Rapport définitif - Rapport No. 233, Mars 1984

1. 75. The complaint is contained in a communication from the State Confederation of Medical Trade Unions (CESM) dated 23 May 1983. The CESM sent additional information in communications dated 24 June 1983 and 6 February 1984. The Government replied in a communication dated 10 October 1983.
2. 76. Spain has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 77. The State Confederation of Medical Trade Unions (CESM) alleges that on 25 March 1983, in accordance with the provisions of the Spanish Constitution, Act 8/80, to promulgate a Worker's Charter, dated 10 March 1980, Royal Legislative Decree 17/77 dated 4 March 1977 and Royal Legislative Decree 156/79 dated 2 February 1979, a strike was declared on 19, 20, 21, 22, 26, 27, 28 and 29 of April 1983 by the social security medical staff and staff of clinics, provincial hospitals and medical centres grouped together, administered and supported under the social security system throughout the Spanish territory, and that all the procedural requirements set forth in the above-mentioned regulations regarding advance notice had been complied with. In the same way, on 16 April 1983 the Confederation proposed a minimum number of staff to guarantee the coverage of medical services during the period of the strike, given the public service character of the health service. The National Institute of Health, which is the Spanish administrative body responsible for the staff who had been called to strike, in a communication dated 18 April 1983 which referred to the regulations in force in Spain with regard to strikes (and in particular the ruling of the Constitutional Court of 8 April 1981 which is considered of fundamental importance to the definition and scope of the right to strike and the interpretation of section 28.2 of the Spanish Constitution of 1978), informed the CESM that in their view the establishment of minimum essential services during the period of the medical strike was the responsibility of the governmental authority.
2. 78. In communications dated 18 April 1983 from the CESM to the National Institute of Health and to the Civil Governor of Madrid, the Confederation requested the Government to determine the corresponding minimum number of staff required to provide services during the medical strike, without prejudice to the actual holding of the strike and the exercise of the doctors' right to strike, but with account being taken of their obligation to respect the rights of citizens using the services affected by the strike to health and health care.
3. 79. The complainant points out that, notwithstanding the above, the strike which had been called took place before negotiations between the parties could result in a satisfactory agreement, and that on 27 April 1983 a further strike was called for 10, 12, 17 and 19. May. Once again the procedural requirements prescribed by the regulations in force were complied with, without the governmental authority establishing the minimum number of staff required or which staff members should be required to work, despite the requests made, as during the previous strike, to the responsible authority.
4. 80. However, the CESM adds that as regards the province of Madrid, it appears that one member of the CESM who was on strike, but not the strike committee nor any member of the trade union organisation, received a photocopy of the communication from the Civil Governor of Madrid to the Provincial Director of the National Institute of Health (INSALUD) of Madrid, which established the specific minimum number of professional and auxiliary staff to be covered by the doctors assigned to the out-patient (ambulatory) institutions of INSALUD during the strike. Without prejudice to the fact that the minimum number of staff established in this communication may hinder the exercise of the right to strike by establishing that the attendant functional unit in out-patient institutions is constituted by each doctor, and that each and every doctor in the out-patient institutions must perform minimum services, it is incontestable that the actual non-communication of the resolution in question either to the strike committee or the doctors called upon to strike presupposes a de facto limitation and infringement of the right to strike, and constitutes a serious failure by the administration to perform its obligations in disputes of this nature. This failure must furthermore be considered intentional in as far as there was in fact interference by some executive bodies of the hospital and out-patient centres. In an arbitrary manner and according to the whim of each management or official responsable for the different units, and depending upon the district or province concerned, notices were posted up establishing the minimum number of staff to be covered and the contents of which varied haphazardly according to the geographical location of the centre. This appeared to be more a form of strike breaking by the administration than the uniform fixing of the scope of the strike throughout the Spanish territory.
5. 81. As regards out-patient (ambulatory) institutions the CESM. points out that the governmental authority had stipulated in particular the following points. (the complainant does not specify the province to which these points apply)
6. "1. Home visits: all requests for home visits must be followed up.
7. 2. The management of the centres in question will notify, as a matter of the greatest urgency, and in the name of this Civil Government, each and every employee, on an individual and authentic basis, assigned to provide the minimum services covered by this Resolution, with copy of the notification being sent to this Civil Government."
8. 82. With regard to the first point, the complainant continues that such an obligation clearly does not correspond to what should be understood by minimum service which ought, as is the usual practice, to mean exclusively emergency services. What is more, even the formal assignation which, as stated in paragraph 2 above was ordered by the Civil Government itself was not respected, a situation which in the provinces gave rise to criteria whereby absolutely all the out-patient doctors were assigned to minimum services and required to be present and provide their nominal work services. ,
9. 83. Finally, the complainant states that Spanish legislation and labour practice does not provide sufficient protection and guarantees for cases in which some degree of restriction of the right to strike would be compatible with the law, as in the case of doctors. Thus there is no adequate, impartial and rapid mechanism for conciliation and arbitration in which those concerned could participate at every stage, with the result that the doctors of the social security health institutions find themselves without any defense against the Spanish administration.
10. 84. In its communication of 6 February 1984, the CESM. supplies a copy of the judgment of the Territorial High Court of Madrid (Fourth Court), dated 23 November 1983, relating to the minimum services to be maintained during the strike called by the CESM for several days in April 1983.

