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Allegations: The complainant organization alleges violations of the right to
collective bargaining and the right to strike of registrars in the administration of
justice
- 328. The complaint is contained in communications dated 29 May and 4 July
2023 submitted by the Association for the Defence of the Professional Rights of
Registrars in the Administration of Justice (RECLAMALAJ).
- 329. The Government sent its observations in a communication dated 10
October 2023.
- 330. Spain has ratified the Freedom of Association and Protection of the
Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective
Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention,
1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).
The complainant’s allegations
The complainant’s allegations- 331. In its communications of 29 May and 4 July 2023, the complainant
organization alleges violations of ILO Conventions Nos 87, 98, 151 and 154 with regard
to the collective bargaining, right to strike and wage adjustment of registrars in the
administration of justice. To provide some context for its allegations, the organization
indicates that the Spanish administration of justice consists of various bodies of
officials: judges and magistrates, prosecutors, state lawyers and registrars in the
administration of justice (all of whom have legal training), as well as other general
bodies, which include administrators, case managers and assistants (staff with training
that is not necessarily legal). The organization reports that, historically, the role of
a registrar in the administration of justice (“Letrado de la Administración de
Justicia”, formerly known as “secretario judicial”) was not clearly distinguishable from
that of general staff; it was that of an official in the judicial office who, under the
authority of the judge, was responsible for the authenticity of public acts, statistics
and the control of the public accounts and registers, which could be delegated to the
administrators of the office. Registrars in the administration of justice were thus
included with general staff for collective bargaining purposes. The organization then
states that, as a result of various reforms to Spanish legislation, registrars in the
administration of justice have been given specific, non-delegable and exclusive duties,
as well as their own system of access, superior bodies and disciplinary system. It
points out that these reforms have led to a distinction within the judicial office
between registrars in the administration of justice and general staff (administrators,
case managers and judicial assistants), making registrars in the administration of
justice responsible for the supervision and technical and procedural management of this
staff.
- 332. The complainant organization begins by alleging a violation of the
right to collective bargaining of registrars in the administration of justice. It
states, in this regard, that the organizations for this group do not have their own
trade union representation, as few officials fall into this category and, therefore,
cannot engage in collective bargaining on matters that are specific and exclusive to
them.
- 333. The organization explains that, according to sections 31 to 36 of
the Basic Statutes for Public Employees (EBEP), the representative bodies of the
officials are the staff representatives (in electoral units with less than 50 officials)
and staff boards (in units with at least 50 officials). Referring to the various legal
provisions governing collective bargaining in the administration of justice, the
complainant organization points out that, under section 444.1 of Organic Act No. 6/1985
on the judiciary, registrars in the administration of justice “shall have the same
individual and collective rights and duties as those established in Book VI [of the
Act], supplementing the provisions of the Basic Statutes for Public Employees and the
other state regulations on the public service” and that section 496(e) of the Act adds
that “the appropriate frameworks shall be established to allow broader and increased
participation by the representatives of officials in the administration of justice,
through working groups, roundtables or any other forum for dialogue and negotiation”. In
this regard, the complainant organization refers to the requirements of
representativeness for collective bargaining provided for in sections 30 and 31 of Act
No. 7/1990 on collective bargaining and participation in the determination of working
conditions of public employees, section 36.1 of EBEP and sections 6 and 7 of Organic
Act No. 11/1985 on freedom of association. In particular, it points out that, under
these provisions, the most representative trade union organizations at the state and
autonomous community level have the right to take part in bargaining tables, as well as
any trade unions that have obtained at least 10 per cent of the representatives in the
elections for staff representatives and staff boards in the electoral units included in
the specific scope of each bargaining table.
- 334. The complainant organization alleges that the current interpretation
of the criteria of representativeness effectively deprives registrars in the
administration of justice of the right to collective bargaining.
- 335. The complainant organization explains that, currently, collective
bargaining in the sector occurs at the sectoral bargaining table for staff in the
administration of justice, which includes both registrars in the administration of
justice (of whom there are few) and other staff in the judicial office (who are their
subordinates and of whom there are many). In this regard, it specifies that registrars
in the administration of justice account for only 7.08 per cent of all officials in the
administration of justice. According to the complainant organization, it is therefore
the general unions, whose members are primarily administrators, case managers and
judicial assistants, who are tasked with engaging in collective bargaining and
safeguarding the professional interests of registrars in the administration of
justice.
