Rapport intérimaire - Rapport No. 78, 1965

292. The complaints are contained in a joint communication from the International Confederation of Free Trade Unions (I.C.F.T.U.) and the International Federation of Christian Trade Unions (I.F.C.T.U.) dated 28 April 1964 and in additional information sent by the two organisations on 15 May, 2 June, 3 July and 29 July 1964. Moreover, the I.F.C.T.U sent a complaint on 15 May 1964 and the World Federation of Trade Unions (W.F.T.U.) sent another on 3 September 1964. All the above communications were remitted to the Government, which sent its observations on 11 June and 14 October 1964.

1. 292. The complaints are contained in a joint communication from the International Confederation of Free Trade Unions (I.C.F.T.U.) and the International Federation of Christian Trade Unions (I.F.C.T.U.) dated 28 April 1964 and in additional information sent by the two organisations on 15 May, 2 June, 3 July and 29 July 1964. Moreover, the I.F.C.T.U sent a complaint on 15 May 1964 and the World Federation of Trade Unions (W.F.T.U.) sent another on 3 September 1964. All the above communications were remitted to the Government, which sent its observations on 11 June and 14 October 1964.
2. 293. Spain has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations relating to the Detention of Workers for Various Reasons
  294. 294 The joint communication by the I.C.F.T.U and the I.F.C.T.U of 28 April 1964 stated that the workers Valeriano Gómez Lavin, Ricardo Lasarte Amézaga, Agustin Sánchez Corrales, José Maria Echevarria Heppe and David Morin Salgado, members of the Workers' Committee of Vizcaya elected by the workers of Bilbao to negotiate with the authorities regarding the reinstatement of 52 workers who were dismissed during the strikes of the spring of 1962, had been arrested. Subsequently in a letter of 15 May 1964 the complainants stated that the said persons had been released. On 29 October 1964 the I.C.F.T.U and the I.F.C.T.U stated that these members of the Workers' Committee of Vizcaya had been tried on 16 October 1964 by the Special Law and Order Court in Madrid and each had been sentenced to six months' imprisonment. The complainants said that they hoped to be able to forward a copy of the verdict. In their communications of 2 June and 3 July 1964 respectively both organisations denounced the imprisonment of Severino Arias, a member of a committee of workers' representatives who had been arrested on resigning his office as a protest against the new regulation of labour in the coal-mining industry, and of Félix Martin, a worker in the Papelera Española Company at Renteria. The complainants also stated in their communication of 2 June 1964 that by reason of the strikes in Vizcaya the workers Juan Josh Palacios Gallo, Adolfo Jiménez Garaygordobil and Saturnino Landa of the Fundiciones Bolueta Company had been arrested on 20 May 1964 and accused of fomenting strikes.
  295. 295 In its communication of 11 June 1964 the Government stated that it was not correct that the five persons detained were members of a " workers' committee of Vizcaya " and even less true that this so-called committee was elected by the workers of Bilbao. The cause of their detention was not the fact that they claimed a representative function but their active participation in unlawful acts with the object of disturbing and obstructing the free expression of the workers' wishes in elections. These persons, the Government continued, were placed at the disposal of the appropriate ordinary courts of law which then decided on their release. As for the arrest of Severino Arias, this-the Government said-was not due to labour disputes but to political activities; when the facts regarding him had been cleared up he was released within 72 hours. Félix Martin, it continued, had never been arrested. Lastly, as regards Adolfo Jiménez Garaygordobil and Antonio (not Saturnino) Landa, their arrest was due to violence on their part against another person in a bar; and Juan José Palacios Corral (not Palacios Gallo) was arrested because he had been reported for threats and improper behaviour towards public servants, whereupon he was fined 50 pesetas and privately admonished by the magistrate.
