Definitive Report - Report No 259, November 1988

1. 133. In a communication of 9 February 1988, the World Federation of Industry
   • Workers (WFIW) presented a complaint against the Government of Spain alleging
   • violations of freedom of association. In a subsequent communication of 26
   • February 1988 this Federation sent additional information in support of its
   • complaint, signed by four trade union sections representing the workers of the
   • Alumina Aluminio enterprise, namely, the trade union sections of the National
   • Inter-Trade Union Association of Galician Workers (INTG), the Trade Union
   • Confederation of Workers' Committees (CCOO), the General Union of Workers
   • (UGT) and the Trade Union of Workers (USO). The Government sent a reply to the
   • allegations of the complainant organisations in a letter of 8 July 1988.
2. 134. Spain has ratified the Freedom of Association and Protection of the
   • Right to Organise Convention, 1948 (No. 87), as well as the Right to Organise
   • and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 135. The World Federation of Industry Workers (WFIW), itself an affiliate of
   • the World Confederation of Labour (WCL), explained in its communication of 9
   • February 1988 that, at the request of its affiliate, the Trade Union of
   • Workers (USO), it was presenting allegations of trade union persecution and
   • serious efforts to undermine freedom of association against the Government of
   • Spain.
2. 136. According to the WFIW, the facts are as follows: following the
   • shipwreck of the "Cason", a Panamanian vessel which ran aground on the coast
   • of Galicia causing the death of 25 seamen, while transporting barrels of toxic
   • and dangerous substances, a wave of panic swept over the region. The
   • inhabitants of entire villages fled; thousands of persons, led by the local
   • authorities, vigorously opposed the transport of these barrels (which
   • continued to surface near the coast of Galicia) for loading and shipment. It
   • was in this climate of panic that a number of barrels containing radioactive
   • substances turned up on the shipping docks of the Alumina Aluminio plant at
   • San Ciprian, near Lugo, in Galicia. Frightened by the presence of these
   • barrels, the workers of this plant abandoned their posts, thus paralysing the
   • enterprise. Their concern was perfectly understandable, especially if one
   • considers the fear and confusion which prevailed at that time.
3. 137. The WFIW admits in its communication that the resumption of the
   • aluminium plant's high-temperature furnaces entailed a cost of billions of
   • pesetas. It explains that the Alumina Aluminio metallurgical plant is a
     • semi-public entity which comes under the National Institute for Industry, as
   • well as the Ministry of Industry and Economy and the Ministry of Finances. It
   • denounces the fact that all members of the works council, in other words 23
   • persons, were dismissed before an opinion was handed down by the labour
   • authorities, especially since these persons were trade unionists who should
   • have enjoyed trade union immunity. Moreover, according to the WFIW, 109
   • workers were dismissed and restructuring measures threaten a further 600 jobs.
   • The workers who have been unjustly dismissed were accused of sabotage and held
   • to be exclusively responsible for the events which took place at the plant.
   • However, according to the WFIW, it is management which is responsible for the
   • damage and it is therefore unthinkable that the workers, the trade union
   • organisation and its legitimate representatives should suffer from this series
   • of reprisals.
4. 138. In a subsequent communication of 26 February 1988, signed by the four
   • trade union sections representing the plant's workers, the WFIW supplies
   • additional information in support of its complaint, stating that the barrels
   • unloaded from the shipwrecked vessel at Finisterre were transported over 200
   • km by land to be shipped from the Alumina Aluminio complex, whereas they could
   • have been shipped from a number of other ports in closer proximity, such as
   • Corcubion, Cee or Muros.
