, the USO, which was duly represented on the Commission. According to the decision, "once the period for the calculation of election returns is over, the organisations represented on the National Trade Union Election Commission shall send the Government proposals for the modification of the electoral laws and regulations which they consider necessary to correct any shortcomings noted in the system". If such a clause was accepted by all parties before the elections, it cannot be called into question after the fact, now the union elections have been held and their results made public.
9. 43. As regards the allegation that the National Trade Union Election Commission proclaimed the election results without having received the official returns and solely on the basis of computer printouts, the Government points out that the complainant trade union, was represented at some provincial commissions (in accordance with the principle of proportional representation based on its showing at a specific geographical level (province)) and that, where it was not represented, Decision No. 3, unanimously adopted by the National Trade Union Election Commission at its meeting of 7 September 1990 (before the elections began), was applicable. According to this decision, "workers' trade unions represented on the National Trade Union Election Commission may participate in provincial trade union election commissions as observers so as to be informed of the decisions taken and of the election returns on which the calculations are based and so as to be in possession of the necessary facts to be able to discharge their duties in proclaiming the election results". Copies of the official election returns were available to the trade unions present at such bodies. All the trade unions represented on the National Trade Union Election Commission could likewise have been represented on the provincial trade union election commissions, which are the bodies which count the votes and officially register the election returns for the sole purpose of determining the representation of trade unions on public administration bodies, since the National Trade Union Election Commission only proclaims the overall election results at the national level and cannot act as a review body for decisions taken by provincial commissions. This is in accordance with Decision No. 14 which the National Commission itself adopted on 25 September 1986 and which stated that "the decisions taken by provincial commissions are definitive acts of the government administration". All the trade unions represented on the National Commission were accordingly informed and received copies of the provincial commissions' proceedings. Not only did members of the National Commission receive these proceedings but, in order to expedite the overall vote count, computer printouts were provided containing all information on the official election returns: the ballot number, the geographical area covered, the enterprise at which the elections were held and the result of the election, with an indication of the name of the trade unions whose representatives were elected or of whether they were non-affiliated or independant. The members of the National Commission thus had all the information necessary to assess the elections. They referred to the original official returns only when necessary, in specific instances such as recording errors, etc., since analysing all the 109,133 official returns, while not impossible, would indeed have been a highly complex and impractical task.
10. 44. Furthermore, by virtue of the judicial protection provided for by article 24(1) of the Constitution, all official election returns and the effects thereof are subject to judicial review. For this reason, under the terms of section 76 of the Workers' Charter, which, on the subject of contested election results, states that "the competent judicial authority shall be informed of any claims made in relation to elections", any trade union may contest the validity of any election. Since this possibility to make effective use of judicial protection exists, any agreement or decision of the provincial trade union election commissions considered as detrimental to a given trade union confederation would be subject to appropriate legal action by that confederation to assert its claim through the courts; the parties concerned have been able to avail themselves of this option at all times.
11. 45. As regards the allegation that the National Trade Union Election Commission did not hold any meetings from 1990 until the end of 1991, and then did not analyse the election results properly, the Government states that the situation was not so simple and that this allegation should be considered in context. The National Trade Union Election Commission, either on its own or through its Standing Committee, took various decisions to facilitate the elections, but once they were held it was up to the provincial trade union election commissions to act, as they are the sole bodies authorised to count the votes and determine the trade unions' institutional representation. During this period, it was not up to the National Trade Union Election Commission to take any action. The assertion made by the complainant, the USO, does not reflect what actually occurred. While it is true that the National Trade Union Election Commission held no meetings from 1990 until 8 November 1991 for the above reasons, its Standing Committee held several meetings, all of which were to analyse the trade union elections with a view to declaring the overall results. Furthermore, by virtue of a decision of the Standing Committee of the National Trade Union Election Commission, the Standing Committee agreed "to set up a working party comprising representatives of trade union and employers' organisations represented on the National Trade Union Election Commission as well as representatives of the administration, so that it can keep itself informed of the outcome of the vote-count, which is being done by computer; in this way it will be able to examine those provinces in which the elections have been completed and which are thus already in a position to have their final election results analysed". The working party (in which the complainant trade union participated) was set up for this purpose by the Standing Committee and held numerous meetings to implement that decision and to carry out a detailed analysis of all elections at the various territorial levels.
12. 46. Furthermore, the Government states that, at its meeting on 8 November 1991, the National Trade Union Election Commission (the sole body empowered to proclaim the overall results of trade union elections throughout the State) adopted the decision to proclaim the election results by a vote of 20 in favour, 6 against and 13 blank votes, which is not only a simple majority but a qualified majority with respect to the required quorum. It should be noted that among the 13 trade union representatives, seven cast their votes in favour of proclaiming the election results and six voted against - according to the explanation given by each delegation. All 13 employer representatives cast blank votes. According to the minutes of the meeting, the employers explained their vote as indicating not that they were in agreement or disagreement with the results per se but that they wished to maintain their neutrality because of the disagreement reigning among the trade unions.
13. 47. The Government concludes by stating that, in the light of these considerations, the right of freedom of association was in no way violated in the trade union elections. The USO's complaint is not shared by other trade unions which are more representative than it (the USO obtained 2.89 per cent of the total). The opinion of the majority of the trade union organisations in the National Trade Union Election Commission remains that expressed in the decision adopted by that body, which went ahead and proclaimed the overall outcome of the elections throughout the Spanish State.

C. The Committee's conclusions

1. 48. The Committee notes that the complainant alleges that in the composition and functioning of the bodies in charge of the supervision and follow-up of trade union elections there is no provision for the participation of representatives of the judiciary, that these bodies provide opportunities for abuse and that they do not observe the Constitutional Tribunal's rulings rejecting the principle of greatest trade union representativity that they applied.
2. 49. The complainant has also alleged that in the last trade union elections serious irregularities occurred which infringe the principle of freedom of association: (1) some of the provincial commissions which were to carry out the vote-count for trade union representativity were unable to discharge their duties because the judicial authority had disallowed the criterion of "greatest representativity" used to determine trade union representation in those bodies; and (2) not only did the National Trade Union Election Commission not meet for ten months after the official vote-count period ended, but it analysed the results on the basis of computer printouts supplied by the Government without being provided with the official election returns.
3. 50. As regards the composition of the National and Provincial Trade Union Election Commissions, the Committee takes note of the Government's statement that Royal Decree No. 953 of 20 July 1990 ceased the use of the "greatest representativity" criterion in determining the composition of these collegiate bodies created under the Basic Act concerning freedom of association. The Royal Decree changed the criterion because these bodies do not carry out a function where institutional participation is called for. The Royal Decree, in deference to the Constitutional Tribunal's ruling referred to by the complainant, stipulated that such tripartite collegiate bodies should be constituted according to the criterion of "strict proportional representation" based on the results obtained by each trade union at both the national and provincial levels. The Committee also notes that, according to the Government, the Royal Decree provides that the National Trade Union Election Commission, as a tripartite representative body, is composed of 39 members, including one from the complainant organisation (USO).
4. 51. In view of all these factors, the Committee concludes that the current system for the supervision of trade union elections is in conformity with the principles of freedom of association. It proposes that those trade union organisations which consider that they have suffered prejudice pursue their claims through the available judicial channels, which can correct any irregularity or abuse.
5. 52. As regards the alleged irregularities in the last trade union elections held at the end of 1990, the Committee takes note of the Government's explanations. The Committee is of the opinion that, in view of all these explanations, should any violation of the laws and regulations have been noted, the complainant organisation was in a position to lodge an appeal through the courts (including the Constitutional Tribunal), thus protecting its interests.