  296. 296 With regard to the members of the workers' committee of Vizcaya the Committee observes that there appears to be a contradiction between the statements of the complainants in their letter dated 15 May 1964, which coincided with a statement by the Government to the effect that the individuals concerned had been released (by order of a judge, according to the Government), and the statement made by the complainants in their letter of 29 October 1964 to the effect that on 16 October of this year the Special Law and Order Court had sentenced each of these individuals to six months' imprisonment. Nor can the Committee understand the Government's statement to the effect that these persons were arrested for taking part in unlawful acts with the object of preventing the free expression of the workers' wishes in elections. Accordingly the Committee recommends the Governing Body to ask the Government to forward its observations on these points, together with the text of the sentences, if any, imposed on these persons and the reasons therefor, and to decide in the meantime to postpone its examination of this aspect of the case.
  297. 297 As for Severino Arias, the object of his arrest was to clear up certain doubtful matters and he was released after 72 hours. Félix Martin was never arrested. As for the three persons arrested in connection with the Vizcaya strikes, the Committee observes that they were charged with ordinary offences apparently unrelated to trade union activities. In these circumstances the Committee recommends the Governing Body to take note of the Government's explanations regarding the persons mentioned above and to decide that this aspect of the case does not call for further examination.
  298. 298 In its communication of 15 May 1964 the I.F.C.T.U stated that, because of the demonstrations called by the underground trade union organisations to celebrate May Day, eight workers were arrested at Bilbao and seven at San Sebastián. The I.C.F.T.U and the I.F.C.T.U stated in their letter of 2 June that some days before May Day six persons were arrested on a charge of organising the demonstrations intended on that day, and that after the demonstrations 17 workers who had taken part were imprisoned. The complainants mention the names of some of the persons so arrested.
  299. 299 In its letter of 14 October 1964 the Government stated that all the above persons had been released; of the seven arrested at San Sebastián according to the I.F.C.T.U, four were students and three employees of a railway company; they had never been arrested, but had only been ordered to come to the police station and make statements regarding the so-called May Day demonstration; the three railwaymen had been fined in accordance with the law for disturbing the peace; appeals against the fines could be taken to the administrative courts.
  300. 300 The Committee has consistently drawn attention to the importance it has always attached to the fact that freedom from government interference in the holding or proceedings of trade union meetings constitutes an essential element of trade union rights, as well as to the principle that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof.
  301. 301 In the present case the Committee observes that all the persons to whom the complainants refer in connection with the May Day demonstrations are now at liberty, although some of them were fined for infractions of law. In these circumstances the Committee recommends the Governing Body, mindful of the reservations expressed in paragraph 300, to decide that this aspect of the case does not call for further consideration.
• Allegations respecting the Arrest of Workers in Connection with the Strikes of 1964
  302. 302 In their communication of 2 June 1964 the I.C.F.T.U and the I.F.C.T.U stated that a number of persons had been arrested at Bilbao and charged with promoting the ten-minute strike of 10 October 1963 in support of the 52 workers dismissed during the strikes of 1962; also that 12 workers had been arrested because of a strike at Sabadell early in May 1964. In its letter of 3 September 1964 the W.F.T.U mentioned the names of 25 workers who had, it said, been arrested by reason of the strikes in the Asturian mines in May and June 1964.
  303. 303 In its communication of 14 October 1964 the Government stated that, of the persons mentioned by the I.C.F.T.U and the I.F.C.T.U in connection with the ten-minute strike of 10 October 1963, only the following were still detained: Francisco Iturrioz Herrero, Alejandro Echevarria Arrazola, Juan Nicolás L de Ituino, Rafael Basurto Zuburruti, Eraclio Otaola Sáinz, Jesús Aspuro Zarandona, Kepa Embeita Ealo, Juan José Galbarriutu Berriatúa and José Barañano Berganza. These persons had been placed at the disposal of the competent ordinary courts of law not for promoting a ten-minute strike but because they were involved in the secret activities of an underground terrorist organisation which had prepared many acts of sabotage, including one against a passenger train, and several bomb outrages. It was, the Government said, for the court of law to determine whether an offence had been committed and to acquit or convict accordingly.
  304. 304 As for the persons arrested because of a strike at Sabadell, the Government continued, all of these had been released except Domenech Ferrer and Norberto Orovitch, against whom proceedings were being taken for political activities. Lastly, as regards the 25 arrested persons to whom the W.F.T.U had referred, most of these were at the disposal of the competent civilian courts, charged with secret and unlawful political activities and unlawful association.
