Informe provisional - Informe núm. 25, 1957

A. A. The complainants' allegations

• Complaint of the International Confederation of Free Trade Unions
  76. 76 The complaint of the International Confederation of Free Trade Unions, submitted in communications dated 4 May and 13 August 1956, contains the following allegations. The Spanish Government is said to have violated human rights by breaking the strikes that occurred in April 1956 in Bilbao and other towns and by arresting the strikers. The dictatorship is said to have ordered lockouts and thus endangered the livelihood of some 40,000 workers. Some employers are said to have tried to get production going again at a time when it was falling, by granting wage increases at rates higher than those set by the Government, which opposed such a step and ordered the closing of the establishments concerned. The Franco régime is also said to have resumed persecution of the workers who took part in the general strike of 1951. In the Basque provinces 11 people are said to have been sentenced to between three and six years' imprisonment for taking part in the strike. They were later set free but recently imprisoned again without any charge being laid against them. The government strike-breaking system is said to constitute a violation of human rights, which Spain promised to respect when she joined the United Nations. To justify the Government's action the Head of State laid the blame on liberalism in the past.
  77. 77 In its second communication the I.C.F.T.U states as follows:
  1. (1) The source of the trade union situation in Spain lies in the totalitarian character of the Spanish State. The results of this are, firstly, the non-existence of free trade unions and, secondly, the existence of trade unions created in every respect by the public authorities.
  2. (2) By virtue of a Decree of the Presidency of the Junta for National Defence, dated 13 September 1936, all the political or social organisations which had been constituted by the Popular Front were declared illegal and their movable and immovable property was confiscated. Further, the Act of 9 February 1939 respecting political responsibility ratified the earlier decree and specifically declared illegal trade union organisations such as the General Workers' Union, the Association of Basque Workers and the National Confederation of Workers.
  3. (3) All these trade union organisations had been freely constituted by the workers in accordance with an Act of 1887. The leading members of these organisations were persecuted and sentenced, some to death and others to terms of from 20 to 30 years' imprisonment.
  4. (4) The conditions in which free trade union organisations are prohibited and free trade unionists are prosecuted were still further aggravated by the enactment of the Act of 29 March 1941 respecting the security of the State and of the Penal Code of 23 December 1944 (articles 172 and 173). The Penal Code provides that the act of constituting, organising or directing organisations other than those imposed by the régime is a crime punishable by as much as 16 years' imprisonment.
  5. (5) With respect to agricultural workers, an Act of 2 September 1941 incorporated in the national organisation all the agricultural trade unions, cooperatives, etc., which enjoyed a particular status under an Act of 28 January 1906.
  6. (6) Among the 26 points of the Falange, which were drawn up in October 1934 and became, in 1937, the political doctrine of the Spanish State, are found the principles governing the " trade union " régime in Spain. Thus, Point 6 provides " Our State shall be a totalitarian instrument for the integration of the homeland"; Point 9 reads : " We conceive Spain in the economic order as a gigantic trade union of producers. We shall organise Spanish society on a corporative basis through a system of vertical trade unions according to the sectors of production, serving the integration of the national economy."
  7. (7) In accordance with these principles, the Decree of 4 August 1937 approving the Constitution and Rules of the Falange Española Tradicionalista (F.E.T) and of the Juntas de Ofensiva Nacional-Sindicalistes (J.O.N.S) provided in its Chapter VII, entitled " Trade Unions ", that the Falange and the J.O.N.S will create and maintain trade union organisations suitable for incorporating labour in production and the distribution of property.
  8. (8) The Labour Charter approved by the Decree of 9 March 1938 defines the character of the trade union organisation created by the Government itself. It is stated in Chapter XIII of the Labour Charter that the national trade union organisation of the State will be based on the principles of unity, totality and hierarchy, and that all factors in economic life shall be incorporated in vertical unions according to branches of production or services. The Labour Charter declares that the vertical union shall be a public body incorporating in a single organisation all elements which are engaged in the economic process in a specified service or branch of production. The Charter also provides that the heads of the unions will necessarily be chosen from among the militants of the F.E.T and the J.O.N.S and " that the vertical union shall be an instrument in the service of the State and shall constitute the principal medium through which the State will put its economic policy into effect ".
  9. (9) The Act of 26 January 1940 respecting trade union unity reiterates the principles in the Labour Charter and provides, among other things, that all trade unions other than those within the system are prohibited, and that the functioning of trade unions is subject to the discipline of the movement under the inspection of the National Trade Union Delegation.
