Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 329, Novembre 2002

1. 512. The complaint is set out in a communication from the Independent Central Union and Union of Public Servants (CSI-CSIF) dated 19 March 2001.
2. 513. The Government replied in communications dated 26 September 2001, 27 February and 30 April 2002.
3. 514. 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. 515. In its communication of 19 March 2001, the Independent Central Union and Union of Public Servants (CSI-CSIF) alleges that the Government unilaterally amended Act No. 30/1984 concerning measures to reform the public service, by including in the bill respecting fiscal, administrative and social measures (“Act accompanying the General State Budgets Act for 2001”), an amendment to the provisions respecting mobility of public servants, approved by Parliament and reflected in section 36 of Act No. 14/2000. The amendment in question consisted in deleting section 20.1(d) of Act No. 30/1984 and adding a new paragraph under c), to allow relocation of public servants, in some cases to places more than 100 km from their normal places of residence or work, on the sole grounds of “operational requirements”, a concept which is ill-defined, difficult to establish and gives the employer absolute discretion. The complainant alleges that by introducing this amendment unilaterally, the Government disregarded Act No. 9/1987 respecting representative bodies, determination of conditions of employment and staff participation in the public administrations service (subsequently referred to as the LOR), as amended by Acts Nos. 7/1990 and 18/1994. Section 32 of the LOR sets out the matters that can be dealt with in collective talks, including the following:
2. …
3. (j) all matters that may affect […] the conditions of employment of public servants and require regulation by means of enactments with the status of law, and …
4. The complainant adds that disregard of this provision resulted on 14 December 2000 in a nationwide strike which was unsuccessful, since the amendment in question was finally introduced without any effective negotiation with the Spanish public service unions, although such negotiation was obligatory under the terms of the LOR.
5. 516. The complainant alleges, secondly, that the Government disregards the trade unions in the process of drawing up the future Basic Statutes of the Public Service, the fundamental legal instrument governing the statutory conditions of employment of public servants. This has come about because, although the Constitutional Court recalled that the Political Constitution sets out in general terms the statutory status of public servants, and that their remuneration is fixed by their own Statutes as enacted by law, the preliminary bill confirming that statutory status, which was agreed between the Government and the trade unions and signed on 10 February 1998 by the complainant, has still not been approved.
6. 517. In its third and final allegation, the complainant raises the matter already considered by the Committee on Freedom of Association in 1997 in Case No. 1919, concerning the pay freeze imposed on civil servants in that year. The complainant states that, in accordance with the Committee’s recommendations in that case, on 23 January 2001 the High Court (Division of Administrative Disputes) ruled against the pay freeze in Appeal Case No. 1033/1997 on the grounds that it was not in conformity with the law; it thus upheld the right of public servants covered by the Agreement between the administration and unions of 15 September 1994 to receive an increase in their remuneration (in accordance with the projected CPI increase in 1997), including any arrears owed as a result of the failure to apply the increase in question over a number of years. This body also ordered the administration to enter into negotiations without delay on the pay increase provided for in the Agreement with effect from 1996 (when the talks were to take place), and emphasized the following points:
7. (a) the right of collective bargaining of public servants, as provided for in the LOR;
8. (b) a genuine obligation to bargain on particular questions (section 34), and the binding nature of agreements on the parties concerned (section 35); and
9. (c) the fact that the administrative authorities that are party to negotiations (in this case the Minister of Public Administrations, who signed the Agreement, and the Council of Ministers, which approved it) are bound by any agreement reached.
10. 518. Following this ruling, on 26 January 2001, the complainant asked the Minister to convene an extraordinary meeting of the General Negotiating Committee. The agenda included, inter alia, the implementation of the ruling and talks on the contents of Title II of the Agreement of 15 September 1994 between the administration and the trade unions (concerning pay increases, clearly dependent on certain economic variables and subject to collective bargaining). However, the Government, which was disposed to appeal against the ruling, did not think it appropriate to convene the requested meeting, and the complainant therefore considers that the Government is failing to negotiate conditions of employment for public employees with the unions represented on the General Negotiating Committee, and that it is doing no more than inform the unions of decisions which have been adopted unilaterally.