5. 139. The WFIW states that the public authorities had proceeded to evacuate
   • the civilian population along the entire land itinerary of these barrels
   • (although they claimed that the shipment posed no danger). It should be
   • emphasised that the general public was given no information concerning the
   • contents of these barrels. Their arrival at the Alumina Aluminio plant
   • therefore provoked a perfectly understandable concern and commotion, as had
   • been the case wherever the barrels had been stored or moved. Nor had the
   • authorities given any advance notice of the arrival of the barrels (even to
   • the workers' representatives). The WFIW views as extremely serious the bad
   • faith shown by the authorities in supplying the workers of the plant in
   • question with this "gift", especially since the same authorities had ordered
   • and assisted in the evacuation of the entire population living in the area
   • where the ship had run aground (since there had been 25 deaths among the
   • members of its crew).
6. 140. The WFIW communication adds that the public authorities were at fault
   • in this matter, inasmuch as the labour authorities failed even to inspect the
   • site and never opposed the decision taken by workers' representatives to
   • recommend the staff's evacuation. According to the WFIW, this recommendation
   • was made in full knowledge of the facts and with full responsibility, in the
   • face of an exceptional situation. The WFIW vigorously condemns the
   • representative of the Spanish authorities who now describes the workers'
   • representatives as reckless revolutionaries (while the matter is still sub
   • judice); they were acting in full knowledge of their responsibilities when
   • they decided that it was incumbent on them to recommend the plant's evacuation
   • in the same manner as the authorities themselves had ordered the evacuation of
   • the areas through which the dangerous barrels had been transported.
7. 141. The outcome of this affair was the massive dismissal of 110 workers and
8. 24 workers' representatives. The WFIW adds that these measures are not
   • consistent with the principles espoused by the International Labour
   • Organisation and Spain, as one of its member States.
   • B. The Government's reply
9. 142. In its letter of 8 July 1988, the Government explains that a
   • distinction should be made between
     • a)the disciplinary measures adopted by the Alumina Aluminio enterprise
   • against 111 workers and 23 members of the works council, and
     • b)the suspension of the employment contracts of 574 workers within the
   • framework of an employment restructuring programme authorised by the labour
   • authorities.
10. 143. As regards the first point, the Government states that it had nothing
    • to do with the decisions taken; as regards the second point, the competent
    • agencies of the Ministry of Labour and Social Security duly authorised the
    • suspension of the contracts, which had been requested in accordance with
    • proper procedures.
11. 144. In connection with the first point concerning the disciplinary
    • measures, the Government states that these measures were taken by the
    • management of the Aluminio Español-Alumina Española Company, which owns the
    • plant, as the employer of the workers in question. According to the
    • Government, the legal status of this enterprise renders it completely
    • autonomous from the National Institute for Industry, and thus from the
    • Government. Therefore, the charges of trade union persecution and serious
    • efforts to undermine freedom of association presented by the complainants
    • against the Government are inaccurate, erroneous and legally unfounded. The
    • Government claims that it has nothing to do with these measures, and that any
    • complaint or charge should be filed against the enterprise which imposed these
    • disciplinary sanctions. According to the Government, any decision on the
    • legality of these measures falls under the jurisdiction of the labour courts
    • (section 55 ff. of the National Charter, and section 97 ff. of the Act
    • concerning labour courts). Moreover, the Government states that the Labour
    • Court has already handed down two decisions concerning the appeals filed by
12. the 111 workers and the members of the works council dismissed by the
    • enterprise. The Government encloses copies of these decisions.
13. 145. The Government refutes the allegation that members of the works council
    • were dismissed before the labour authorities had handed down a decision,
    • although as trade unionists they supposedly enjoyed trade union immunity, on
    • the ground that the legislation does not provide that the public authorities
    • have the right to intervene in connection with such measures. It does,
    • however, admit that there are special provisions governing the dismissal of
    • workers' representatives, in the sense that procedures for appeal are
    • guaranteed in the event of disciplinary sanctions, and that the persons in
    • question have priority to remain within the enterprise if their dismissal is
    • considered unfounded. In this case, according to the Government, the
    • disciplinary measures were taken by the employer and were submitted to a
    • judicial procedure which provided both parties with full access to appeal
    • machinery to guarantee the defence of their interests.
