Informe provisional - Informe núm. 68, 1963

126. This case was examined by the Committee at its session in October 1962 when it made an interim report, reproduced in paragraphs 472 to 495 of its 66th Report, which was approved by the Governing Body at the 153rd Session (November 1962). The report contains the final conclusions of the Committee as regards some of the allegations, and requests additional information on some points from the Government.

1. 127. The conclusions and recommendations of the Committee appear in paragraph 495 of the 66th Report and are worded as follows:
2. 495. As regards the case as a whole the Committee recommends the Governing Body:
3. (a) to remind the Government once again that the requirement prescribed by law of previous governmental approval before a collective agreement can be put into effect is contrary to the whole principle of voluntary collective bargaining, namely that trade unions should have the right by collective bargaining to seek to improve the living and working conditions of their members and that the public authorities should refrain from any interference which would restrict this right; and to suggest to the Government once again that in these circumstances it may wish to consider the desirability of submitting to the competent national authorities proposals for appropriate amendments to its legislation in order to bring it into harmony with the principles referred to above;
4. (b) to observe-having regard to the fact that the Committee has always applied the principle that allegations regarding the right to strike lie within its competence in so far, but only in so far, as they affect the exercise of trade union rights-that present Spanish legislation on strikes can be interpreted as providing for their absolute prohibition, which would not be in harmony with generally accepted principles concerning freedom of association; and to suggest to the Government that in these circumstances it might wish to consider the desirability of submitting to the competent national authorities proposals for appropriate amendment of this legislation in the light of the principles set out in paragraph 481 above;
5. (c) to request the Government to furnish as soon as possible more precise information on the reasons for the detention of 94 persons and the internal deportation of six others, with particular reference to the specific acts or particular activities for which these persons are held responsible; and meanwhile to defer examination of this aspect of the case;
6. (d) to call the Government's attention once again to the recommendations put forward in paragraph 187 (b) and (c) of the Committee's 27th Report, which were approved by the Governing Body at its 137th Session (October 1957) and which read as follows:
7. 187. In all the circumstances the Committee recommends the Governing Body:
8. ......................................................................................................................................................
9. (b) to draw the attention of the Spanish Government to the fundamental contradiction between the legislation in force in Spain and the principles relating to freedom of association which are enunciated in the Preamble to the Constitution of the I.L.O and the Declaration of Philadelphia, and in the Freedom of Association and Protection of the Right to Organise Convention, 1948, and the Right to Organise and Collective Bargaining Convention, 1949; to urge the Government to amend its legislation in order to render it compatible with these principles, and, in particular, with the principles that (i) workers should have the right to establish and join organisations of their own choosing without previous authorisation; (ii) such organisations should have the right to draw up their Constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes, and the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, and (iii) such organisations should not be liable to be dissolved or suspended by administrative authority;
10. (c) to draw the attention of the Government to the principle expressed by the International Labour Conference at its 35th Session (1952) in the resolution concerning the independence of the trade union movement that " governments should not attempt to transform the trade union movement into an instrument for the pursuance of political aims, nor should they attempt to interfere with the normal functions of a trade union movement because of its freely established relationship with a political party.
11. 128. The 66th Report of the Committee, as approved by the Governing Body, was forwarded to the Spanish Government in a communication from the Director-General dated 29 November 1962.
12. 129. Spain has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
13. 130. The Spanish Government, in its communication of 14 January 1963, forwarded, in addition to the information requested in paragraph 495 (c) of the 66th Report, new information and observations concerning the final conclusions appearing in paragraphs 495 (a), (b) and (d) of the 66th Report.

A. A. The complainants' allegations

• Allegations relating to the Imposition of Collective Agreements
  131. 131 The Committee stated its final conclusions on these specific allegations in paragraph 495 (a) of its 66th Report, which is transcribed in paragraph 127 above.
