Rapport définitif - Rapport No. 311, Novembre 1998

1. 480. The complaint of the Workers' Trade Union (USO) is contained in communications dated 29 May and 17 July 1998. The Government sent its observations in a communication dated 24 September 1998.
2. 481. Spain has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant's allegations

1. 482. The complainant recalls that it enjoys significant representativeness in the territory of the Autonomous Community of Rioja (18 per cent), where it exercises its activities. It considers that, from an objective standpoint, this fact entitles it to be represented on the bodies set up within the Rioja administration, pointing out that this is also in conformity with the principle of "trade union representativeness" which in Spain is based on the number of representatives elected in trade union elections held in enterprises and public bodies.
2. 483. The complainant describes the different agreements concluded between the regional government and the two trade union confederations, the General Union of Workers (UGT) and the Trade Union Confederation of Workers' Committees (CC.OO.) in the 1990s, stating that one of the effects of these agreements was to exclude it from the machinery set up for participation in the social life of the Autonomous Community of Rioja, and the Economic and Social Council in particular.
3. 484. Specifically, the complainant recalls that at the end of 1989 a process of social dialogue was launched in the Autonomous Community of Rioja with the support of the regional government and the trade union confederations UGT, CC.OO. and USO, which ultimately led to the conclusion of the "Regional Agreement 90-91" between the Government, the UGT and the CC.OO. The complainant explains that it was unable to sign this agreement, which it considered to be suicidal as it included a series of clauses under which the USO was excluded from various follow-up committees and prevented from participating in the councils set up under the agreement. The complainant considers that this first agreement illustrates the characteristics of social dialogue of that time, which was based on support for government policies on the part of the social partners in exchange for certain concessions in favour of the organizations that signed the agreements.
4. 485. In 1992 the government of the Autonomous Community of Rioja concluded a series of agreements with the trade union confederations UGT and CC.OO. with a total cost of 3,441,000,000 pesetas. The subjects covered by these agreements included employment and regional development, community policy, spouses, occupational safety and health, housing policy, transport and institutional policy; only the organizations that signed the agreement were entitled to intervene and ensure the follow-up on these different subjects. The complainant was excluded from any participation or intervention and, therefore, could not exercise its functions in terms of defending and promoting the economic and social interests of its members. A similar agreement was concluded on 21 December 1993, this time with the additional participation of the Federation of Employers of Rioja (FER). On 6 July 1996, the new regional government, the trade unions UGT and CC.OO. and the FER concluded a new agreement known as the "Pact for Employment" covering similar subjects to those dealt with in its predecessors (public investment in housing, infrastructure, waterworks, transport, industrial estates, economic incentives, training, environment, community policy, occupational safety and health and financing of enterprises). This Pact for Employment also grants a number of advantages to the signatory organizations, including:
   • -- institutional participation whereby the Government undertakes to draft a law governing the participation of the most representative economic actors;
   • -- setting up of a conciliation, mediation and arbitration body under the supervision of a foundation, excluding the complainant;
   • -- establishment of an economic and social council.
5. 486. The complainant considers that all of these facts once again reveal a policy intended to exclude it from the social life of the Autonomous Community; it goes on to describe in further detail the prejudice it has suffered as a result of the methods selected for the composition of the Economic and Social Council. On 18 July 1997 the legislative assembly of the Autonomous Community of Rioja adopted Act No. 6/1997 respecting the organization of the Economic and Social Council. Article 5 of the Act provides that the Council shall have 22 seats distributed as follows: ... (b) first group: seven councillors appointed by the most representative trade union organizations, in proportion to their representativeness, in accordance with sections 6(2) and 7(1) of Basic Act No. 11 of 2 August 1985 concerning freedom of association. In other words, in order to participate in this advisory body, an organization must have as members at least 10 per cent of all representatives of workers and state employees or demonstrate representativeness amounting to at least 15 per cent of staff representatives, members of works committees and staff assemblies elected within the Autonomous Community. In any case the organization must have a minimum of 1,500 of these and not be federated or confederated with another organization at the state level.
6. 487. As regards the first criterion, the complainant points out that only the UGT and CC.OO. are in a position to comply with it. Act No. 6/1997 makes an unjustified use of a criterion of representativeness which has no bearing on the reality in the region. As regards the second criterion, the requirement of 1,500 is equivalent not to 15 per cent, but to 70 per cent in the case of the Autonomous Community of Rioja: the complainant thus cannot even aspire to participate in this body.
