Rapport définitif - Rapport No. 330, Mars 2003

1. 607. The complaint is set out in a communication from the General Union of Workers (UGT) dated 6 July 2002. This organization sent additional information in the communication of 9 August 2002.
2. 608. The Government sent its reply in the communication of 6 November 2002.
3. 609. 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. 610. In its communication of 6 June 2002, the General Union of Workers (UGT) alleges that the enterprise MetalIbérica S.A., which has its headquarters in Burgos and is engaged in the iron and steel industry, presented a redundancy procedure (reference No. 7/2002), in accordance with national legislation, to the competent labour authority, with the aim of obtaining the temporary suspension of 28 contracts of employment for a period of 12 months on economic and production grounds.
2. 611. The UGT adds that the works council produced a report opposing the request made by MetalIbérica S.A., which stated that the economic grounds referred to did not exist in the slightest and that the economic situation was not due to the workers’ activities but had been caused by the poor production management that had been maintained in previous years. The legal definition of an “economic crisis” has been specified on many occasions in current laws, through case law and administrative resolutions which have specified four requirements: it must be an objective, real, significant and current crisis. This implies that the action of the enterprise itself has not caused and provoked the crisis, which must be “real” and “undoubtedly” proven and cannot be justified “by the simple fact that a negative result has occurred during a barely significant period” or by the existence of “a cyclical drop in orders”. The crisis must be based on “verifiable events and not on the hypothesis of future events” and “stock forecasts in themselves and considered on their own cannot justify such measures”. On the basis of this, the works council concluded that “after having assessed the redundancy procedure, we consider that it does not provide sufficient economic and production grounds to justify its approval”.
3. 612. The UGT adds that according to the works council, the criteria applied by the management of the enterprise to designate the affected workers did not correspond to the situation given that 99 per cent of the workers on the various production lines are versatile. Therefore, the application of such criteria was discriminatory and would unfoundedly be of detriment to only some of the workers. In view of the above, the works council decided, as stated in the aforementioned document, that “the management of the enterprise transferred some workers, who had been carrying out other duties on other production lines, to the enamelling line; the fact that these workers belonged to the works council in other legislatures shows that their designation also involved blatant anti-union discrimination”.
4. 613. The UGT states that on 15 April 2002, the Head of the Territorial Labour Office of Burgos issued a resolution authorizing MetalIbérica S.A. to suspend the contracts of employment of those workers specifically designated by the enterprise until 31 July 2002. In addition to stating that these workers were legally unemployed, point 4 of this resolution decided that: “Should the current economic situation continue once the holiday period has ended, the enterprise will be able to establish a new procedure to suspend the contracts of workers not affected by the present resolution.”
5. 614. In the best case scenario, if the current circumstances were not to continue, only the deliberately chosen workers would have been used by the enterprise to overcome difficulties it had created itself. This would amount to a clear comparative injustice and individual losses for which no form of compensation was envisaged. If the current situation were to persist, which appears to be likely as regards the substance of this issue, it would be obvious that the criteria used were not only discriminatory but ineffective, that other general and proportional measures should have been adopted throughout the enterprise, and that the application of such a method, which was discriminatory right from the start, would not eliminate the problems that the enterprise was trying to solve.
6. 615. The UGT highlights the anti-union discrimination suffered by some of the employees, particularly those who had previously been workers’ representatives. For this purpose, some of them were transferred within the enterprise to different posts so that they could thereby be included amongst those who had their contracts suspended. This is shown in the report written by the Provincial Labour and Social Security Inspectorate of Burgos, as it appears in the resolution by the labour authority.
7. 616. This report by the Inspectorate considered that, in principle, the establishment of a redundancy procedure could be justified, but even if it were justified, the suspension of 28 operators for a period of 12 months would produce the opposite effect to that sought after by the enterprise. Furthermore, according to the Labour Inspector, in view of the existing workforce, it could not be considered fair that only some of the employees will have to bear the entire weight of the redundancy procedure.