14. 146. As regards the second point concerning the labour authorities'
    • authorisation of the suspension of the employment contracts of 574 workers,
    • the Government explains that by virtue of section 45(1) of the Workers'
    • Charter, temporary instances of force majeure as well as economic and
    • technological conditions which make the performance of work impossible are
    • valid grounds for the suspension of employment contracts. According to the
    • Government, no one has contested the fact that, following the events of 14 and
15. 15 December 1987, the plant's two electrolysis units were paralysed for a
    • certain time (in theory, for several months), making it impossible for the
    • workers in this branch of the enterprise to perform their work. The Government
    • attaches to its communication copies of resolutions on this matter issued by
    • the Provincial Office of Labour and Social Security of Lugo, and by the
    • Central Labour Office. According to the Government, the paralysis of these
    • electrolysis units is an undisputable fact which was established by the Labour
    • Court of Lugo in its above-mentioned decision.
16. 147. Therefore, the suspension of the employment contracts in question was
    • an inevitable consequence which the labour authorities duly authorised;
    • moreover, although the works council in its appeal discussed the fate of
    • workers who had been dismissed and the manner in which the work should be
    • organised while the employment contracts remained suspended, it never
    • challenged the legality of the suspension of the employment contracts, which
    • is at the heart of this matter. Thus, the labour authorities merely authorised
    • the suspension of the employment contracts pursuant to section 47 of the
    • Charter, and neither of the parties has called this decision into question.
17. 148. Lastly, concerning the failure of the labour authorities to intervene
    • to bring an end to the paralysis of operations which resulted from the works
    • council's decision, the Government states that this aspect of the case was
    • addressed in sections 12 and 13 of the decision handed down by the Second
    • Labour Court of Lugo on 23 March 1988, concerning the dismissal of members of
    • the works council. The Government attaches copies of these items to its reply.
18. 149. In these sections of the court decision in question, the judge states
    • that the parties support diametrically opposed positions in this matter
    • concerning section 19(5) of the Charter, which states that where there is
    • imminent danger of an accident, a decision to stop work may be taken by the
    • competent safety authorities within the undertaking or by all the workers'
    • representatives, in the case of an undertaking engaged in a continuous
    • process. It further provides that any such decision shall be immediately
    • communicated to the enterprise and to the labour authority, which shall,
    • within 24 hours, cancel or confirm the decision taken. The judge considers
    • that the conditions required by this text were not met: it is true that the
    • plaintiffs and the defendants had initially agreed to halt the plant's
    • equipment; that the labour delegate of the province of Galicia attended the
    • meeting between the parties, thus fulfilling the requirement concerning
    • communication to the labour authority; and that the labour authority had full
    • knowledge of the events since its delegate was present in the plant and held
    • meetings with the interested parties. However, the judge noted that the first
    • requirement established by the legislation for the implementation of this
    • provision, is the imminent risk of accident. According to the judge, while the
    • risk of accident may have been imminent early on, given the concern which the
    • shipment had caused, it was no longer such when the barrels had been loaded
    • aboard the "Galerno" and when this ship was at a sufficiently safe distance
    • from the plant (some 1,000 or 2,000 nautical miles), and when the enterprise
    • requested the members of the works council to ensure the provision of a
    • minimum service on the grounds that the situation of the electrolysis units
    • was critical and might well lead to the plant's paralysis. The works council
    • failed to take action, although the enterprise merely wanted to avoid the
    • paralysis of 256 electrolysis tanks (which is precisely what happened
    • subsequently). In the opinion of the judge, it was no longer possible to
    • maintain that there was an imminent danger or risk of accident; the works
    • council, however, refused to comply with the enterprise's requests to resume
    • operations.
