Demande directe (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Espagne (Ratification: 1977)

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.