Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Spain (Ratification: 1977)

The Committee notes the observations of the Trade Union Confederation of Workers’ Committees (CCOO) and the General Union of Workers (UGT), both received on 9 August 2018 and included in the Government’s report, and of the Spanish Confederation of Employers’ Organizations (CEOE), communicated by the Government, and the Government’s comments on all of these observations.

The Committee also notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2018, which raise issues concerning the application of the Convention in practice (anti-union dismissals and interference in the activities of trade unions and collective bargaining in the public sector). The Committee requests the Government to provide its comments in this regard.

Article 4 of the Convention. Promotion of collective bargaining. The Committee notes that many of the issues raised in the observations of the CCOO, the UGT and the CEOE refer to legislation introduced as from 2012 as part of the legislative reforms of the industrial relations system, including the primacy of enterprise level collective bargaining and the procedure for not applying clauses agreed to in collective agreements for economic, technical, organizational or production reasons. The Committee also recalls that these matters were examined by the Committee on Freedom of Association (371st Report, Case No. 2947, paragraphs 317–465), which, in its latest examination of Case No. 2947, decided not to pursue its examination of the case, taking into account the fact that several of the matters raised in the complaint were under examination by the Committee of Experts. In this regard, in its previous comment the present Committee requested the Government to provide information on the application in practice of the respective legislative provisions.

In this regard, the Committee notes, on the one hand, that the Government provides statistical information on cases relative to non-application of collective agreements (including eight decisions at the state level between 2015 and 2018 – one application was accepted, the others were shelved, set aside or declared irreceivable and, at the level of the autonomous communities, 22 procedures for non-application which reached the corresponding tripartite advisory body without agreement). The Committee also notes the indication by the CEOE that the changes of the 2012 reform relating to the primacy of application of enterprise agreements and the non-application of labour conditions agreed in collective agreements do not affect the provisions of Convention No. 98, and its indication, in the light of the statistical information covering the period between 2012 and 2017 on the relationship between workers covered by an enterprise agreement and by a higher level agreement, that these legislative changes have not resulted in substantial modifications in the structure of collective bargaining, including the percentages of workers covered by agreements at the various levels. On the other hand, the Committee notes the assertion by the CCOO that the principal negative consequence of the preference given to enterprise agreements over sectoral agreements has been the loss of labour conditions by the workers affected by the new enterprise agreements. The CCOO adds that the deterioration in the industrial relations system resulting from the reforms introduced as from 2012 has also been due to the following reasons: the fact that the effects of collective agreements are not maintained in case of non-renewal; the possibility granted to the employer to modify unilaterally the remuneration system and the wage levels established by enterprise collective agreements and arrangements under the terms of the amended section 41 of the Workers’ Charter – that the CCOO emphasizes has become the most widely used instrument to modify agreed conditions with a view to lowering wages – as well as the proliferation in practice of enterprise agreements concluded by workers’ representatives without adequate standing. The CCOO further notes that the number of enterprise agreements concluded since 2013 has been falling, partly due to trade union action to challenge a large number of the agreements concluded by alleged representatives who did not have the status to represent all of the workers and which set labour conditions that were clearly lower than those established in sectoral collective agreements. The CCOO adds that the non-application of the labour conditions established in agreements occurred at the most difficult period of the crisis for 10 per cent of the workers. The Committee also notes the Government’s confirmation, in reply to one of the observations made by the CCOO, that there has been an increase in the number of sentences examining the standing of the parties negotiating agreements, and that the non-application of the clauses established in collective agreements on the basis of substantial modifications in labour conditions, regulated by section 41 of the Workers’ Charter, which since 2012 includes the possibility of modifying the level of wages, would explain the wage trends highlighted by the CCOO. The Committee also notes that the UGT considers that the social dialogue recommended by the Committee on Freedom of Association has only occurred in formal terms, and that it questions the lack of guarantees for the establishment of negotiation forums in enterprises without the representation of the workers. The UGT adds that the new Minister of Labour, appearing before a parliamentary committee in July 2018, undertook to introduce reforms to recover the real power of collective bargaining, including the elimination of the priority given to the application of enterprise agreements over higher level agreements. With regard to the allegations of the proliferation of enterprise agreements concluded by representatives without adequate standing, the Committee invites the Government to examine this matter in consultation with the most representative employers’ and workers’ organizations and requests it to provide information on this matter.

With reference to the other issues raised by the social partners concerning the legislative reforms introduced since 2012 respecting the industrial relations system, the Committee considers that, with a view to promoting the full development and utilization of collective bargaining machinery, it is necessary to emphasize: (i) the importance of the mutual respect for the commitments made and the results achieved through bargaining; (ii) the determination of the bargaining level is essentially a matter to be left to the discretion of the parties; (iii) the adoption of procedures which systematically favour decentralized bargaining of less favourable clauses which replace clauses agreed at a higher level may result in the overall destabilization of collective bargaining machinery; and (iv) the issue of whether serious economic difficulties suffered by enterprises may lead in certain cases to the modification of collective agreements should be addressed through social dialogue. The Committee invites the Government, in light of the above comments, to submit the matters raised to social dialogue with a view to ensuring that the essential rules of the collective bargaining system are endorsed insofar as possible by the most representative workers’ and employers’ organizations. The Committee requests it to provide information on any developments in this regard.