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Allegations: Restrictive legislation on collective bargaining and trade union
leave
- 317. The complaint is contained in a joint communication dated 10 May
2012 from the Trade Union Confederation of Workers’ Committees (CC.OO.) and the General
Union of Workers (UGT). These organizations submitted supplementary information and
additional allegations in communications dated 22 June, 30 July and 29 October 2012 (the
last of these communications – on issues related to the public sector – was also signed
by the Independent Central Workers’ Union and Union of Civil Servants (CSIF), the
Workers’ Trade Union (USO) and many other national public sector trade unions.
- 318. The Government submitted its comments in communications dated 5
July, 27 September and 28 November 2012, and 22 February and 30 December 2013.
- 319. 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 Workers’ Representatives Convention, 1971 (No.
135), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the
Collective Bargaining Convention, 1981 (No. 154).
A. The complainants’ allegations
A. The complainants’ allegations- 320. In their communications dated 10 May, 22 June, 30 July and 29
October 2012, the CC.OO., UGT, CSIF, USO and many national trade unions complained that
the right to freedom of association and the right to bargain collectively, recognized
and guaranteed in ILO Conventions Nos 87, 98 and 154, had been violated by Royal
Legislative Decree No. 3/2012 of 10 February 2012 on urgent measures for labour market
reform, adopted by the Government and confirmed by the Congress of Deputies.
- 321. The complainant organizations explain that, on 25 January 2012, two
trade unions, the Spanish Confederation of Business Organizations (CEOE) and the Spanish
Confederation of Small and Medium-Sized Enterprises (CEPYME), signed the Second
Agreement on Employment and Collective Bargaining 2012, 2013 and 2014 (II AENC), which
was published in the Official Gazette of 6 February 2012. The II AENC is a binding
three-year collective agreement that requires the signatory parties to increase their
efforts to ensure that all their member organizations – within the framework of their
freedom to negotiate – conduct themselves or modify their conduct “with a view to
application of the criteria, guidelines and recommendations” contained therein. The
parties used similar language in the record of the signing of the II AENC, which stated
that the signed document was designed to “provide guidance for the negotiation of
collective agreements during the period of its validity by setting criteria and making
recommendations to be followed during collective bargaining”. The Agreement covers the
structure of collective bargaining and agrees and sets out a set of coordination and
implementation rules that would govern collective bargaining in the future. The parties
again express a preference for collective bargaining at the State or, failing that, the
independent level in order to structure the bargaining, and they do not support the
elimination of provincial agreements, which, in their view, provide coverage to a
significant number of enterprises and workers. They also call for bargaining to be
conducted at the enterprise level, whether through conventions or through enterprise
agreements and pacts, in order to negotiate on issues relating to “working hours,
functions and wages”; the internal flexibility aspects of such negotiations are covered
in other parts of the Agreement.
- 322. However, the complainant organizations maintain that just two weeks
later, on 10 February 2012, the Government adopted Royal Legislative Decree No. 3/2012
of 10 February 2012 on urgent measures for labour market reform (Official Gazette of 11
February 2012), which repealed and annulled most of the points that had been negotiated
and agreed in the II AENC, particularly those relating to the structure of collective
bargaining and the regulation of internal flexibility; it has even been said that the
legislation on the state of emergency “fails to reflect, even partially, its content,
marginalizing and ignoring it”.
- 323. The aforementioned Royal Legislative Decree was drafted and promoted
by the Government immediately after the signing of the II AENC with no participation by
or negotiation with the unions. There were no prior consultations on the substance of
the regulations, nor was there any effort to hold functional consultations to allow for
an exchange of views and expression of differing perspectives on the reform. The
reported violations contained in Royal Legislative Decree No. 3/2012 continued after the
adoption of Act No. 3/2012 of 6 July 2012 since the amendments to Spanish law resulting
from the Congress of Deputies’ consideration of the Legislative Decree in the form of a
draft law were essentially a mere reiteration of what had already been regulated by
Royal Legislative Decree No. 3/2012. Only certain ancillary points were modified. The
complainant organizations state that they were not consulted by the Government before or
after the adoption of the Royal Legislative Decree. Nonetheless, the CC.OO. and the UGT
proposed amendments to the draft law under consideration by Parliament with respect to
institutions and the role of lawmakers with a view to improving the regulations and
avoiding future claims of unconstitutionality involving, as we understand it, certain
provisions of the law which violate rights recognized in the Constitution and in the ILO
Conventions that Spain has ratified. These proposals were completely ignored.
- 324. The complainant organizations then summarize the provisions of Royal
Legislative Decree No. 3/2012 (now Act No. 3/2012):
- (a) Primacy of application
must be given to enterprise collective bargaining agreements, even against the
shared desire of unions and employers’ organizations. It is therefore prohibited to
negotiate a change in or exception to the rule of the absolute priority of the
enterprise agreement. The wording of Royal Legislative Decree No. 3/2012 with
respect to the priority of enterprise agreements was modified with the addition of a
statement that such agreements may be negotiated and different working conditions
imposed at any time during the period of validity of higher level collective
agreements (even prior to their expiration). Thus, voluntary collective bargaining
between unions and employers’ organizations is subject and subordinated to the legal
precedence of the provisions of enterprise agreements, many of which are negotiated
not by unions, but by non-union representatives. Moreover, this priority of
application is the result not of a voluntary collective bargaining agreement; it was
imposed by the Government first through Royal Legislative Decree No. 3/2012 and now
through Act No. 3/2012; this constitutes unwarranted interference in the unions’
right to bargain collectively.
- (b) Enterprises can “disregard” – in other
words, fail to implement – the provisions of a collective agreement on economic,
technical, organizational or production-related grounds without the consent of the
negotiators of the agreement, or even of the representatives of the enterprise’s
employees, by requiring binding administrative arbitration. With respect to the
disregarding of, or general failure to apply, the working conditions established in
a collective agreement, the amendments to article 82, paragraph 3, of the Workers’
Statute that were introduced by Act No. 3/2012 may be summarized as follows: (1) the
scope of the economic situation that warrants such disregard is clarified and some
aspects of that situation that constitute grounds for dismissal and contract
suspension are added; it is established that a decline in revenue or sales must have
these characteristics: on the one hand, the reference is to ordinary revenue from
the enterprise’s production or to operating revenue and, on the other, revenue for
two consecutive quarters must be lower than for the same quarters of the previous
year, not the quarter immediately preceding the one in which the decline first
occurred. The same criteria that apply to collective dismissals are included through
the aforementioned reference to two quarters rather than three as grounds for
dismissal; and (2) in the event of a dispute between the enterprise and the workers’
representatives regarding a failure to apply the provisions of a collective
agreement, the dispute may be brought before the committee on the agreement;
however, where this has not been requested or where the committee has failed to
resolve the dispute, Act No. 3/2012 now requires the parties, or rather the party
that is seeking not to implement the agreement – in other words, the employer – to
follow the dispute settlement procedures set out in interprofessional agreements in
accordance with article 82, paragraph 3, of the Workers’ Statute. The new wording
states:
- Where the consultations end without agreement
being reached and the procedures mentioned in the previous paragraph are not
applicable or have failed to resolve the dispute, any of the parties may refer
the dispute to the National Advisory Committee on Collective Bargaining
Agreements (CCNCC), if the failure to comply with the working conditions affects
either branches of the enterprise located in more than one autonomous community,
or the relevant bodies of such autonomous communities. The decisions of these
bodies, which may be adopted internally or by an arbitrator whom they appoint
for that purpose with the necessary guarantees to ensure the latter’s
impartiality, must issue a ruling within 25 days of the date on which the
dispute was referred to the bodies in question. Such a decision shall have the
same force as agreements reached during consultations and may only be appealed
following the procedure and on the grounds set out in article 91.
…
- Therefore, according to the unions, if no solution is reached
through these procedures, the parties are authorized to request the National
Advisory Committee on Collective Bargaining (CCNCC) or an equivalent autonomous
community body to issue a ruling or appoint an arbitrator. Act No. 3/2012 provides
that this appointment shall be made with the necessary guarantees to ensure the
impartiality; this has an impact on the status of the arbitrator. However, in light
of the tripartite nature of the Committee and the fact that the Administration has
the final say in resolving the dispute or appointing the arbitrator, the latter is
not truly impartial, having been appointed by the Administration for the purpose of
modifying the provisions of the labour laws established in a collective agreement
during its period of validity. Additional Provision 5 empowers the CCNCC to
intervene in the resolution and dispute processes during consultations on failure to
apply the working conditions established in collective agreements and, because it is
a tripartite body, the Administration plays the deciding role in the adoption of
agreements.
- (c) Internally negotiated flexibility has been replaced by a
unilateral decision of the employer, which, without the workers’ consent, may decide
not to apply the working conditions agreed with the workers’ representatives in
enterprise agreements. Royal Legislative Decree No. 3/2012 made sweeping changes in
the legal regime governing “significant changes in working conditions” under article
41 of the Workers’ Statute by authorizing employers, sometimes after several rounds
of consultations in which no agreement has been reached, to make unilateral
modifications to extremely important working conditions established in pacts or
collective agreements that were concluded with the workers’ representatives
authorized to negotiate comprehensive agreements. However, under the Spanish system
of labour relations, problems in the functioning of an enterprise do not constitute
grounds for employers to modify unilaterally the provisions of collective
conventions and agreements, an effect that is disproportionate and incompatible with
the effectiveness to be expected from collective bargaining. The empowerment of
employers to modify at will the working conditions contained in a collective
agreement or pact, including on matters as important as wages and working hours and
even against the wishes of the workers’ representatives, constitutes a violation of
the guarantee of the effectiveness and binding force of collective agreements. It
also violates the provisions of ILO Conventions Nos 98 and 154 and of the Collective
Agreements Recommendation, 1951 (No. 91), which endorse and guarantee the parties’
mandatory compliance with the provisions of agreements reached through collective
bargaining.
- 325. The complainant organizations also maintain that, through Royal
Legislative Decree No. 20/2012 of 13 July 2012, the Government decided unilaterally to
take steps to ensure budgetary stability and promote competition and to establish a
series of measures reorganizing and rationalizing the public administrations, thereby
affecting the statutory and contractual status of all public sector employees, or of
State public sector employees alone.
- 326. These measures are justified because “the current economic situation
and the need to reduce the public deficit without impairing the provision of essential
public services makes it necessary to increase the efficiency of the use of public
resources by the public administrations in order to make progress towards the essential
goal, set within the constitutional framework and by the European Union, of achieving
budgetary stability”. Royal Legislative Decree No. 20/2012 focuses on emergency, urgent
and unilateral measures “designed to rationalize and public administration staffing
costs and to manage staff more efficiently ... reducing staffing costs and increasing
the quality and productivity of public servants”. The measures imposed unilaterally by
the Government are quite diverse and may be summarized as follows:
- ■ Wages have
been reduced by eliminating the additional payment for the month of December 2012
(the bonus). This amounts to an average savings of around 8 per cent and brings the
purchasing power of public servants to approximately that of 2012.
- ■ The
full benefit for temporary inability to work has been reduced and potential
increases have been limited, thereby penalizing public servants who, owing to
illness, are temporarily unable to work.
- ■ Working hours in all public
administrations have been reorganized across the board by drastically reducing the
length of the annual holiday with pay and the number of personal days. This measure
has also entailed a reduction in many other types of leave (including, among other
things, maternity leave, flexible working hours and leave to care for a dependent
relative) beyond the legal minimum; under Royal Legislative Decree No. 20/2012, they
are no longer available to individuals or groups as the favourability principle and
the principle of more favourable terms no longer apply.
- ■ Trade union leave
has been reduced in the public administrations and subsidiary bodies; this
significantly lessens the number of hours with pay that may be used to carry out
union or staff representation functions and of full-day waivers of attendance at the
workplace.
- ■ In future, collective bargaining in the public administrations
will be greatly reduced since the binding force of any collective pact, agreement or
convention is subject to the possibility that the public administrations may decide
unilaterally to adopt adjustment measures or plans in order to reduce the public
deficit. It is possible to “disregard” the provisions of conventions or pacts,
regardless of the subject matter and without the need for consultation; the only
requirement is to “inform” the unions.
- 327. The complainant organizations state that these measures have been
implemented by suspending all public sector employee agreements, pacts and conventions
and amending the legislation (primarily Act No. 7/2007, the Basic Statutes of the Public
Service (EBEP)) that regulates the working conditions of public servants.
- 328. The complainant organizations report that all of this has been done
without the required convocation of the negotiating committee, even though all of the
issues in question are subject to compulsory negotiation pursuant to articles 37 and 38
of the aforementioned Act No. 7/2007. In other words, the Government issued Royal
Legislative Decree No. 20/2012 without communicating, let alone negotiating, with the
legitimately empowered unions. Just two months after Royal Legislative Decree No.
20/2012 was adopted by the Government and entered into force, the unions were informed
at a routine meeting in the context of negotiations envisaged in article 38 of the EBEP.
The Government provided this information to the unions because it had no intention to
act of its own volition. At that meeting, the Administration made it clear that there
could be no negotiation; it simply “read” the provisions of the Act to the unions on the
negotiating committee. The Government has still not provided any reply or solution to
the unions’ questions regarding the harm that the Royal Legislative Decree has caused to
public servants and their union representatives.
- 329. According to the complainants, by repealing provisions of all
previous collective agreements, pacts and conventions between, on the one hand, the
various public administrations (central, autonomous and local) and the rest of the
public sector, and, on the other, all public servant unions that are members of the
relevant general negotiating committees, the Government’s unilateral decision amounts to
elimination of the right to bargain collectively.
- 330. This unilateral imposition on the pretext of an urgent need to
reduce the public deficit leaves no room whatsoever for negotiation and deprives the
unions of their indisputable and primordial function of protecting the interests that
they represent through the participation channels established in laws and conventions.
Ultimately, the Government has raised to the status of a non-derogable public policy
rule to which there can be no amendments a number of matters which, prior to the
adoption of Royal Legislative Decree No. 20/2012, were subject to mandatory collective
bargaining under the law (the 1987 EBEP). Articles 32 and 38 of this 1987 legislation
first purport to “ensure compliance with collective conventions” and with “pacts and
agreements”, respectively, and then provide, on an exceptional basis, for the
possibility of suspending or modifying them “on the grounds of a significant change in
the economic situation”. In that event, “the public administrations must inform the
unions of the reasons for the suspension or modification”. However, the Government did
not negotiate with the unions the provisions of the aforementioned Royal Legislative
Decree No. 20/2012 that concern public servants, nor did it invoke the emergency
envisaged in articles 32 and 38; it simply declared that collective agreements, pacts
and conventions concerning public sector employees which contained provisions
conflicting with articles 1 to 16 of Royal Legislative Decree No. 20/2012 were
“suspended”. This is not an empowering provision in a public administration legislative
act, but a directly applicable legal statement with immediate legal effects; this is
proof of a premeditated violation of public servants’ right to bargain
collectively.