  132. 132 In its communication of 14 January 1963 the Government declared that the approval referred to in section 13 of the Act of 24 April 1958 and developed in section 17 of the Order dated 22 July of the same year is a mere formality of registration which the law requires to be accomplished within the brief period of two weeks. The Government added that the purpose of requiring approval is: (a) " to verify and certify that the agreement has been drawn up with due regard to legal requirements, since failure to comply with these requirements would render the agreement null and void " and (b) " to ensure that the agreement fulfils its own objectives which, as provided in section 3 of the above mentioned Act of 24 April 1958, can only be to improve the living standards and working conditions of the workers whom it affects ". The Government further states that section 19 of the Regulations to apply the Collective Agreements Act provides for approval of agreements either explicitly or tacitly, " as it has been acknowledged that failure of the administration to hand down a decision is to be interpreted as approval rather than rejection, thus respecting the will of the parties ". The Government finally declares that statistics offer conclusive proof that the formality of " a posteriori approval " of agreement in no way affects " the free development and use of bargaining procedure for the purpose of regulating, through collective agreements, conditions of employment ". According to the data forwarded by the Government a total of 1,935 agreements (55 inter-provincial and 1,880 with lesser scope), affecting 534 undertakings and 3,211,769 workers had been approved by 31 October 1962. Twelve of these agreements were taken under consideration by the Economic Affairs Commission appointed by the Government; nine were approved and three rejected for the reasons indicated under (a) and (b) above.
  133. 133 The Committee, while taking note of the information forwarded by the Spanish Government in its communication of 14 January 1963, considers that this information contains no data bearing on the specific allegations that could induce it to modify the conclusions appearing in paragraph 495 (a) of its 66th Report.
• Allegations relating to Action to Repress Strikes
  134. 134 When, at its 32nd Session in October 1962, the Committee presented its final conclusions on these specific allegations, which appear in paragraph 495 (b) of its 66th Report, it pointed out that, as present Spanish legislation on strikes can be interpreted as providing for their absolute prohibition, which would not be in harmony with generally accepted principles concerning freedom of association, the Government might wish to consider the desirability of submitting to the competent national authorities proposals for appropriate amendment of this legislation.
  135. 135 In its communication of 14 January 1963 the Government declared that in order to handle labour disputes according to the " present institutional method " it had issued Decree No. 2354/62 concerning procedure, conciliation and arbitration in collective employment relations dated 20 September 1962 (a copy of which was attached to the communication). The Government added that in the statement of objects and reasons " the purpose of this decree is clearly and accurately defined... [and] concords fully and on every point with the policy and recommendation laid down in paragraph 481 of the 66th Report of the Committee on Freedom of Association ".
  136. 136 Decree No. 2354/1962 makes, inter alia, the following provisions: in accordance with the Collective Agreements Act of 24 April 1958 the labour courts are empowered to initiate proceedings, settle labour disputes and enforce their decisions (paragraph 1 of section 1). The Labour Courts shall direct legal proceedings in collective disputes under special procedure based on: (a) absolute priority over all other matters; (b) proceedings automatically initiated upon presentation of the case before the Courts by the Labour Delegation; (c) presentation only after an attempt by the trade union organisation to conciliate the parties or mediate the dispute; (d) summary procedure, an oral hearing of both parties by the magistrate whose decision shall be binding; (e) decisions of the magistrates executory upon issue, although an appeal may be lodged with a special chamber of the Central Labour Court, whose decision will be final (paragraph 2 of section 1). Any dispute arising from the application of a valid collective agreement must be brought before the courts and settled by both parties under the decision of the Collective Agreements Committee (paragraph 1 of section 2). If such a committee does not exist or fails to promote a settlement or if the dispute concerns matters not dealt with in the agreement, the litigants will attempt to reach mutual understanding. Should they fail to agree, they will submit their dispute to the labour authority recognised in the agreement, which will take the case to court or make the corresponding compulsory award after hearing both sides and attempting conciliation, summarily and in any case making the corresponding award within a maximum period of 20 days (paragraphs 2 and 3 of section 2). In a collective dispute not covered by a collective agreement the labour authority will be empowered to set up immediately, at the request of either of the parties and after an attempt at conciliation, a bargaining committee to operate under procedure established in the Collective Agreements Act. As an alternative, the labour authority may, at its own initiative or at the request of either party, take the case to court after an attempt has been made to conciliate and mediate the dispute (section 3). The labour inspectorate, at its own initiative or at the request of either of the parties, is obliged to attempt mediation or negotiation (paragraphs 1 and 2 of section 4). If the dispute does not arise from a labour conflict directly affecting persons involved in it or if it arises due to non-observance of procedure provided in this decree or if it occurs after a decision has been handed down by the labour authority or the labour courts or where there exists a valid collective agreement affecting only one undertaking, proceedings will be handled by the government authority, without prejudice to the right to apply the sanctions provided for by the regulations for labour delegations (paragraph 1 of section 5). In the cases indicated in the said paragraph 1, persons who have taken part in the dispute are considered to be subject to dismissal and the employing undertakings may use their right of resiliation (paragraph 2 of section 5). In any event, the government authority may take emergency measures required for the maintenance of public order in conformity with present legislation (paragraph 3 of section 5). Proceedings may be suspended at any phase and the dispute will be considered settled if the litigants reach an agreement through the mediation of the Trade Union Organisation and this agreement is approved by the labour authority (section 6). Agreements accepted by both parties under conciliation procedure provided in this decree may not have repercussions on prices (section 7).