8. 617. The annex of this frequently cited resolution by the Burgos labour authority clearly shows trade union discrimination, given that the list of those affected by the procedure includes the following UGT trade unionists: Jaime Camarero Martínez (trade union representative for 16 years); Julián Saldaña Pampliega (trade union representative also for 16 years); Nemesio Sierra Gutiérrez (trade union representative for 20 years); Tomás Temiño Alonso (trade union representative for eight years); and José Luis Fernández Arnáiz (trade union representative for eight years) – namely the most senior trade unionists in the enterprise. It does not go unnoticed that an enterprise with 111 workers and eight trade union representatives included five former officials, who were the very structure of trade unionism in the said enterprise, amongst those to have their contracts suspended. Furthermore, in proportional terms, the suspended workers do not adequately or truly reflect the organic and operational structure of the enterprise.
9. 618. In its communication of 9 August 2002, the UGT states that on 25 April 2002 MetalIbérica S.A. filed an appeal against the resolution by the Head of the Territorial Labour Office of 16 April 2002, to which the present complaint refers. This resolution by the labour authority was also the subject of an appeal made by the works council which was based on the following: (a) there had been no real reduction in sales; (b) stock had been accumulated by the enterprise with the sole intention of presenting a redundancy procedure; and (c) from October 2001 until March 2002, employees had worked in two shifts. In its appeal, the works council alleged and gave proof that 4,025 hours of overtime were worked in 2001, 1,326 of which were carried out in the final quarter of the year. Furthermore, there were 849 hours of overtime in January and February 2002, and according to the management, some of these hours were the result of an inexistent force majeure.
10. 619. The UGT indicates that the Territorial Delegation of the Junta of Castilla y León in Burgos resolved both appeals through the resolution of 3 July 2002, which rejected both appeals and maintained the appealed resolution.
11. 620. Furthermore, the UGT alleges that on 12 July 2002 MetalIbérica S.A. initiated a new redundancy procedure for the temporary suspension of the contracts of 27 of its workers. This was considered as a continuation of procedure No. 07/2002, which had been approved by the Territorial Labour Office of Burgos on 16 April 2002, and was issued “owing to the continuation of the grounds that led to the first procedure”. The enterprise requested the temporary suspension of 27 contracts of employment for a period of seven months. This was a continuation of the anti-union discrimination already described in the complaint given that those affected included Mr. Jaime Camarero Martínez, a UGT member and formerly a trade union official for 16 years, and Mr. Nemesio Sierra Gutiérrez, also a UGT member and a trade union official for 20 years; they had both been involved in the same trade union organization. When looking at the list of those affected by either procedure, it is clear that a certain number of people whose contracts were suspended by the first procedure would still be suspended by the second (11 in total). It is equally noticeable that the trade unionists and former trade union officials with the greatest seniority still have their contracts suspended, and will probably be included in subsequent redundancy procedures if the same criteria are applied, and even more so if the enterprise were to try to introduce another procedure aimed at terminating instead of suspending their contracts of employment. Although predictions relating to future action taken by the enterprise cannot be considered as current events, the mentioned circumstances clearly highlight the wilful intention of the enterprise to take action against UGT trade union officials now and, in this case, in the future.
12. 621. As regards the concurrence of the economic and production grounds that led to the redundancy procedure initiated by MetalIbérica S.A., it is blatantly clear that the arguments referring to an economic slowdown and market contraction completely contradict the forecasts of the economic indicators produced by the Government itself and the issuing bank.
13. 622. The UGT concludes that Conventions Nos. 87 and 98 have been violated.

B. The Government’s reply

1. 623. In its communication of 6 November 2002, the Government states that the redundancy procedure (employment adjustment plan No. 7/2002 of MetalIbérica S.A., with its headquarters in Burgos) was substantiated in accordance with current standards. The labour authority authorized, through the resolution issued on 16 April 2002, the temporary suspension of 28 contracts of employment until 31 July 2002; in view of the documents contained in the procedure, it was considered that such a temporary measure was necessary to overcome the current economic situation of the enterprise’s activity.