- 331. The complainant organizations further maintain that the Government’s
belligerent attitude towards collective bargaining will continue since Royal Legislative
Decree No. 20/2012, in its Additional Provision 2, interprets articles 32 and 38 of the
EBEP as follows: “It shall be understood, among other things, that this includes threats
to the public interest arising from a significant change in the economic situation where
the public administrations must adopt adjustment, public account rebalancing, economic
or financial measures or plans in order to ensure budgetary stability or reduce the
public deficit.” There is no doubt that this statement authorizes disregard for the
provisions of collective conventions or pacts; there is no limitation as to its scope
and no stipulation that consultations be held, the only requirement being to inform the
unions. This severely limits negotiations and makes them subject to the unilateral will
of the Administration while ignoring the role of unions and attacking the very heart of
collective bargaining.
- 332. The complainant organizations further maintain that the right to
time credit (trade union leave) is established in the additional provisions on freedom
of association contained in article 28, paragraph 1, of the Constitution, which,
according to a ruling of the Constitutional Court, covers both public servants and
administration staff. However, article 10 of Royal Legislative Decree No. 20/2012
provides, with effect as from 1 October 2012, that:
- Within the
framework of the public administrations and ancillary bodies, universities,
foundations and societies, as from the entry into force of this Royal Legislative
Decree, all union rights – whether referred to as such or by any other name –
established in agreements on public servants or statutory personnel or in collective
conventions and agreements on workers signed by their representatives or unions, the
provisions of which go beyond those of Royal Legislative Decree No. 1/1995 of 24
March 1995 (adopting the revised Workers’ Statute Act); Organization Act No. 11/1985
of 2 August 1985 (on freedom of association) and Act No. 7/2007 of 12 April 2007
(the EBEP) concerning hours with pay that may be used for the conduct of union or
representation functions, for the appointment of union delegates or as full-day
waivers of attendance at the workplace, as well as other union rights, shall be
brought fully into line with the provisions of these legislative acts. Therefore,
any collective pacts, agreements and conventions on such matters that have been
signed and that go beyond the aforementioned provisions shall be repealed and
without effect as from the entry into force of this Royal Legislative Decree. The
foregoing is without prejudice to any future agreements reached exclusively in
general negotiating committees in order to modify the obligations or work attendance
regime of union representatives with a view to the effective performance of their
representation and negotiation functions or to the proper exercise of other union
rights.
- 333. The complainant organizations stress that revocation, pursuant to
article 10 of Royal Legislative Decree No. 20/2012, of the expansion of union time
credit that had been agreed inter partes during collective bargaining is a permanent
structural measure, contrary to the time limits established in the principles of the
Committee on Freedom of Association.
B. The Government’s reply
B. The Government’s reply- 334. In its communications of 5 July, 27 September and 28 November 2012
and 22 February and 30 December 2013, the Government states that, before evaluating the
complainant organizations’ allegations, it is essential to consider the context in which
the challenged labour reforms were made. The situation in Spain in early 2012 made it
necessary for the Government to take decisive, urgent action in several areas. One of
its priorities was the labour market since the economic crisis that Spain had been
experiencing since 2008 had highlighted the weaknesses of its institutional design. The
seriousness of the current crisis is unprecedented. At the time of adoption of Royal
Legislative Decree No. 3/2012, the available data from the most recent labour force
survey indicated that the number of unemployed persons stood at 5,273,600, having risen
by 295,300 during the fourth quarter of 2011 and by 57,000 since the fourth quarter of
2010. During the same period, the unemployment rate had risen by 1.33 points as compared
with the third quarter and stood at 22.85 per cent. In other words, Spain has lost more
jobs than the principal European economies: over 3.2 million since the beginning of the
crisis and almost 100,000 per month during the quarter immediately preceding the 2012
labour reform, by which time there were as many as 1.5 million families in which all of
the members were unemployed. The crisis has had a greater or lesser impact an all the
European countries, but Spain has lost more jobs, more rapidly, than the principal
European economies. From the first quarter of 2008 to the last quarter of 2011, 11 per
cent of jobs were lost in Spain versus 2.5 per cent in the Eurozone.
- 335. The economic crisis that Spain is experiencing has highlighted the
highly seasonal nature of employment and the enterprise cycle; this results in
fluctuations that are uncommon in developed countries. From the very beginning of the
crisis, unlike the experience of our neighbouring countries, Spanish enterprises have
relied primarily on the termination of employment contracts rather than making greater
use of internal flexibility measures. In Spanish enterprises, adjustments have been made
through dismissals, not in working conditions. This choice is not accidental or
capricious; it is a response to the weaknesses of our labour market, which is hampered,
on the one hand, by a high percentage of temporary jobs – with less investment in
training and a greater likelihood of dismissal – and, on the other, by a legal framework
that has not sufficiently encouraged internal flexibility and collective bargaining that
would make it easier for enterprises to adapt working conditions to changes in economic
and production circumstances. It was easier to eliminate workers – by not extending or
renewing temporary contracts or through so-called “express” dismissal – than to modify
the working conditions in an attempt to preserve jobs, for example, through reductions
in working hours and wages, an irregular distribution of working hours, a change in
functions, and even temporary failure to apply the working conditions established in
collective conventions.
- 336. The result of all these factors is a highly dualistic labour market.
There is a large pool of workers with continuing contracts and, in most cases, wage
increases, agreed during collective bargaining, that exceed the production and inflation
rates, as well as a right to strong protection against dismissal. On the other hand,
however, there is another large pool of workers with temporary contracts who do not
enjoy the same protection from the dismissals that are enterprises’ primary mechanism
for responding to problems by making adjustments in working conditions (such as wage
restraints and changes in working conditions) and who alternate between insecurity and
unemployment.
- 337. This discrepancy is clearly inequitable and, moreover, has been
particularly detrimental to the youth labour market. It is no accident that 27 per cent
of the jobs lost during the fourth quarter of 2011, by comparison with the same quarter
of the previous year, had been held by workers under 25 years of age; this number rises
to over 50 per cent for workers under the age of 29. This is a consequence of the high
percentage of young people who hold temporary jobs; 82.3 per cent of employed young
people hold such jobs involuntarily. These workers on temporary contracts are the first
to be dispensed with by enterprises, just as young workers with permanent contracts are
likely to be the first to be dismissed, not because they are less productive than older
workers with more seniority, but simply because they were the last to be hired by the
enterprise and are therefore owed less severance pay. The duality is so great that the
workers dispensed with are not those who make the greatest contribution to the
enterprise, but those who can be dismissed at the lowest cost. The result is that by the
end of 2011, virtually one of every two young jobseekers was unemployed.
- 338. It should therefore be borne in mind that the economic crisis that
began in 2008 has made Spain the country with the highest unemployment rate in the
European Union. The speed and intensity of the job loss in Spain is essentially a result
of the ineffective relationship between the different types of flexibility – hiring,
internal and dismissal – in labour market regulations. And, since the labour market
reforms made since the beginning of the crisis have proved insufficient and ineffective
in creating jobs, it became essential to address the structural weaknesses of the labour
market so that Spain’s economic recovery could begin.
- 339. Thus, the labour reform adopted by the Government through Royal
Legislative Decree No. 3/2012 and, subsequently, Act No. 3/2012 of 6 July 2012, adopted
after consideration by Parliament, merely sought to create conditions in Spain’s labour
market that would facilitate rapid improvement of the situation described above by,
among other things, giving enterprises greater internal flexibility so that, when they
experience changes or difficulties, they could adapt to new conditions in order to
preserve jobs rather than resorting to lay-offs as they had done in the past.
- 340. In that connection, the Government stresses that, following the
adoption of the reform, various international organizations welcomed it. For example,
according to the 27 July 2012 International Monetary Fund (IMF) report on Spain:
- On labour market policy, a profound labour reform was introduced
in February with measures to reduce labour market duality (by lowering the dismissal
costs of permanent workers for unfair dismissals) and wage rigidity and to increase
firms’ internal flexibility (by giving priority to firm level agreements over wider
collective agreements). … Directors underlined the urgency of additional progress in
boosting competition and jobs, given the high level of unemployment in particular
among the youth. They welcomed the recent labour market measures, aimed at reducing
market duality and wage rigidity, and increasing firms’ internal flexibility. These
efforts should be complemented with further steps to improve the product and service
markets, and the enterprise environment. More broadly, Directors encouraged a rapid
implementation of the government’s structural reform agenda.
- In its preliminary assessment with a view to the drafting of an
economic report on Spain, the Organisation for Economic Co-operation and Development
(OECD) noted that there had been considerable progress with the labour reform; the
grounds for dismissal had been clarified, the amount of severance pay had been reduced
and enterprises had been given greater freedom to adapt wages and working hours to
changes in the economic situation.
- 341. The Government notes that the source of the complaint was the
publication, in the Official Gazette of 11 February 2012, of Royal Legislative Decree
No. 3/2012 of 10 February 2012 on urgent measures for labour market reform. In
accordance with article 86, paragraph 2, of Spain’s Constitution, this Legislative
Decree was confirmed by the Congress of Deputies at its meeting of 8 March 2012. The
confirmation agreement was published in the Official Gazette of 14 March 2012. The
procedure for the handling of draft legislation is now complete; thus, Royal Legislative
Decree No. 3/2012 has been repealed through an Act adopted by Parliament, Act No. 3/2012
of 7 July 2012, which has the same purpose.
- 342. In response to the allegation that no consultations were held, the
Government states that it is difficult to reconcile the urgency of the situation –
which, according to article 86 of Spain’s Constitution, authorizes and justifies the
executive power’s adoption of provisions with the official rank of Legislative Decree
and the substantive rank of law: “Where there is extraordinary and urgent need, the
Government may issue temporary legislative provisions which shall take the form of
legislative decrees” – with consultations. In any event, consultations need not
correspond to the apparent implication of the complaint: that they must culminate in
acceptance of the demands of those consulted. In that connection, it should be borne in
mind that consultations in no way alter the responsibility of the party that will be
taking the measures: in this case, the Government.
- 343. It should also be borne in mind that another legislative act, Royal
Legislative Decree No. 7/2011 on urgent measures for the reform of collective
bargaining, against which there have been no reported complaints, was published just
eight months prior to the most recent labour reform. The measures adopted through Royal
Legislative Decree No. 3/2012 are in keeping with Royal Legislative Decree No. 7/2011
and, in the context of the labour market reform and of the issuance of Royal Legislative
Decree No. 7/2011, it was acknowledged that the social partners objected to reform of
the agreements on collective bargaining and this objection culminated in the Government
initiative to regulate collective bargaining in light of the urgency of the matter.
- 344. In this case, at the time when Royal Legislative Decree No. 3/2011
was issued, there was already awareness of the II AENC, published in the Official
Gazette of 6 February 2012, the purpose of which is to provide guidance for bargaining
and establish criteria for negotiating committees and which is therefore required to
evaluate the circumstances and address several general issues relating to bargaining and
the functioning of enterprises.
- 345. The introduction to the II AENC states that “these emergencies
require action through specific measures designed to achieve economic growth leading to
job creation as quickly as possible”. In other words, the need for action without loss
of time was recognized. The II AENC reflects agreement on measures relating to the
bargaining structure and internal flexibility, the wage rates established in collective
agreements, and other matters of equal interest and importance. The Agreement is a clear
expression of the social partners’ opinion of collective bargaining at that time, which,
moreover, was quite close to the time of issuance of Royal Legislative Decree No.
3/2012. Nevertheless, and precisely because of the need to take measures as quickly as
possible, to use the words of the II AENC itself, and not only with regard to some
aspects of collective bargaining and internal flexibility, it was neither advisable nor
possible to hold consultations on issues on which the social partners had already
expressed their views on those occasions.
- 346. Moreover, article 86 of Spain’s Constitution also authorizes the
issuance of a legislative provision by the executive, not the legislative, power,
without the need to follow the normal procedures for the drafting of legislation.
- 347. Another issue is that the measures ultimately adopted through the
Royal Legislative Decree differed on some points from those advocated in the II AENC.
But this in no way affects the extraordinary and urgent reasons for the issuance of such
legislation by the executive power. In that regard, it should be reiterated that the
executive power cannot abdicate its decision-making responsibility, particularly during
crises when action must be taken without delay.
- 348. In addition, it is not true that, as stated in the complaint, Royal
Legislative Decree No. 3/2012 repealed the II AENC. It must be acknowledged that, in a
sense, the Royal Legislative Decree deals with certain issues differently from the II
AENC, but it is also clear that the normative hierarchy principle requires that the
negotiators of collective conventions ensure consistency with higher ranking norms, not
those of lower rank. In short, the II AENC as a whole remains applicable within the
normative hierarchy.
- 349. The authors of the complaint state, referring to the II AENC, that
the Royal Legislative Decree “fails to reflect, even partially, its content,
marginalizing and ignoring it”. This is far from true; the Government has publicly
stated that it welcomes the II AENC; it has congratulated the signatory parties and
informed them of its hope that both the wage agreement aimed at holding down prices and
the internal flexibility agreement negotiated will be implemented in lower level
bargaining. The Government also points out that since the II AENC, which the unions
consider to have been repealed, was signed by two parties, it is surprising that the
other party has not taken a position on the matter.
- 350. Therefore, the accusation that the II AENC was “suspended or
repealed by decree without the consent of the parties” must be rejected. Royal
Legislative Decree No. 3/2012, which entered into force on 12 February 2012, simply
contains transitional implementation rules concerning the validity of the agreements
denounced on the date of its entry into force. A separate question, as noted above, is
whether collective agreements in the broad sense are contrary to the normative hierarchy
principle, which cannot be violated since, according to article 9, paragraph 3, of
Spain’s Constitution, “The Constitution guarantees the principle of legality, the
normative hierarchy, the publication of legislation, the non-retroactivity of punitive
provisions that are not conducive to or restrict human rights, legal certainty, the
accountability of public authorities and the prohibition of arbitrary action by those
authorities”. This provision is reflected in article 3 of the Worker’s Statute.