  137. 137 The Committee observed that, although Decree No. 2354/1962 contains certain guarantees for the protection of workers' rights in the event of collective disputes, it nevertheless fails to modify the fact that Spanish legislation may be interpreted as providing for the absolute prohibition of strikes. In this respect the Committee recalls that the Committee of Experts on the Application of Conventions and Recommendations, in making a general study of freedom of association in 1959, declared that the prohibition of strikes by workers other than public officials acting in the name of the public powers " may sometimes constitute a considerable restriction of the potential activities of trade unions ". The Committee of Experts also pointed out that in three countries-including Spain-this prohibition would appear to affect all workers and could adversely affect the freedom of trade unions acting in the defence of their occupational interests. The Committee has itself, on several occasions, pointed out that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised.
  138. 138 In these circumstances the Committee, having regard to the fact that it has always been guided by the principle that allegations relating to the exercise of the right to strike are not outside its competence in so far, but only in so far, as they affect the exercise of trade union rights, recommends the Governing Body to observe that, while Decree No. 2354/1962 concerning procedure conciliation and arbitration in collective employment relations contains certain guarantees for the protection of workers' rights in the event of collective disputes designed to give effect to the recommendation of the Committee that the restriction of strikes should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures, this has not changed the situation with regard to the fact that the present Spanish legislation on strikes-the Penal Code, the Labour Charter and the State Security Act, examined in paragraphs 81 to 88 of the 41st Report of the Committee-can be interpreted as providing for their absolute prohibition, in the case of all workers and not only in the case of workers engaged in essential services, and, accordingly, to draw the attention of the Government once again, as it did in paragraph 495 (b) of the 66th Report of the Committee, to the principle enunciated in paragraph 481 of that report that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised.
• Allegations relating to Government Intervention in the Trade Union Organisation
  139. 139 As regards these specific allegations the Committee presented its final conclusions in paragraph 495 (d) of its 66th Report, which has been transcribed in paragraph 127 above.
  140. 140 In its communication of 14 January 1963 the Government formulated abundant comments and observations on the conclusions appearing in paragraph 495 (d) of the Committee's 66th Report. The Committee actually arrived at the same conclusions when it considered in detail the questions relative to the integration of trade union organisations in state machinery, dealt with in paragraph 187 (b) and (c) of its 27th Report, which was approved by the Governing Body at its 137th Session (October 1957).
  141. 141 The Committee considers that these observations and comments contain nothing new as regards the specific allegations so as to cause it to amend the conclusions appearing in paragraph 495 (d) of its 66th Report.
• Allegations relating to Arrests and Deportations Due to Strikes
  142. 142 The complainants stated that the Government had arrested or deported about 1,000 workers and imposed fines and taken other measures of intimidation and violence against the strikers. The Government denied that fines were imposed or persons detained for mere participation in the strikes and added that the few persons arrested and then found not to have committed any offence were immediately released and that the 94 persons sent for trial and the six placed under house arrest were accused of activities for the Communist Party or People's Liberation Front.
  143. 143 At its 32nd Session (October 1962) the Committee recalled that when, in dealing with previous cases, governments had replied to allegations that trade union leaders or workers had been arrested for trade union activities by stating that the persons concerned had actually been arrested for subversive activities, for reasons of national security or for ordinary crimes, the Committee had always followed the rule of appealing to the governments concerned to submit the most detailed supplementary information possible relative to the arrests in question and the exact reasons for them, and added that although in certain instances the Committee had decided that the allegations relating to the arrest or detention of militant trade unionists did not require more detailed examination, this was because they had received from the governments information sufficiently substantiating and clarifying these arrests or detentions and showing that they were in no way related to trade union activities but rather the result of activities unconnected with the trade union matter and prejudicial to the law of the land or contrary to political order.