19. 150. In his written opinion, the judge also states that the behaviour of the
    • plantiffs, as from the moment when the "Galerno" sailed from the port of San
    • Ciprian, and at least from the moment when the vessel dropped anchor in the
    • area known as "Las Farralones", was completely unfounded from a legal
    • standpoint since the alleged danger or risk to the physical safety of the
    • workers had disappeared, and the civil protection authorities had issued a
    • certificate of safety for the plant. Moreover, as regards the conditions laid
    • down by the works council on 15 December concerning the payment of hours not
    • worked, and as regards the works council's demand that the management give a
    • signed undertaking to the effect that the vessel would not return to the port,
    • the judge considers that these questions could have been discussed after the
    • workers had returned to their posts, thus avoiding the subsequent damage to
    • the tanks. The judge notes that the employer next urged the works council to
    • have the workers return to their posts immediately in order to save the B
    • unit, as well as the rest of the plant, but that this request went unheeded;
    • since the causes which might have justified the works council's attitude, at
    • least in part, had disappeared, the judge finds it difficult to understand the
    • works council's decision to maintain the work stoppage, unless it was intended
    • exclusively to force the enterprise to pay for the hours not worked.

C. The Committee's conclusions

1. 151. The Committee notes that the allegations in this case concern measures
   • of dismissal which the complainants consider as discriminatory. These measures
   • have affected 23 workers' representatives of a works council, as well as 111
   • workers who participated in an interruption of work, and subsequently, 574
   • workers whose contracts were suspended owing to the paralysis of equipment as
   • a result of the work stoppage in an aluminium plant in December 1987.
2. 152. According to the complainants, these dismissals constitute measures of
   • trade union persecution and serious efforts to undermine freedom of
   • association. The Government, on the other hand, draws a distinction between
3. (1) disciplinary measures against striking workers' representatives and
   • workers, taken by the employer and not by the Government, which the persons
   • concerned have the right to challenge and have indeed appealed, and (2) the
   • suspension of employment contracts on economic grounds which the public
   • authorities have authorised owing to temporary force majeure and economic and
   • technological conditions which prevent the performance of work, inasmuch as
   • the initial paralysis of work led to the shut-down of two electrolysis units,
   • which, in theory, should last for several months.
4. 153. The complainants do not contest the shut-down of the electroylsis
   • units, but consider that responsibility for the shut-down lies with the other
   • party.
5. 154. The Committee has reviewed the substantial documentation sent by the
   • Government and by the complainants, and in particular the texts of court
   • decisions which uphold the dismissals of members of the works council, but
   • which overturn those of the 111 workers accused of having refused to maintain
   • a minimum service, and the text of a sworn document supplied by the
   • complainants.
6. 155. According to the judgement of 23 March 1988, which upheld the dismissal
7. of 23 members of the works council, without compensation or wages, and
   • absolved the employer, the facts are as follows: on the morning of 5 December
8. 1987, the "Cason", a vessel flying the Panamanian flag, ran aground near the
   • fishing port of Finisterre; several members of the crew were found dead, and
   • several explosions took place on board the ship. Subsequently, on 11 December
9. at 9. 15 p.m., the General Secretary of the Civil Government of Lugo informed
   • the manager of the Alumina Aluminio SA plant in San Ciprian that a restricted
   • shipment was travelling by lorry to the plant's port for loading onto a ship
   • which would dock at midnight. The lorries failed to arrive at the specified
   • time. However, on the following day, at 8.45 a.m., a convoy of three lorries
   • hauling the containers and barrels rescued from the "Cason" arrived at the
   • plant's main gate and stopped near the beach at Aro, near the site known as
   • Portiño de Moras, by the auxiliary port which had been utilised during the
   • plant's construction. This port is at some distance from the more recently
   • built port which is now in full use. The convoy was escorted by 20 or so
   • police officers.
