Rapport définitif - Rapport No. 239, Juin 1985

1. 30. By a communication dated 11 July 1984, the Professional Association of Municipal Health and Welfare Employees presented a complaint of violation of trade union rights in Spain. On 4 August 1984 the complainant organisation transmitted additional information in support of its complaint. The Government sent its observations in communications of 1 and 4 February and 26 April 1985.
2. 31. Spain has ratified the Freedom of Association and the Protection of the Right to Organise Convention, 1948 (No.087), the Right to Organise and Collective Bargaining Convention, 1949 (No.098), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant's allegations

1. 32. In its complaint the Professional Association of Municipal Health and Welfare Employees explains that it is a lawfully constituted trade union organisation with legal personality. On 15 March 1984, in accordance with the provisions of the Spanish Constitution, Act No. 8/80 of 10 March 1980 concerning the Workers' Statute, Royal Legislative Decree No. 17/77 of 4 March 1977 and Royal Legislative Decree No. 156/79 of 2 February 1979, the Association gave notice that it would call a strike in the District of the Madrid Municipality for the period 29 March to 2 April 1984.
2. 33. On 5 May 1984, a list of services regarded as constituting the minimum - which, in the health sector, covered the services of physicians in their entirety - was established by Municipal Order. In the view of the complainant organisation the Municipality of Madrid had thus denied the right to strike by voiding it of its substance. Furthermore, the Association claims, this decision is in contempt of a Constitutional Court ruling of 8 April 1981 and a judgement handed down by the Madrid Territorial Court on 21 November 1983.
3. 34. The complainant organisation attaches to its communication of 4 August 1984 the bulletin of the Municipality of Madrid containing the Order, which lays down that the entire personnel of "health and surgery centres" are deemed to be providing essential services in the health sector. The complainant explains that there are 18 health centres in Madrid, each with a physician, a medical assistant and two surgical teams, each consisting of three surgeons and three medical assistants. In four of these centres the number of personnel has been doubled to deal with emergency cases. A maternity home, a centre for specialist treatment and a preventive medicine centre are also operating.
4. 35. Finally, the complainant organisation considers that, although the right to strike in the health sector should be subject to restrictions, it is difficult to justify the claim that the full staff complement of a preventive medicine centre represents an essential service.

B. The Government's reply

1. 36. In its communication of 1 February 1985, the Government states that health services regarded as minimum services are those whose interruption would cause serious harm to citizens. According to the Government, only 207 physicians of the 378 employed in the four sectors of the medical and health services of the Municipality of Madrid were affected by this measure.
2. 37. In its communication of 4 February 1985, the Government encloses the observations of the Municipality of Madrid on the allegations made in the complaint. According to this comunication, the general criterion followed by the Municipality, in accordance with the Constitutional Court ruling of 8 April 1981, has been to respect the right of workers to defend their interests through the use of a means of pressure; this right must, however, be restricted when its exercise prevents or seriously impedes the functioning of what the Constitution refers to as "essential community services". In such cases the right of the population to benefit from these vital services takes precedence over the right to strike. In the present case, the Municipality defined minimum services with reference to the accident statistics, the need for emergency surgery and the care to be given to persons who do not enjoy the protection of the social security system or other health facilities.
3. 38. The Municipality of Madrid states that, contrary to the assertions of the complainant, no special order was published in connection with the strike called by the Professional Association of Municipal Health and Welfare Employees. Minimum services are regulated by two Municipal Orders of 16 March and 5 April 1984. In accordance with these Orders, the number of persons liable to provide minimum services was 354 out of 480 in emergency health services and 153 out of 285 in secondary services. No member of the staff of the preventive medicine and social welfare and advancement sections was affected.
4. 39. The Municipality observes that the effect of the strike was nil, since no absences from work were noted, and the workers responsible for ensuring the minimum service showed no sign of working to rule, as had been recommended by the complainant association.
5. 40. Finally, in a communication of 26 April 1985, the Government states that according to the Constitution and Act on local statutes, the municipalities enjoy full autonomy. The measures taken by the Municipality of Madrid fall within its own responsibility.

C. The Committee's conclusions

1. 41. The Committee observes that the present case relates to the definition of minimum services to be ensured in the event of a strike in the health and welfare services of the Municipality of Madrid. The complainant organisation considers that it was unable to exercise its right to strike because the Municipality regarded the entire staff of these services as being being under the obligation to provide minimum services. On the other hand, the statistics provided by the Government show that only part of the medical staff were compelled to provide them. In particular, it is clear from these figures that no member of the staff of the preventive medicine and social welfare sections was obliged to work.
2. 42. In cases involving restrictions on the right to strike, the Committee has considered that recourse to strike action is a legitimate means that must be available to workers and their organisations for the promotion of their economic and social interests. However, the Committee is of the opinion that recourse to strike action may be restricted - or even prohibited - in essential services in the strict sense of the term, namely services whose interruption would endanger the life, personal safety or health of the population. (See, for example, 238th Report, Case No. 1295 (United Kingdom/Montserrat), para. 168.) Restrictions in such services should be offset by adequate, impartial and speedy conciliation and arbitration procedures in which the parties concerned can take part at every stage.
3. 43. The Committee has examined the Spanish legislation relating to the right to strike. It notes that section 10 of Royal Legislative Decree No. 17/1977 allows the authorities to take the necessary steps to ensure the operation of services in undertakings responsible for providing public or recognised essential services or services of immediate necessity when the attendant circumstances are particularly serious. In a ruling of 8 April 1981, the Constitutional Court, in interpreting section 10, held that the services to be maintained are essential services and that the provision empowers the government authorities to take the necessary steps to ensure the operation of minimum services. Moreover, the Royal Legislative Decree contains provisions - in sections 17 to 26 - for the possibility of resorting to conciliation and arbitration procedures in the event of collective labour disputes.
4. 44. Since the restrictions imposed on the right to strike in the present case relate to the hospital sector, which it has always regarded as essential (see, in particular, 199th Report, Case No. 910 (Greece), para. 117), the Committee considers that the principles of freedom of association have not been infringed in this instance. The Committee also observes that if the complainant organisation considered that the Municipal Order laying down the minimum services to be ensured conflicted with the Constitution and the law of the land it could have appealed to the national courts. However, from the information in the Committee's possession, it does not appear that any appeal was presented. The Committee accordingly considers that this case does not call for further examination.