11. B. The Government’s reply
12. 519. In its communication of 26 September 2001, the Government states that the amendment to section 20.1(c) of Act No. 30/1984 was negotiated in accordance with section 32 of the LOR. In fact, the agenda of the meeting of the General Negotiating Committee of 19 September 2000 included the following points:
13. 1. staff- and pay-related measures to be included in the proposed 2001 Budgets Act and the accompanying Act respecting fiscal, administrative and social measures;
14. 2. the Agreement on stability in public employment.
15. Despite this, during the meeting, the trade unions authorized to negotiate made no comment on these issues and, a few days after publication of the accompanying bill for 2001 by certain media (including the new wording of section 20.1(c) of Act No. 30/1984), the trade unions even alleged an attempt to introduce the new provision regarding mobility “by stealth” in the General Negotiating Committee. The Government adds that under these circumstances, the unions’ spokespersons were invited to a meeting of the General Negotiating Committee at which the issue of compulsory mobility was discussed at length; however these organizations unanimously refused to discuss the matter and demanded nothing less than the withdrawal of the provision in question. Despite the fact that, during the talks of the General Negotiating Committee before the strike of 14 December 2000, referred to by the complainant, a meeting was held on the issue of compulsory mobility, and despite the willingness of the administration to negotiate, the trade unions expressly stated that the inclusion of the mobility provisions in the bill was one of the main reasons for so many public employees to go on strike. Therefore, according to the Government, since no agreement was reached during the talks and given the unions’ refusal to consider any solution other than the withdrawal of the mobility provisions contained in the accompanying bill for 2001, the administration had no other option but to lay down conditions unilaterally and to maintain the original proposal unchanged (in accordance with section 37.2 of the LOR, which in the event of disagreement during talks or failure to reach express and formal agreement allows the administration to set the terms of employment of public servants), given that the previous provisions on mobility presented serious difficulties with regard to human resources management in the public services. There can thus be no doubt regarding the willingness of the administration to negotiate with the legitimate representatives of the public servants, not only with regard to the proposed amendment to section 20.1(c) of Act No. 30/1984, but also with regard to the implementation of that principle (which the trade unions have repeatedly refused to discuss). The Government maintains that the administration negotiated in good faith but, without a satisfactory agreement with the unions, the Government, being ultimately responsible for the public administration, and in the wider public interest, decided to retain the change to section 20.1(c) in the proposed accompanying Act for 2001 (reflecting section 37.2 of the LOR).
16. 520. As regards the allegation that the Government disregards the unions in drawing up the future Basic Statutes of the Public Service, the Government explains that in June 1999, the relevant bill, the contents of which had been agreed with the unions, was sent to the Congress of Deputies but the dissolution of both houses of the Legislature in January 2000 meant that all pending bills lapsed. The Government adds that the unions are not the only parties concerned in the matter, since the General Administration of the State and the other public authorities had to be taken into consideration, as did the suggestions made by the Council of State (the highest advisory body of Government). The Government therefore expresses the hope that in the new session of the Legislature, the Basic Statutes will obtain the widest possible parliamentary support, as well as the consensus required in the public interest.
17. 521. Lastly, with regard to the freeze on public servants’ pay imposed since 1997 and the Government’s refusal to negotiate public servants’ conditions of employment with the unions represented on the General Negotiating Committee, it is the Government’s understanding that the complaint is based on the administration’s refusal to negotiate the implementation of the High Court ruling of 23 January 2000 (Appeal Case No. 1033/1997). The Government states that the union’s claim was answered with the letter from the Minister of Public Administrations of 30 January 2001, which maintains that it would be inappropriate to negotiate the implementation of a ruling which is not yet final, pending the decision of the Supreme Court to which the Government has appealed against the ruling on grounds of serious deficiencies. The Government maintains that negotiations did take place in 1996. In July of that year, the Wages and Employment Committee reached an agreement signed by all the parties, under the terms of which an agreement would be negotiated within the General Negotiating Committee on a pay rise to be included in the General State Budgets Act for 1997, and any provisions that might affect the public service and merited inclusion in the relevant legislation would be discussed. The Government also specifies that, according to point 9 of the agreement in question, the trade unions accepted the administration’s interpretation of Chapter VI of the Agreement of 15 September 1994, according to which the pay increases for 1996 and 1997 were not automatic but were to be negotiated in the light of the various factors referred to in that chapter (the CPI for the periods in question, budget forecasts, the accuracy of forecasts and success in achieving stated objectives which might justify pay rises, the economic growth rate, the funding capacity of the general state budgets in the light of the public deficit, increases in productivity).