- 336. The organization alleges that this clearly renders registrars in the
administration of justice defenceless: since they cannot have their own union
representation because there are so few of them, they cannot engage in collective
bargaining on matters that are specific and exclusive to them. It also alleges that
there is a conflict of interest insofar as, on the one hand, registrars in the
administration of justice are the directors of the judicial office and give instructions
to the officials who report to them and, on the other hand, it is these officials, who
are their subordinates, who represent registrars in the administration of justice and
negotiate, for their hierarchical superiors, improvements to work that they are
unfamiliar with, do not control or in which they have conflicting interests. The
complainant organization adds that “the general unions have negotiated nothing at all in
relation to the working conditions and development of duties of registrars in the
administration of justice and have even contested the few wage increases obtained by the
registrars, on the official pretext that they were not involved the so-called sectoral
table”. The organization also states that “the current situation, whereby the staff
managed by [registrars in the administration of justice], namely the administrators,
case managers and assistants in the general unions, are responsible [for negotiating
working conditions] cannot continue. These unions have zero interest in the fate of
judicial registrars, quite the contrary. They contest and sabotage any improvement in
working conditions, no matter how small, that has been secured by registrars in the past
30 years”.
- 337. The complainant organization also refers to the right to take part
in “general bargaining tables” (to negotiate all matters and working conditions that
apply to all officials, statutory and ordinary staff of each public administration). It
indicates that, under section 36.3 of EBEP, one must obtain 10 per cent in the elections
for the representatives of officials and ordinary staff. The organization alleges that
the interpretation of this section under case law, which requires that the quota of 10
per cent be reached separately for officials and for ordinary staff, instead of 10 per
cent for all staff, undermines the right to collective bargaining and that officials are
under-represented.
- 338. The organization also indicates that there is a difference in
organizational dependence between registrars in the administration of justice and
general staff. While registrars in the administration of justice belong to the State
Administration (Ministry of Justice), administrators, case managers and judicial
assistants depend on the various autonomous administrations in the autonomous
communities where the management of the competencies in the administration of justice
has been transferred in terms of staff and material resources. The complainant
organization refers, in this regard, to certain court decisions and arbitration
proceedings that have considered excluding registrars in the administration of justice
from the electoral list for the union elections in several autonomous communities, on
grounds that they could not be properly represented because they do not depend on that
administration, but on the Ministry of Justice.
- 339. In view of the foregoing, the complainant organization alleges the
violation of Conventions Nos 98, 151, and 154. In this regard, it requests the
recognition of a collective bargaining framework that is specifically and exclusively
for registrars in the administration of justice.
- 340. The complainant organization also reports that on 24 January 2023,
the registrars in the administration of justice began an indefinite strike with a view
to securing their own collective bargaining agreement.
- 341. The complainant organization then provides a summary of events
related to the organization of strikes by the registrars in the administration of
justice. According to this information, they began a strike in early 2022, after which
the Ministry of Justice published, in April 2022, a communique in which it undertook to
link, proportionally, the remuneration of registrars in the administration of justice to
that of judicial professions (judges and magistrates). The complainant organization
states that on 24 January 2023, the registrars began an indefinite strike due to the
failure of the Ministry of Justice to honour the commitments that it had made to them in
April 2022 and with a view to securing their own collective bargaining agreement.
- 342. The complainant organization indicates that, in response to this
strike, the Secretary-General of the Administration of Justice established, by
Instruction No. 1/2023, that: (1) as of the entry into force of the strike, all pending
leave and holidays for 2023 for registrars in the administration of justice can only be
enjoyed on days when there are no reports (that is, acts that must be authenticated by a
registrar, such as assistance with entries and registration or the removal of corpses),
thus preventing officials from having full weeks of rest; and (2) a colleague from the
judicial district who is not on strike must be designated to cover the holidays, which
the complainant organization alleges is a direct attack on the free exercise of the
right to strike, given that employees have no individual obligation to give prior notice
of the days on which they are going to exercise their right to strike, once the strike
committee has legally called the strike and given prior notice. The organization reports
that an administrative appeal was filed against this Instruction on the grounds that it
violated the fundamental right to strike.
- 343. The complainant organization requests that the indefinite strike of
registrars in the administration of justice be authorized, and that leave, substitutions
and holidays be guaranteed in accordance with the exercise of the right to strike, and
without any cover, as this would entail a violation of the right to strike.
