Definitive Report - Report No 234, June 1984

1. 141. The complaint is contained in a communication dated 21 October 1983 from the Trade Union Confederation of Workers' Commissions. • The Government replied in a letter dated 2 February 1984.
2. 142. 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. 143. The complainant alleges that when a 24-hour strike was organised by the personnel of the Spanish National Railway Network (RENFE) on 14 October 1983, the Spanish administration obliged 80 per cent of those connected with rail traffic ("minimum services, level 3") to work after refusing to negotiate the minimum services with the workers' representatives.
2. 144. The complainant explains that on 14 February 1980 the government representatives on the RENFE issued Circular 450 establishing three levels of minimum services that could be applied in the event of a strike, the first (level 1) making it compulsory for 25 per cent of rail traffic personnel to work, the second (level 2) affecting approximately 60 per cent, and the third (level 3) 80 per cent. The complainant adds that the Constitutional Tribunal, in its ruling of 17 July 1981, annulled a Circular (No. 451) requiring minimum services level 2 for a 72-hour strike carried out in February 1980. Consequently, the complainant objects to the imposition of minimum services level 3 (80 per cent of rail traffic workers) for the strike held on 14 October 1983.

B. The Government's reply

1. 145. The Government states that if in the ruling of 17 July 1981 the Constitutional Tribunal annulled Circular No. 451 whereby the General Directorate of the RENFE required "level 2" staffing during a strike, this was, as the Tribunal had stated ".... in view of the manner in which it had been started .... on the specific occasion in question"; that is to say in relation to that particular situation. Consequently, as the Tribunal states, "the decision on the so called 'choice of level' is a decision as to a reasonable adaptation to circumstances and observance of the rule of sharing the burden. In taking the decision, account must be taken of the extent of the strike, its expected duration, the time it has lasted already, the needs prevailing in the particular circumstances, without forgetting or disregarding such offers to maintain these services as may have been made by the strike organisers. The exceptional powers confered on the Government authorities will be exercised correctly only if all these criteria have been met".
2. 146. The Government adds that in connection with the strike of 14 October 1983 the proceedings were as follows: (1) proposal concerning the maintenance of essential services (choice of level for the essential transport plan) by the government delegate to the Minister of Transport, Tourism and Communications; (2) decision by the Minister to apply the essential services determined at level 3; (3) communication of the Minister's decision by the government delegate to the General Directorate of the RENFE; (4) publication of Circular No. 503, on 10 October 1983, in respect of the application of level 3 services.
3. 147. The Government states that level 3 was chosen after carefully weighing up the circumstances in which the strike was taking place, considering the effects which the strikes of 3 and 7 October 1983 had had on the service and on public opinion (apart from the fact that the recurrence of such situations might have even more adverse effects) and in view of the need to guarantee safety on the railways and to ensure that the restrictive measures on the right to strike were the minimum compatible with the defence of the interests of the community. Account was also taken of the disturbance that the strike had caused among employees who were not taking an active part in it, and of the degree of inactivity and the multiplier effect that would result from the disruption of the productive elements of the undertaking and its capacity, all of which would not be overcome until long after the strike had come to an end.
4. 148. The Government states that the measure to limit the right to strike affected only 17,256 railwaymen out of a total of 72,000, i.e. 24 per cent, which could be considered essential to ensure the minimum operation of the service in conditions of safety.
5. 149. Consequently the Government considers that there has been no breach of trade union rights or prohibition of a strike, as claimed by the complainant organisation in its allegations, since there was merely a partial restriction on the right to strike as recognised in article 28, paragraph 2, of the Spanish Constitution ("the law regulating the exercise of the right to strike shall establish specific guarantees to ensure the maintenance of services essential to the community").

C. The Committee's conclusions

1. 150. The Committee notes that the complainant is objecting first to the fact that on the occasion of the 24-hour strike of 14 October 1983 by the personnel of the Spanish National Railway Network (RENFE), the Spanish administration obliged 80 per cent of the rail traffic personnel to work, and secondly that the administration refused to negotiate minimum services with the workers' representatives.
2. 151. The Committee observes that Royal Decree 266/80 - adopted by virtue of Royal Legislative Decree 17/1977 under whose authority Circular No. 450 was issued - regulates the maintenance of essential services during strikes in RENFE.
3. 152. The Committee notes that, according to the Government, prior to the strike of 14 October 1983 two others had been held, on 3 and 7 October. The Committee observes in this connection that the complainant made no allegations concerning the minimum services that may have been required during the strikes of 3 and 7 October 1983.
4. 153. The Committee observes, furthermore, that the Government states with regard to the strike of 14 October 1983 that the measure restricting the right to strike affected 17,256 railwaymen out of a total of 72,000, i.e. 24 per cent. The Committee also observes that the Government has not specifically referred to the complainant's statement that 80 per cent of the personnel connected with railway traffic had been assigned to the minimum service. In this respect the Committee considers that it does not have sufficient information at its disposal to reach conclusions on these percentages and would limit itself to recalling that on previous occasions it has considered it legitimate for a minimum service to be maintained in the event of a strike (also in the rail transport sector) the extent and duration of which might be such as to result in an acute national crisis, always provided the said minimum service is confined to operations that are strictly necessary to avoid endangering the life, personal safety or health of the whole or part of the population [see, for example, 204th Report, Case No. 952 (Spain), para. 1621.
5. 154. As regards the allegation that the Spanish administration refused to negotiate the minimum services with the workers' representatives, the Committee observes that the Government has not denied this allegation and that, in its description of the procedure followed to determine the minimum services to be maintained during the strike of 14 October 1983, no mention whatsoever is made of the trade union organisations. On this point the Committee draws the Government's attention to the fact that the defining of minimum services should involve not only employers and the public authorities but also workers' organisations [see, for example, 204th Report, Case No. 952 (Spain), para. 162].