Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Spain (Ratification: 1977)

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 31 August 2014 and 1 September 2015, the Trade Union Confederation of Workers’ Commissions (CCOO), received on 17 August 2015 and also included in the Government’s report, and the General Union of Workers (UGT), received on 4 September 2015, as well as the Government’s replies to them. The Committee also notes the observations of the International Organisation of Employers (IOE) and the Spanish Confederation of Employers’ Organizations (CEOE), received on 1 September 2015, as well as other observations of the IOE, received on the same date, which are of a general nature.

Observations of the ITUC and the CCOO on the exercise of civil liberties. The Committee notes that the observations of the ITUC and the CCOO allege that Basic Act No. 4/2015 protecting public safety (LPSC) and the new section 557ter of the Penal Code restrict freedom of assembly, expression and demonstration, which are essential to the exercise of freedom of association. The Committee further notes the Government’s reply indicating that: (i) the LPSC does not restrict or violate the right to freedom of association or to strike, as it only criminalizes offences committed by persons who disrupt or seek to disrupt harmonious relations among citizens, disrupting public order, causing damage to persons or property, blocking roads or public spaces or preventing authorities or bodies from performing their duties freely; (ii) the LPSC provides greater guarantees than the previous legislation by establishing that any administrative action shall be governed by the principles of lawfulness, equal treatment and non-discrimination, opportunity, proportionality, effectiveness, efficiency and accountability, and shall be subject to administrative and judicial supervision; and (iii) the LPSC establishes that its provisions on the maintenance of public safety and on penalties shall be interpreted and applied in the manner most favourable to the full enjoyment of fundamental rights and public liberties, and particularly the right of assembly and to demonstrate, freedom of expression and of information, freedom of association and the right to strike. Taking due note of the Government’s reply, the Committee requests the Government to provide information on the application in practice of the LPSC with regard to the exercise of freedom of association, as well as its comments on the allegations relating to the new section 557ter of the Penal Code.

Observations of the IOE, CEOE, UGT and CCOO on the exercise of the right to strike. The Committee notes that, in their observations, the IOE and the CEOE make allegations of dysfunctions in the exercise of the right to strike in the country, which should be rectified to ensure the free individual exercise of both the right to strike and the right to work. In this regard, they call for: (i) the prohibition of dissemination of information on a strike in the 24 hours preceding its initiation in order to avoid situations of coercion; (ii) court rulings on the lawfulness or unlawfulness of strikes to be issued prior to the commencement of the strike; (iii) minimum services to be negotiated prior to disputes arising and to be established on a permanent basis; (iv) the determination of all liabilities that may be derived from participation in illegal strikes; and (v) the intensification of the use of dialogue and out-of-court settlement mechanisms. Moreover, the Committee notes that the UGT and the CCOO allege that public administrations issue decisions imposing minimum services that are abusive in view of their excessive scope and lack of justification, and which have been found null and void after having been challenged by trade unions in the courts (many rulings are cited). The Committee further notes the information provided by the Government on various court rulings issued in disputes over the definition of minimum services. Noting the differing views of the confederations of workers and of the IOE and the CEOE, including with regard to minimum services, and noting the existence of large numbers of court rulings setting aside administrative decisions establishing minimum services on the grounds mentioned above, the Committee requests the Government to address through tripartite dialogue the operation of the procedures for the determination of minimum services, as well as the other issues and concerns raised by these organizations.

The Committee takes note of the issues raised in the observations of the ITUC, the UGT and the CCOO relating to the exercise of the right to strike, criticizing penal provisions and alleging the initiation of a large number of criminal and disciplinary proceedings against trade union members, as well as the Government’s reply, and notes that they are the subject of a case before the Committee on Freedom of Association (Case No. 3093).