  305. 305 On many occasions in the past where allegations that trade union leaders or workers had been arrested or detained on account of trade union activities have been met by governments with statements that the arrests or detentions were made for subversive activities, for reasons of internal security, or for common law crimes, the Committee has followed the rule that the governments concerned should be requested to submit further and as precise information as possible concerning the arrests or detentions, and the exact reasons therefor. If in certain cases the Committee has concluded that allegations relating to the arrests or detentions of trade union militants did not call for further examination, this has been after it has received information from the governments showing sufficiently precisely and with sufficient detail that the arrests or detentions were in no way occasioned by trade union activities but solely by activities outside the trade union sphere which were of a political character.
  306. 306 Moreover in the past the Committee has always followed the practice of not proceeding to examine matters which were the subject of pending national judicial proceedings where such proceedings might make available information of assistance to the Committee in appreciating whether or not allegations were well founded. In many cases the Committee has requested the Government to communicate the text of the judgments given and their grounds.
  307. 307 In these circumstances the Committee must continue the practice followed in similar cases and it therefore recommends the Governing Body to request the Government to communicate the texts of any judgments given and their grounds, and to decide that consideration of this aspect of the case shall meanwhile be deferred.
• Allegations respecting the Arrest of Mr. José María Rodríguez Manzano
  308. 308 In their communication of 3 July 1964 the I.C.F.T.U and the I.F.C.T.U refer to the imprisonment of José Maria Rodriguez Manzano who had been arrested in Pamplona on 25 May and later transferred to Martutene prison in San Sebastian. In reply to the questions of the police Mr. Rodriguez Manzano had declared that he belonged to the free trade union organisation " Solidaridad de Trabajadores Vascos " (S.T.V.) and had done publicity and propaganda work for that organisation in 1960 and 1961. He had been Secretary of the organisation at one time and a member of the provincial committee for Guipúzcoa. He further declared that he had undertaken several missions to France to contact trade unionists of the S.T.V in exile and had taken part in the establishment and activities of the Trade Union Alliance (U.G.T.-C.N.T.-S.T.V.). He had worked in close co-operation with representatives of the U.G.T and the C.N.T and had helped to prepare the demonstration that took place on 1 May 1964 and the strikes of 14 May 1964 at Bilbao. Finally he admitted having distributed 43,000 pesetas among strikers and their families.
  309. 309 In another joint communication dated 29 July 1964 the complainants stated that Mr. Rodriguez Manzano had appeared before a Special Law and Order Court on 24 June and had been transferred to the Madrid provincial prison. With their complaint the organisations sent an extract from the Court records regarding the trial; this declares that Mr. Rodriguez Manzano is a member of the clandestine organisation " Solidaridad de Trabajadores Vascos " which foments social agitation, and that he illegally entered Spain from France on 13 May 1964; it declares further that the acts in question constitute the offence of unlawful association, punishable under sections 173 (2) and 174 of the Penal Code, and illegal entry into Spanish territory which is punishable under section 1 of the Act of 22 December 1949-also a Penal Code provision. Having regard to the above Acts and in conformity with section 9 of the Act of 2 December 1963, the accused was sentenced to temporary imprisonment.
  310. 310 In its communication dated 14 October 1964 the Government states that Mr. José Maria Rodriguez Manzano was in fact arrested on 25 May 1964 because an order for his arrest had been in existence since 20 June 1962, when it was issued by the Civil Governor of Guipúzcoa. His arrest was due to the circumstances surrounding his activities as a leader of the " Solidaridad de Trabajadores Vascos ", a clandestine organisation which is purely political and not trade union in character, and also to the fact that he fled from his home and surreptitiously crossed the frontier into France. Once he was abroad he continued to engage in political and social agitation in Spain by acting as a link between the leaders of this clandestine organisation abroad and the groups operating illegally in Vizcaya and Navarra. On returning to Spain (also illegally) he made contact as the representative of the " Solidaridad de Trabajadores Vascos " with the so-called Trade Union Alliance (which is also a clandestine organisation) and concerned himself with political activities and social agitation. According to a statement made by Mr. Rodriguez Manzano himself he was responsible for producing the publication of Lan-Deya in France and distributing it in Spain. He also declared that he had illegally brought 50,000 pesetas into the country which he had received from foreign political organisations to meet the costs of agitation in Spain. The Government adds that it is worth noting that while abroad Mr. Rodriguez Manzano was in touch with senior members of the I.C.F.T.U and the I.F.C.T.U and that the latter organisation in fact paid him a monthly allowance of 6,000 pesetas for two years.