7. 488. In other words, in these circumstances, the application of section 5 of Act No. 6/1997 has the effect of preventing the complainant from sitting on the Economic and Social Council.
8. 489. The complainant considers that the criteria on which the composition of the Economic and Social Council is based are discriminatory and violate the principles of freedom of association; they also run counter to the very reasoning behind the adoption of the Act, namely the idea of promoting and facilitating citizens' participation in economic and social life either directly or through organizations and associations. They have the effect of favouring some organizations to the detriment of others and granting them exclusive privileges which could unduly influence the workers' choice of organizations they wish to join.
9. 490. Acknowledging that participation in the Economic and Social Council is limited to the UGT and CC.OO., the complainant raises the question whether the criteria selected by the administration are truly objective and reasonable or whether on the contrary they have an arbitrary, discriminatory and unreasonable effect. The complainant does not, however, challenge the legitimacy of the presence of the two trade union confederations, neither does it question the validity of their participation in the Economic and Social Council, committees and other forums. Rather, it does not accept the fact that the legislative assembly has restricted access to the Economic and Social Council to two trade unions, contrary to the principle, which has been reiterated on a number of occasions by the Constitutional Court, that "the existence of freedom of association is based on a pluralist system; it is the task of trade unions, without distinction under the Constitution, to defend and promote the workers' economic and social interests". Differences in treatment between the different trade unions can only be based on objective, adequate, reasonable and proportional criteria. Lastly, the complainant emphasizes that criteria to determine representativeness are not unique in Spain and that it might comply with those laid down for other autonomous communities.
10. 491. The complainant concludes that the criteria set out for determining the composition of the Economic and Social Council are therefore not objective, adequate, reasonable or proportional, since they do not take into consideration the functions and the territory in which this trade union participation is to take place.
    • The Government's reply
11. 492. The Government recalls that, under the Constitution, the Autonomous Community of Rioja has sole authority to organize its institutions. Before it established the Economic and Social Council, it had to decide whether it wanted a body with broad participation or a more restricted body. For a number of reasons the second option was chosen. In particular, Rioja is the autonomous community with the smallest number of inhabitants, the second smallest territory and the smallest budget.
12. 493. Since specific criteria were needed to determine the composition of the Economic and Social Council, the legislative body opted for the accepted criterion of "the most representative organizations" embodied in Basic Act No. 11 of 1985 concerning freedom of association. Seen from this angle, the complainant has never represented more than 15 per cent of the workers in the territory of the Autonomous Community of Rioja.
13. 494. The Government notes that Basic Act No. 11 of 1985 concerning freedom of association does not prevent autonomous communities, in the exercise of their prerogatives, from appointing to their bodies, representatives of trade unions that do not meet the criterion of representativeness. But neither is this an obligation.
14. 495. The Government considers that if all the minority trade unions were given a seat on the Economic and Social Council it would have at least 40 councillors, which would be hardly reasonable considering that the Autonomous Community of Rioja has a regional parliament of 33 deputies, a government council of six councillors and a five-member advisory board (the Parliament is the legislative body, the government council the executive, and the advisory board the highest judicial advisory body outside the Government and the public administration).
15. 496. All these reasons explain why criteria were adopted that restricted access to the Economic and Social Council. It was not a gratuitous decision aimed at denying the right to freedom of association, which is a constitutional right under Spanish law, or to render it ineffective, but rather a requirement imposed by the specific characteristics of the Autonomous Community of Rioja.
16. 497. Moreover, the objective nature of this criterion has been recognized in Spain's courts of law. In this regard, the Government refers to the 19 June 1998 ruling of the Appeals Court, when it examined appeal No. 663/13/95 submitted by the complainant, that the Rioja branch of the USO is covered by section 7(2) (trade unions that are merely representative, according to the relevant criteria), and that as such it may exercise the functions and powers provided for in subparagraphs (b) (collective bargaining within the meaning of the workers' charter), (c) (participation in the determination of the conditions of employment in public administrations by means of the appropriate procedures of consultation or negotiation), (d) (participation in the non-judicial modes of settling labour disputes), (e) (initiating elections of staff representatives and members of works committees and of members of the corresponding organs in public administrations) and (g) (any other representative function that may be specified) of paragraph 3 of section 6 of Basic Act No. 11 of 1985 concerning freedom of association), but not the powers provided for in subparagraph (a) (appearing as institutional representative in dealings with public administrations), where the representative trade unions are the UGT and the CC.OO. The Court concluded that the participation of the UGT and CC.OO. was reasonably and objectively justified, and it was therefore unable to conclude that the complainant's rights had been violated in this respect. However, the Appeals Court declared null and void the creation of the conciliation, mediation and arbitration body provided for in the Pact for Employment on the grounds that it deprived the complainant of its right to take part in the non-judicial modes of settling labour disputes provided for in Basic Act No. 11 of 1985 concerning freedom of association.
