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

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the observations of the Trade Union Confederation of Workers’ Committees (CCOO, initially received on 4 August 2022), of the General Union of Workers (UGT), of the Spanish Confederation of Employers’ Organizations (CEOE), and of the Spanish Confederation of Small and Medium-Sized Enterprises (CEPYME), communicated by the Government, and the Government’s comments on all of these observations.

The Committee regrets not having received the Government’s comments regarding the observations of the International Trade Union Confederation (ITUC), received in 2018 and raising questions concerning the application of the Convention in practice. The Committee again requests the Government to provide its comments on the above-mentioned observations, in particular those relating to allegations of anti-trade union dismissals in various private sector enterprises.

The Committee notes with interest the information provided by the Government regarding the role played by social dialogue and collective bargaining in addressing the economic and social consequences of the COVID-19 pandemic, including: (i) the adoption of social agreements defending employment; and (ii) steps to facilitate, prior to the adoption by the enterprise of measures to suspend labour contracts or reduce hours of work, the participation of the workers’ and employers’ representative organizations in bargaining committees, in enterprises without workers’ legal representation.

Article 4 of the Convention. Promotion of collective bargaining. Legislative reform. In its previous comment, the Committee noted that many of the issues raised by the CCOO, the UGT and the CEOE referred 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 in collective agreements for economic, technical, organizational or production reasons. In this regard, the Committee recalled a number of principles, and invited the Government to submit the matters raised to social dialogue, to ensure that the essential rules of the collective bargaining system are endorsed insofar as possible by the most representative workers’ and employers’ organizations.

The Committee notes with satisfaction the Government’s indication, endorsed by the observations of the various social actors, that: (i) Royal Decree-Law No. 32/2021 adopted on 28 December 2021 corrects the regulation in place since 2012 regarding the primacy of the enterprise-level agreement and the invalidity of the collective agreement, which were two of the most questioned elements of the 2012 reform; and (ii) the above changes were confirmed through social dialogue, as the trade union and employer organizations, the CCOO, the UGT, the CEOE and the CEPYME, through a broad process of negotiation, agreed on the measures to be included in the Decree-Law together with the Government. Regarding the specific content of the reforms, the Committee notes that the Government and the social partners state: (i) by amending section 84(2) of the Workers’ Charter, the primacy of the enterprise-level agreement in respect of the amount of the wage and wage supplements, including those linked to the situation and results of the enterprise, is removed, while primacy of the enterprise-level agreement is maintained for the other elements governed by collective bargaining; and (ii) with regard to the validity of collective agreements, by revising section 86, the rule of continuing effect of the agreement is restored in the event of failure to reach agreement on its revision, at the same time preventing collective agreements from becoming frozen, from lack of negotiating momentum. The Committee also notes that the new section 42.6 of the Workers’ Charter governs the determination of the applicable collective agreement where there are contracts and subcontracts for works and services.

The Committee also notes the observations of the CCOO, which denounces the absence of dialogue on the amendments to procedures that make it possible, under sections 41 and 82.3 of the Workers’ Charter, to suspend the application of agreed clauses in collective agreements for economic, technical, organizational or production reasons. The trade union organization maintains that this continues to provide enterprises with powerful means of altering collective bargaining agreements. The Committee notes the Government’s reply that: (i) as stated above, the practice of social dialogue has made it possible to arrive at important consensual reforms to collective bargaining over the past year; and (ii) there were 308 non-applications of collective agreements from January to June 2022, a similar amount to that from the same period during the previous exercise, with 11,941 workers affected, a slightly higher figure than for the same period in 2021. While welcoming the consensual formulation and adoption of the Decree, the Committee again recalls the importance of mutual respect for the agreements reached and results obtained through bargaining, and that the problem of whether serious economic difficulties for the enterprises can, in certain cases, give rise to amendments to collective agreements, must be taken up in the framework of social dialogue. In light of the above, the Committee requests the Government to examine the effects of the application of sections 41 and 82.3 of the Workers’ Charter within the framework of social dialogue and report on the results of those discussions.