  311. 311 The Government also states that after his arrest he was taken to San Sebastián, where his interrogation was continued. Once this was completed the case was referred to the Civil Governor, who ordered it to be submitted to the Special Law and Order Court because there was a presumption that the acts with which he was charged were criminal in character. Mr. Rodriguez Manzano is now awaiting trial by the Court and since the matter is still sub judice it is impossible at present to prejudge the outcome of the case.
  312. 312 The Committee observes that the complainants refer exclusively to trade union activities on the part of Mr. Rodriguez Manzano such as the fact that he belonged to a trade union organisation called the " Solidaridad de Trabajadores Vascos "; that he took part in the establishment and activities of the Trade Union Alliance; that he worked in co-operation with the U.G.T and C.N.T unions; that he helped to organise the May Day demonstration and the strikes that took place in May 1964 in Bilbao; that he distributed money among the strikers, etc. The Government for its part insists that the activities in which Mr. Rodriguez Manzano engaged were political in character and describes the " Solidaridad de Trabajadores Vascos " as a political organisation; it quotes the accused's activities as a link between the " Solidaridad de Trabajadores Vascos " and the Trade Union Alliance (a clandestine organisation) which is stated to engage in political and trade union agitation. It also refers to the fact that he crossed the frontier illegally, brought in 50,000 pesetas supplied by foreign political organisations to finance agitation in Spain and produced and distributed a publication. Lastly the Government refers to the contacts between Mr. Rodríguez Manzano and the leading members of the I.C.F.T.U and the I.F.C.T.U. It would appear, therefore, that the complainants and the Government agree on some of the facts in the case concerning Mr. Rodriguez Manzano but that the former regard these actions as trade union activities, whereas the Government describes them as political.
  313. 313 One of the facts mentioned by the Government is that Mr. Rodriguez Manzano made contact during his stay outside Spain with leaders of the I.C.F.T.U and the I.F.C.T.U and received a monthly allowance from the latter organisation. In this connection the Committee points out that it is a generally accepted principle that national trade union organisations are entitled to affiliate with international organisations of workers and employers and it recalls, as it has in many earlier cases, that this right normally carries with it the right of national organisations to maintain contact with the international organisations with which they are affiliated and to participate in their work.
  314. 314 Bearing these circumstances in mind the Committee considers that in order to form its conclusions with a full knowledge of the facts it would be helpful if it could learn the facts and reasons which led the Government to regard as political the activities of Mr. Rodriguez Manzano and the organisations to which he belongs, in contradiction to what would appear to emerge from the statements of the complainants, namely that the activities and organisations with which he was concerned were clearly of a trade union character.
  315. 315 On 29 October 1964 the complainants sent in a further letter stating that on 17 October Mr. Rodriguez Manzano had been tried by the Special Law and Order Court in Madrid and sentenced to three-and-a-half years' imprisonment and a fine of 10,000 pesetas. The complainants added that they hoped to send a copy of the verdict shortly. The Government was informed of this communication on 4 November 1964 but its observations have not been received. The Committee considers that it should follow the practice referred to above in paragraph 306 and accordingly recommends the Governing Body to request the Government to be good enough to forward a copy of the verdict (if any) and of the reasons adduced therein, together with any other information that may be helpful to the Committee having regard to the considerations set forth in paragraph 314 above, and to decide in the meantime to postpone its examination of this aspect of the case.
• Allegations respecting the Non-Reinstatement of Workers Dismissed in Connection with the Strikes of 1962
  316. 316 In the joint complaint by the I.C.F.T.U and the I.F.C.T.U dated 28 April 1964 it is stated that, after two years of fruitless negotiations with the trade union and governmental authorities, the 52 workers dismissed during the strikes of 1962 had still not been reinstated. The complainants refer again to these 52 dismissed workers in their communication of 3 July 1964, in which they also transmit a copy of the letter sent to the provincial trade union delegate by the members of works committees and shop stewards of Vizcaya, in which they ask him to call a meeting of committee men and stewards with a view to discussing, inter alia, the dismissal of workers in connection with the strikes of 1962. That letter was dated 6 May 1964.