- 344. The organization points out in its additional information that on 28
March 2023, the strike committee and the State Administration signed an agreement to put
an end to the strike of the registrars in the administration of justice. In this regard,
the complainant organization attaches a note dated 20 June 2023, in which it states that
the Government has failed to comply with the content of the agreement by paralysing, for
no objective reason, the formalities for the reform of the system of remuneration for
registrars in the administration of justice.
- 345. The complainant organization alleges that, although registrars in
the administration of justice have taken on many procedural duties as a result of
various legislative reforms, these have not been remunerated. The organization refers to
several legislative provisions adopted to modify the systems of remuneration for
registrars in the administration of justice and to bring them into line with those of
judicial professions. It also provides a breakdown of remuneration levels according to
the category of officials, indicating that, at present, the wages of judges exceed those
of registrars in the administration of justice by more than 30 per cent (with registrars
in the administration of justice and judges in category “A1”), while the wages of
administrators, who are managed by registrars in the administration of justice and
belong to group “A2”, and the wages of registrars in the administration of justice
differ by less than 5 per cent, at most.
- 346. The complainant organization requests recognition of a legitimate
salary adjustment for registrars in the administration of justice, and fulfilment of the
commitments made in April 2022, linking the remuneration of registrars in the
administration of justice to the remuneration of judicial and prosecutorial
professions.
B. The Government’s reply
B. The Government’s reply- 347. In its communication of 10 October 2023, the Government submitted
its observations. The Government begins by emphasizing that the problems put forward by
the complainant association correspond to the arguments put forward by the main
associations of registrars in the administration of justice in the early stages of the
indefinite strike called by them on 24 January 2023, and that the complaint was based on
incorrect analyses and conclusions.
- 348. The Government also draws attention to the signing of the agreement
of 28 March 2023 between the State Administration and the strike committee of the
registrars in the administration of justice. The Government states, in this respect,
that the complaint presented should be considered resolved by the events that led the
registrars to call off their strike following the agreement of 28 March 2023.
- 349. The Government states that, under sections 444.1 and 496(e), Organic
Act No. 6/1985 on the judiciary, far from infringing registrars’ right to collective
bargaining, simply recognizes this right in a generic manner for all officials in the
administration of justice.
- 350. The Government indicates that, in the absence of specific
regulations, the right to collective bargaining is exercised through the bodies and
systems regulated in EBEP and Organic Act No. 11/1985 on freedom of association. In this
regard, the Government refers to section 33.1 of EBEP, according to which collective
bargaining for public servants “shall be undertaken through the exercise of
representative capacity”, and specifies that this capacity is attributed, under the same
provision, to “the most representative trade union organizations at state level, the
most representative trade union organizations of the autonomous communities, as well as
the trade unions that have obtained ten per cent or more of the representatives in the
elections for staff representatives and staff boards, in the electoral units included in
the specific scope of their constitution”. In the light of these texts, the Government
points out that the composition of the negotiating tables is based on the outcome of the
elections for staff representatives and staff boards.
- 351. The Government therefore stresses that the trade union
representation of registrars in the administration of justice for collective bargaining
purposes is ensured by their participation as voters (and candidates) in trade union
elections, the outcome of which determines the composition of the various bargaining
tables and the representation of trade union organizations at such tables.
- 352. In this regard, the Government specifies that the fact that the
number of officials in the body of registrars in the administration of justice is lower
than that of other bodies does not prevent registrars from being duly represented by the
trade unions present at the bargaining tables.
- 353. Moreover, the Government states that it does not see the conflict of
interest alleged by the complainant organization, as the technical and procedural
management of the judicial office should not prevent the most representative trade union
organizations from defending the interests of registrars and negotiating their working
conditions as it does for general staff. The Government also indicates that the
situation described is common to any other group of public employees where there is no
separate bargaining for staff with management duties.
- 354. The Government recalls that, as a result of the strike of the
registrars in the administration of justice, an agreement was reached with the strike
committee on 28 March 2023, which demonstrates that the registrars in the administration
of justice can effectively exercise the right to strike. The Government points out that,
in this agreement, the signatory associations withdrew their appeal before the
administrative dispute court against Instruction No. 1/2023 of the Secretary-General of
the Administration of Justice, which established the circumstances in which holidays and
leave should be granted during the strike. The Government also points out that this
Instruction lost its purpose when the strike was called off.
- 355. With regard to the commitments made in April 2022 mentioned by the
complainant organization, the Government specifies that the Ministry of Justice
undertook only to promote regulatory changes in the area of remuneration, which it did
within the scope of its powers, which do not extend to the adoption of laws.