18. 522. The Government adds that the record of the meeting of the General Negotiating Committee of 19 September 1996 reflects reports from eight working groups involving the administration and the unions and active on those dates, which hardly suggests that no genuine negotiations took place in 1996. Furthermore, the fact that the General Negotiating Committee met again on 3 December 1996, with the participation of all the unions that had been invited, shows that the latter did not consider that the talks at the previous meeting had broken down. The Government emphasizes that in the new meeting, the administration unsuccessfully presented a number of proposals for an agreement regarding conditions of employment in the public service, an agreement that would have replaced the 1994 Agreement and incorporated the conclusions of the working groups.
19. 523. Under these circumstances, the Government considers that genuine negotiations undeniably took place. Consequently, considering the factors referred to in the Agreement itself, and given that the matter directly concerned the general public interest, the Government reiterates the observation which it made in the context of Case No. 1919, to the effect that it was obliged to maintain a strictly restrictive interpretation of the guidelines agreed in 1994 as part of the public deficit reduction policy adopted with a view to achieving European Union economic convergence targets. Furthermore, the Government points out that, given its previous commitments, it was unable to relinquish its rights and obligations regarding overall economic planning under the country’s Political Constitution. In this context, the Government cites Supreme Court Ruling No. 96/1999, according to which the application of a salaries and bargaining system for public employees that is different from the one used for other workers is based on the fact that the right of collective bargaining, which is typical of private companies, may be qualified in the public service, whose employees must give way to the higher public interest and the requirements of economic policy. It also states that, in accordance with the High Court ruling of 8 April 1981, the non-implementation of the terms of a collective agreement does not constitute a breach of constitutional provisions concerning free collective bargaining rights and respect for the binding nature of collective agreements (enshrined in article 37 of the Constitution), if non-implementation can be justified by reference to higher interests of State. Thus, the constitutional doctrine gives precedence to the general public interest over the right of collective bargaining, while endorsing the interpretation according to which the 1994 Agreement provided for negotiations on a pay increase for 1996 and 1997 in the light of the economic policy factors that needed to be considered in order to safeguard the general public interest.
20. 524. In a communication of 27 February 2002, the Government states that the High Court ruled on the alleged refusal to implement the Agreement of 1994 concluded between the administration and the trade unions. In a communication of 20 April 2002, the Government specifies that the Supreme Court annulled the ruling of the “Audiencia nacional” (Appeal Case No. 1033/1997) confirming the right of the public servants covered by this Agreement to the pay increase, in addition to amounts not perceived during the following years, due to the inapplicability of the expected increase. To invalidate this ruling, the Supreme Court has considered that:
21. (a) the Agreement established a pay increase for 1995 without establishing an automatic increase for 1996 and 1997, providing just for guidelines for a future negotiation on eventual increase of wages;
22. (b) the Agreement did not provide for the obligation to negotiate a more important increase for 1996 and 1997;
23. (c) it is certain that the obligation to bargain exists, but the negotiation should not necessarily concern the increase of wages;
24. (d) the administration did not unilaterally exclude increase of wages from negotiations; it did not infringe the principle of obligation to negotiate in good faith. In fact, it was not possible to reach an agreement and it is for the Government to set the conditions of employment of public servants in cases where no agreement could be reached during collective bargaining;
25. (e) the approval of the budget is one of the tasks of the legislative power and is under exclusive competence of the Parliament. The Agreement of 1994 did not have a binding effect on legislative power.

C. The Committee’s conclusions

1. 525. The Committee notes that in the present complaint, the Independent Central Union and Union of Public Servants (CSI-CSIF) alleges that the Government has unilaterally amended Act No. 30/1984 regarding reforms to the public service, so as to increase the mobility of all public service employees to allow them to be relocated on the sole grounds of “operational requirements”. The Committee notes, however, that according to the Government, and contrary to the statements made by the complainant, mobility was open to negotiation under the terms of section 32 of the LOR (which provides for collective bargaining on all matters pertaining to the conditions of employment of public servants), but that the administration found that the authorized unions were unwilling to negotiate and demanded nothing less than the withdrawal of the provisions in question from the bill. Lastly, the Committee notes that, faced with the refusal by the unions to consider any solution other than the withdrawal by the administration of the provisions in question, the Government had no choice but to apply section 37.2 of the LOR which, in the event of disagreement during talks or failure to reach express and formal agreement, empowers the administration to set the conditions of employment of public servants. In view of the discrepancies between the parties’ respective versions of events, the Committee draws the attention of the parties to the importance of bargaining in good faith in accordance with the Collective Bargaining Convention, 1981 (No. 154), and emphasizes the importance that both employers and trade unions bargain in good faith and make every effort to reach an agreement [see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 815]. The Committee requests the Government and the organizations of public servants to take this principle into account in their future negotiations.