  10. (10) The Act of 6 December 1940 laying down basic rules for trade union organisation ensures, in an even more effective manner, the subordination of the trade union organisation to the F.E.T-J.O.N.S and the State. It provides that Spaniards, by the fact that they collaborate in production, constitute the National-Syndicalist Community, forming a militant unit in the discipline of the Movement. It prescribes that the heads of the trade unions shall be appointed by the National Authority of the Movement on the recommendation of the National Trade Union Office and that they will, necessarily, have to be militants of the F.E.T and the J.O.N.S.
• The legislative provisions referred to above reveal clearly the nature of the National Trade Union of the State as a subsidiary organisation of the political régime This legislation constitutes an instrument intended to strengthen the régime and to keep the Spanish workers in a state of complete dependence by denying them, freedom of association in common with all other political freedom. Such a policy is contrary to the principles contained in the I.L.O. Constitution and in the Declaration of Philadelphia and also in 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) and the Right of Association (Agriculture) Convention, 1921 (No. 11).
• The provisions of the Penal Code and of the different laws prohibiting the Constitution of any organisations other than those imposed by the Franco régime are contrary to Articles 2, 3, 4 and 8 (respecting freedom of association) and 11 (respecting the protection of the right to organise) of Convention No. 87. The provisions of the Labour Charter and of the Act of 6 December 1940 laying down basic rules for trade union organisation are contrary to the same Articles of Convention No. 87 and to Article 4 of Convention No. 98. The Act of 2 September 1941 respecting agricultural workers violates Convention No. 11, which has been ratified by Spain.
  78. 78 In conclusion, the complaining organisation maintains that the Spanish trade union movement does not express the free aspirations of the workers but constitutes an authoritarian and totalitarian organisation which has been imposed on the workers and is wholly subordinate to the Head of State. The measures taken by the Spanish Government to cope with the strikes of April 1956 are said to prove this. It is stated that there is therefore no machinery enabling the workers to act freely with a view to securing an improvement in their living standards, since the so-called trade union organisation does not enjoy the workers' confidence ; the Government does not recognise the workers' right to bargain freely with employers, nor does it agree to the conclusion of collective agreements ; and the right to strike is not recognised and repressive measures are taken to break those that occur. Spanish trade union legislation, which is made worse by police intervention, is said to be incompatible with the basic principles of the International Labour Organisation and to constitute a challenge to the community of nations. The complaining organisation therefore requests the Governing Body to call on the Government of Spain to amend the existing legislation so as to restore freedom of association, and to cancel the sanctions imposed on the workers who took part in the strikes of April 1956.
• Complaint of the General Union of Spanish Workers in Exile
  79. 79 In its communication of 25 July 1956 this organisation states that during the strikes of April 1956 in Barcelona the workers José Ballbe, Julián Piñero, Francisco Fabregat, José Teixidor, Antonio Petit, Francisco Escrivá, José Castillo, José Ballaro, Antonio Muller and Antonio Senserich were arrested. The police are said to have brought the arrested men before Court No. 10. The judge is stated to have ordered the institution of proceedings against them on charges of unlawful association and distributing illegal propaganda. Although the judge ordered the release of the arrested men on bail, the Civil Governor of Barcelona, in order to prevent their being set free, ordered that they should be rearrested on government authority for a period of three months, renewable for a further period of three months. The complaining organisation states that this constitutes an infringement of the individual freedom of the workers and of the right to strike and interference by the civil authorities so as to nullify the decisions of the judicial authorities. In its second communication, dated 22 August 1956, the General Union of Spanish Workers in Exile alleges that the policy carried on by the Franco régime against the workers since it seized power on 30 March 1939 is continuing. It submits a list of persons detained as political prisoners. They include Eduardo Villegas, who was sentenced in 1946 for having tried to reconstitute a free trade union organisation, the General Workers' Union, and Emilio Salgado, now in Ocaña prison, who was sentenced in 1947 for the same offence. Most of the other persons listed in the complaint are said to have been sentenced to imprisonment for as much as 30 years for the offence of " military rebellion ". According to the complaining organisation, the fact that those detained were sentenced for military rebellion should not mislead the reader " That is how the Franco régime describes the efforts of the workers to regain their rights as citizens and their freedom of association ". The complaining organisation goes on to say that " freedom of association does not exist in Spain; nor do there exist any of the guarantees prescribed by the Declaration of Human Rights ".