- 351. The Government notes that, according to the Committee on Freedom of
Association, tripartite consultations must be held before the Government submits draft
legislation to Parliament; however, it explains that, in this case, it was a question of
submitting to the legislature not draft legislation, but legislation authorized under
article 86 of Spain’s Constitution. In that respect, Act No. 50/1997 of 27 November 1997
on the organization, powers and functions of the Government makes no provision for the
drafting of legislative decrees and thus does not call for the holding of consultations
in such urgent cases, which are envisaged in the Constitution. Moreover, where there are
urgent grounds for doing so, the Council of Ministers may even dispense with procedures,
including consultations, provided that they are not prescriptive in nature, and may
decide to adopt a draft law and submit it to the Congress of Deputies or, where
appropriate, to the Senate without following those procedures.
- 352. With respect to the allegation that no consultations whatsoever were
held with the most representative unions prior to the Spanish Government’s adoption of
Royal Legislative Decree No. 3/2012, the Government later denied the signatory unions’
claim that no consultations whatsoever had been held prior to its adoption. At five
technical meetings, held during February and March 2012 (on 15, 20 and 23 February and 5
and 12 March 2012) and attended by representatives of the Ministry of Employment and
Social Security and of two unions, the UGT and the CC.OO., both parties had an
opportunity to explain their positions and make suggestions concerning various issues
relating to the labour reform. The first four meetings were held before the Congress of
Deputies adopted the agreement confirming Royal Legislative Decree No. 3/2012 and, in
any event, all five meetings preceded the date on which it was first considered by
Parliament, which adopted it as Act No. 3/2012.
- 353. Furthermore, during this consideration by Parliament, which
continued until 6 July 2012 – the date on which Act No. 3/2012, which replaced Royal
Legislative Decree No. 3/2012, was ultimately adopted – the parliamentary groups had an
opportunity to submit amendments to the draft law based on Royal Legislative Decree No.
3/2012. A total of 657 amendments were submitted to the Congress of Deputies and were
discussed at length during this phase; later, 574 amendments were submitted to the
Senate. During this consideration, a total of 74 amendments submitted by various
parliamentary groups were adopted by the Congress of Deputies and 11 by the Senate. The
signatory organizations themselves recognized, in a written statement, that “they had
prepared draft amendments to the text of the draft law that was under consideration by
Parliament” in order to improve the regulation, among other goals that were also set out
in their statement. The organizations added that “these draft amendments were completely
ignored”. This claim is not borne out by the statistics on the amendments submitted
during the consideration of Act No. 3/2012.
- 354. Moreover, three conclusions may be clearly inferred from the
signatory organizations’ written statement:
- ■ The organizations themselves admit
that they prepared proposed amendments to the draft law. This, together with the
meetings between representatives of the Ministry of Employment and Social Security
and two unions, the CC.OO. and the UGT, contradicts the allegation, earlier in the
written statement, that there was no consultation with the unions either before or
after the issuance of the legislation (Royal Legislative Decree No. 3/2012 of 10
February 2012) that prompted the original complaint. Preparation of the draft
amendments mentioned by the unions led to the submission of proposed amendments by
parliamentary groups that were present during the consideration by Parliament;
obviously, the unions themselves were not present although, as they themselves
recognize by stating that they could prepare draft amendments, they were able to
influence the process.
- ■ Contrary to the unions’ claim, the draft amendments
containing their opinions were not ignored, but were considered and studied. A
different question is whether the amendments containing those opinions were
rejected, in whole or in part, but this is not the issue under consideration at this
time.
- ■ Furthermore, the answer to the question of who is alleged to have
rejected the proposals (if indeed they were rejected) is certainly not the
Government, against which, let it be recalled, the complaint is directed, but rather
Spain’s Parliament, which adopted Act No. 3/2012 of 6 July 2012 on urgent measures
for labour market reform. It is Parliament that represents the Spanish people in
whom national sovereignty is vested and that exercises the State’s legislative power
under Spain’s Constitution.
- 355. As to whether the unions’ proposals were rejected (not ignored)
during Parliament’s consideration of the draft law based on Royal Legislative Decree No.
3/2012, while, for the aforementioned reasons (the fact that Parliament, not the
Government, is responsible for the text of Act No. 3/2012), there is no need to defend
the Government on this point, it should be noted that the parliamentary consideration in
question led to changes in various articles of the draft law, including those that gave
rise to the complaint, which are directly related to the ILO Conventions mentioned
therein. The final text of the Act is clearly the outcome of contributions from the
various parliamentary groups.
- 356. Concerning the allegation that “primacy of application must be given
to enterprise collective bargaining agreements”, the Government declares that the
contested provisions allude to “the priority of application of enterprise agreements
over State sectoral agreements, independent agreements or lower-level agreements”.
“Primacy” and “priority” are not equivalent terms and this point should be clarified.
According to the Royal Academy of the Spanish Language dictionary, “primacy” is defined
as “the superiority, advantage or excellence of a thing over another similar thing”,
while “priority” is defined as “the precedence of a thing over another thing, whether in
time or in importance”. It is important to bear this in mind since improper word usage
may lead to an incomplete understanding of the situation.
- 357. Therefore, before entering into a legal analysis, it must be
reiterated that, under the Act, certain matters that are regulated in an enterprise
agreement shall be given precedence of application over the regulations on these matters
that are contained in higher level agreements. The Act in no way provides that the
former regulation is superior.
- 358. The Government points out that:
- ■ The priority – not primacy
– of application is limited. In other words, as seen from a simple reading of new
article 84, paragraph 2, of the Workers’ Statute, priority is not given to all the
provisions of the agreement, but only to certain parts and certain matters. Neither
shall priority be given to everything that lies within its scope, nor shall the
integrity of the higher level convention be undermined; it will remain fully
applicable as before, except that its provisions relating to all or some of the
matters that were legally included in and negotiated within the scope of the
enterprise agreement will be partially inapplicable.
- ■ Priority of
application is nothing new or unheard of in Spanish labour law, nor is it a
violation of the principles that govern the latter’s application. As is generally
known, the determination of which of the various norms – including norms with
different hierarchical rank and different origin; general, sectoral and enterprise
norms; and norms of prior and subsequent adoption – applies is based on the
normative hierarchy (the minimum norm, the most favourable norm), tempered by
consideration of which of the successive norms in force is applicable and of the
mandatory or non-mandatory nature of the norm (irrevocability of rights), all of
which must be tempered by the pro operario principle.
- 359. Neither is it new or unheard of in Spanish labour law that the
normative hierarchy principle is tempered by the need to apply the norm that is closest
to the situation in question. Both of these rules are the result of modifications to the
Workers’ Statute since its adoption in 1980.
- 360. In 1994, in a departure from the trend towards the centralization of
conventions and agreements under article 83, paragraph 2, of Act No. 8/1980 of 10 March
1980, the Workers’ Statute, which facilitated the concentration of power in the hands of
the major unions and employers’ organizations, the legislators decided to encourage
decentralized levels of bargaining.
- 361. Under the new wording of article 84 of the Workers’ Statute,
agreements at a higher level than enterprise agreements may have an impact on agreements
at an even higher level – with, however, certain guarantees of legitimacy for the
negotiating parties and with the exclusion of certain matters. The Government considers
that proximity of the source of regulations governing working conditions to the labour
relations environment is a requirement for the success of those regulations since they
will be more closely aligned with the circumstances in which the labour relations are
conducted. Thus, the lawmakers encouraged the establishment of independent but more
limited collective bargaining frameworks when the negotiating parties so desire.
- 362. Prior to the adoption of Royal Legislative Decree No. 3/2012, which
is being challenged by the complainants, Royal Legislative Decree No. 7/2011 of 10 June
2011 on urgent measures for the reform of collective bargaining provided that:
- Except where a State or autonomous community collective agreement
or convention negotiated pursuant to article 83, paragraph 2, establishes different
rules concerning the structure of collective bargaining or the concurrency of
conventions, the regulation of conditions in an enterprise agreement shall have
priority of application over a State sectoral agreement, an autonomous community
agreement or an agreement of lesser scope on the following matters:
- (a) the amount of the basic wage and wage supplements,
including those associated with the status and performance of the
enterprise;
- (b) bonuses, overtime pay and specific
compensation for shift work;
- (c) working hours and the
distribution of working time, shift work schedules and annual holiday
planning;
- (d) adaptation of the job classification
system to the circumstances of the enterprise;
- (e)
adaptation of the aspects of hiring procedures that fall within the scope of
enterprise conventions under this Act;
- (f) measures
designed to promote a balance between work, the family and social
life.
- 363. Thus, as can be observed, enterprises have been given greater
collective bargaining capacity as compared with sectoral agreements on matters such as
the base wage, wage supplements, working hours and the distribution of working time in
order to encourage flexibility and to adapt working conditions to the specific, concrete
circumstances of enterprises.
- 364. To summarize, in the past, the lawmakers have already encouraged
decentralization by distributing exclusive or shared competencies among the various
types of collective bargaining. Through a series of reforms, efforts have been made to
encourage decentralization wherever possible by promoting more enterprise-centred
collective bargaining. This decentralizing normative process, which was not challenged
before the ILO at the time, is similar in nature to the process established by Royal
Legislative Decree No. 3/2012 and Act No. 3/2012, which did not then, and does not now,
entail restriction of the free choice of the bargaining unit or prohibition of the
opening of contractual discussions at certain levels.
- 365. It must also be borne in mind that, in light of the inviolability of
the workers’ rights recognized in collective agreements, Act No. 11/1994 paved the way
for modification of those rights by adding to article 82 a new paragraph 4, which
states: “4. A collective agreement adopted at a later date than a previous agreement may
modify the rights set out in the former. In that event, the regulations contained in the
new collective agreement shall apply in full.” This modification was, of course,
challenged by the unions but, to the knowledge of the Ministry of Labour, no complaint
such as this one was submitted. The reason for the unions’ challenge was that the Act
modified collective bargaining, and therefore labour relations; this meant that, in the
future, no right arising from collective bargaining could be considered established and
that it would be necessary to decide on a case-by-case basis, by agreement between the
parties, what had been established in previous instruments and what could be established
for the future. This situation created the dizzying prospect of having to begin from
scratch with each collective bargaining session, a scenario that is repeating itself
today as a result of regulation of what has been called the “stability” of the agreement
or extension of the period of validity of its normative clauses, which directly
establish working conditions, beyond the initially agreed time period even if the
agreement is denounced.
- 366. The normative change that has been introduced is fully consistent
with the principle of free and voluntary collective bargaining since it in no way
stipulates the level of such bargaining. In any event, the decision as to the bargaining
level is subject to the will of the parties. On this point, however, the complainant
organizations appear to have forgotten that the new legislation allows authorized
parties to negotiate agreements at the enterprise level, just as they are empowered to
negotiate collective agreements at a higher level. In no way does it require collective
bargaining at the enterprise level since, in any event, it is for the parties authorized
to negotiate enterprise agreements to decide whether to negotiate an agreement at that
level or to apply a higher level agreement. A separate issue is that, once the parties
authorized to negotiate an enterprise agreement have elected to do so and signed the
agreement, the latter is given priority of application over higher level agreements,
albeit only on certain matters. This simply means that a rule of concurrence among
agreements of differing scope has been established; it in no way entails a violation of
the right to bargain collectively.
- 367. Therefore, the new legislation is fully consistent with the
principles established in paragraphs 988 and 989 of the Digest of decisions and
principles of the Freedom of Association Committee of the Governing Body of the ILO,
fifth (revised) edition, 2006:
- 988. According to the principle
of free and voluntary collective bargaining embodied in Article 4 of Convention No.
98, the determination of the bargaining level is essentially a matter to be left to
the discretion of the parties and, subsequently, the level of negotiation should not
be imposed by law, by decision of the administrative authority or by the case-law of
the administrative labour authority.
- 989. The
determination of the bargaining level is essentially a matter to be left to the
discretion of the parties. Thus, the Committee does not consider the refusal by
employers to bargain at a particular level as an infringement of freedom of
association.
- 368. With regard to the bargaining level, it should also be borne in mind
that, according to Paragraph 4(1) of the Collective Bargaining Recommendation, 1981 (No.
163), “Measures adapted to national conditions should be taken, if necessary, so that
collective bargaining is possible at any level whatsoever, including that of the
establishment, the undertaking, the branch of activity, the industry, or the regional or
national levels.” Similarly, the Committee of Experts, having recalled that the right to
bargain collectively should also be granted to federations and confederations and
rejected any prohibition of the exercise of that right, has stated that “legislation
which makes it compulsory for collective bargaining to take place at a higher level
(sector, branch of activity, etc.) also raises problems of compatibility with the
Convention”, and that “the choice should normally be made by the partners themselves”,
since “they are in the best position to decide the most appropriate bargaining level
...”.
- 369. Neither Royal Legislative Decree No. 3/2012 nor Act No. 3/2012
imposes appropriate bargaining units. Article 83, paragraph 1, of the Workers’ Statute
states that all collective agreements shall have the scope of application agreed by the
parties. Now, as in the past, it is for workers’ and employers’ representatives to
decide where they will exercise the power to regulate working relations that is implied
by the right to bargain collectively. Having done so, they must also decide which
working relations will be subject to their authority by establishing the scope of
application of the collective agreement.
- 370. Furthermore, the decision to give priority of application to
enterprise agreements, while limited to certain matters, was not taken on a whim; it was
motivated by the need to allow a number of matters to be negotiated by preference at the
enterprise level on the understanding that this is the most appropriate place to deal
with such matters. On that point, it should be stressed that this idea was shared by the
unions that signed the complaint, at least until a few months ago. For example, in the
II AENC (adopted on 30 January 2012), which was signed by the employers’ organizations
and by the two unions that have signed the complaint, states, in its section on the
structure of collective bargaining, that “sectoral agreements should encourage
negotiation at the enterprise level, at the initiative of the concerned parties, on
working hours, functions and wages because this is the most appropriate place to deal
with such matters.”
- 371. In that connection, in the statement of reasons for Act No. 3/2012,
it is recognized that:
- … the previous labour market reform
(Royal Legislative Decree No. 7/2011 of 10 June 2011 on urgent measures for the
reform of collective bargaining) also sought to modify the structure of collective
bargaining by giving enterprise agreements priority of application over other
agreements on a number of matters that are considered essential to the flexible
management of working conditions. In practice, however, the decentralization of
collective bargaining was to be effected through State or autonomous community
agreements; this could hinder that priority of application. The innovation that is
now being made is aimed specifically at ensuring the decentralization of agreements
so as to facilitate the negotiation of working conditions at the level closest and
most appropriate to the real situation of enterprises and their
employees.
- 372. On this matter, it is interesting to refer to the recent National
High Court Labour Chamber Judgment No. 0095/2012, issued on 10 September 2012, which
repealed, as from 12 February 2012 (the date on which Royal Legislative Decree No.