10. 156. On 12 December, around 10.50 a.m., the works council held a meeting
    • with the plant's general manager to find out what the general manager knew
    • about the shipment. The general manager merely stated that he had met the day
    • before with the General Secretary of the Civil Government of Lugo. The works
    • council noted with regret the decision of the Civil Government and stated that
    • it considered that this decision posed a threat to the plant's workers. The
    • works council proposed that the barrels should be evacuated, and the general
    • manager communicated this message to the authorities in Lugo. The authorities
    • then informed the general manager that they would send the provincial head of
    • civil protection to the plant for the purpose of describing the contents of
    • the shipment. In a meeting with the plant's general manager, the works council
    • and the local authorities, the official in question explained that the
    • shipment was to be evacuated through San Ciprian, and that it contained
    • aromatic compound organic substances such as aniline (a benzene derivative
    • used in synthetic colouring agents) and orthocresol (an extract of coal tar).
    • He stated that although these substances were flammable, they could be
    • handled without danger. After a number of statements by several persons
    • attending the meeting, the works council announced that all the workers and
    • their families would hold a meeting at the plant at 4 p.m. The general manager
    • and the authorities received a telex stating that the decision to evacuate the
    • "Cason's" shipment through the port of San Ciprian had provoked a strong
    • reaction among the staff, that there was a risk that the plant's operations
    • might be interrupted, and that owing to the nature of the plant, such an
    • interruption might have serious and irreversible consequences. The telex
    • therefore requested that the decision be reconsidered and pledged the writers'
    • collaboration in the search for solutions to avoid these risks.
11. 157. A further meeting between the general manager and the works council was
    • held on the same day, during which the general manager stated that the
    • Governor himself was prepared to come to the plant to furnish explanations.
    • The works council continued to object to the loading of the barrels at the San
    • Ciprian port; although it did not object to the Governor's visit, it stated
    • that if the Governor persisted in his decision to load the barrels at this
    • port, or to have the ship in question enter the port, the workers would leave
    • their posts and block the entrance to the plant, owing to the fact that they
    • did not know what the barrels contained, and that the presence of the barrels
    • had led to the evacuation of the port of Finisterre and given rise to several
    • incidents and a general panic. The plant's general manager agreed to the
    • barricades and authorised workers to use the plant's lorries to transport the
    • materials needed to block the entrances to the plant. The Governor arrived at
    • the plant around 9.30 p.m. and explained the reasons for his decision to the
    • general manager and the works council. The works council explained its
    • opposition to the shipment. No agreement was reached at the meeting. On 13
    • December the general manager again met with the works council to explain that
    • the shipment did not contain hazardous materials. The works council replied
    • that no worker would load the barrels. This meeting was followed by lengthy
    • discussions between the management and the local authorities. However, on 14
    • December at 12.30 p.m., the general manager notified the works council in
    • writing that he considered the strike to be illegal and formally requested
    • that the works council designate the staff that would maintain a minimum
    • service. The works council replied in writing at 5 p.m., requesting the
    • immediate evacuation of all workers from the plant. On 15 December, after
    • another enterprise had loaded the barrels on the "Galerno" on 14 December at
12. 9. 30 p.m., and after this vessel had left the port and reached the area known
    • as "Las Farallones", some 2,000 nautical miles from the port, the enterprise's
    • general manager at 10 p.m. again requested the members of the works council to
    • guarantee a minimum service so that the paralysis of the plant might be
    • avoided, given the serious situation of the tanks. The works council refused,
    • arguing that the situation of the electrolysis tanks was not critical, and
    • stated that workers were taking care of the tanks and that the management only
    • had to schedule rest-breaks for the supervisory staff who had volunteered to
    • maintain the equipment. At 1.45 a.m., management sent the works council a
    • written order to return to work; the works council refused to accept this
    • communication on the grounds that management had failed to reply to the points
    • which the works council had raised. At 6.30 a.m., and again at 8 a.m., the
    • works council was again requested to set up a minimum service, and calls were
    • sent out to workers at 9 a.m. by radio. At 10 a.m., the A unit automatically
    • shut down when its safety system cut off the intake of gas in order to slow
    • down the cooling of the tanks. News of this shut-down was communicated in
    • writing to the works council and to the public authorities. At 12.45 p.m., 14
    • of the 18 persons working on the unit were requested to take a break for
    • medical reasons, leaving only four persons who could continue to work for at
    • most one hour or two. At 3 p.m., the B unit was ordered evacuated and its
    • automatic safety system came into action; news of these events was also
    • communicated to the works council and the authorities. From 3 p.m. to 5.30
    • p.m., a delegate from the labour directorate sought to mediate between the
    • works council and management. Management reported to the delegate that it was
    • necessary for the crew to return to work immediately in order to save the B
    • unit, since the A unit was already hopelessly lost. Management proposed: (1)
    • an immediate return to work; (2) to regard the works council's actions as
    • serious, rather than as very serious; (3) that the sanctions concerning the
    • works council be submitted for arbitration by the labour directorate's
    • delegate; (4) that the dispute concerning the payment for hours not worked be
    • submitted to the general director of the province of Galicia for arbitration.