- 356. The Government stresses that the agreement of 28 March 2023 contains
a commitment to increasing the remuneration of registrars in the administration of
justice, and thus the substantive demands have been met.
- 357. In this regard, the Government refers to the publication of Royal
Decree No. 774/2023 of 3 October, which amends Royal Decree No. 1130/2003 of 5
September, regulating the system of remuneration for registrars, and Royal Decree No.
2033/2009 of 30 December, determining the standard posts assigned to registrars for the
purposes of the general post allowance, the initial allocation of the specific allowance
and the remuneration for substitutions involving the joint performance of another duty,
with a view to compliance with the agreement between the State Administration and the
strike committee of the registrars in the administration of justice. This text
establishes increases in the specific allowance in the remuneration of registrars in the
administration of justice.
C. The Committee’s conclusions
C. The Committee’s conclusions- 358. The Committee notes that in the present case the complainant
organization alleges a violation of the right to collective bargaining and the right to
strike of registrars in the administration of justice. The Committee notes that the
Government provides a response to these issues and claims that the present complaint,
based on the arguments put forward by the associations in the early stages of the
indefinite strike that began on 24 January 2023, should be considered resolved by the
events that led the registrars to call off their strike following the agreement of 28
March 2023.
- 359. With regard to the right to collective bargaining, the Committee
takes note of the complainant organization’s allegations that there is a violation of
the right to collective bargaining of registrars in the administration of justice, as
there are too few of them to be represented by their own organizations in the
negotiating bodies. The organization alleges that, as a result, they are represented by
general unions which, when negotiating working conditions or work-related improvements,
find themselves in a conflict of interest, as the unions primarily consist of
administrators, case managers and judicial assistants, who are subordinate to registrars
in the administration of justice. It also alleges that, in practice, these unions have
acted against the interests of registrars in the administration of justice by contesting
any improvements that they have secured to their wages and working conditions. In this
respect, the Committee notes that the Government states that: (i) the trade union
representation of registrars in the administration of justice for collective bargaining
purposes is guaranteed by their participation in trade union elections, the outcome of
which determines the composition of the various bargaining tables; (ii) the fact that
the number of officials in the body of registrars in the administration of justice is
lower than that of other bodies does not prevent registrars from being duly represented
by the trade unions present at the bargaining tables; (iii) it does not see a conflict
of interests, insofar as the technical and procedural management of the judicial office
by the registrars in the administration of justice should not prevent trade union
organizations from defending their interests; and (iv) the situation described is common
to any other group of public employees where there is no separate bargaining for staff
with management duties.
- 360. The Committee notes that, according to the complainant
organization’s allegations and the Government’s reply: (i) the Spanish legal system
establishes a system of collective bargaining, whereby various bargaining tables are set
up at different levels of the public administration; (ii) under the representation
criteria established in the legislation, the trade union organizations participating in
these tables are required to be considered the most representative at the state or
autonomous community level, or to have obtained 10 per cent or more of the
representatives in the elections for staff representative and staff boards; (iii) the
bargaining tables for staff in the administration include registrars in the
administration of justice and general staff in the administration of justice, such as
administrators, case managers and assistants of the judicial office, in the same
bargaining unit; (iv) as a result of various legal reforms, registrars have taken on new
duties in the judicial office, including the technical procedural management of the
office and its staff; and (v) registrars in the administration of justice make up a
fraction of total staff in the administration of justice and, consequently, it is
difficult for their own organizations to meet the criteria of representativeness
required to participate directly in collective bargaining tables.
- 361. The Committee recalls that systems based on a sole bargaining agent
(the most representative) and those which include all organizations or the most
representative organizations in accordance with clear pre-established criteria for the
determination of the organizations entitled to bargain are both compatible with
Convention No. 98. It also recalls that the granting of exclusive rights to the most
representative organization should not mean that the existence of other unions to which
certain involved workers might wish to belong is prohibited. Minority organizations
should be permitted to carry out their activities and at least to have the right to
speak on behalf of their members and to represent them [see Compilation of decisions of
the Committee on Freedom of Association, sixth decision, paras 1360 and 1388]. Moreover,
with regard to the criteria of representativeness, the Committee recalls that it has
previously considered that a required 10-per-cent representation for a trade union
organization to be able to participate in the negotiating commission is not in violation
of the principles of freedom of association and collective bargaining [see Compilation,
para. 1378].