• ANALYSIS OF THE REPLY
  80. 80 In its communication of 4 January 1957 the Government asserts that the complaints of the I.C.F.T.U do no more than repeat the allegations put forward in challenging the representative character of the Spanish Workers' delegate at the 39th Session of the International Labour Conference. The decision of the Government member of the Credentials Committee brought out how unjustified such allegations were. In that decision the Government member said: "In these circumstances, and having carefully examined the relevance of the various points raised in the objections, I cannot come to the conclusion that the Workers' delegate of Spain and his advisers were not appointed in conformity with article 3, paragraph 5, of the Constitution ". In other words, the Government continues, he found that the Workers' delegate had been chosen in agreement with the organisation that was representative of the workpeople. In spite of the abstention of the Employers' member and the unfavourable decision of the Workers' member, the Conference accepted this argument by a large majority. The rejection by the Conference of the protest against the Spanish Workers' delegation implies recognition that in Spain there are organisations that are representative of the workers and that such organisation is free. Consequently this is a genuine case of res judicata, since there are no new facts or allegations which the Credentials Committee or the Conference did not take into account. Consequently the Committee on Freedom of Association must reject the new complaint by " the so-called International Confederation of Free Trade Unions " forthwith.
  81. 81 In addition, the Government goes on to say, the International Confederation of Free Trade Unions is not entitled to submit a complaint of this nature because, on the one hand, it is clearly biased in its actions, this bias being derived " from its persistent opposition to the organised workers in Spain ", and on the other hand because, since there is in Spain no organisation affiliated to the I.C.F.T.U, the Confederation cannot claim in any way to represent Spanish workers " to bring before the International Labour Organisation their complaints or alleged claims ". At no time in the history of Spanish society has there existed a workers' trade union organisation that was stronger, more effective and more independent, not only of government interference but also of the interference of Spanish or international political elements foreign to the proper aims of trade unionism. The fact that the Act laying down basic rules for trade union organisation and the regulations of 1947 introduced a system of free and democratic selection of all trade union posts without discrimination of any kind and at all levels of the movement is said to be clear proof of the correctness of this statement.

B. B. The Committee's conclusions

• Preliminary Question as to the Capacity of the I.C.F.T.U to Present the Complaint
  82. 82 The Spanish Government contends that the International Confederation of Free Trade Unions was not entitled to submit a complaint against Spain for consideration by the Committee on Freedom of Association for two reasons (1) the I.C.F.T.U has no affiliated organisation in Spain and cannot therefore claim to be acting as the Spanish workers' representative in bringing their complaint or supposed demands before the I.L.O ; (2) the I.C.F.T.U betrays an obvious bias in the matter, deriving from " its persistent activity against organised labour in Spain ".
  83. 83 The question of the right to invoke the procedure for submitting complaints to the Committee was dealt with in section II of the Committee's First Report (" Outline of the Existing Procedure for the Examination of Allegations concerning the Infringement of Trade Union Rights "). Paragraph 14 of that section states as follows : " The only complaints receivable, with the exception of those officially transmitted to the I.L.O by the General Assembly or the Economic and Social Council of the United Nations, are those which come either from organisations of workers or employers or from governments ". Paragraphs 27 and 28 refer to certain cases (dissolution of complainant organisation, absence of complainants from the country concerned, etc.) where there may be doubt regarding the right of an organisation to submit a complaint. The Committee has in many cases had to consider the receivability of complaints. In Case No. 78 (Switzerland) for example, the Swiss Government argued that the fact that the complaint was made by an organisation which had no branch in Switzerland might constitute sufficient reason for its not replying to the complaint. However, the Committee decided that " this factor [presentation of complaint by organisation with no branch in the country complained against] should not be taken into account when deciding as to the receivability of the complaint ". The Committee considered that the fact that a complaint had been submitted by an organisation without branches in the country accused " is a point to which it should pay particular attention when it comes to examine the merits of the complaint, for the simple reason that, as the Committee observed in its First Report, it may be difficult to decide in some cases how much reliance is to be placed on the evidence of persons who are not resident in the country in question ". In Case No. 67 (Egypt), the Egyptian Government argued that a complaint submitted by the Congress of Arab Unions (Nazareth) was not receivable under the procedure as the complainant organisation could not be recognised internationally and the accusations were clearly made for purposes of political propaganda. The Committee held that the complaint was receivable since it was presented in due form by a workers' organisation and that, as regards the motives of the complaint, the fact that these were political, as the Government maintained, was not reason for dismissing it. These motives should be considered when examining the merits of the case and could not be regarded as grounds of formal irreceivability, whatever the real motives inspiring the complainant.