3/2012 of 10 February 2012 on urgent measures for labour market reform entered into
force), portions of several articles of the Fifth Collective Agreement on the Cement
Products Sector, signed on 21 February 2012, which, under then article 84, paragraph 2,
of the Workers’ Statute (on wage rates and the distribution of working time),
established that that sectoral agreement would be given priority of application over
lower-level agreements, including enterprise agreements. The court considered that this
was a violation of the provisions of article 84, paragraph 2, of the Workers’ Statute,
which, as amended by the aforementioned Royal Legislative Decree, gave enterprise
agreements priority of application over State sectoral agreements, autonomous community
agreements or lower-level agreements on a number of matters that expressly included wage
rates, working hours and the distribution of working time.
- 373. This was the argument made in the Chamber’s judgment of 10 May
2012:
- Collective agreements are norms that have binding
force and effects only within the limits established by law”, citing, in that
connection, Constitutional Court Judgment No. 210/1990. In its judgment of 18
January 2000, the Supreme Court stated that “although collective bargaining is
grounded in and based on the Constitution (article 37, paragraph 1), the
Constitution also establishes that the law takes precedence over agreements; for
example, article 7 establishes that the parties to such agreements, unions and
employers’ organizations, must respect the law. As stated in the aforementioned
Judgment No. 58/1985 (Repertorio del Tribunal Constitucional (RTC) 1985, 58) “the
incorporation of collective agreements into the official system of sources of law,
following the principle of the uniformity of the legal system, requires … respect
for generally accepted peremptory norms, which, owing to their higher rank in the
normative hierarchy, have the potential to restrict collective bargaining and may
also, in exceptional cases, have full jurisdiction over certain matters which are
therefore not subject to collective bargaining.
- 374. With respect to the allegations concerning the implications of the
aforementioned new article 84, paragraph 2, of the Workers’ Statute, which expressly
provides for the negotiation of enterprise agreements while higher level agreements are
in force (an amendment introduced by Parliament), from which the unions conclude not
only that the alleged violation of the right to bargain collectively and of the binding
force of agreements has not been corrected, but that it has been expanded and
strengthened, the Government notes that new article 84 of the Workers’ Statute regulates
the rules governing the concurrence of agreements with differing scope. The general
rule, established in article 84, paragraph 1, of the Workers’ Statute (on prohibition of
the concurrence of agreements with differing scope), is supplemented by a series of
additional rules, one of which gives enterprise agreements priority of application with
respect to certain issues mentioned in paragraph 2 of that article. However, it is clear
that in order for different agreements to “concur”. But in order for different
agreements to “concur”, the first step in determining which of them has priority of
application as envisaged in article 84 of the Workers’ Statute is obviously to consider
the “history” of the concurrent agreements. Unless two or more agreements have been
negotiated in the past and there is uncertainty as to which of them is applicable, there
is clearly no problem to resolve. Article 84 is based on the assumption that a de facto
conflict has arisen between two or more collective agreements and provides rules for
resolving such conflicts. Logically, this will occur where several such agreements have
been negotiated and signed in succession (an agreement is signed and, subsequently, one
or more agreements conflict with it) since it is extremely difficult to imagine a
scenario in which the concurrent agreements were negotiated and signed at the exact same
time.
- 375. Thus, since the addition to article 84, paragraph 2(1), of the
Workers’ Statute does not alter the regime that preceded the labour reform, the
potential for collective agreements to be negotiated by the parties authorized to do so
(including at the enterprise level) has always existed within Spain’s system of labour
law. The sole purpose of the modification is to preserve the potential to negotiate
enterprise agreements subsequent to higher level agreements as a prerequisite for giving
them priority of application.
- 376. Therefore, the fact that a collective agreement was negotiated while
another agreement or differing scope was in force has never affected its validity: the
negotiated agreement is valid and cannot be repealed. A separate but extremely important
issue is whether the agreement, assuming that it is valid, can be applied under the
established legislation governing conflicts between concurrent agreements.
- 377. In conclusion, neither Royal Legislative Decree No. 3/2012 nor Act
No. 3/2012 dictates bargaining levels or constitutes lawmakers’ interference in the
negotiating parties’ freedom to use whatever bargaining level they wish; they may
continue to do so. As proof that the lawmakers’ preference for giving enterprise
agreements priority of application does not affect the right to bargain collectively,
from the date on which Royal Legislative Decree No. 3/2012 entered into force until 16
November 2012, with the labour reform in full effect, a total of 28 State or
supra-autonomous community sectoral collective agreements, nine autonomous community
sectoral collective agreements and 177 provincial sectoral collective agreements were
legally registered, even though all of them were of broader scope than enterprise
agreements.
- 378. The Government adds that it rejects the statement in the complaint
that the priority given to enterprise agreements has totally and unconditionally
annulled the binding nature of collective bargaining. The binding force of collective
agreements is guaranteed under Spain’s Constitution (article 37, paragraph 1) and
through recognition of the authorized parties, who take the initiative in deciding on
their scope of application and negotiate in good faith until they reach an agreement
that will be binding for as long as it is in force. The changes made do not affect the
right to bargain collectively or to freedom of association, but they do modify the
bargaining structure and the relationship between agreements of differing scope, which
have been regulated by law since 1980.
- 379. With regard to the allegation that enterprises can “disregard” – in
other words, fail to implement – the provisions of a collective agreement on economic,
technical organizational or production-related grounds, without the consent of the
negotiators of the agreement or even of the representatives of the enterprise’s
employees, by requiring binding administrative arbitration, the Government recalls that,
under many European labour law systems, collective agreements are binding only on the
signatory parties (this is the case in France, Germany, Italy, the Netherlands, Portugal
and Sweden), although it is possible, in some cases, for enterprises that were not
represented at the negotiations to become parties to the agreement; moreover, some legal
systems even allow the scope of a collective agreement to be expanded through a
governmental act or decision, making it universally binding within the functional and
geographical scope of its application. In that connection, Spain’s Workers’ Statute
distinguishes between two types of collective agreements: (1) State collective
agreements, which are negotiated following the procedures set out in the Statute; this
type of agreement has the force of law and general or erga omnes scope. Thus, as stated
in article 82, paragraph 3, of the Statute, they “are binding on all employers and
employees included in their scope of application for as long as they are in force”; and
(2) extra-State collective conventions, also known as collective agreements or pacts,
which are negotiated without regard for the Workers’ Statute requirement that the
signatories be initially authorized and empowered; these agreements have contractual
status and are binding only on the contracting parties and the employees and employers
directly represented by them.
- 380. Thus, in Spain, unlike the situation under other labour law regimes,
enterprises are not free to decide whether to apply a State collective agreement even
where the enterprise was not directly involved, nor is it a member of an employers’
organization that was involved, in the negotiation of the agreement. The agreement is
binding on enterprises by the mere fact that they fall within its scope of application.
In the case of such legal regulation (which, it should be stressed, is not the case
under other legal systems, where agreements are binding only on the signatory parties),
it is far more logical for a binding agreement to be “disregarded”, particularly as this
potential appears to be significantly limited not only in the situations in which it may
occur, but in the matters to which it can apply.
- 381. All of the legislative amendments introduced by Act No. 3/2012 –
setting aside issues not raised in the complaint, such as the extent of the economic
situation that constitutes grounds for non-application under other provisions of the
reform legislation (such as collective dismissals, contract suspensions and reduced
working hours) – increase collective autonomy in the settlement of disputes arising from
a lack of agreement concerning non-application of the working conditions on economic,
technical, organizational or production-related grounds. They also make it clear that
the procedure for the settlement of such disputes is ancillary to the established
collective bargaining dispute settlement procedures and provide additional guarantees
with a view to the proper use of this internal flexibility instrument.
- 382. The following is a list of these changes and their significance and
scope:
- – The text of Royal Legislative Decree No. 3/2012 stated that the
parties “will be able to” employ the established collective bargaining dispute
settlement procedures before bringing their dispute before the CCNCC. This might be
interpreted as meaning that the parties have the option of bringing it directly
before the CCNCC. The final text of the legislation makes it clear that the
aforementioned procedures must first be attempted. To that end, the Act states that
the parties “must” employ them; this means that failure to meet this requirement
within the prescribed time period precludes initiating proceedings before the
CCNCC.
- – Whereas the previous version (the Royal Legislative Decree) stated
that in order to bring a dispute before the CCNCC the parties must not only have
failed to reach agreement but must “not have followed” the established collective
bargaining dispute settlement procedures, the final version of the legislation
authorizes use of the CCNCC only where these procedures “were not applicable”; this
stresses the ancillary nature of the CCNCC as compared with the established
collective bargaining dispute settlement procedures. Thus, it is clear that where
collective bargaining procedures are available, their use by the parties is
compulsory, not optional.
- – Both before and after Parliament’s consideration
of the draft act, access to the CCNCC was allowed where the established collective
bargaining dispute settlement procedures “had not resolved the dispute”; this is
also consistent with the principle of subsidiarity that governs proceedings before
the CCNCC. In that connection, it should be noted that the Workers’ Statute itself
indicates, in article 85, paragraph 3(c), on the minimum content of agreements, that
such agreements must include, among other things:
- (c)
Procedures for the effective settlement of disputes arising from non-application
of the working conditions mentioned in article 82, paragraph 3, by adapting,
where necessary, the procedures established for that purpose in State or
autonomous community interprofessional agreements pursuant to the relevant
articles thereof.
- – Thus, in so far as a collective agreement
includes – as provided by law – effective dispute settlement procedures and the use
of these procedures is, as stated above, compulsory for the parties, there will be
no need to bring proceedings before the CCNCC since the dispute will already have
been resolved.
- 383. Clear proof of the ancillary nature of proceedings before the CCNCC
is the fact that, from the date of the entry into force of the labour reform to 31
October 2012, a total of 477 agreements on non-application of the labour conditions
established in collective agreements were registered with the labour authorities; this
means that in none of those cases was there a need to bring proceedings before the
CCNCC.
- 384. Thus, CCNCC involvement in the settlement of disputes is envisaged
as a last resort. By no means can this be termed compulsory arbitration within the
meaning of paragraph 992 of the Digest, op. cit., which states: “The imposition of a
compulsory arbitration procedure if the parties do not reach agreement on a draft
collective agreement raises problems in relation to the application of Convention No.
98.”
- 385. Furthermore, even where a dispute is referred to the CCNCC, by no
means can this be said to be an “arbitration of the authority”, mentioned in article 993
of the aforementioned Digest: “Provisions which establish that, failing agreement
between the parties, the points at issue in collective bargaining must be settled by the
arbitration of the authority are not in conformity with the principle of voluntary
negotiation contained in Article 4 of Convention No. 98.”
- 386. Article 2 of Royal Decree No. 1362/2012 of 27 September 2012, which
currently regulates the CCNCC, states that the latter “is a tripartite collegiate body
comprising representatives of the State Administration and the most representative
unions and employers’ organizations, attached to the Ministry of Employment and Social
Security through the Directorate-General for Employment, which fulfils its mandate with
independence and functional autonomy”. Thus, it is a tripartite committee consisting of
the most representative unions, employers’ organizations and the State
Administration.
- 387. With respect to the exercise of decision-making functions in the
event that, all the requirements having been met, the CCNCC must settle a dispute
between an enterprise and the workers’ representatives owing to a lack of agreement
during the proceedings on non application of the working conditions set out in the
applicable collective agreement, as mentioned in article 82, paragraph 2, of the
Workers’ Statute, Royal Decree No. 1362/2012 provides that “the Committee may settle the
dispute itself or appoint an arbiter, who shall be an impartial, independent expert.
Where the parties to the dispute agree on the procedure to be followed in settling it,
their wishes shall be followed. Otherwise, the choice of procedure shall lie with the
Committee.”
- 388. Thus, if the parties to the dispute agree to select one of these
options, that is the option to be followed; in such cases, the CCNCC may not choose the
procedure. Furthermore, in the event that it is decided to appoint an arbiter, the
legislation provides that “where the parties to the dispute agree to the appointment of
an arbiter, it is preferable for the arbiter to be appointed by mutual agreement”.
Failing such agreement, a procedure is envisaged whereby each of the three groups of
representatives proposes two arbiters and, through rounds of voting in an order to be
established in advance, one arbiter at a time is eliminated until only one remains.
- 389. Therefore, the legislation provides for sufficient mechanisms to
ensure that the arbitration system is genuinely independent. In addition, the outcome of
this procedure is in no way predetermined since, according to the regulations governing
the CCNCC,
- the arbiter, having examined the competing claims,
must rule on the allegation that the working conditions have not been applied and,
to that end, shall consider those conditions in the context of the complaint and
their impact on the employees in question. The award may uphold the claim in its
entirety or propose non-application of the working conditions, but to a lesser
extent. The arbiter may also rule on the length of the period during which the
working conditions may not be applied.
- 390. These are, in any event, the responsibilities of the party charged
with settling the dispute, whether the CCNCC or an appointed arbitrator. Therefore,
whoever settles the non application dispute shall determine not only the validity of the
claim of non-application, but also whether the alleged non-application is as serious as
the complainant maintains and what impact it has had on the affected workers. Thus, the
fact that the legislation currently in force provides for the possibility of the
challenged act in no way implies an automatic ruling on the case.
- 391. The first time that the CCNCC considered the substance of a case
involving an allegation that working conditions had not been applied (in September
2012), in investigating the claim that the working conditions established in an
enterprise agreement had not been applied, the CCNCC rejected the enterprise’s request
for permission not to apply the enterprise agreement, arguing essentially that “there
has been no significant change in the enterprise’s economic situation since the
agreement extending the enterprise agreement and the wage conditions for 2012 and 2013
was signed at the end of April ... ”.
- 392. In light of the foregoing, there is no doubt that, under the
existing legislation, the procedure for the settlement of disputes regarding the
non-application of working conditions established in a collective agreement is
consistent with the principle recognized in paragraph 995 of the Digest, op. cit., that
“in order to gain and retain the parties’ confidence, any arbitration system should be
truly independent and the outcomes of arbitration should not be predetermined by
legislative criteria”.
- 393. The Government also notes that, prior to the issuance of Royal
Legislative Decree No. 2012, at present and since the adoption of Act No. 11/1994,
significant changes in working conditions do not require administrative authorization;
they are made by agreement with the workers’ representatives. In the event of a
disagreement arising during the consultation period, any of the parties may refer the
dispute first to the joint committee on the collective agreement that the enterprise
wishes not to apply – the implementation committee – and then, if no agreement is
reached, to an independent dispute resolution procedure; only if there these various
bodies fail to resolve the dispute may it be brought before the CCNCC.
