Solicitud directa (CEACR) - Adopción: 2018, Publicación: 108ª reunión CIT (2019)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - España (Ratificación : 1977)

The Committee notes the observations of the Trade Union Confederation of Workers’ Commissions (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 on issues addressed by the present comment, as well as the Government’s comments in this respect.

The Committee also notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2018, which in addition to raising issues addressed by the present comment, refer to matters relating to the application of the Convention in practice, including the exercise of the right to strike and the check off of trade union dues. The Committee requests the Government to provide its comments in this regard.

Trade union rights and civil liberties. In its previous comment, after noting the observations of the ITUC and the CCOO alleging that Basic Act No. 4/2015 protecting public safety (LPSC) and new section 557 ter of the Penal Code restrict freedom of assembly, expression and demonstration, and the Government’s reply emphasizing the guarantees set out in the LPSC, the Committee requested the Government to provide information on the application in practice of the LPSC in relation to the exercise of freedom of association, as well as its comments on the allegations relating to the new section 557 ter of the Penal Code. The Committee notes the Government’s reiterated indication that the LPSC includes appropriate measures to protect the holding of meetings and demonstrations and prevent the disturbance of public safety (with the legal text emphasizing that the provisions in question shall be applied in the most favourable manner to give full effect to fundamental rights and civil liberties, and particularly the rights of assembly and demonstration, the freedoms of expression and information, freedom of association and the right to strike). The Government also affirms that the great majority of labour disputes which have arisen in Spain are pursued peacefully, with workers and trade union representatives making the correct use of the rights of assembly and demonstration. With regard to section 557 ter of the Penal Code, the Government specifies that this provision is only applicable against types of conduct that are criminalized (“persons who, acting in a group or individually but with the support of the group, enter or occupy, against the will of the person responsible, the premises of a public or private association, an office, workshop, establishment or space, even though it is open to the public” and cause “a disturbance to the public peace and its normal activity”). The Government indicates in this respect that only the most serious types of conduct would be included in this criminal offence and that the rights of assembly, demonstration and freedom of association, the exercise of which, as emphasized by the Government, do not require the use of violence or action which jeopardizes the social peace, are not restricted in their content under the terms of section 557 ter. The Committee also notes that both the ITUC and the CCOO once again denounce the use of the LPSC to limit the rights of peaceful assembly and expression, as well as freedom of association and the right to strike. The ITUC asserts that, since the adoption of the LPSC, there have been thousands of detentions, fines and penalties under the Act, and the CCOO adds that the party that has formed the new Government, together with others, has initiated parliamentary action to repeal the precepts of the LPSC, which it alleges are limiting the exercise of these constitutional rights, and that two legislative proposals on this subject have been accepted for examination by the Congress of Deputies. Finally, the Committee notes that the criminal offence set out in section 557 ter of the Penal Code includes broad and indeterminate legal concepts (such as the disturbance of the public peace and normal activities), and that the Government refers to similar broad concepts in relation to the scope of the protection of freedom of association, in particular in its affirmation that the exercise of this right does not require the disturbance of the social peace. In this regard, and recalling the concerns expressed by the trade union confederations, the Committee considers that it is necessary to verify the application of these concepts in practice with a view to ensuring that they do not limit the exercise of freedom of association as protected by the Convention. In light of the above, and noting the varying views expressed, the Committee requests the Government to submit to social dialogue with the most representative organizations the issue of the application of the LPSC and of section 557 ter of the Penal Code with a view to considering the measures that could be necessary to ensure the full exercise of civil liberties in relation to trade union rights. The Committee requests the Government to provide information on any developments in this respect, and on specific cases in which the LPSC and section 557 ter of the Penal Code have been applied in relation to trade union activities.

Article 3 of the Convention. Observations of the social partners on the exercise of the right to strike. In its previous comment, the Committee, noting the various viewpoints of the workers’ confederations, as well as the International Organisation of Employers (IOE) and the CEOE, in relation to the exercise of the right to strike, and particularly regarding minimum services, requested 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 notes the Government’s indication in general terms that tripartite dialogue depends on the proposals made by the parties to the negotiation. The Government recalls the principal elements of the system for the determination of minimum services, and emphasizes that: the most common intervention by the government authorities is the determination of minimum services for essential services; its intervention is impartial; the establishment of these minimum services has to be undertaken on the basis of a restrictive criterion, without achieving the normal level of operation, and there must be adaptation and proportionality between the protection of the interests of the community and the restriction of the right to strike; this has to be done through a legal provision, following a hearing of the strike committee, with sufficient publicity and the reasons being given to allow those affected to defend their positions and any subsequent judicial review; in each case, the characteristics and circumstances of the strike have to be taken into account; minimum service orders can be challenged in the courts, and failure to comply with them does not render a strike unlawful. The Committee also notes the assertion by the CCOO, in relation to essential services (within the definition of such services in Spanish legislation), that the administrative authority continues to fail to comply with the elements of the system for the determination of minimum services referred to by the Government (the CCOO provides examples of court rulings in this respect). In particular, the CCOO indicates that, in an important number of such essential services, the Government authorities refuse to enter into dialogue with trade unions for the determination of minimum services and instead establish them in a unilateral and abusive manner, which has given rise to various appeals to the courts, some of which have not been resolved, while others have given rise to court judgments finding the determination of minimum services and the replacement of workers abusive. The Committee further notes that the CEOE once again alleges the existence in the country of dysfunctions in the exercise of the right to strike and that it reiterates its previous observations in this respect (with the assertion that the dysfunctions should be resolved by guaranteeing the free individual exercise of both the right to strike and the right to work, and its views that: (i) information on the strike should be prohibited from 24 hours prior to the commencement of the strike with a view to avoiding situations of coercion; (ii) the judicial finding on whether or not the strike is legal should be issued before it commences; (iii) minimum services should be negotiated prior to the commencement of the dispute, and the rules established should be of a permanent nature; (iv) all the liabilities that may arise from participation in unlawful strikes should be determined; and (v) recourse to dialogue and out-of-court resolution machinery should be intensified). Observing the persistent divergences in the information provided and that the social partners continue to challenge aspects of the current system, including the reference by workers’ organizations to court rulings setting aside administrative decisions for the determination of minimum services, the Committee once again requests the Government to address through social dialogue with the most representative organizations of employers and workers the operation of the machinery for the determination of minimum services and the other issues and concerns raised by these organizations in relation to the exercise of the right to strike.

Finally, the Committee notes the information provided by the Government and the observations of the ITUC, UGT and CCOO in relation to the matters examined (the legislation and criminal proceedings and penalties relating to the exercise of the right to strike) in Case No. 3093 of the Committee on Freedom of Association. In this regard, the Committee refers to the examination, recommendations and follow-up of the case by the Committee on Freedom of Association.