  84. 84 In the present case it is to be noted that the complaint was made by an international workers' organisation, the I.C.F.T.U, which is one of the nongovernmental organisations recognised by the I.L.O as having consultative status and that there can be no doubt as to its status as a workers' organisation. The original complaint (communication dated 4 May 1956) was, moreover, transmitted to the I.L.O by the Economic and Social Council of the United Nations, and both the complaint and the additional information dated 13 August 1956 were submitted in writing and duly signed by a representative of a body qualified to submit such complaints, as required by the procedure laid down by the Governing Body for the Committee on Freedom of Association. The fact that the I.C.F.T.U has no affiliated organisations in Spanish territory-though a circumstance to be considered when examining the merits of the allegations-by no means implies (as the previous decisions of the Committee indicate) that the I.C.F.T.U is not entitled to submit a complaint for violation of trade union rights.
  85. 85 As regards the alleged political bias of the I.C.F.T.U, which the Spanish Government regards as a circumstance disqualifying the organisation from presenting the complaint, the Committee considers in view of the precedent of Case No. 67 (Egypt), in which a similar question arose, that this is a matter to be taken into consideration when the merits of the case are examined, but that it cannot in any way be regarded as affecting the form and consequently the receivability of the complaint.
  86. 86 In view of the foregoing, the Committee considers that there is no reason to regard the complaint as irreceivable on the grounds of incapacity raised by the Spanish Government as a preliminary question.
• Preliminary Question as to Application of the Principle of Res Judicata
  87. 87 The Spanish Government maintains that, because the International Labour Conference at its 39th Session supported the opinion of the Government member of its Credentials Committee to the effect that the Spanish Workers' delegate had been appointed in consultation with the most representative workers' organisation, the issues raised are res Judicata, since the complaint of the I.C.F.T.U contains no allegation as to fact or law not already examined by the Credentials Committee of the 39th Session of the Conference. The Government contends that the Conference vote recognised that there was a representative workers' organisation in Spain and that the organisation was free.
  88. 88 According to paragraph 24 of the First Report of the Committee on Freedom of Association, the Governing Body " following discussions at the 116th and 117th Sessions ... decided to set up the present Committee ... to carry out the preliminary examination of complaints alleging infringements of the exercise of freedom of association hitherto entrusted to the Officers of the Governing Body alone ". The specific function of the Committee, according to paragraph 25 of that report, is " to consider for recommendation to the Governing Body whether cases are worthy of examination by the Governing Body ". The Committee can recommend that examination of a case be discontinued, where the allegations are purely political, the charges are too vague, or the evidence is inadequate ; or else decide that a case warrants further examination. The functions of the Credentials Committee of the International Labour Conference, as defined in article 26 of the Standing Orders of the Conference, are entirely different. Article 3 of the Constitution of the International Labour Organisation requires Members to nominate to the Conference non-government delegates and advisers chosen in agreement with the industrial organisations, if such organisations exist, which are most representative of employers or workpeople as the case may be, in their respective countries ; and then prescribes that the credentials of delegates and their advisers shall be subject to scrutiny by the Conference, which may, by two-thirds of the votes cast by the delegates present, refuse to admit any delegate or adviser whom it deems not to have been nominated in the appropriate manner. The organ of the Conference responsible for examining objections in this connection is the Credentials Committee. Under paragraph 3 of article 26 of the Standing Orders of the Conference, the Credentials Committee is responsible for considering " any objection concerning the nomination of any delegate or adviser ". If the Credentials Committee finds that the objection is receivable and it or any member of the Committee reports to that effect to the Conference, the Conference, " if it deems that the delegate ... has not been nominated in conformity with the requirements of the Constitution, may ... refuse by two-thirds of the votes cast by the delegates present to admit the delegate.." (paragraph 7 of article 26). An objection is not receivable if it " is based upon facts or allegations which the Conference, by a debate and a decision referring to identical facts or allegations, has already discussed and recognised to be irrelevant or devoid of substance " (paragraph 4(c) of article 26).
  89. 89 The submission of an objection to the credentials of a delegate to the Conference and the submission of an allegation to the Committee on Freedom of Association are different procedures, and a decision by the Conference accepting the credentials of a delegate does not preclude the Committee from making an independent examination of the merits of a complaint submitted to it.
  90. 90 In these circumstances the Committee considers that the objection made by the Spanish Government to the complaint of the International Confederation of Free Trade Unions on the ground of res judicata is not well-founded.
  91. 91 Apart from the two preliminary questions considered above the Spanish Government has submitted no observations regarding the substance of the complaint made by the International Confederation of Free Trade Unions, nor any observations concerning the complaint made by the General Union of Spanish Workers in Exile.