    • The works council replied through the delegate that it agreed with two of the
    • four proposals, but that it would not accept the loss of wages for hours not
    • worked, and it demanded a written commitment that the ship would not come back
    • to the port. Following further discussions, management announced that the B
    • unit had automatically shut off at 5 p.m., and that the only offer it could
    • still make was that workers immediately return to work to save whatever could
    • be saved. The works council agreed to allow the workers to enter the plant and
    • reconnect the units with a view to starting them up, but management took
    • exception to this proposal, stating that it was impossible to connect either
    • unit without endangering the power plant, and therefore that it was no longer
    • possible to start up the equipment in the normal fashion. At 10 p.m., the
    • electrolysis units were beyond rescue by normal means.
13. 158. The complainants contest this version of the facts. They state that as
    • early as 7.30 p.m. on 15 December, the members of the works council had
    • proposed to management to return to work and postpone negotiations; however,
    • management refused to grant them access to the plant. On 16 December, when
    • management allowed certain workers to enter the plant, they noted that the
    • electrolysis tanks were still in good working order, and that the aluminium
    • had not solidified, but was still liquid (which is normal), at a temperature
14. of 735 Celsius in the A unit, and at 760 Celsius in the B unit (the normal
    • operating temperature is 960 Celsius). In this connection, they attach a sworn
    • document dated 17 December 1987, in which a notary attests to their report of
    • the above-mentioned temperatures, adding that he saw the workers introduce a
    • metallic rod into the tanks to show him that the rod would penetrate some 30
15. or 40 cm into the liquid, although he could not see the direction in which the
    • rod was penetrating.
16. 159. Referring to the judgement of the Second Labour Court of Lugo, the
    • Committee considers that, in the particular circumstances of this case, the
    • dismissal of the members of the works committee does not infringe freedom of
    • association.
17. 160. As regards the 111 dismissed workers, the Committee notes that in a
    • decision of 9 March 1988, the court invalidated these dismissals and ordered
    • the Aluminio Español-Aluminia Española Company immediately to reinstate the
    • persons concerned and to pay back wages from the time of their dismissal until
    • that of their reinstatement, on the grounds that the enterprise had failed to
    • comply with procedural requirements before dismissal, and that the enterprise
    • had failed to inform workers individually that they would be dismissed. The
    • judge therefore concluded that the enterprise had adopted an arbitrary
    • attitude in singling out 111 of the 240 workers in this plant for dismissal,
    • while all workers had participated in the work stoppage.
18. 161. Concerning the dismissal of these 111 workers, the Committee notes with
    • interest that the court cancelled their dismissal and ordered their
    • reinstatement owing to the arbitrary attitude adopted by the enterprise in
    • dismissing certain workers rather than others, and in failing to notify each
    • worker individually that he would be dismissed. Consequently, the Committee
    • considers that this aspect of the case does not call for further examination.