- 394. With respect to the allegation that negotiated internal flexibility
has been replaced by a unilateral decision of the employer, without the need for the
employees’ consent, not to apply the working conditions established in an enterprise
agreement negotiated with the workers’ representatives, the Government states that such
decisions by an enterprise may naturally be appealed before the labour courts and that
this has been the case since the 1994 labour reform with no reported complaints.
- 395. Enterprise agreements are a manifestation of the right of workers’
and employers’ representatives to bargain collectively, but they are not subject to the
authorization and other criteria set out in the Workers’ Statute. Thus, although they
are binding on the parties and play a key role in labour relations, they do not fall
within the scope of Title III of the Statute. Because the regime governing such
agreements and compliance with the obligations arising therefrom is not part of the
Workers’ Statute, they fall under the heading of general contractual obligations. This
means that, despite their binding nature, which has the force of law as between the
parties, unilateral modification of the provisions of an agreement follows the logic of
compliance with contractual obligations and may give rise to compensation where there
are insufficient grounds for a more severe penalty and, under certain circumstances,
even where such grounds exist.
- 396. In any event, Royal Legislative Decree No. 3/2012 provides, with
respect to this type of significant change, for the possibility that specific procedures
may be established through collective bargaining; that consultations on the causes, the
potential to reduce the effects and the measures needed to mitigate the impact on the
affected persons may be held with the workers’ representatives; that, during these
consultations, the parties must negotiate in good faith in an effort to reach agreement;
and that the parties may agree to replace the consultations by mediation or arbitration.
The Government maintains that this legislation does not restrict the potential for
negotiation in response to changes in collectively agreed working conditions; that any
replacement of consultations must, in itself, be the subject of an agreement between the
employer and the workers’ representatives; that the complaint is unfounded; and, as
noted above, that this regulation is nothing new since it is based on the 1994 labour
reform.
- 397. In reply to the allegations concerning Royal Legislative Decree No.
20/2012 of 13 July 2012, the Government recalls that the courts have recognized Royal
Legislative Decree as a constitutionally legal instrument for addressing so-called
“difficult economic situations” owing to its ability to achieve the goal that justifies
its urgency. Royal Legislative Decree No. 20/2012 of 13 July 2012 on measures to ensure
budgetary stability and promote competition calls for the application of a set of fiscal
measures on, among other things, employment and social security, infrastructures, trade
liberalization, promotion of competition, provision of public assistance and
rationalization of the Administration in response to Spain’s current economic situation.
The scope of these measures is far broader than would appear from the wording of the
complaint. Their purpose is not to restrict collective bargaining; in fact, they were
adopted in light of its principles and are appropriate to Spain’s current socioeconomic
situation.
- 398. The Government maintains that the serious recession that Spain’s
economy began to experience in 2008 and the resulting economic policy adopted at the
time led to an accumulation of macroeconomic imbalances that were unsustainable for the
country. Without the adoption of measures capable of correcting those imbalances, such
as those that the Spanish Government has been taking since December 2011, it would be
impossible to put the country back on the path of stable growth. Royal Legislative
Decree No. 20/2012 of 13 July 2012 is part of that process and includes a variety of
essential measures to ensure budgetary stability and promote competition:
- –
Measures to reorganize and rationalize public administrations; while these are the
primary subject of the complaint, they should be considered not in isolation, but in
light of the situation described and the set of structural measures that the
Government has taken in order to address it. These measures are designed
to:
- ■ achieve rationalization and reduce spending;
- ■ optimize
resources;
- ■ improve management and transparency in the
Administration;
- ■ achieve structural reduction and
rationalization;
- – Social security and employment measures. The
latter are designed to:
- ■ focus protection on persons who have lost their
jobs or require special protection;
- ■ promote the rehiring of unemployed
persons by encouraging their rapid return to work;
- ■ generate the
revenue needed to ensure the sustainability of the public benefit
system;
- ■ strengthen the employment policy system based on the principle
of efficiency so that the limited available resources can be allocated to the
most useful initiatives for improving employability;
- ■ rationalize the
benefit system.
- – Measures to rationalize the public
assistance scheme.
- – Fiscal measures to supplement those adopted since the
end of 2011, primarily through Royal Legislative Decree No. 20/2011 of 30 December
2011 on urgent budgetary, fiscal and financial measures for correction of the public
deficit and Royal Legislative Decree No. 12/2012 of 30 March 2012. Changes in
Government revenue during the first half of 2012 made it necessary to adopt
additional measures through Royal Legislative Decree No. 20/2012, which focuses
primarily on the value added tax, the corporation tax and, to a lesser extent, the
personal income tax and excise duties.
- – Other measures in the areas of
trade liberalization, corporate internationalization, infrastructure, transport,
housing and the elimination of imbalances between costs and revenue in the
electricity sector.
- 399. The Government notes that several measures were adopted within the
framework of article 135 of Spain’s Constitution and of the international instruments to
which the country is a party through the European Union. Article 135 states that all
public administrations shall ensure that their actions are consistent with the principle
of budgetary stability and that the State and the autonomous communities shall not incur
structural deficits exceeding the limits that the European Union has set for its member
States.
- 400. In order to follow the principles set out in this article of Spain’s
Constitution, it was necessary to adopt Organization Act No. 2/2012 of 27 April 2012 on
budgetary stability and financial sustainability; economic and financial rebalancing
plans were also adopted by the Fiscal and Financial Policy Council.
- 401. In that context, the economic relapse that Spain experienced in the
first half of 2012 was extremely widespread and had serious consequences for budgetary
sustainability and job loss. The first two quarters of 2012 saw a further decline in
economic activity and the financial markets’ loss of confidence in Spain, which was not
unrelated to the various institutional problems in the Eurozone. For Spain, the most
immediate consequence of this market instability was a severe tightening of financing
conditions.
- 402. In response to this situation, in order to address the economic
situation and reduce the public deficit, the Government needed to enact the structural
reforms contained in Royal Legislative Decree No. 20/2012 of 13 July 2012, adopted
within the framework of Spain’s commitments to the European Union; these
include:
- – The specific recommendations to Spain made by the European Council
in June 2012.
- – The redirection of Spain’s fiscal path as envisaged in the
Stability and Growth Programme 2012–15, introduced at the Economic and Financial
Affairs Council (ECOFIN) meeting of 10 July 2012, at which the Ministers of the
Economy of the European Union decided to give Spain an extra year to correct its
excessive deficit (recommendation on Spain’s excessive debt and the macroeconomic
framework associated with the new growth forecasts).
- – The National Reform
Programme 2012 as a framework for managing the process of rationalizing the public
administrations to complement the exclusively fiscal adjustments and the reduction
of administrative structures, which make it necessary to take steps to reduce
staffing costs and increase the quality and productivity of public
servants.
- 403. It should also be stressed that the present Government is not the
only one to have taken measures of this kind. The previous Government also had occasion
to adopt, through the same procedure and in an economic situation that had begun to
develop in Spain but was not yet as serious at it later became, Royal Legislative Decree
No. 8/2010 of 20 May 2010, through which emergency measures for reduction of the public
deficit were adopted and which, like the present legislation, contains specific measures
(on public employment, pensions, public assistance, health, local economies and finance,
and other measures for controlling public spending). The Constitutional Court has had an
opportunity to rule on several issues arising from Royal Legislative Decree No. 8/2010
and has stated that the measures contained therein do not constitute a violation of the
right to bargain collectively.
- 404. It should also be borne in mind that the Constitutional Court, as an
independent body, the ultimate interpreter of Spain’s Constitution, the only body of its
kind (Article 1 of the Constitutional Court Organization Act No. 2/1979 of 3 October
1979) and competent to determine whether legislation is consistent with the
Constitution, has agreed to hear several appeals challenging the constitutionality of
Act No. 3/2012 of 6 July 2012 and Royal Legislative Decree No. 20/2012 of 13 July
2012.
- 405. Therefore, the final wording of these articles will depend on the
Court’s decision and the relevant domestic remedies have not been exhausted. While no
specific appeal regarding freedom of association and the right to bargain collectively
has been brought before the Constitutional Court, the aforementioned appeals may have an
indirect impact on those issues since, under article 37 of Act No. 7/2007 of 12 April
2007 (the EBEP), the public administration issues that may be negotiated include
compensation and limits regarding work schedules, working hours, shifts, holidays and
leave.
- 406. In that regard, it is necessary to bear in mind paragraph 29 of the
document entitled “Special procedures for the examination in the International Labour
Organization of complaints alleging violations of freedom of association”, which states
“When a case is being examined by an independent national jurisdiction whose procedures
offer appropriate guarantees, and the Committee considers that the decision to be taken
could provide additional information, it will suspend its examination of the case for a
reasonable time to await this decision, provided that the delay thus encountered does
not risk prejudicing the party whose rights have allegedly been infringed.”
- 407. Therefore, since appeals against the legislation that is the subject
of the dispute are pending before the Constitutional Court, the Government urges the
Committee, on the basis of paragraph 29 of the aforementioned document, to grant the
Government’s request to defer consideration of the case until the Constitutional Court
has issued a reasoned judgment on those appeals.
- 408. Concerning the substance of the issues raised in the allegations,
the Government states that Royal Legislative Decree No. 20/2012 of 13 July 2012 on
measures to ensure budgetary stability and promote competition was prompted by urgent
and extraordinary necessity within the meaning of article 86 of Spain’s Constitution
since, according to the Legislative Decree’s statement of reasons, “the current economic
situation and the inescapable need to reduce the public deficit in order to achieve
budgetary stability require that the proposed measures be adopted as urgently as
possible with full respect for the Constitutional framework and that of the European
Union”.
- 409. Article 86 of Spain’s Constitution provides that, in cases of
extraordinary and urgent necessity, the Government may issue provisional legislation in
the form of legislative decrees, which may not affect the organization of basic State
institutions; the rights, duties and freedoms of citizens established in Title I of the
Constitution; the regime of the autonomous communities; or the laws governing general
elections.
- 410. Making use of this entitlement, the Government began the drafting of
Royal Legislative Decree No. 20/2012.
- 411. Article 86 of Spain’s Constitution also provides that legislative
decrees must be submitted to the Congress of Deputies immediately for discussion and
voting, after which they are no longer provisional.
- 412. Pursuant to the aforementioned provision of the Constitution, the
Royal Legislative Decree was confirmed by a decision of the Congress of Deputies on 19
July 2012 (in other words, before the current allegations were made in the complainants’
most recent communication) and therefore through the legislative mechanisms envisaged in
Spain’s legal system, having been endorsed by the body that represents the Spanish
people – the Congress of Deputies – which Spain’s Constitution has empowered to do
so.
- 413. It should be noted that this event does not constitute, de facto or
de jure, a “unilateral decision of the Government”, as is wrongly stated in the
complaint, but rather legislation drafted as provided in articles 81 et seq. of Spain’s
Constitution.
- 414. An examination of the arguments made throughout the statement of
reasons for the Royal Legislative Decree and, more specifically, those that refer to
improving the efficiency of the public administrations’ use of public resources in order
to “help achieve the essential goal of budgetary stability, which is based on the
constitutional framework and that of the European Union”, shows that Royal Legislative
Decrees – a normative procedure envisaged for situations of urgent need – are an
instrument that is fully appropriate in addressing what constitutional doctrine terms,
as mentioned above, “difficult economic circumstances”.
- 415. This economic situation has – as stated above – taken the form of a
significant economic downturn that was “extremely widespread and had serious
consequences for job loss”, as well as “remaining imbalances in Spain’s economy” and a
serious “loss of confidence on the part of financial markets”.
- 416. The Government recalls that the right of public servants to bargain
collectively is recognized in the EBEP, adopted through Act No. 7/2007 of 12 April 2007.
Title III, Chapter IV, articles 31 et seq. of this norm regulate “The right to bargain
collectively, to representation and to institutional involvement. The right to freedom
of assembly”. It should be noted that this article establishes, as general principles,
that “public servants have the right to bargain collectively, to representation and to
institutional involvement in the establishment of their working conditions”. Article 33
sets out the principles governing the right to bargain collectively: “Collective
bargaining on the working conditions of public servants, which shall respect the
principles of legality, budgetary resources, a legally binding outcome, good faith in
bargaining, openness and transparency, shall be conducted through the exercise of the
union’s representative power under article 6, paragraph 3(c) and article 7, paragraphs 1
and 2, of Organization Act No. 11/1985 of 2 August 1985 on freedom of association and
under the provisions of this Chapter.” The same Act establishes negotiating committees
comprising the Administration and union representatives (the Public Administrations
Negotiating Committee and the State Public Administration Negotiating Committee) as a
means or instrument for bargaining collectively. Bargaining must be conducted with the
union representatives who are currently authorized to participate in those committees
(not with just any organization or with all existing Spanish unions, regardless of their
representational capacity); at the time, this meant three signatories of the complaint:
the UGT, the CC.OO. and the CSIF.
- 417. In this normative context, consideration should be given to the
Government’s convening, on 11 July 2012, of the Public Administrations Negotiating
Committee and the State Public Administration Negotiating Committee in order to open
negotiations on the measures contained in Royal Legislative Decree No. 20/2012.
- –
The Government convened the two negotiating committees established pursuant to the
EBEP in order to conduct negotiations on the Royal Legislative Decree and, to that
end, attempted to negotiate with the very unions that have complained to the ILO
that no negotiations took place.
- – The Government fulfilled its collective
bargaining obligation in good faith since, although the draft legislation was
subsequently submitted to the Congress of Deputies for confirmation in accordance
with article 86 of Spain’s Constitution, the Government drafted the Royal
Legislative Decree on the understanding that it should not be adopted by the Council
of Ministers without prior negotiation with the unions.
- – The negotiating
committees were convened on 9 July 2012 and the unions were instructed to hold their
negotiations on 11 July 2012.
- – The unions convened were those which were
authorized to participate in the negotiations.
- – The negotiations were to be
conducted prior to the Congress of Deputies’ consideration of the draft of the Royal
Legislative Decree, which it was scheduled to do on 13 July 2012.
- 418. When the day of the meeting arrived, the representatives of the
unions (the CC.OO., the UGT, the CSIF, Basque Workers’ Solidarity (ELA) and the Galician
Trade Union Confederation (CIG), met first with the Secretary of State for Public
Administrations (who chairs the Committee on behalf of the Government) and then refused
to attend the meetings of the Committees. The attached certified list of the
participants shows that, despite the time pressure and the urgency arising from the
particularly serious situation of the economy in Europe and in Spain, the Administration
respected the right of the negotiating committee’s members to be informed of, to discuss
and to negotiate on the measures set out in Royal Legislative Decree No. 20/2012 and to
make proposals thereon.