  317. 317 In its communication of 11 June 1964 the Government said that, of the 52 workers in question, 48 were working as usual and only four were still unemployed; these four had not been denied reinstatement, but they themselves had refused it. Moreover, the Government continued, there was nothing strange in the fact that firms should terminate the contracts of workers who left their posts suddenly, without notice or reason, and without making use of the prescribed procedures; this was a case of termination of an engagement by one party because of non-fulfilment of the obligations contracted by the other; the authorities had stepped in and offered their good offices so that the companies might reinstate workers whose contracts had been terminated; only in 52 cases of obvious lack of labour discipline had it been impossible to overcome the employers' opposition to reinstatement of the workers, all of whom except four were reabsorbed in allied industries.
  318. 318 In these circumstances the Committee refers to the contents of paragraphs 326 to 329 below.
• Allegations respecting the Dismissal and Lay-Off of Workers, and the Fining of Undertakings and Workers, by Reason of the Strikes of 1964
  319. 319 In their communication of 2 June 1964 the I.C.F.T.U and the I.F.C.T.U referred to mass dismissals during the mining strikes in the Asturias in 1964. The complainants stated that the authorities inflicted fines on the workers as a means of repression. The trade unions, which were said to do nothing to defend the workers' interests, had been entirely ignored by the workers; the latter had set up their own committees and appointed their own representatives to negotiate directly with the employers and the authorities. In their communication of 3 June 1964 the complainants mention other undertakings in which many dismissals and lay-offs (without pay) had occurred. The W.F.T.U for its part also refers to the many dismissals during the strikes in the Asturian mines in May and June 1964 and says that the men affected included members of works committees.
  320. 320 In their communication of 3 July 1964 the complainants also alleged that in the province of Guipúzcoa several undertakings had closed down, the closures being imposed by the government authorities; for instance a fine of 500,000 pesetas and closure were imposed on Industrias Españolas S.A. because the undertaking, " instead of making use of the facilities available to it under the Decree of 20 September 1962, yielded to the coercive appeals of the workers regardless of the resultant damage to its own authority and possible labour repercussions ". Explaining the case the Civil Governor had said that " A collective labour dispute arose in the undertaking without any preliminary claim being put forward by the staff and as a result the intervention of the authorities (both governmental and labour) was sought. This dispute ended with the concession of an increase in wages. No account was taken of the statutory procedure to be followed in such cases, or of the facilities provided for the purpose, but a claim was met which, being the result of compulsion, violates the principles of labour authority and its discipline."
  321. 321 In its communication of 14 October 1964 the Government stated that the undertakings had made moderate use of the powers given to them by current legislation; there had been no dismissals for non-compliance with the Decree of September 1962 until several warning periods had expired and it had been publicly announced that persistence in unjustified absence from work would have that result; only then had some undertakings terminated some of their employees' contracts. It should be pointed out, the Government adds, that the workers alleged to have been dismissed had deliberately deserted their posts and not returned to work within the periods allowed to them; some had even stated that they did not want to resume their jobs. Workers had abandoned their work without taking any account of the statutory rules for the settlement of labour disputes, with the result that some undertakings had been obliged to rescind contracts with their customers; the undertakings in question had therefore been obliged to leave some workers without employment. Furthermore, all these persons had found work in other establishments with the help of the authorities and the trade unions; some had gone abroad. The Government explained that in some special cases workers had been dismissed for refusing to do jobs to which the Sunday rest did not apply or deliberately reducing their output.
  322. 322 As regards the fines imposed on workers the Government explained that these were in application of the Disturbance of Public Order Act; as regards the closing of work places in Guipúzcoa, the Government stated that this had occurred because the undertakings in question had contravened labour legislation.