B. The Government's reply

1. 85. The Government states that, on 18 April 1983, the State Confederation of Medical Trade Unions requested from the competent governmental authority the establishment of the corresponding minimum number of medical staff whose attendance was required during a strike which had been called for the 19, 20, 21, 22, 26, 27, 28 and 29 April, with the complainant organisation stating that it had submitted to the provincial management of the National Institute of Health (INSALUD) a detailed report on the minimum numbers to be established. However the organisation in question had not transmitted to the governmental authority (the Civil Government) any sufficiently detailed proposal regarding the minimum services to he fixed.
2. 86. The Government adds that the Civil Government of Madrid, taking into account the great urgency of the time limits involved and the measures to be established acted, both before and during the strike, not only on the basis of written information but also through verbal proposals made by the provincial management of INSALUD, a technical body that is fully aware of the existing situation and which had furthermore already analysed what necessary minimum services would he required, in agreement with the management of the hospital centres affected and their strike committees.
3. 87. The Government continues that petitions were successively received by the Civil Government from the management of specific hospital centres requesting the establishment of minimum services and, in the same way, in some cases the petitions were received directly from the provincial management of INSALUD. As regards the former, the petitions were duly submitted, as indicated above, to the provincial management of INSALUD for information and action. Logically, minimum services were established only in those centres which were significantly affected by the strike. Thus the resolutions of the Civil Government to establish minimum services were issued in pursuance of the concrete proposals which were formulated and with account being taken of the real repercussion of the strike in the different centres and, in any case, in direct contact with the provincial management of INSALUD. The Government sends photocopies of the resolutions under which the minimum services were established and, prior to their implementation, the governmental authority in each case informed the provincial management of INSALUD, the provincial labour management and the management and strike committees of the centres affected, all of whom, according to the Government, the Civil Government had insisted should be notified.
4. 88. Finally, the Government points out that the conduct of the competent governmental authority was at all times based on the objective of maintaining the essential medical services in operation in extremely serious circumstances such as those requiring the provision of the health services to which all citizens are entitled.

C. The Committee's conclusions

1. 89. The Committee observes that in the present case the complainant organisation has presented a series of allegations regarding the establishment and content of the minimum services to be maintained during the strikes which were called in April and May of 1983 by medical staff and regarding the failure to present formal notification of the content of such minimum services to the strike committee and the doctors who were called upon to strike.
2. 90. First, the Committee would like to point out that some of the allegations concerning the establishment and content of the minimum services have not been framed with sufficient clarity or contain contradictions. Thus, although the complainant organisation has alleged that there was interference on the part of some management bodies of the hospitals and out-patient centres which resulted in the establishment of minimum service requirements which differed in content according to the district or province concerned, no concrete examples or additional clarifications have been given in this respect.
3. 91. The complainant organisation appears to contradict itself when it states that, in the strikes which it convened, no minimum services were established by the governmental authority; it then, however, goes on to indicate the content of the minimum services established by the governmental authority of Madrid (the obligation of each and every doctor to perform minimum services) and to point out that the content of the minimum services differed according to the district and province concerned.
4. 92. In the circumstances, the Committee will confine its examination to the content of the minimum services established for the province of Madrid and the allegation concerning the failure to notify formally the strike committee and the doctors called upon to strike.
5. 93. As regards the first point, namely the requirement prescribed by the governmental authority that during a strike of medical staff each and every doctor in the out-patient institutions must perform minimum services, the Committee notes that the judgment of the Territorial High Court of Madrid, dated 23 November 1983, decided on "the partial non-conformity with the right to strike recognised in the Constitution of the Instructions of the National Institute of Health which were published on the notice boards of the Open Health Institutions of Madrid (out-patients/ambulatory) due to the strike called for the 19, 20, 21, 22, 26, 27, 28 and 29 April 1983, given that they require each and every doctor to fulfil the minimum in respect of his corresponding share".
6. 94. As regards the allegation that the minimum services to be provided had not been formally notified to the strike committee or the doctors called upon to strike, the Committee notes that the Government has stated that at all times the Civil Government required that the strike committees of the centres affected should be notified of the introduction of minimum services. This statement is confirmed in the communication dated 9 May 1983 from the Civil Government to the Provincial Director of INSALUD, which both the Government and the complainant organisation send in the annex to their communications. However, the Committee is not in possession of sufficient information to allow it to determine whether the strike committee was in fact formally notified or not. On the other hand, the Committee observes that in referring to the strike over several days in April 1983, the judgment of the Territorial High Court of Madrid dated 23 November 1983 held that the Instructions of the National Institute of Health which were posted on notice boards in the Open Health Institutions did not conform with the right to strike recognised in the Constitution since these Instructions were given publicity only on 21 April 1983 whereas the strike had commenced on the 19th.
7. 95. In these circumstances, the Committee expresses the hope that when doctors strike in out-patients/ambulatory institutions, the authorities will fully take into account the criteria set out in the judgment of the Territorial High Court of Madrid dated 23 November 1983 concerning the minimum services to be maintained. The Committee would point out generally that it is important for provisions regarding minimum services in the event of a strike in an essential service to be established clearly, to be applied strictly and to be made known to those concerned in due time.