Rapport définitif - Rapport No. 248, Mars 1987

1. 24. The complaint is contained in a communication of the Municipal Welfare and Health Workers' Union dated 28 November 1985; new allegations were sent by this organisation in communications dated 12 November and 2 December 1986. The Government sent its observations in communications dated 31 October 1986 and 9 January 1987.
2. 25. 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. 26. The Municipal Welfare and Health Workers' Union (SIBESA) alleges that its president, Mr. Angel Zurbano Sastre, who is also a trade union delegate of the Confederation of Independent Trade Unions (Central Sindical Coalición de Independientes), and who held the post of medical inspector of the fire brigade, was transferred from his post on 18 October 1985, with a change in work schedule (he used to work a flexible schedule).
2. 27. The complainant organisation adds that the transfer runs counter to article 53 of the collective agreement in force and was carried out purely for trade union reasons. Thus, although the transfer was said to have been carried out owing to requirements of service, the reason appears to be Mr. Zurbano's having attended a meeting of firemen. According to the complainant organisation, the doctor who formerly worked the shift now worked by Mr. Zurbano now occupies the latter's former post as inspector of the fire brigade.
3. 28. The complainant organisation further alleges that Mr. José Luis Palomino Fernández, General Secretary of SIBESA and a delegate of the National Workers' Force (Fuerza Nacional del Trabajo), was dismissed from his post as surgeon of the Madrid City Council because of his militant trade union activities. The complainant organisation states that politicians in the Madrid City Corporation found his trade union activity in the Madrid City Council a nuisance. In August 1986 a decree of the Mayor of Madrid, on the basis of a decision of the General Inspectorate of Services attached to the Ministry of the Presidency, stated that there was incompatibility of functions. Both the Mayor's decree and the decision of the General Inspectorate of Services were invalid, since it is for the city corporation to rule on incompatibility of functions.
4. 29. The above-mentioned trade union delegate lodged two appeals for reinstatement against the Madrid City Council and the General Inspectorate of Services (the complainant organisation encloses copies of these appeals). The Madrid City Council did nothing about the matter and the General Inspectorate of Services stated that the trade union delegate had not exercised his option for a working post as provided in the law on incompatibility. This is not true, since the trade union delegate did exercise his option, both in the Madrid City Council and in the General Inspectorate of Services, in the sense that the post he opted for was that in the Madrid City Council. In effect, the General Inspectorate of Services rejected the appeal for reinstatement on the basis of false allegations, since the trade union delegate concerned had opted for the Madrid City Council. The outcome was that the Madrid Territorial Court ordered the reinstatement of Mr. José Luis Palomino Fernández and 100 other doctors who had been dismissed pursuant to the law on incompatibility.

B. The Government's reply

1. 30. The Government states that when the municipal budgets for 1986 were approved in November 1985, the Madrid City Council decided that staff adjustments should be made in public health and social services; among other measures, it was proposed that certain posts occupied by general practitioners should be converted to specialist posts. One of the main objectives stated was to improve emergency medical centres. For this purpose, letters were issued by the city councillor for public health and social services assigning certain doctors to medical centres. Medical assistants and nursing and other staff were likewise appointed in order to meet the need for services. It was for this reason that Dr. Zurbano was assigned to the medical centre for the Retiro district. The city councillor for public health sent a photocopy of the above-mentioned letters to the Council's personnel department, stating that there had been no change in the working post. The personnel department replied that there was no need to issue a new computerised staff order, since there was no change in post, but merely an assignment of duties which does not infringe any of Mr. Zurbano's acquired rights, either in professional or financial terms, and that it was not necessary to change his post number as required by the computerised list of municipal employees in the event of a change in working post. It is thus completely untrue that the purpose of the assignment of duties referred to above was to infringe the freedom of association of the trade union which Mr. Zurbano represents.
2. 31. The Government states further that the complainant's letter cites Mr. Zurbano's position as trade union delegate as a reason why he should not be transferred. In this respect, the Government points out that, according to the collective agreement (agreement of the Madrid City Council), "members of the staff committee and trade union delegates shall be the last to be transferred or put on another shift". From this it is clear, on the one hand, that the agreement itself allows for changes in shift and transfers and, on the other, that the persons referred to "shall be the last" to be transferred, but that this may occur when the needs of the service so require.
3. 32. In conclusion, the Government points out that on 4 August 1986 Mr. Zurbano's request was granted in that he was assigned to the fire brigade, once again stressing that this was a change in the actual place where the work is performed, which does not mean that he was transferred back to the post from which he was alleged to have been transferred, since there was only a change in duties and not in post.

C. The Committee's conclusions

1. 33. The Committee notes that the Government denies that the trade union leader Mr. Angel Zurbano was transferred on 18 October 1985 for trade union reasons, pointing out that he was merely assigned new duties in the interests of the service, without any infringement of his acquired rights, whether in professional or financial terms. The Committee observes further that on 4 August 1986 Mr. Zurbano was assigned back to the fire brigade where he had performed his duties prior to 18 October 1985.
2. 34. The Committee also notes that the judicial authority annulled the dismissal of Mr. José Luis Palomino, thus enabling his reinstatement. The Committee points out, however, that it does not find that the dismissal of Mr. Palomino was carried out for trade union reasons, since the person concerned did not rely on this in the administrative appeals which he lodged (a copy of which was supplied) before a ruling was made by the judicial authority.