  323. 323 The Committee observes that, as in previous cases relating to strikes in Spain, the complainants allege many dismissals to have occurred in connection therewith. The Government refers in its explanation to certain special cases in which dismissal appeared to be entirely proper and also in general to the legal grounds for large-scale dismissals, i.e. the failure of the workers to return to their work and deliberate desertion of their posts without regard to the laws and regulations concerning labour disputes. In some cases, the Government says, the undertakings had to refuse to reinstate workers for reducing output; and there were some workers who did not wish to be reinstated. As a new element the Committee notes that in the 1964 strikes the workers had been fined, according to the Government, for disturbing the peace.
  324. 324 Fines have also been inflicted on undertakings, and undertakings have been ordered to close because they directly granted wage increases to workers who had declared a dispute to exist without following the procedure laid down in Decree No. 2354 of 20 September 1962 respecting statement of claims, conciliation and arbitration in collective labour relations. This decree states that, if a dispute arises without observance of the procedures provided for therein, further action must be left to the authorities, in which case persons taking part in the dispute can be dismissed. Procedures started under the decree are suspended and the dispute is considered settled if the parties reach agreement through the trade union organisation and it is approved by the labour authority.
  325. 325 The Committee observes that the many dismissals during the strikes to which the allegations refer did not follow the procedure laid down in Decree No. 2354. Accordingly, the dismissals are legal and result from infringement of the decree, which provides certain compulsory channels for making claims regarding conditions of employment. Moreover, the Committee has already pointed out that, although the said decree contains certain guarantees for the protection of workers' rights in collective disputes, there has been no change in the fact that Spanish legislation may be interpreted as providing for the absolute prohibition of strikes. Indeed, under that legislation, if claims are presented while an agreement is in existence, and if conciliation fails, the next stage is compulsory arbitration or judgment by a labour court; and if the claims are presented when no agreement is in existence, and no direct agreement is reached after conciliation, the dispute is settled by administrative decision, arbitration with compulsory award by the labour authority, or judgment by the labour court.
  326. 326 The consequence is that, if the workers are to be protected against dismissals by reason of a labour dispute, they must comply with the procedures laid down by legislation; accordingly, they are debarred from having recourse to a strike in support of their demands. In other words they face the alternative of keeping their jobs and not going on strike, or striking and incurring the risk of lawful dismissal. Moreover, under the legislation, any agreement which may be reached between the employer on the one hand and the trade union (the only permissible partner) on the other, and any collective agreement, requires the approval of the authorities.
  327. 327 The Committee has always a applied the principle that allegations relating to the exercise of the right to strike are within its competence in so far as they affect the exercise of trade union rights; and it has often noted that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised. Where legislation has directly or indirectly placed an absolute prohibition on strikes the Committee on Freedom of Association has endorsed the opinion of the Committee of Experts on the Application of Conventions and Recommendations to the effect that such a prohibition may constitute an important restriction of the potential activities of trade unions, which would not be in conformity with the generally recognised principles of freedom of association. The Committee has also pointed out that the requirement of previous governmental approval before a collective agreement can be put into effect is contrary to the whole principle of voluntary collective bargaining.
  328. 328 The Committee feels that it might be useful if the Government were to consider to what extent some of the occurrences mentioned in the frequent complaints in connection with collective disputes in Spain, such as the large-scale dismissals and lay-offs and sudden stoppages by the workers, may be the result of the present legislation concerning collective disputes and collective bargaining.
  329. 329 In these circumstances the Committee can only repeat what it has already stated on previous occasions. It therefore recommends the Governing Body:
       • (a) to point out to the Government the importance of the principle that trade unions should have the right, by collective bargaining, to attempt to improve the living and working conditions of their membership and that the authorities should refrain from any interference which would either limit this right or, in certain cases, hinder the settlement of labour disputes;
       • (b) to remind the Government once more-since the Committee has always applied the principle that allegations regarding the right to strike lie within its competence in so far as they affect the exercise of trade union rights-that present Spanish legislation on strikes appears to lead in fact to the absolute prohibition of strikes, which would not be in harmony with generally accepted principles concerning freedom of association; and to suggest to the Government that in these circumstances it might wish to consider the desirability of submitting to the competent national authorities proposals for appropriate amendment of this legislation.