17. 498. The Government concludes that Basic Act No. 11 of 1985 concerning freedom of association is a fundamental text that guarantees the exercise of trade union rights under the Spanish Constitution. It argues that the complainant is in fact trying to attack the Basic Act 13 indirectly years after its adoption, through its complaint against Act No. 6/1997 providing for the composition of the Economic and Social Council.

B. B. The Committee's conclusions

• The Committee's conclusions
  499. 499 The Committee observes that this complaint relates to the alleged exclusion and marginalization of the complainant as regards the provisions of Basic Act No. 11 of 1985 concerning freedom of association, which lays down the criteria for representativeness, and of Act No. 6 of 1997 concerning the composition of the Economic and Social Council of the Autonomous Community of Rioja.
  500. 500 The Committee wishes to refer to the opinion of the Committee of Experts on the Application of Conventions and Recommendations on the scope of the privileges and advantages according to the most representative trade unions (see ILO: Freedom of Association and Collective Bargaining, Report III (Part 4B), International Labour Conference, 81st Session, Geneva, 1994, paras. 97 and 98):
• In some countries ... legislation establishes the concept of the most representative trade unions, which are generally granted a variety of rights and advantages. The Committee believes that this type of provision is not in itself contrary to the principle of freedom of association, provided that certain conditions are met. First, the determination of the most representative organization must be based on objective, pre-established and precise criteria so as to avoid any possibility of bias or abuse. Furthermore, the distinction should generally be limited to the recognition of certain preferential rights -- for example for such purposes as collective bargaining, consultation by the authorities or the designation of delegates to international organizations. However, the workers' freedom of choice would be jeopardized if the distinction between most representative and minority unions results, in law or in practice, in the prohibition of other trade unions which workers would like to join, or in the granting of privileges such as to influence unduly the choice of organization of workers. Therefore, this distinction should not have the effect of depriving those trade unions that are not recognized as being amongst the most representative of the essential means for defending the occupational interests of their members (for instance, making representations on their behalf, including representing them in case of individual grievances), for organizing their administration and activities, and formulating their programmes, as provided for in Convention No. 87.
  501. 501 The Committee recalls that it has previously concluded that the provisions of Basic Act No. 11 of 1985 concerning freedom of association are not incompatible with the principles of freedom of association (see 243rd Report, Case No. 1320, para. 116). More precisely, the Committee notes once again that the criteria laid down in the Basic Act No. 11 of 1985 concerning freedom of association to determine the representativeness of a trade union organization are of a quantitative nature and that, even if they are not deemed to be the most representative, trade unions covering 10 per cent or more of the total number of staff representatives, of members of works committees and of the corresponding organs of public administrations are empowered to exercise certain powers and functions, such as participation in non-judicial modes of settling labour disputes.
  502. 502 In this particular case, the Committee is of the opinion that granting the right to sit on the Economic and Social Council only to those trade union organizations deemed to be the most representative under Basic Act No.11 of 1985 would not appear to influence workers unduly in the choice of organization that they wish to join, nor to prevent less representative organizations from defending the interests of their members, organizing their activities and formulating their programmes, notably in the light of paragraph 3 of section 6 of the said Basic Act.
  503. 503 The Committee also observes that, although the Appeals Court refused in its ruling in June 1998 to consider as unreasonable the criteria used to select the organizations to be invited to sit on the Council, it did, however, declare null and void the creation of the conciliation, mediation and arbitration body provided for in the Pact for Employment on the grounds that it deprived the complainant of its right to take part in the non-judicial modes of settling labour disputes provided for in Basic Act No. 11 of 1985 concerning freedom of association. This is further proof that it is possible for the complainant to function in such a way as to defend and promote the interests of its members.