Definitive Report - Report No 204, November 1980

1. 148. By a communication of 27 February 1980 the Trade Union Confederation of Workers' Commissions presented a complaint of violation of trade union rights in Spain. The complainant organisation sent additional information in support of its complaint in a communication of 25 March 1980. The Government, for its part, sent its observations in a communication of 17 October 1980.
2. 149. 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. Allegations of the complainant

1. 150. According to the Trade Union Confederation of workers' Commissions a Royal Decree of 8 February 1980 prohibited the exercise of the right to strike for workers in the Spanish Railway Company (RENFE), and empowered the Government delegation to the Company to lay down standards to guarantee the maintenance of railway services.
2. 151. The complainant organisation explains that the text is incompatible with Convention No. 87, with the principles enunciated by the Committee as regards the right to strike, and with section 53 of the Spanish Constitution, which stipulates that the exercise of the right to strike may be regulated only by Act of Parliament, and not by decree.
3. 152. The complainant organisation has also supplied additional documentation, including the text of Royal Decree No. 266/1980 respecting the maintenance in operation of the public transport service, and circulars Nos. 450 and 452 for its application, from which it appears, according to the RENFE works Committee, that the Decree authorises the maintenance of railway traffic at 75 per cent of the normal level.
4. 153. The complainant organisation attaches three requisition orders sent to individual railwaymen ordering them to remain in service during the protest strike of 4 and 5 March 1980.

B. Reply of the Government

1. 154. In its reply of 20 October 1980, the Government confirms the adoption of Royal Decree No. 266/1980 of 8 February 1980, but explains that the text was issued in application of section 10(2) of Legislative Decree No. 17/1977 respecting labour relations, which empowers the authorities to order the necessary steps to be taken to ensure the operation of public services when a strike is called in an undertaking responsible for providing such services or any kind of recognised essential service or service of immediate necessity and the attendant circumstances are particularly serious.
2. 155. The Government rejects the allegation that the Royal Decree is unconstitutional and in this connection mentions that a bill is at present under examination, but that pending the adoption of this draft by Parliament the applicable standard is Legislative Decree No. 17/1977, under which the Royal Decree complained of was adopted.
3. 156. With regard to the substance of the case the Government refers to the principles enunciated by the Committee in earlier cases, laying down that the right to strike may be restricted, or even prohibited, in essential services when a strike could cause serious hardship to the community.

C. Conclusions of the Committee

1. 157. For its part, the Committee observes that Royal Decree No. 266/1980 provides that any strike affecting railway staff is subject to the maintenance of essential railway transport services (section 1). The Government delegation to the RENFE must make a restrictive designation of the staff who are absolutely necessary to ensure the running of essential railway services in conditions of maximum security (section 2). Strikes and work stoppages by the staff thus requisitioned will be deemed to be illegal and constitute grounds for dismissal (section 3).
2. 158. Under the circulars for the application of this Decree railway traffic may be maintained at up to 75 per cent of normal traffic for suburban lines, in its entirety for military trains, mail trains and workshop trains, at the rate of one day train and one right trait for main lines, at the discretion of the traffic control room for special passenger trains, and to meet urgent needs for goods trains.
3. 159. Generally, the Committee feels that it must emphasise, firstly, the importance which it attaches to the recognition of the right to strike of workers and their organisations as a legitimate means of defending their occupational interests. In a number of cases, however, the Committee has agreed that the right to strike can be restricted or even prohibited, in the civil service or in essential services, to the extent that a strike could cause serious hardship to the national community, and provided that the restrictions are compensated by corresponding guarantees. The Committee has nevertheless pointed out on several occasions, particularly with reference to the transport sector, that the principle concerning the prohibition of strikes in essential services may well become meaningless if a strike in an undertaking which does not furnish an essential service in the strict sense of the word, i.e. a service whose interruption would endanger the existence or well-being of the whole or part of the population, is declared illegal.
4. 160. In the present case the Committee notes that the Decree does not prohibit all railway strikes, but empowers the administration to require railwaymen to obey requisition orders on penalty of dismissal, when such orders are considered necessary for the maintenance of "essential services" on the railways.
5. 161. Noting further that according to circulars Nos. 450, 451 and 452 the authorities may make extensive use of their powers to requisition, the Committee wishes, as it has done in earlier cases, to draw attention to the possibility of abuse inherent in the requisitioning of workers as a means of settling labour disputes. In such cases the Committee has stressed the undesirability of recourse to measures of this kind, except for the purpose of maintaining essential services in circumstances of acute national emergency.
6. 162. The Committee is nevertheless aware that a total and prolonged stoppage of railway services throughout the country might lead to a situation such as to endanger the well-being of the population it would accordingly seem justified to maintain a minimum service in the event of a strike whose extent and duration might be such as to provoke circumstances of acute national emergency in order to be acceptable, a minimum service of this kind should or the one hand be restricted to operations strictly necessary to avoid endangering the existence or well-being of the whole or part of the population, and, on the other hand, workers' organisations should be able to participate in defining such a service in the same way as employers and the public authorities.
7. 163. The Committee notes that a bill is now in course of preparation and expresses the hope that the text will take account of the principles set forth above.