- 362. As to the specific issue of the scope of the bargaining unit
covering registrars and their demand to have their own bargaining table, the Committee
duly notes that, in accordance with the legislation in force, bargaining tables in the
Spanish public administration exist at the central, regional and local level and then by
administration. The Committee also notes the Government’s indication that the
registrars’ situation is common to any other group of public employees where there is no
separate bargaining for staff with management duties The Committee nevertheless notes
the complainant organization’s allegations that, in practice, the interests of its
members are not defended by the general unions in the administration of justice. In this
respect, the Committee notes that: (i) this situation gave rise to the strike movement
of January 2023; and (ii) the agreement signed by the strike committee and the
administration of justice on 28 March 2023 provides, in its “fourth” point, for the
establishment of joint working groups to address various issues relating to registrars
in the administration of justice, including mechanisms to ensure that the registrars’
associations are effectively heard on all matters relating to remuneration, statutes,
organization of the judicial office or legal changes affecting their service. The
Committee notes that the establishment of such working groups provides an additional
opportunity for dialogue and for the registrars’ associations to defend the interests of
their members. In this context, the Committee encourages the Government to maintain an
active dialogue with all stakeholders to ensure that, both through their associations
and through more general trade union organizations, registrars in the administration of
justice are truly able to voice their concerns and defend their interests in the bodies
that concern them.
- 363. With regard to the exercise of the right to strike, the Committee
notes that the complainant organization alleges that the right to strike of registrars
in the administration of justice was violated by the adoption, during the indefinite
strike that began in January 2023, of Instruction No. 1/2023 restricting requests for
leave and holidays during the strike. The complainant organization also points out that
the strike ended with an agreement between the strike committee and the State
Administration, signed on 28 March 2023. In this respect, the Committee also notes the
Government’s indications that: (i) Instruction No. 1/2023 lost its purpose when the
strike was called off; (ii) the “sixth” point of the agreement of 28 March 2023 reflects
the commitment of the signatory associations to withdraw the administrative appeal filed
against Instruction No. 1/2023; and (iii) Royal Decree No. 774/2023 of 3 October was
published, establishing certain increases in the system of remuneration for registrars
in the administration of justice with a view to compliance with the agreement between
the strike committee and the State Administration.
- 364. The Committee notes that, according to the complaint and the
Government’s reply: (i) the registrars in the administration of justice called an
indefinite strike in January 2023; (ii) during the strike, the Secretary-General of the
Administration of Justice issued Instruction No. 1/2023 on the system for taking leave
on the strike days of the registrars in the administration of justice, the text of which
established certain requirements for taking pending leave and holidays, and against
which an administrative appeal was filed; (iii) the indefinite strike ended with the
signing of an agreement between the strike committee and the Administration of Justice
on 28 March 2023. The Committee notes that this agreement includes provisions to
increase the remuneration of the registrars in the administration of justice, and to
establish joint working groups to address various issues relating to this group.
- 365. The Committee notes that the registrars in the administration of
justice effectively staged an indefinite strike, which was put to an end by an agreement
between the strike committee and the State Administration, and that Instruction No.
1/2023 suddenly lost its purpose. In the light of the above, the Committee will not
pursue its examination of this aspect of the complaint.
- 366. The Committee notes that the complainant organization requests
recognition of a legitimate salary adjustment for registrars in the administration of
justice, and fulfilment of the commitments made in April 2022, linking the remuneration
of registrars in the administration of justice to the remuneration of judicial and
prosecutorial professions. The Committee also takes note of the Government’s reply that:
(i) in 2022, the Ministry of Justice undertook only to promote regulatory changes in the
area of remuneration, which it did within the scope of its powers; and (ii) in
accordance with the agreement reached with the strike committee on 28 March 2023,
measures have been adopted to establish increases in the remuneration of registrars in
the administration of justice through Royal Decree No. 774/2023 of 3 October 2023.
Recalling that agreements should be binding on the parties [see Compilation, para.
1334], the Committee trusts that this Decree has given full effect to the agreements
reached in March 2023.
The Committee’s recommendations
The Committee’s recommendations- 367. In the light of its foregoing conclusions, the Committee invites the
Governing Body to approve the following recommendations:
- (a) The Committee encourages
the Government to maintain an active dialogue with all stakeholders to ensure that,
both through their associations and through more general trade union organizations,
registrars in the administration of justice are truly able to voice their concerns
and defend their interests in the bodies that concern them.
- (b) The
Committee trusts that Royal Decree No. 774/2023 of 3 October 2023 has given full
effect to the agreements reached in March 2023 regarding wages.
- (c) The
Committee considers that this case is closed and does not call for further
examination.