- 419. The list also makes it clear that the unions authorized to
participate in these negotiating committees requested to meet first (as mentioned above)
with the Secretary of State for Public Administrations, who granted their request. At
the end of that previous meeting – at which the unions expressed their opposition to the
measures that had been proposed by the Government and were to be discussed at the
meetings of the negotiating committees – the very unions that submitted their complaint
to the ILO, alleging that the Administration had violated their right to bargain
collectively, refused to participate in those meetings despite the urgings of the
Secretary of State.
- 420. The press kit for those meetings is attached and various media
reports show that it was the unions that (in media slang) “skipped out on” the
meeting.
- 421. The Government therefore considers that its actions should be
clearly understood as having respected the principles that govern collective bargaining
since, according to the statement of reasons for the EBEP, “The State shall emphasize
the principles of legality, budgetary resources, a legally binding outcome, good faith
in bargaining, openness and transparency that should govern negotiations”; this is
repeated in article 33, paragraph 1, of that Basic Statutes. Thus, the fact that the
Administration acted in accordance with those Statutes shows that it also negotiated in
good faith since each of the parties had the right to express its views, a right that
the unions themselves decided not to exercise.
- 422. The Government maintains that it respected both the general
framework of the right to bargain collectively and the specific elements of that right
as it applies to public servants and that all the provisions on collective bargaining
contained in Act No. 7/2007 of 12 April 2007 (the EBEP), particularly those relating to
the principles of legality, budgetary resources, a legally binding outcome, good faith
in bargaining, openness and transparency, were respected in so far as it allowed for the
exercise of the unions’ representative capacity by convening the Public Administration
Negotiating Committees and inviting the most representative organizations to attend. The
two negotiating committees were convened because some of the issues mentioned in article
37 of the EBEP (matters relating to working conditions and compensation and proposals
on, among other things, union rights, working hours and holidays) were included in the
Royal Legislative Decree.
- 423. The Government notes that the right to bargain collectively has not
been drastically restricted. The provisions of Royal Legislative Decree No. 20/2012 that
affect collective bargaining are fully consistent with the constitutional principles and
with established jurisprudence on the matter (see above). In that connection, the Royal
Legislative Decree amends article 32 of the EBEP, but using language that was already
included in article 38 of the Statutes and had been in force since their adoption.
- 424. With respect to the suspension of pacts and agreements, articles 32
and 38 of Act No. 7/2007 of 12 April 2007 (the EBEP) specifically guarantee at the
outset the implementation of pacts and agreements. Only in emergencies and for serious
reasons of public interest, as a result of a significant change in the economic
situation, may the Government’s public administration bodies suspend or modify the
implementation of pacts and agreements that have already been signed, where absolutely
necessary in order to preserve the public interest. This entails:
- – A full
guarantee of compliance with the provisions of collective pacts, agreements and
conventions.
- – The introduction, as doctrine has shown, of a safety valve
into the collective bargaining regime, similar to the Administration’s ius variandi
in public procurement, which cannot be interpreted broadly or undermine in practice
the exercise of the right to bargain collectively. Therefore, it must be based on an
abnormal – emergency – situation that makes it absolutely necessary to take certain
actions in order to safeguard a protected legal asset, the public interest. In that
regard, the measures envisaged in the Royal Legislative Decree are fully justified
since they apply only during economic emergencies, which are contrary to the public
interest and whose modification requires actions that are completely necessary in
order to safeguard that interest.
- 425. The Government adds that, under these circumstances, which, as has
been shown, are considered emergency and exceptional and which therefore justify the
actions envisaged in articles 32 and 38 of the EBEP, the legislation establishes that
the unions have a right to be informed: “in that event, the public administrations shall
inform the unions of the reasons for the suspension or modification”.
- 426. Concerning the allegation that the right to freedom of association,
the resources and the time credits that unions are afforded in order to perform their
functions, the Government states that the provisions affecting such time credits,
contained in article 10 of Royal Legislative Decree No. 20/2012, merely corrected
administrative excesses resulting from the implementation of pacts that went beyond the
provisions of the Workers’ Statute, the EBEP and the Freedom of Association Organization
Act with no monitoring whatsoever.
- 427. According to the complainant organizations, the norm contained in
article 10 of Royal Legislative Decree No. 20/2012 “constitutes unwarranted restriction
of the corollary to freedom of association, the permanent, indefinite and ongoing right
of unit or union representatives to time credits, established by public servants through
collective bargaining, which significantly affects union activities and is therefore
contrary to them”. The Government states that the unions’ statement is legally
inadmissible and should be deemed to be neither fair nor accurate since:
- – It is
clear from the wording of article 10 of the Royal Legislative Decree that the
regulations contained in other legal provisions are being applied; it is simply that
excesses in that regard have been restricted:
- Article
10. Reduction of union leave
- 1. Within the framework
of the public administrations and ancillary bodies, universities, foundations
and societies, as from the entry into force of this Royal Legislative Decree,
all union rights – whether referred to as such or by any other name –
established in agreements on public servants or statutory personnel or in
collective conventions and agreements on workers signed by their representatives
or unions, the provisions of which go beyond those of Royal Legislative Decree
No. 1/1995 of 24 March 1995 (adopting the revised Workers’ Statute Act);
Organization Act No. 11/1985 of 2 August 1985 (on freedom of association) and
Act No. 7/2007 of 12 April 2007 (the Basic Statutes of the Public Service)
concerning hours with pay that may be used for the conduct of union or
representation functions, for the appointment of union delegates or as full-day
waivers of attendance at the workplace, as well as other union rights, shall be
brought fully into line with the provisions of these legislative acts.
- Therefore, any collective pacts, agreements and conventions on
such matters that have been signed and that go beyond the aforementioned
provisions shall be repealed and without effect as from the entry into force of
this Royal Legislative Decree.
- – In light of the exceptional
nature of the current economic situation, one of the purposes of the Royal
Legislative Decree is to “rationalize staffing costs”. This goal entails a fully
justified restriction of the express provisions of labour law concerning time off
with pay for the conduct of union and representation activities in order to increase
the number of working hours devoted to public service.
- – This provision,
which merely corrects previous excesses in the public administrations – which
clearly went beyond the practice of Spain’s private sector, undermining the
Administration’s functioning and even hindering collective bargaining within it – is
fully in line with the Constitution.
- The Government reports that the labour
chamber of Spain’s high court has already had occasion to issue a judgment on
article 10 of the Royal Legislative Decree and that it declined to bring the issue
of the article’s constitutionality before the Constitutional Court because there had
been no violation of the collective bargaining rights established in the
Constitution.
- – It is clear from the wording of article 10 of the Royal
Legislative Decree that it fully respects collective bargaining; it does not hinder
but, in fact, expressly authorizes the negotiation of new agreements with
unions.
- 428. Merely by approving the Royal Legislative Decree, the Government
demonstrated its desire to encourage collective bargaining, contrary to the gratuitous
and erroneous allegations in the complaint that the Royal Legislative Decree hinders it.
In fact, not only has the Government encouraged such bargaining; it has signed specific
agreements with the unions, of which the latter did not inform ILO in their complaint,
even though such an agreement had already been signed on 29 October 2012, the date on
which the complaint was submitted.
- 429. The fact is that the Spanish Government and the most representative
unions firmly undertook to promote dialogue and collective bargaining committees within
the framework of the public service. This commitment was made officially in an agreement
dated October 2012 (see attached copy); its initial commitments include: (1)
establishing the various negotiation and technical committees in Spain’s State
Administration in order to give new impetus to areas such as, among others, training,
occupational hazard prevention, social responsibility and equality of opportunity; and
(2) improving the structure of collective bargaining and the various related areas
envisaged in the EBEP (rationalization of union resources and forums for participation
and negotiation).
- 430. In fact, the second part of article 10, which enables the
negotiation with union leaders of new agreements on time credits and other union rights,
has already been implemented and, pursuant to this provision, the Administration and
union leaders have signed an agreement on the scope of these rights in the State
Administration. This is precisely the objective of the agreement on resource allocation
and rationalization negotiation and participation structures that was reached in the
State Administration Negotiating Committee on 29 October 2012, published as a decision
of the State Secretariat for Public Administrations on 12 November 2012 (Official
Gazette, 14 November 2012) and signed by the unions that submitted the present complaint
to the ILO. In its statement of reasons, this agreement states that “furthermore, Act
No. 7/2007 of 12 April 2007 (the EBEP), recognizing the principles contained in the
Constitution of Spain, the Freedom of Association Organization Act and ILO Convention
No. 151, which support the content of this agreement, recognize the unions as the sole
legitimate partners with a view to exercise of the right of public servants to bargain
collectively, to representation and to institutional involvement in the establishment of
their working conditions.”
- 431. In the same statement of reasons, the agreement recognizes the need
to respect the unions’ rights under the law, including by providing the resources that
are essential to collective bargaining. Therefore, the agreement also provides the
unions with the resources that they need so that they “can rationally fulfil their
representation and negotiation functions”.
- 432. Not only was this agreement signed by the unions empowered to do so;
it was also ratified by the State Administration Negotiating Committee and the Single
Agreement Negotiating Committee. It was signed by the CC.OO., the UGT, the CSIF, the USO
and the CIG on the very same day that these unions submitted their complaint to the ILO
Office in Spain, without informing the ILO that they were in full agreement with the
Government’s actions and that they had signed and ratified the agreement not in one
negotiating committee, but in all of the negotiation forums available under the law with
a view to the coordination of collective bargaining by public service employees in the
State Administration: the Negotiating Committee on Issues Common to Public Servants and
Contractual Workers, the Negotiating Committee on Issues Specific to Public Servants and
the Single Agreement Negotiating Committee (for contractual employees).
- 433. The Government states that it has fully met its obligations under
the ILO Conventions and, after describing in detail the relevant legislation and
jurisprudence, it maintains that the reform introduced by the Royal Legislative Decree
is consistent with the decisions and principles of the ILO Freedom of Association
Committee and, specifically, with paragraph 1038 on “budgetary powers and collective
bargaining”. In addition to noting that ILO Convention No. 151 on Labour Relations
(Public Service) requires some flexibility in application, the paragraph expressly
states:
- The Committee therefore takes full account of the
serious financial and budgetary difficulties facing governments, particularly during
periods of prolonged and widespread economic stagnation. However, it considers that
the authorities should give preference as far as possible to collective bargaining
in determining the conditions of employment of public servants; where the
circumstances rule this out, measures of this kind should be limited in time and
protect the standard of living of the employees who are the most affected. In other
words, a fair and reasonable compromise should be sought between the need to
preserve as far as possible the autonomy of the parties to bargaining, on the one
hand, and measures which must be taken by governments to overcome their budgetary
difficulties, on the other.
- The Government also states that there is no violation of the
principle of collective bargaining established in Convention No. 98 since Spanish law
enshrines the right to bargain collectively in order to establish working conditions as
an individual right to be exercised collectively by all public servants. Article 10 of
Royal Legislative Decree No. 20/2012 is in itself an example of the promotion of this
right; it entrusts the negotiating committees with the adoption of agreements on the
rights of union representatives so that they can rationally fulfil their representation
and negotiation functions and exercise their other union rights. Also, contrary to the
unions’ claims, Royal Legislative Decree No. 20/2012 permits the expansion of this legal
regulation by allowing the adoption of agreements granting union rights within the
framework of the negotiating committees. Furthermore, the Royal Legislative Decree does
not affect the regulations governing the so-called extrajudicial dispute settlement
procedures, which empower employers and employees in the public administration to agree
to establish, define and implement such systems (EBEP, article 45).
- 434. The Government’s actions should be deemed to be consistent with the
principles that govern collective bargaining since, as has been shown, the EBEP, in its
statement of reasons, states that “the Statutes establish the principles of legality,
budgetary resources, a legally binding outcome, good faith in bargaining, openness and
transparency that should govern negotiations”; this is repeated in article 33, paragraph
1, of the Statutes. Thus, since the fact that the Administration acted in accordance
with the law shows that it negotiated in good faith and since each of the parties had an
opportunity to express its views, the failure to reach agreement during the negotiations
on Royal Legislative Decree No. 20/2012, owing to the unions’ refusal to participate in
the dialogue opened by the Administration, cannot be interpreted as a lack of
negotiation, nor can it be said that only information was provided since the party that
was informed had an opportunity to make a timely counter-proposal.
- 435. Lastly, the Spanish Government requests that the entire complaint be
dismissed.
C. The Committee’s conclusions
C. The Committee’s conclusions- 436. The Committee notes that, in the present case, the complainant
organizations allege: (1) that there were no consultations either on Royal Legislative
Decree No. 3/2012 of 10 February 2012 on urgent measures for labour market reform, which
was adopted by the Government, confirmed by the Congress of Deputies on 13 March 2012,
transmitted as draft legislation and subsequently adopted as Act No. 3/2012 of 6 July
2012, and which made certain changes to the Royal Legislative Decree that it replaced;
or on Royal Legislative Decree No. 20/2012 of 13 July 2012 on measures to ensure
budgetary stability and promote competition, which was adopted by the Government and
confirmed by the Congress of Deputies and which includes a series of measures designed
to reorganize and rationalize the public administrations; and (2) that certain
provisions of these legislative acts violate the conventions on freedom of association
and collective bargaining in the public and private sectors that Spain has ratified,
particularly, the provisions on collective bargaining and consultation.
- 437. The Committee notes that the Government rejects these allegations,
explaining that the legislation in question is a response to an unprecedented crisis and
to a recession that began in 2008, as well as to accumulated macroeconomic imbalances
that required forceful, urgent action in order to address the specific weaknesses of the
labour market. More than 3.2 million jobs had been lost since the beginning of the
crisis and the unemployment rate stood at 5,273,600 as at February 2012 with over 1.5
million families in which all of the members were unemployed; thus, Spain’s unemployment
rate was higher than that of the European Union. The Committee takes note of the
Government’s statement that the Royal Legislative Decrees adopted by the Government (Nos
3/2012 and 20/2012) included provisional legislation that was confirmed by the Congress
of Deputies, after which it was no longer provisional; that they therefore do not
constitute, de facto or de jure, a “unilateral decision of the Government”; and that the
constitutional provisions on situations of urgent and extraordinary necessity were
followed when drafting them.