Persons authorized to negotiate collectively. “Ad hoc” committees. In its previous comment, the Committee noted the concerns expressed by the CCOO regarding the alleged proliferation of enterprise agreements concluded by representatives without adequate standing. In this regard, the Committee notes the court rulings provided by the Government related to the legitimacy of the negotiating committee and the consequences of its correct or incorrect composition. The Committee notes, however, that in its latest observations, the CCOO alleges that the role attributed to “ad hoc” committees under the 2012 legislative reform (sections 40, 41, 47, 47bis, 51 and 82.3 of the Workers’ Charter) is contrary to the requirement to promote collective bargaining with the workers’ organizations established in Article 4 of the Convention. The Committee notes that the trade union confederation specifically alleges that, by virtue of the cited provisions, ad hoc committees, composed of workers from work centres in which no trade union elections have been held, have been established as an alternative to trade unions in enterprises during moments of “difficulty”, with the aim of cancelling labour contracts, altering working conditions and modifying the established content of collective agreements by establishing less favourable conditions for workers, without the presence of legal representation of the workers with whom such agreements were made. Noting that the Government confines itself to commenting on a recent court ruling that an “ad hoc” committee cannot validly negotiate the equality plans included in the legislation, the Committee requests the Government to respond exhaustively to the allegations made by the confederation.

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

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.

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

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’ Committees (CCOO), received on 17 August 2015 and also included in the Government’s report, and the General Union of Workers (UGT), received on 7 September 2015. 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.

The Committee notes that most of the issues raised in the observations of the ITUC, the CCOO, the UGT, the IOE and the CEOE refer to provisions introduced by a legislative reform concerning industrial relations, particularly the primacy of enterprise-level collective bargaining and the procedure for setting aside provisions of collective agreements on economic, technical, organizational or production-related grounds. The Committee notes that these issues were examined by the Committee on Freedom of Association (Case No. 2947), which emphasized the importance of ensuring that the essential rules governing the system of industrial relations and collective bargaining were shared, to the maximum extent possible, by the most representative workers’ and employers’ organizations, and invited the Government to promote social dialogue to achieve this goal. The Committee requests the Government to provide information on the application in practice of the new provisions.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee requests the Government to send additional comments on the observations relating to the application of the Convention and other ratified Conventions on trade union rights made by the International Trade Union Confederation (ITUC), the General Union of Workers (UGT) and the Trade Union Confederation of Workers’ Commissions (CC.OO.), and by the Spanish Confederation of Employers’ Organizations (CEOE).

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes the comments of the International Trade Union Confederation (ITUC), the General Union of Workers (UGT) and the Trade Union Confederation of Workers’ Committees (CC.OO.), referring to a 5 per cent wage cut in the public service pursuant to Royal Legislative Decree No. 8/2010 of 20 May on the adoption of special measures to reduce the public deficit, and to restrictions on collective bargaining under Act No. 3/2012 of 6 June on urgent measures for labour market reform.

The Committee observes that the Government’s report has been received but points out that these matters have already been referred by the UGT and the CC.OO. to the Committee on Freedom of Association (Cases Nos 2918 and 2947), and are therefore under consideration by that committee.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee takes note of the comments sent by the Trade Union Confederation of Workers' Committees (CC.OO.) to the effect that: (1) the Government has intervened in collective bargaining, in particular by publicly advising employers not to give effect to a wage adjustment agreement in the banking sector; (2) the Government has negotiated a retirement pension increase with a non-union organisation; and (3) the Government has not yet recognised the right of public servants to bargain collectively.

In reply, the Government has drawn the attention of the Committee to information already communicated in cases examined by the Committee on Freedom of Association and given during discussions at the Conference Committee on the Application of Standards and in the Governing Body. These matters have been noted by the Committee.

The Committee has taken note of Case No. 1474 examined by the Committee on Freedom of Association (see 265th Report, approved by the Governing Body in May-June 1989). As regards the first point, the Committee notes that, according to the CC.OO. itself, the Government merely advised one of the parties to the bargain. In the Committee's opinion, the expression of a government's view on the impact of a collective bargain, without direct interference, does not appear to offend the provisions of the Convention. As for the second point, it is of the opinion, as was the Committee on Freedom of Association in Case No. 1474, that representative trade union organisations were consulted and that the Government signed an agreement with an organisation which represents the interests of retired persons on a wide scale; the Committee accordingly considers that there has not been any infringement of collective bargaining. As regards the last point, the Committee recalls that the Convention does not deal with public servants engaged in the administration of the State (Article 6 of the Convention), and there is no evidence that other types of civil servants were involved.