Rapport définitif - Rapport No. 248, Mars 1987

1. 258. The complaint is contained in a communication from the Trade Union Confederation of Workers' Committees dated 8 July 1986. The Government replied in a communication dated 28 October 1986.
2. 259. Spain has ratified both 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. 260. The Trade Union Confederation of Workers' Committees alleges that its affiliate, the Federation of Health Personnel, having fulfilled all the legal requirements - in particular that of giving ten days' notice and setting up a strike committee - called a strike for the 18, 19, 25 and 26 of June 1986 amongst the staff covered by the collective agreement for health services in the Community of Madrid, in various health centres within this Community. The aims of the strike were to remove the deadlock confronting bargaining on wages and the incorporation of administrative contracts into labour law, the reduction in working time and other working conditions.
2. 261. The complainant organisation adds that, before calling this legal strike, the following events occurred which, in its opinion, constituted a violation of freedom of association:
   • - There were no negotiations or attempts at negotiations, in spite of the notice of 14 June stating this intention, either with the Federation of Health Personnel or with the strike committee set up for this purpose, to cover minimum services during the strike in the health centres of the Community of Madrid. With this in mind, the trade union drew up a detailed proposal for maintaining services during the strike, which provided for keeping on 100 per cent of staff in emergency and intensive-care units.
   • - The Government delegate's decision unilaterally imposed some extremely "excessive" minimum services which infringed upon the right to strike in an abusive manner, without consulting either the trade union or strike committee; they were proclaimed one day after the beginning of the strike, when the minimum services had already been set up by the management without it being known which services had been fixed by government authority.
   • - Prior to the notification (late) of the minimum services, the Autonomous Community of Madrid, which is the state entity affected by the strike, clearly acted illegally and encroached upon the exercise of the right to strike by demanding that those who were not on strike should individually state in writing their decision not to back the strike; it further declared that if they failed to do so, they would be penalised by a corresponding cut in wages.
   • - Finally, the Autonomous Community of Madrid, the employer affected, made public announcements, as a state administrative body, warning and implying that the strike was illegal, thereby assuming legal functions incompatible with its dual character of public body and employer upon whom pressure was being put for negotiations.
3. 262. In conclusion, the complainant organisation points out that this line of conduct of the Government and its public bodies, irrespective of the technical aspects of the minimum service imposed, which, in the complainant organisation's opinion, was clearly improper and excessive, infringes upon the free exercise of the right to strike.