- 438. The Government explains that Royal Legislative Decree 3/2012 of 10
February 2012 and Act No. 3/2012 of 6 July 2012 sought to give enterprises greater
internal flexibility so that, during periods of change or difficulties, they could adapt
to the new conditions in order to retain jobs rather than laying off employees as in the
past (until now, with large numbers of employees employed on temporary contracts,
enterprises have adjusted by laying off employees rather than modifying working
conditions); the Government also highlights the high temporary employment and
unemployment rates among young people. The Committee notes the Government’s statement
that the IMF and the OECD have welcomed the labour reform and that the Government’s
adoption of Royal Legislative Decree No. 20/2012 of 13 July 2012 was also a response to
the urgency arising from a serious recession that had begun in 2008 and had created
macroeconomic imbalances that were unsustainable for Spain, and to a serious lack of
confidence on the part of the financial markets that had led to a severe tightening of
the country’s financing conditions. The Government states that its goal was to reduce
the public deficit and take measures to contain public spending and implement the
structural reforms agreed with the European Union, including the specific
recommendations made by the European Council and the decisions of the ECOFIN, which gave
Spain an extra year to correct its excessive deficit. The Committee takes note of the
Government’s statement that appeals against Royal Legislative Decree No. 20/2012 of
13 July 2012 (suspension of payment of the December 2012 bonus to public service staff)
have been brought before the Constitutional Court and that appeals against
Act No. 3/2012 of 6 July 2012 have also been lodged, as well as its suggestion that
consideration of the case be deferred accordingly. In that regard, the Committee would
like to point out that the complaint was submitted in May 2012 and that there is no way
to know when the Constitutional Court will issue its judgment; moreover, these matters
have been brought before the Committee of Experts on the Application of Conventions and
Recommendations, which, before considering the case, decided to request the Committee to
give its views. The Committee requests the Government to inform it of any Constitutional
Court or Supreme Court ruling on the aforementioned pieces of legislation. Lastly, the
Committee notes that its purpose in considering the present complaint is not to raise
issues of constitutionality or legality under domestic law; it will merely formulate
conclusions from the point of view of the principles of freedom of association and
collective bargaining laid down in the relevant ILO Conventions, which, moreover, have
been ratified by Spain.
Allegations concerning the lack of consultation
- 439. The Committee notes that, according to the complainant
organizations, Royal Legislative Decree No. 3/2012 of 10 February 2012 on urgent
measures for labour market reform (including reforms that affect collective bargaining
in the private sector) was adopted by the Government without any prior consultation on
the substance and without holding consultations allowing for an exchange of views with
the most representative unions, even though several days previously – on 25 January 2012
– those organizations, the CEOE and the CEPYME had signed an interprofessional agreement
on employment and collective bargaining for the period 2012, 2013 and 2014, which, in
response to the economic crisis, covered issues relating to the structure and
coordination of collective bargaining, internal flexibility, negotiated non-application
by enterprises of certain working conditions established in sectoral collective
agreements, and wage reductions. According to the complainant organizations, Royal
Legislative Decree No. 3/2012 is in direct contradiction to the basic elements of the
aforementioned agreement, having disregarded and repealed them. Therefore, the unions,
knowing that the Royal Legislative Decree would be referred for consideration as draft
legislation, prepared draft amendments when it was submitted to the Congress of
Deputies. The Committee also notes the allegations that Royal Legislative Decree No.
20/2012 of 13 July 2012 was adopted unilaterally by the Government without convening the
State Negotiating Committees (as it was required to do by law), even though it provided
for elimination of the December 2012 public sector bonus and imposed other major
restrictions that entailed the suspension of provisions of collective agreements; the
unions were informed two months later at a routine meeting, at which the Administration
simply read out the provisions of the Royal Legislative Decree without replying to or
addressing the issues raised by the unions.
- 440. The Committee takes note of the Government’s statement that: (1) the
consultations mentioned in the complaint need not culminate in acceptance of the demands
of those consulted (the social partners’ opposition to a collective bargaining reform
had been known since 2011); (2) the II AENC, signed on 25 January 2012 – very close to
the date on which Royal Legislative Decree No. 3/2012 was adopted – recognizes the
exceptional circumstances that call for specific measures designed to ensure, as quickly
as possible, economic growth leading to job creation; in other words, there was no time
to lose and, in the Government’s view, it was neither advisable nor possible to hold
consultations on issues on which the social partners had already expressed their views
in the past; (3) the Royal Legislative Decree did not repeal the II AENC since, while it
differs from it in certain respects (deals with certain issues differently), it makes no
mention of other aspects of collective bargaining or internal flexibility; thus, the II
AENC as a whole remains applicable and the complainant’s allegation that it has been
suspended or repealed must be rejected; (4) as for the Royal Legislative Decrees, the
law authorizes dispensing with procedures such as consultations for reasons of urgency
and, in the case of Royal Legislative Decree No. 3/2012, there were reasons of
extraordinary and urgent necessity during the crisis.
- 441. The Committee notes the Government’s statement that consultations
were held following the adoption of Royal Legislative Decree No. 3/2012 (specifically,
five meetings in February and March 2012 (on 10, 20 and 23 February and 5 and 12 March
2012)) and that they were attended by representatives of two unions, the UGT and the
CC.OO., which had an opportunity to express their views and make suggestions; the first
four meetings were held before the Congress of Deputies adopted the consolidation
agreement on Royal Legislative Decree No. 3/2012 and all five meetings were held before
what would later become Act No. 3/2012 was referred to Parliament; during parliamentary
consideration, 657 amendments were submitted to the Congress of Deputies and 574 to the
Senate and, of these, 74 were accepted by the Congress of Deputies and 11 by the Senate.
These amendments led to changes in a number of articles that are mentioned in the
complaint. The Government stresses that the unions themselves prepared draft amendments
which, since they resulted in the submission of amendments by parliamentary groups, were
not ignored but were considered and studied.
- 442. In light of the foregoing, the Committee notes that, during the
drafting of Royal Legislative Decree No. 3/2012 and before its approval by the Council
of Ministers, the most representative unions were not consulted regarding its wording or
substance, although this was done subsequently. The Committee refers to the principles,
set out below, on the importance of consultation but, with respect to this Royal
Legislative Decree, which includes provisions on collective bargaining in the private
sector and on the structure of such bargaining, it notes that the most representative
employers’ organizations and unions had signed an agreement on the bargaining structure
shortly before and that, according to the Government, the Royal Legislative Decree in
question differs in some respects from this agreement. The Government invokes in this
respect reasons of extraordinary and urgent necessity in moments of crisis.
- 443. With regard to Royal Legislative Decree No. 20/2012, which had an
impact on the public sector, the Committee takes note of the Government’s statement that
it convened the two State Negotiating Committees envisaged in the legislation on 9 July
2012 and summoned the unions to attend on 11 July 2012; these negotiations were to have
been conducted before the Council of Ministers considered the draft of the Royal
Legislative Decree, as they were scheduled to do on 13 July 2012. According to the
Government, the unions asked to first meet with the Secretary of State for Public
Administrations but, at the end of that meeting – at which they expressed their
opposition to the measures proposed by the Government – the unions voluntarily refused
to sit down at the negotiating table, as reported by the press.
- 444. The Committee notes from the above that, although the meeting of the
Public Administrations Negotiating Committees and that of the State Administration
Negotiating Committee, held in order to begin negotiations on the issues to be covered
by Royal Legislative Decree No. 20/2012, were scheduled for 11 July 2012, the Government
recognizes that the Council of Ministers had planned to begin consideration of the draft
of the Royal Legislative Decree on 13 July 2012. The Committee considers that the time
that the unions were given to study, discuss, negotiate and make proposals on the draft
decree was clearly insufficient, particularly in view of its complexity and of the many
important issues affecting the interests of workers and their organizations.
- 445. The Committee would like to stress the importance that it attaches
to holding consultations with the most representative workers’ and employers’
organizations with sufficient advance notice and, in particular, to ensuring that the
drafts of laws or Royal Legislative Decrees are submitted to these organizations for
consultation well before their adoption by the Government as a prerequisite for
consideration by Parliament. The Committee wishes to recall that, with the necessary
limitations of time, the principles governing consultation remain valid during crises
that require the taking of urgent measures, and to reiterate the conclusions that it
formulated in its June 2013 meeting on a case involving Spain [see 368th Report, Case
No. 2918 (Spain), para. 356]:
- The Committee draws attention to
“the importance it attaches to the promotion of dialogue and consultations on
matters of mutual interest between the public authorities and the most
representative occupational organizations of the sector involved”, as well as “the
value of consulting organizations of employers and workers during the preparation
and application of legislation which affects their interests. The Committee
highlights the importance of holding detailed consultations and making sure that the
parties have sufficient time to prepare and express their points of view and discuss
them in depth. The Committee also emphasizes that the process of consultation on
legislation helps to give laws, programmes and measures adopted or applied by public
authorities a firmer basis and helps ensure they are well respected and successfully
applied; the Government should seek general consensus as much as possible, given
that employers’ and workers’ organizations should be able to share in the
responsibility of securing the well-being and prosperity of the community as a whole
[see the Digest, op. cit., paras 1067 and 1072].
- 446. The Committee expects that from now on the principles concerning
consultation on legislation affecting the interests of trade unions and their members
will be fully respected, and requests the Government to takes measures in this
regard.
Allegations concerning Royal Legislative Decree No. 3/2012 and (after consideration by the Congress of Deputies) Act No. 3/2012 of 6 July 2012
- 447. The Committee will now consider the substantive issues raised by the
complainant organizations. At the outset, they allege that Royal Legislative Decree No.
3/2012 disregarded and repealed most of the points that had been negotiated and agreed
in the II AENC, which was negotiated by the most representative unions and employers’
organizations. The complainant organizations point out that the Royal Legislative Decree
establishes that: (1) enterprise collective bargaining agreements are given primacy of
application over any sectoral agreement, so that it is not the negotiating parties who
ensure coordination between different bargaining levels; furthermore, enterprise
collective agreements (which are often concluded with non-union representatives) may be
negotiated at any time during the period of validity of higher level agreements; and (2)
enterprises can “disregard” – in other words, fail to implement – the provisions of a
collective agreement on economic, technical, organizational or production-related
grounds by imposing compulsory administrative arbitration by the National Advisory
Committee on Collective Bargaining Agreements (a tripartite body) or an equivalent
autonomous community body; and (3) internally negotiated flexibility in enterprise
agreements has been replaced through a unilateral decision of the employer, who, without
the consent of the workers, may decide not to apply working conditions agreed with the
latter’s representatives, including on such important matters as, among other things,
wages and working hours.
- 448. The Committee notes that, according to the complainant
organizations, Royal Legislative Decree No. 3/2012 extensively revised the legal regime
governing “significant changes in working conditions” within the meaning of article 41
of the Workers’ Statute by allowing employers to make unilateral changes in extremely
important working conditions established in pacts or collective agreements concluded
with the workers’ representatives empowered to negotiate comprehensive agreements in the
event that several consultation sessions fail to result in agreement. However, in the
Spanish system of labour relations, problems in the functioning of an enterprise do not
justify empowering employers to modify unilaterally the provisions of collective
conventions and agreements, an effect that is disproportionate and incompatible with the
effectiveness to be expected of collective bargaining. Empowering employers to modify at
will the working conditions established in a collective agreement or pact, including
matters as important as wages and working hours, even against the wishes of the workers’
representatives is a violation of the guarantee of the effectiveness and binding force
of collective agreements; in the complainants’ view, it is a violation of the provisions
of ILO Conventions Nos 98 and 154 and of the Collective Agreements Recommendation, 1951
(No. 91), which confirm and ensure that the parties are bound by the provisions of
agreements reached through collective bargaining.
- 449. The Committee takes note of the Government’s denial that giving
enterprise agreements priority of application over higher level agreements (sectoral,
State, autonomous community and higher level) as provided in Act No. 3/2012 (article 14,
paragraph 2) constitutes a violation of the ILO Conventions on freedom of association
because: (1) this priority extends only to certain matters; all others are still
governed by the higher level agreement; (2) this priority on certain matters (including,
among other things, wages and bonuses, overtime pay, working hours and distribution of
working hours) was already established in previous legislation where the higher level
agreement contains specific provisions on the bargaining structure or the concurrence of
agreements; moreover, the previous legislation provides that a collective agreement
adopted at a later date than a previous agreement may modify the rights set out in the
former; (3) Act No. 3/2012 does not stipulate the level of negotiation; the latter is
subject to the will of the parties, which may decide whether to negotiate an enterprise
agreement or to apply a higher level agreement. However, if they choose the first of
these options, the enterprise agreement will have priority of application on certain
matters; (4) in the II AENC, which was also signed by two of the complainant
organizations, the UGT and the CC.OO., the provisions on the scope of collective
bargaining establish that sectoral agreements must encourage negotiations on working
hours, functions and wages at the enterprise level, at the initiative of the affected
parties, because this is the most appropriate level for dealing with such matters; and
(5) the binding force of collective agreements is guaranteed under Spain’s Constitution
and the changes made by Act No. 3/2012 do not affect the right to bargain collectively,
but they do change the bargaining structure and the relationship between agreements of
differing scope. Concerning the complainants’ allegation regarding the possibility,
under the law, to negotiate enterprise agreements while higher level agreements are in
force, the Committee notes that this has always been envisaged in Spanish labour law;
Act No. 3/2012 merely preserves the possibility to negotiate enterprise agreements
subsequent to higher level agreements; in addition, the new rule on the concurrence of
collective agreements and the lawmakers’ decision to give enterprise agreements priority
of application on certain matters does not affect the right to bargain collectively at
higher levels; in fact, between the date on which Royal Legislative Decree No. 3/2012
entered into force and November 2012, 28 State or supra-autonomous community sectoral
collective agreements, nine autonomous community sectoral agreements and 177 provincial
sectoral collective agreements were registered. With regard to the complainants’
suggestion that the rules governing the concurrence of agreements should not be
regulated by law, the Government mentions, in another part of its reply, that – contrary
to the practice of other European countries – Spain’s system of labour relations has
opted for erga omnes application of higher level State collective agreements; thus, such
agreements apply to all enterprises and workers, even where the enterprise did not
negotiate the collective agreement and the employer is not a member of an employers’
organization involved in the negotiations. The Committee notes that, with respect to the
issues raised, the Government stresses that the rules governing concurrent collective
agreements of differing scope follow a number of principles established by law (such as,
among others, the principle of the most favourable standard, the principle of the
derogable or non-derogable nature of rights, the principle of previous or subsequent
norms and the pro operario principle); and that, in line with the lawmakers’ preference,
since 1994, for decentralized bargaining levels, Act No. 3/2012 calls for application of
the norm closest to the situation and to the circumstances of the labour relations, the
enterprise and the workers.