2. 624. The written complaint affirms that some employees were subjected to anti-union discrimination, particularly those who had previously been workers’ representatives, and includes the following statement: “The fact that the list of workers affected by the suspension of contracts includes five former officials who were the very structure of trade unionism in the enterprise in question clearly shows anti-union discrimination.” This allegation lacks foundation given that the procedure was substantiated in accordance with current law. Also, the works council did not give an opinion in this respect (the five former trade union officials were included when they were no longer fulfilling their roles as workers’ representatives in the enterprise) and only stated in the document presented on 10 April 2002 (in which it opposed the authorization to suspend the contracts) that it did not agree with the criteria applied by the management of the enterprise when designating the workers affected by the procedure, given that it would be discriminatory and would clearly be of detriment to only some workers – inasmuch as 99 per cent of the workers are versatile – and suggests the possibility of alternating the procedure between the workers. Therefore, before the resolution was issued by the labour authority, no reference was made to anti-union discrimination; neither was this mentioned during the appeal. The connection between the affected workers, including former trade union officials, does not amount to conduct which violates the right to trade union membership but to the production needs of the enterprise owing to its activity.
3. 625. The Government adds that the critical allegations made against the redundancy procedure, on the basis of the inexistence of economic, technical, organizational or production grounds, although completely irrelevant when assessing the alleged violation of freedom of association, do not appear to be in line with the criterion sustained by the Labour Inspectorate. In view of all the theories put forward by the trade union federation concerning the grounds that must concur to authorize a redundancy procedure, given that the criterion of the Spanish judicial bodies is considered to be correct, the following should be pointed out regarding a sentence handed down by the Chamber for Social and Labour Matters of the Supreme Court. Its sentence of 24 April 1996, which was handed out in Cassation No. 3543/95, and related to the objective dismissal (which is the case here, although with regard to suspension, not dismissal) of a single worker from an enterprise with a large number of employees, indicates that the grounds concur when “the adoption of the proposed measures [...] helps to overcome the crisis situation, [...] therefore, with this aim, it is a sufficient explanation that the termination of this contract (contributes) to the improvement of the enterprise, namely that it helps or favours the attainment of this improvement”.
4. 626. It is clear that stock accumulation causes economic losses and that the suspension of contracts through a redundancy procedure obviously helps to improve the situation, given that it helps to reduce stock, as observed by an independent body, namely the Labour Inspectorate. Therefore, the resolution which opposed the enterprise’s proposal, in accordance with one of the solutions put forward by the works council, and in agreement with the opinion of the Provincial Labour and Social Security Inspectorate, agrees that the suspension, which affected 28 workers, be alternate.
5. 627. This means that, in view of the situation, the labour authority adopted the solution that was most favourable to all of the workers and took into account the fact that the workers included in the procedure, according to the stipulations of section 51, point 7, of the Workers’ Statute, are not legal representatives of the workers; nor does the procedure affect them during the guaranteed one-year period following the end of their mandate, as specified in paragraph (c), section 68, of the aforementioned Workers’ Statute.
6. 628. The conclusion that some members of a trade union federation have had their right to join a trade union violated, simply because they are included in a procedure to suspend contracts, would be absurd. No legislation states that simply being a trade union member brings with it certain rights that enhance the status of members within the enterprise compared to the other workers; this certainly does not relate to the right to organize, which was never obstructed by the enterprise.
7. 629. The main premise affecting the case is the fact that the complainant federation is obviously confusing the aforementioned five workers’ former, and therefore inexistent, status as workers’ representatives with their actual position as workers affiliated to a federation. Since it is clear that the affected workers have already ceased being workers’ representatives (four of whom in 1998 and Mr. José Luis Fernández Arnáiz in 1994), claiming that they are entitled to representatives’ rights, implies to an even lesser extent that these rights have been infringed, since as guarantees stipulated in section 68 of the Workers’ Statute, they are granted to those who represent the workers within the enterprise, as a result of trade union elections.