B. The Government's reply

1. 263. After referring to the legislation and jurisprudence pertaining to strikes, the Government states that the setting up of the minimum services, which on no account can be considered an infringement of the right to strike, was undertaken by the Autonomous Community of Madrid with such urgency because of the imminence and length of the strike (strike notice was given on 7 June 1986 and it was called for the 18, 19, 25 and 26 of the same month) and the nature of the sector be to protected - the most important in absolute terms - and since the standards in force prescribe that in view of the nature of the services, no consultation and negotiations were obligatory. In this connection, the Government quotes the judgement 52/86 handed down by the Constitutional Court on 14 April: "The doctrine of this court is that the decision on this matter (meaning the setting up of minimum services) lay and only lies with the competent government authority". "Allowing for the possibility of talks or negotiations to this effect is a very different matter from imposing these talks." "Prior talks are not excluded, they might even be desirable, but they are not an indispensable requirement for the validity of the administrative decision from a constitutional standpoint." The constitutionality of Royal Legislative Decree 17/1977 was upheld by the Constitutional Court in a ruling of 8 April 1981 in which it was stated, with reference to section 10(2) of this Decree: "The Government is granted the authority to order necessary steps to ensure the maintenance of essential services to the community, in so far as the exercise of this authority is subject to the jurisdiction of the law courts and to an appeal before this court."
2. 264. As regards the complaint that the minimum services were announced one day after the beginning of the strike, implying that there was an attitude of concealment and bad faith in the Government delegate's decision in the Autonomous Community of Madrid, the Government states that this accusation is a distortion of the truth because the Government delegate's letter of 13 June 1986, sent to the strike committee, accepted the proposal to implement minimum services during the strike by the Autonomous Community of Madrid. The above-mentioned strike committee was aware in advance of this stand, as acknowledged by a member of this committee, Mr. Antonio Sánchez, in a letter dated 16 June 1986, i.e. two days before the announced beginning of the strike, sent to the Director-General of the Autonomous Community of Madrid Health Services. The Government claims that the strike committee was notified of the Government delegate's final decision in due time and form, although the notification was inadvertently sent to the Department for Health and Social Welfare, where, according to the correspondence register, it arrived on 18 June, and that the strike committee was informed of this on the following day. There is therefore no doubt that any speculation as to an attitude of concealment of the decision and its delay, and any accusation of bad faith are absolutely unfounded. Moreover, and as is well known, once decisions imposing minimum services have been taken, they are available at any time to any representative of the strike committee; it would only have been necessary to go to the Government delegation on the eve of the date announced for the beginning of the strike to be fully informed of the final resolution adopted to this effect.
3. 265. As regards the interpretation in the complaint concerning the notice to be given by non-strikers of their intention not to back the strike and the warning that anybody backing the strike would have a corresponding cut in wages, the Government states that the said notice was solely designed to safeguard the workers' economic interests, thereby also facilitating the administrative work of the centres so that they might proceed with the correct and rapid payment of those workers not taking part in the strike; this can in no way be described as a coercive measure. The Spanish administration is aware that the exercise of the right to strike belongs to the workers and is the right of every citizen; the printed form in question is solely used for purposes of information, which the administration is obliged to give. The reference made to the wage deduction is misleading, in that it is protrayed as a penalty, whereas, in fact, what was involved was nothing other than the suspension of the labour contract. It therefore follows that whilst workers have the right to strike, the undertaking, for its part, may suspend wages paid to a worker in this situation; in no way does this imply a penalty, but merely a suspension of all aspects of the employment relationship during the period involved. In this connection, section 6(2) of Royal Legislative Decree No. 17 of 1977, which reforms standards pertaining to labour relations, states that: "Contracts of employment shall be deemed to be suspended during a strike and the workers shall not be entitled to their wages". Similarily, section 45 (i) of the Workers' Statute deems the exercise of the right to strike as grounds for the suspension of the labour contract. Consequently, the Community of Madrid, with its printed form did nothing more than inform workers of the standards to be applied, thereby safeguarding their rights or economic interests.
4. 266. The Government also states that the Community of Madrid did not, in the case of this strike, as wrongly pointed out in the complaint, make "public notices as a state administrative body". This is in no way self-evident since this autonomous administration is an undertaking and acts as an undertaking in its relationship with its employees. Of course, it is for the courts to declare the legality or illegality of a strike, but it is also true that at no time did the Community of Madrid take this legal function upon itself. It only stated that the strike might be declared illegal by the competent jurisdiction because several public centres were involved in which vital public services affecting the common good of the community were provided; however, it did not overlook the fact that it was up to the legal authority to declare the legality or illegality of the strike. For instance, in a letter from the Adviser to the President's Office, dated 17 June 1986, it is written: "... (the strike) might be considered illegal by the competent legal body". In a letter written by the Department for Health and Social Welfare to one of the signatories of the complaint, dated 16 June 1986, it is expressly stated that: "the provincial labour directorate has been consulted, which will not affect proceedings to be brought later before the judicial bodies". Finally, there were no errors in the Government delegate's decision (which is the subject of this complaint), which accepted the proposal of minimum services made by the Community of Madrid and there was no infringement either of the regulations pertaining to the right to strike, or of constitutional obligations and the doctrine of the Spanish Constitutional Court.

C. The Committee's conclusions

1. 267. The Committee notes that, in the present complaint, the complainant organisation makes allegations concerning the setting up of minimum services during a four-day strike in June 1986 in the health services sector of the Autonomous Community of Madrid.
2. 268. The Committee notes in particular the Government's denial that the minimum services failed to be announced in due time and its explanations concerning the notice to be given by non-strikers on their decision not to back the strike, which, it claims, was designed to safeguard the rights or economic interests of these workers so that they would not lose the portion of their wages corresponding to the days of the strike. The Committee also notes the Government's explanations concerning the alleged notices published by the Autonomous Community of Madrid, implying that the strike was illegal.
3. 269. On previous occasions, the Committee has considered that strike action may be subject to important restrictions (such as, for example, the maintenance of a minimum service), even banned, in the public service or in essential services, amongst which are included health services. In the present case, Spanish legislation authorises health personnel to exercise the right to strike, subject to the maintenance of a minimum service.
4. 270. In attempting to define the framework for the establishment of minimum services in the event of strikes in essential services or of strikes, the extent and duration of which might be such as to result in an acute national crisis, the Committee has stressed that the determination of minimum services should involve not only the public authorities, but also the relevant employers' and workers' organisations. This not only allows a careful exchange of viewpoints on what in a given situation can be considered as minimum services limited to the absolutely essential, but also contributes to guaranteeing that the scope of the minimum service does not result in the strike becoming ineffective in practice because of its limited impact, and to dissipate possible impressions in the trade union organisations that a strike has come to nothing because of over-generous and unilaterally fixed minimum services (see, for example, 244th Report, Case No. 1342 (Spain), para. 154).
5. 271. In the present case, the Committee observes that no discussions or talks on the minimum services were held with the trade union organisation concerned and that the latter respected the legal strike notice prerequisite. The Committee also notes that Spanish legislation (section 10(2) of Royal Legislative Decree No. 17/1977) and the jurisprudence of the Supreme Court stipulate that it is not indispensable to hold talks or discussions on the minimum services with the trade union organisations, and that the authority to take the necessary measures to ensure the maintenance of essential services lies with the Government. In these circumstances, the Committee is of the opinion that the failure to consult with the trade union organisation concerned is not fully in conformity with the principles laid down in the previous paragraph.