- 450. Concerning the allegation that, under Act No. 3/2012 (article 14,
paragraph 1, and Additional Provision 5), employers can decide that, henceforth, they
will not apply (“disregard”) the provisions of a collective agreement on economic,
technical, organizational or production-related grounds, without needing to reach
agreement with the negotiators of the agreement, by imposing compulsory arbitration, the
Committee takes note of the Government’s statement that, under Spain’s erga omnes
collective bargaining system, contrary to the practice of other European countries,
State collective agreements apply to all enterprises that fall within their scope, even
those that were not members of the signatory employers’ organizations, and that this
makes it far more logical for a binding agreement to be “disregarded”. The Committee
also takes note of the Government’s statement that the complainant organizations are
objecting to the new procedure for such “disregard” (the grounds for which were already
established under the law) and that, under Act No. 3/2012, the new procedure to be
followed in the event of a dispute between the parties regarding disassociation from
(“disregard for”) certain provisions, is applicable only where the parties fail to reach
agreement during the consultation periods envisaged in that Act or where they have not
followed the collective bargaining dispute settlement procedures (on this point, the
Government stresses that, according to the Workers’ Statute, collective agreements must,
at a minimum, establish “procedures for the effective settlement of disputes arising
from the non-application of working conditions ..., using, where necessary, the
procedures established for that purpose in State or autonomous community
interprofessional agreements ...”); the Government therefore emphasizes that, in so far
as a collective agreement includes effective dispute settlement procedures, the parties
are required to follow these procedures and there is no need to bring proceedings before
the new mechanism established in Act No. 3/2012, to be considered below.
- 451. The Committee takes note of the Government’s statement that, as a
last resort (where the parties have failed to reach agreement during consultations or a
collective agreement does not include a dispute settlement mechanism), Act No. 3/2012
provides for the intervention of the CCNCC, a tripartite collegiate body comprising
representatives of the State Administration and the most representative unions and
employers’ organizations, which may settle the dispute itself or appoint an arbitrator,
who shall be an impartial, independent expert (following the procedure agreed by the
parties or, where they fail to agree, selected by the Advisory Committee). Where the
parties to the dispute agree to the appointment of an arbiter, it is preferable for the
appointment to be made by mutual agreement. Failing such agreement, a procedure is
envisaged whereby each of the three groups of representatives proposes two arbiters and,
through rounds of voting in an order to be established in advance, one arbiter at a time
is eliminated until only one remains. The Committee notes that, in the Government’s
view, the system establishes sufficient mechanisms to ensure that the arbitration system
is genuinely independent and allows the arbitrator to uphold the claim and reject in its
entirety the request for permission not to apply the working conditions; to propose
non-application of the working conditions, but to a lesser extent; or to prohibit
non-application of the collective agreement. The Committee takes note of the
Government’s statement that, since the entry into force of Act No. 3/2012 on 31 October
2012, 477 agreements (between the negotiating parties) not to apply working conditions
established in collective agreements have been registered with the authorities.
- 452. With regard to the alleged replacement of negotiated internal
flexibility by a unilateral decision of the enterprise’s management, which, following
consultations in which no agreement with the workers is reached, may decide not to apply
(by suspending or replacing) working conditions established in enterprise agreements,
the Committee notes that this issue is addressed in articles 12 and 13 of Act No. 3/2012
and that, according to the Government: (1) the employer’s decision may be appealed
before the labour courts and that this provision is based on the 1994 legislative
reform; and (2) with respect to such substantial modifications, Act No. 3/2012 provides
for the establishment of specific collective bargaining procedures and for the holding
of consultations with the workers’ representatives on the reasons for the employer’s
decision, the possibility of preventing or reducing its impact and the measures needed
in order to mitigate its effects on the workers concerned. During the consultations, the
parties must negotiate in good faith in an effort to reach an agreement; they may also
agree to replace the consultations by mediation or arbitration. The Committee notes the
Government’s statement that this legislation does not restrict the potential for
negotiation in response to changes in collectively agreed working conditions and
observes that, under article 12, paragraph 1, of Act No. 3/2012, the significant changes
in working conditions mentioned in the previous paragraph may include the content of
collective agreements or pacts.
Specific conclusions
- 453. The Committee has considered the arguments of the complainants and
the Government concerning Act No. 3/2012, and, although it has taken due note of the
need to respond urgently to an extremely serious and complex economic crisis and to
address the serious unemployment problem (the highest unemployment rate in the European
Union), the Committee recalls the principle that mutual respect for the commitment
undertaken in collective agreements is an important element of the right to bargain
collectively and should be upheld in order to establish labour relations on stable and
firm ground [see the Digest, op. cit., para. 940]. The Committee stresses that articles
12, 13 and 16 of the Act authorize significant changes in working conditions (including,
among other things, the length of the working day, working hours and shift work) not
only on economic grounds (particularly in the event of current or anticipated losses or
where the enterprise has seen a decline in revenue or sales for two consecutive
quarters), but also on technical, organizational or production-related grounds without
the need, as in the past, for the existence of an emergency or force majeure situation;
under Act No. 3/2012, which applies not only during temporary periods of economic crisis
but in perpetuity, where a disagreement arises during consultations and related
bargaining, any of the parties may refer the dispute for arbitration. The Committee
underlines that the elaboration of procedures systemically favouring decentralized
bargaining of exclusionary provisions that are less favourable than the provisions at a
higher level can lead to an overall destabilization of the collective bargaining
machinery and of workers’ and employers’ organizations and constitutes in this regards a
weakening of freedom of association and collective bargaining contrary to the principles
of Conventions Nos 87 and 98 [see 365th Report, Case No. 2820 (Greece), para. 997]. In
the Committee’s view, the question of whether serious economic problems of enterprises
may, in certain cases, call for the modification of collective agreements must be
addressed, and, since it can be handled in various ways, the way to proceed should be
determined within the framework of social dialogue.
- 454. The Committee further notes that article 14, paragraph 2, of Act No.
3/2012 introduces new rules for private sector collective bargaining and the structure
thereof, including by giving enterprise collective agreements priority of application
over higher level collective agreements on certain matters, which, as the Government
points out, were not covered by the previous legislation. The Committee also notes that
the complainant unions and other complainant organizations have clearly expressed their
opposition to this new legislation and recalls its position that the determination of
the bargaining level is essentially a matter to be left to the discretion of the
parties.
- 455. Under these circumstances, the Committee stresses the importance of
ensuring that the essential rules governing the system of labour relations and
collective bargaining are shared, to the maximum extent possible, by the most
representative workers’ and employers’ organization. It therefore invites the Government
to promote a tripartite dialogue on Act No. 3/2012 in order to achieve this goal from
the perspective of the principles established in the ILO Conventions on collective
bargaining that Spain has ratified.
Allegations concerning Royal Legislative Decree No. 20/2012 and (after consideration by the Congress of Deputies) Act No. 20/2012 of 13 July 2012
- 456. The Committee notes the complainant organizations’ allegation that
Royal Legislative Decree No. 20/2012 of 13 July 2012 provides for a reduction in the
wages of public administration employees by eliminating the December 2012 bonus, and for
a reorganization of working time by, among other things, reducing the length of the
annual paid holiday and the number of personal days, reducing other forms of leave
beyond the legal minimum (the Royal Legislative Decree authorizes the negotiation of
agreements on this matter in the Public Administration Negotiating Committees; according
to the complainants, this is a permanent structural change) and reducing trade union
leave.
- 457. According to the complainants, the foregoing measures have resulted
in the unilateral suspension or repeal of the clauses of all public sector agreements on
these matters, which it will no longer be possible to improve, and this was done without
holding consultations with the unions as required by law (the complainant organizations
recognize, however, that, under the previous legislation, collective agreements could be
suspended or modified in exceptional cases on the grounds of “significant changes in the
economic situation”, in which case “the administrations shall inform the unions of the
reasons for the suspension or modification”). Furthermore, according to the complainant
organizations, Royal Legislative Decree No. 20/2012, in its Additional Provision 2,
provides that, in the event of serious threats to the public interest resulting from a
significant change in the economic situation, the public administrations must adopt
adjustment, rebalancing of public accounts or economic or financial measures or plans in
order to ensure budgetary stability (as the European Union requires) or reduce the
public deficit; in such cases, the unions must be informed but the Administration is not
required to hold consultations before disassociating itself from the clauses of
agreements.
- 458. The Committee takes note of the Government’s statements regarding
the economic crisis (see above) and of its position that, in light of the economic
situation and the need to reduce the public deficit, it was forced to adopt the
structural reforms and additional measures to reduce public spending contained in Royal
Legislative Decree No. 20/2012 of 13 June 2012, which – as the Government stresses –
were adopted within the framework of Spain’s commitments to the European Union
(recommendation of the European Council giving Spain an extra year to correct its
excessive deficit, adopted by ECOFIN on 10 July 2012) and of the National Reform
Programme in order to rationalize the public administrations with a view to reducing
staffing costs and increasing the quality and productivity of public servants. The
Committee takes note of the Government’s statement that the constitutionality of the
Royal Legislative Decree’s provisions on (union) leave, holidays and non-payment of the
December 2012 bonus has been challenged before the Constitutional Court. The Government
considers that the Royal Legislative Decree does not violate ILO Conventions owing to
the existence of an urgent and extraordinary need which, under the Constitution,
authorized the issuance of provisional legislation that was submitted to the Congress of
Deputies immediately for discussion and voting, after which it was no longer provisional
(Royal Legislative Decree No. 20/2012 was consolidated on 19 July 2012); thus, contrary
to the complainant’s claims, it does not constitute, de facto or de jure, a “unilateral
decision of the Government”.
- 459. The Committee also takes note of the Government’s statement that the
provisions of Royal Legislative Decree No. 20/2012 are fully consistent with the
constitutional principles and with the jurisprudence on collective bargaining and are
fully justified by an extraordinary and exceptional economic situation that poses a
threat to the public interest, taking into account the obligation of the public
administrations to inform the unions of grounds for an inspection or modification. It
adds that both the legislation and the courts have established the primacy of law over
collective agreements.
- 460. With respect to the provisions of Royal Legislative Decree No.
20/2012 and Act No. 20/2012 on time credits granted to unions (trade union leave) which
repeal the collective agreements on these matters, the Committee takes note of the
Government’s statement that: (1) the Royal Legislative Decree merely corrected
administrative excesses resulting from the implementation of pacts that went beyond the
provisions of the Workers’ Statute, the EBEP and the Freedom of Association Organization
Act with no monitoring whatsoever; (2) these provisions concern time off with pay for
the conduct of union activities and full-day waivers of attendance at the workplace and
must be brought into line with the aforementioned legislative acts; (3) collective
agreements that go beyond these provisions are repealed; (4) the goal is to rationalize
staffing costs; and (5) the Royal Legislative Decree does not hinder the negotiation of
new agreements on these matters with unions; it expressly states that they may be
negotiated only within the general negotiating committees, thereby encouraging
collective bargaining.
- 461. The Committee also notes the Government’s statement that on 25
October 2012, it signed an agreement with the most representative unions, in which it
undertook to: (1) convene the State Administration’s various negotiation and technical
committees in order to give new momentum to, among other things, training, prevention of
occupational hazards, social responsibility and equality of opportunity; and (2) move
forward within the framework of collective bargaining and in the various areas envisaged
in the legislation while rationalizing the participation and negotiation structures.
Furthermore, on 25 October 2012, the Government and the most representative unions
(including the complainant unions) signed an agreement giving the unions the necessary
resources to rationalize their representation and negotiation functions by determining
the number of credit hours granted to union leaders. The Committee welcomes the
agreements to which the Government refers but notes that they cover only some of the
issues raised in the complaint. The Committee stresses the importance of ensuring that
the negotiating committees address all issues raised in the complaint in relation to the
public administrations.
Specific conclusions
- 462. Having considered the arguments of the complainants and the
Government concerning Act No. 20/2012, and while taking due note of the need to respond
urgently to an extremely serious and complex economic crisis and to address the serious
unemployment problem (the highest in the European Union), the Committee notes with
concern that Royal Legislative Decree No. 20/2012, which was challenged by the
complainants, directly suspended the collective agreements contrary to it or repealed
their provisions in the following areas: the Christmas bonus, holidays, benefits for
temporary inability to work and public sector union leave and time credits (the
Government reports that the provisions on union leave were renegotiated through an
agreement). The Committee also notes that Act No. 20/2012 reiterates the provisions of
previous legislation, which authorized the suspension or modification of collective
agreements in the event of a “significant” change in the economic situation.
- 463. The Committee stresses that all of the above gives rise to problems
with respect to the principles of freedom of association and collective bargaining laid
down in the relevant ILO Conventions. The Committee must therefore recall the principle
that “State bodies should refrain from intervening to alter the content of freely
concluded collective agreements” and that “[collective] agreements should be binding on
the parties” [see Digest, op. cit., paras 939 and 1001].
- 464. The Committee recalls that, in an earlier case, it underlined
that:
- The suspension or derogation by decree – without the
agreement of the parties – of collective agreements freely entered into by the
parties violates the principle of free and voluntary collective bargaining
established in Article 4 of Convention No. 98. If a government wishes the clauses of
a collective agreement to be brought into line with the economic policy of the
country, it should attempt to persuade the parties to take account voluntarily of
such considerations, without imposing on them the renegotiation of the collective
agreements in force. [See Digest, op. cit., paras 1000, 1005 and 1008.] While it is
not its role to express a view on the soundness of the economic arguments invoked to
justify government intervention to restrict collective bargaining, the Committee
must recall that measures that might be taken to confront exceptional circumstances
ought to be temporary in nature having regard to the severe negative consequences on
workers’ terms and conditions of employment and their particular impact on
vulnerable workers. The Committee asks the Government to provide full information on
the evolving impact of these measures on the overall environment and to keep it
informed of the efforts made for their duration to be temporary. [See 365th Report,
Case No. 2820 (Greece), para. 995.]
- The Committee therefore invites the Government to encourage social
dialogue on these issues with a view to finding, to the fullest possible extent,
solutions agreed with the organizations.
The Committee’s recommendations
The Committee’s recommendations- 465. In the light of its foregoing conclusions, the Committee invites the
Governing Body to approve the following recommendations:
- (a) The Committee draws
the Government’s attention to the principles concerning consultation of the most
representative workers’ and employers’ organizations with sufficient advance notice
of draft laws and draft Royal Legislative Decrees prior to their adoption by the
Government, and hopes that these principles will be fully respected in the
future.
- (b) With regard to the new provisions contained in Acts Nos 3/2012
and 20/2012, the Committee stresses the importance of ensuring that the essential
rules governing the system of labour relations and collective bargaining are agreed,
to the maximum extent possible, with the most representative workers’ and employers’
organizations. It therefore invites the Government to promote a tripartite dialogue
in order to achieve this goal from the perspective of the principles of freedom of
association and collective bargaining laid down in the relevant ILO
Conventions.
- (c) The Committee requests the Government to transmit to it the
Constitutional Court and Supreme Court rulings on Acts Nos 3/2012 and
20/2012.