8. 630. The simple fact that these workers had been representatives, and the unverifiable claim that “they were the very structure of trade unionism within the enterprise”, does not grant them rights which obviously go hand in hand with legal representation, given that the aforementioned five workers are currently workers just like any others, with the only difference being that they, like many others, are members of a trade union. The statement that, in view of their former trade union representative status (one of them stopped being a trade union representative eight years ago and the others nearly four years ago), simply being included in a redundancy procedure to suspend contracts implies anti-union discrimination, which is based on the fact that they were transferred to make their inclusion possible – which is only true for some of the affected workers – can by no means be accepted as a valid statement; the procedure clearly shows that this was exclusively down to the organizational needs of the enterprise.
9. 631. Furthermore, as regards the transfers, which were promoted by both the enterprise and the workers, it should be taken into account that the workers’ versatility was acknowledged, and that when the transfers were conducted in 2001, they did not provoke any reaction by those affected or the complainant trade union. The fact that the resolution reduced the requested one-year suspension to the period from 16 April 2002 (the date of the resolution) until 31 July 2002 and made the procedure alternate between workers confirms, contrary to what is stated by the trade union federation, that the aforementioned workers (who are not trade union representatives) were treated like the rest of the workers, above all, when considering the agreement that the same workers could not be included if a new procedure was presented at the end of staff holidays. This reaffirms, contrary to the accusation – which has never been proven – made by the trade union confederation that the enterprise tried to persecute five UGT members, that the resolution put an end to this hypothesis of persecution by making the procedure alternate between workers.
10. 632. The communication from the UGT of 9 August 2002 emphasizes and confirms the complaint fundamentally on the basis of the fact that on 12 July 2002 the enterprise established a new redundancy procedure which was based on the information given for the previous procedure and requested the suspension of the contracts of employment of 27 workers for a period of seven months. This new procedure included 11 workers who had been affected by the previous procedure, including the two former trade union representatives, Mr. Jaime Camarero Martínez and Mr. Nemesio Sierra Gutiérrez. The Government highlights, however, that this redundancy procedure was not permitted by the Junta of Castilla y Léon, owing to the principle of alternating the previous procedure.
11. 633. Lastly, on 20 September 2002, a new redundancy procedure was presented by the enterprise based on the resolution of 16 April 2002, which was issued by the Territorial Labour Office of the Junta of Castilla y Léon. It was the intervention of this office that brought the parties to an agreement when determining the redundancy procedure. It should be noted that the official document signed by the trade unions and the enterprise agreed that members of the current works council, upon their request, be included in the list of affected workers. The fact that the UGT signed this agreement would imply that this branch of the trade union federation in Burgos is not in agreement with the complaint filed.
12. 634. Also, it should be noted that during the processing of the redundancy procedure, at no time did a hypothetical infringement of freedom of association occur. This is corroborated by the relevant report written by the responsible Labour Inspector, who affirmed that he did not detect even the slightest occurrence of this alleged violation of freedom of association when processing the indicated procedures (the Government sent this report).
13. 635. It is incomprehensible that questions are being raised about anti-unionism and discrimination with reference to procedures of an economic nature within an enterprise; procedures that had not led to any such allegations or any appeal in the form of corresponding judicial proceedings concerning this alleged infringement of trade union rights prior to this complaint.
14. 636. The Labour and Social Security Inspectorate, which is the main body responsible for monitoring the legality of procedures and the only one to have intervened in this regard, stated in its report of 24 September 2002 that “... on the basis of all the evidence, the undersigned Inspector believes that the aforementioned redundancy procedures do not involve discrimination or infringe the freedom of association of UGT members working at MetalIbérica S.A., given that on no occasion did those allegedly affected, or their representatives, give any indication or statement to reiterate the occurrence of anti-union discrimination”. The Government highlights that this report has not been distorted or contested.

C. The Committee’s conclusions

1. 637. The Committee observes that in this case the complainant organization alleges that legal and case law requirements were not fulfilled by redundancy procedure established on economic grounds by the enterprise MetalIbérica S.A.; this procedure involved the temporary suspension of 28 contracts of employment, which affected five former trade union representatives, and led to a new procedure initiated by the enterprise on 12 July 2002 aimed at obtaining new suspensions and affecting two of these former trade union representatives once again.