2. 526. As regards the allegation that the Government disregards the unions when drawing up the Basic Statutes of the Public Service, the Committee notes that the process of updating the Statutes has been postponed, despite the fact that they are a fundamental instrument that sets out the status and legal position of public servants. Under these circumstances, the Committee emphasizes the need to invite the public sector trade unions to talks with adequate advance notice to allow them to bargain collectively, within reasonable deadlines, on their conditions of employment, taking into account the strict deadlines for submitting legislative bills to Parliament. The Committee also emphasizes the value of consulting organizations of employers and workers during the preparation and application of legislation which affects their interests [see Digest, op. cit., para. 929].
3. 527. Finally, with regard to the alleged persistent failure of the Government to comply with a collective agreement by maintaining the pay freeze imposed on public servants in 1997, the Committee recalls that this allegation was already examined in Case No. 1919 (see 308th Report, paras. 273-326, approved by the Governing Body at its 270th Session in November 1997). On this occasion, the Committee had regretted that no increase whatsoever in the remuneration of public servants for 1997 had been conceded, not even for those who had the lowest salaries. In this context, the Committee had recalled that the right to bargain collectively was one of the procedures mentioned in Convention No. 151, ratified by Spain, and that this procedure had been included in the Spanish legislation for determining labour relations in the public service. The Committee had expressed the firm hope that the Government, in accordance with its own national legislation, would have recourse to collective bargaining in order to determine the conditions of employment of public servants. The Committee furthermore had emphasized that mutual respect for the commitment undertaken in the collective agreements was an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground.
4. 528. The Committee notes that according to these conclusions and recommendations, the Administrative Disputes Division of the High Court annulled the pay freeze and confirmed the right of public servants covered by the Agreement of 1994 to the pay increase, in addition to amounts not perceived during the following years, due to the non-implementation of the abovementioned increases.
5. 529. The Committee also notes that the Government appealed against the ruling and that the Supreme Court invalidated the judgement of 26 February 2002. The court considered in particular that the Agreement of 1994 did not provide for an automatic increase for the following years, that negotiations should not necessarily concern the increase of wages and that the administration did not infringe the principle of obligation to negotiate in good faith.
6. 530. In this respect, the Committee notes that according to the statements of the Government, trade union organizations accepted the interpretation according to which, under the terms of the Agreement of 15 September 1994, there was no commitment to an automatic pay increase, only to renegotiating pay level with the trade unions. The Committee also notes that the Government is again citing economic criteria and imperatives in justification of its strictly restrictive interpretation of the guideline agreed in 1994 regarding any future pay increase for public servants.
7. 531. In similar cases, the Committee has endorsed the point of view expressed by the Committee of Experts on the Application of Conventions and Recommendations in its 1994 General Survey:
   • ... the authorities should give preference as far as possible to collective bargaining in determining the conditions of employment of public servants; where the circumstances rule this out, measures of this kind should be limited in time and protect the standard of living of the workers who are the most affected. In other words, a fair and reasonable compromise should be sought between the need to preserve as far as possible the autonomy of the parties to bargaining, on the one hand, and measures which must be taken by governments to overcome their budgetary difficulties, on the other [see Digest, op. cit., para. 899].
8. 532. In the present case, the Committee notes that the Government declined to negotiate with the trade unions until the Supreme Court has given its ruling on the pay freeze. Furthermore, the Committee observes that this pay freeze has been imposed for a long period of time.
9. 533. In these circumstances, the Committee requests the Government to take measures in order to give preference as far as possible to collective bargaining in determining the conditions of employment of public servants. To this effect, the Committee requests, the Government to open negotiations with representative trade union organizations without delay in order to re-establish professional relations on solid and firm ground in an atmosphere of mutual trust. The Committee requests the Government to keep it informed of any measure taken in this respect.