  144. 144 At its session in October 1962 the Committee observed that in this case the Government had done no more than to declare that the detention or house arrest of the persons concerned was due to the fact that they had committed acts of political subversion by engaging in Communist or pro-Communist activities.
  145. 145 At the same session the Committee, in order to form a valid opinion on the case and determine whether or not the allegations were justified, considered that it would be necessary to obtain from the Government more precise information on the reasons for the detention of 94 persons and the internal deportation of six others, with special reference to the specific acts or particular activities for which these persons are held responsible and, therefore, recommended the Governing Body to request the Government to furnish this information and meanwhile defer examination of this aspect of the case.
  146. 146 In its communication of 14 January 1963 the Government declared that in view of the fact that when its communication of 23 May 1962 was forwarded the recent labour disputes had not been settled, the number of 94 detentions and six house arrests would have to be rectified as the total detentions involved amounted to 119. The Government added that 72 of the 119 persons had since been released and that proceedings were initiated against only 47 persons, whereas the six persons placed under house arrest have since been released. According to the Government, 68 of the 119 arrests were made in Asturias, 15 in Vizcaya, 15 in Guipúzcoa and 21 in Barcelona. In its latest communication the Government reiterates its statement that not one person was detained for labour reasons, adding that the reasons behind the detentions had nothing to do with labour disputes; extremist agitators had attempted to turn these into subversive activities and disturb public order for the sole political purpose of attacking the Government. The reply goes on to say that members of these subversive agitation groups were detained and brought to trial for offences recognised and punishable under Spanish laws, concrete evidence having been brought to bear against them, and that all persons detained were placed at the disposal of the competent legal authorities within the lawful periods. As proof that the authorities in no way intended to make reprisals, the Government points out that three of the persons against whom proceedings were instituted in Asturias, i.e. Bernardo Arranz Ramos and Ernesto Losa Fernández of the Mieres mining area and Florentino Lafuente Cuesta of Gijón, applied for and were issued with passports to leave the country, and did so-the first two to France and the latter on the way to Belgium. The Government adds that the 47 detained persons are still being held pending trial in conformity with Spanish procedural laws and enjoy the guarantees and means of defence ensured under these laws.
  147. 147 In previous cases the Committee has followed the practice of not proceeding to examine matters which were the subject of pending judicial proceedings where the latter might make available information of assistance to the Committee in appreciating whether or not allegations were well-founded.
  148. 148 On the basis of these precedents the Committee recommends the Governing Body to request the Government, having regard to the importance which the Governing Body has always attached to the principle of prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists are charged with political or criminal offences which the Government considers have no relation to their trade union functions, to forward the decision handed down by the national courts in proceedings against the 47 persons still detained and, in particular, the texts of the judgments and legal reasons cited as their basis, and meanwhile to defer examination of this particular aspect of the case. Despatch of a Commission of Inquiry
  149. 149 In their communication of 27 April 1962 the complainants urgently requested the despatch of a commission of inquiry to Spain to investigate repressive measures allegedly taken by the Spanish Government during the strike. This request was reiterated in the complainants' second communication dated 23 May 1962. In its reply of 31 July 1962 the Government declared that this demand " made in such categorical and vexatious terms ", was unacceptable and added that " reference should be made in this connection to the very different tone of the draft resolution submitted to the last session of the International Labour Conference, in which it was suggested to the Governing Body that it should consider the desirability of amending the existing procedure of the Committee on Freedom of Association and to authorise the Committee in certain conditions to ask the government concerned to invite representatives of the Committee to make an investigation ". " This draft resolution ", the Government added, " on which the Conference took no decision, is drawn up in terms which show much more respect for national sovereignty, and makes a significant contrast to the recommendation in the complaint ".
  150. 150 At its 32nd Session (October 1962) the Committee deferred examination of the desirability of an inquiry in either form pending receipt of the additional information, for which it had recommended the Governing Body to ask the Government.
  151. 151 The Government forwarded certain information in its communication of 14 January 1963, but since the Committee has recommended the Governing Body to request the Government to forward other additional information, it has again deferred examination of this question pending receipt of the said information.