2. 638. The Committee notes that the allegations and the Government’s reply differ as regards the fulfilment of legal and case law requirements relating to adjustment of employment procedures. In this regard, the Committee would like to highlight that it is not responsible for assessing whether or not the economic reasons referred to by the enterprise existed, or whether the procedure fulfilled legal requirements in Spain; nor is it in a position to do so. Therefore, the Committee will limit itself to assessing whether the temporary suspension of the contracts of employment of the former trade union representatives affected by the redundancy amounts to anti-union discrimination, or not. The complainant organization and the Government also disagree about this point.
3. 639. In this regard, the Committee notes that the complainant organization highlights that: (1) 99 per cent of the workers were versatile and the first redundancy procedure was discriminatory and was unfoundedly of detriment to only some of the workers; (2) the enterprise transferred some former trade union representatives who had previously belonged to the works council to the enamelling line (they had been carrying out other duties); this transfer was conducted so that they would be included in the 28 workers whose contracts were going to be suspended as part of a redundancy procedure for a period that the enterprise claimed to limit to 12 months; (3) the redundancy procedure initially suspended the contracts of employment of five former trade union representatives for three-and-a-half months; these workers had been representatives for between eight and 20 years, and were therefore the most senior trade unionists within the enterprise; (4) the enterprise has 111 workers and currently has eight trade union representatives; (5) on 12 July 2002, the enterprise initiated a new redundancy procedure to temporarily suspend 27 workers for six months; these workers included two former trade union officials who had been trade union representatives for between 16 and 20 years, and who had also been included in the first redundancy procedure; of these 27 workers, 11 had already been included in the first redundancy procedure; and (6) the enterprise wilfully intends to take action against the aforementioned former trade union officials.
4. 640. The Committee observes that the Government highlights that: (1) the five former trade union representatives referred to by the complainant organization had ceased to be workers’ representatives (four in 1998 and the fifth in 1994) and, therefore, did not enjoy the one-year period of protection granted by law to workers’ representatives; (2) the status of former trade union representatives is the same as that of an ordinary trade union member and does not, therefore, involve rights that enhance their position in the enterprise compared to the rest of the workers; (3) the administrative resolution relating to the first redundancy procedure incorporated the criterion of the works council and agreed that the suspension which affected 28 workers alternate between workers, and also limited the period of suspension requested by the enterprise from 12 to three-and-a-half months (16 April 2002 to 31 July 2002) so that these former representatives cannot be included in any subsequent procedures; (4) prior to the redundancy procedure, only some former representatives were transferred and this, contrary to the statement by the complainant organization, was exclusively for organizational reasons within the enterprise, as shown in the procedure; (5) the administrative authority did not permit the second redundancy procedure requested by the enterprise on 12 July 2002, and referred to by the complainant organization in its second communication, precisely on the basis of alternating the previous redundancy procedure; (6) on 20 September 2002, the enterprise established a new redundancy procedure and the Labour Office of the Junta of Castilla y Léon, on the basis of the previous resolution by the administrative authority, established an agreement between trade unions and the enterprise that members of the current works council, upon their request, be included in the list of affected workers; and (7) the Labour Inspector, in his report of 24 September 2002, noted that he had not observed anti-union discrimination. The Government highlights that although the allegation of an attempt to persecute the five former representatives is yet to be proven, the administrative resolution put an end to this hypothesis of anti-union discrimination by making the redundancy procedure alternate between all workers in any subsequent plans to suspend contracts of employment.
5. 641. Taking all of the above into account, particularly the total number of workers in the enterprise and the fact that the resolution by the administrative authority included the criterion that all workers be included alternately in any subsequent suspensions of contracts of employment occurring as a result of an administrative decision during an economic crisis, the Committee believes that there is insufficient proof to state that the suspension of the contracts of employment of five former members of the works council (along with 23 other workers) for three-and-a-half months as part of a redundancy procedure on economic grounds at the enterprise MetalIbérica S.A. was a reprisal in discrimination for anti-union reasons.