Rapport définitif - Rapport No. 238, Mars 1985

Cas no 1249 (Espagne) - Date de la plainte: 18-NOV. -83 - Clos

1. 49. The complaint is contained in a communication from the Federation of Associations of Senior Public Servants' Bodies (FEDECA) dated 18 November 1983. FEDECA sent additional information in a communication dated 2 January 1984. The Government supplied its observations in a communication dated 6 April 1984.
2. 50. Spain has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.087), and the Right to Organise and Collective Bargaining Convention, 1949 (No.098).

A. The complainant's allegations

1. 51. The Federation of Associations of Senior Public Servants' Bodies (FEDECA) alleges that in January 1983 the Ministry of the Presidency of the Government (which is responsible for matters relating to the public service) opened a round of negotiations on public servants' hours of work and wages to which were invited the trade union organisations FSP (UGT), CCOO and CSIF, but not FEDECA. At this stage a written request was made for FEDECA to attend. The executive committee of FEDECA was summoned several times to the Ministry of the Presidency of the Government (on one occasion for an informal audience with the Minister, at other times for conversations with the Secretary of State for the Public Service or with the Director-General of the Public Service) to try to resolve the matter of FEDECA's participation in the round of negotiations. Finally, at the end of January FEDECA was verbally informed of the refusal of the Ministry of the Presidency of the Government to allow it to participate in the negotiations, which alleged that "the other three trade union organisations with which the Ministry of the Presidency of the Government has been negotiating were opposed to its presence".
2. 52. According to the complainant, in June 1983, the Minister of the Presidency of the Government who still refused to negotiate with FEDECA, provided the Federation with a copy of the preliminary draft of a bill to reform the public service and a copy of the bill regulating trade union membership and the right of officials to strike and requested the organisation "as early as possible" to report on the texts, stating verbally that this should be done within a period of five days. FEDECA points out that it has not received any reply to the report which it transmitted within the required time limit or had any conversation on this matter. It is clear that the fact of requesting a report without following up the matter once it had been received cannot be considered a genuine negotiation process.
3. 53. The complainant also alleges that the Minister of the Presidency of the Government and the Secretary of State for the Public Service summoned the executive committee of FEDECA to an audience on 6 October 1983, during the course of which it was promised that FEDECA would be allowed to participate in the negotiations because they concerned matters relating to the reform of the public administration. The complainant points out that it discovered to its surprise, and without it having been so far invited to any kind of negotiation, that some of the items for discussion such as the application of specific wage concepts, the new preliminary draft of a bill to reform the public service and the bill regulating trade union membership and the right of officials to strike had been resolved and that the first of these had already been sent by the Government to Parliament. Since these matters - as well as that respecting the incompatibility of interests of public officials (upon which FEDECA was not even consulted) - are matters normally covered by collective bargaining (Article 2 of ILO Convention No. 154), the complainant considers that it is clear that the line of action followed by the Minister of the Presidency of the Government and the Secretary of State for the Public Service is a continued infringement of Articles 5, 7 and 8 of Convention No. 154.
4. 54. Furthermore, the complainant alleges that the official information media (official press, radio, television, etc.) distorted reality by depicting the trade union which supports the Government, and is an offshoot of its political party (FSP-UGT), as a "protagonist and champion of benefits" gained for officials during the course of the negotiations which the complainant was not permitted to attend. In addition, the complainant alleges that although the number of public servants who are members of the FSP-UGT is very small, a very high proportion of them have been granted leave of absence for trade union duties. This means that they receive their emoluments as officials and provide their services to the above-mentioned trade union and not to the State which constitute "measures which tend to strengthen workers' organisations dominated by an employer". In the case of public officials the employer is the State, which is directed by the Government. Hence the circumstances denounced above may be considered as an infringement of Article 2 of ILO Convention No. 98.
5. 55. The complainant also alleges that the participation framework to be established under the "preliminary draft of a bill to reform the public service" clearly contradicts the spirit and letter of Article 5 of Convention No. 151 by prescribing, in section 6, that the participation of staff employed of the public administration must be channelled through an institutional body (the Superior Council of the Public Service), in which the representatives of the employers (Government, autonomous regional and local authorities) are three times as numerous as workers' representatives and which, moreover, lacks any real decision making powers. The complainant adds that this situation must be taken in conjunction with section 6 of the bill regulating freedom of association which reads as follows:
   • "Section 6.
6. 1. The most representative status recognised to specific trade unions confers upon them a unique legal position with regard to both institutional participation and trade union action.
7. 2. The most representative trade unions at the national level shall be:
   • a) Those which cater to a special audience, as expressed through the attainment at the national level of 10 per cent or more of the total number of staff delegates, of the members of the works' councils or the corresponding bodies of the public administration.
   • b) Trade unions or trade union bodies which are affiliated to or are a federation or confederation of a national trade union organisation enjoying the most representative status as defined in paragraph (a).
8. 3. Organisations enjoying the most representative status as defined above shall enjoy this status at all territorial and functional levels as regards:
   • a) Institutional representation before public administration bodies or other bodies and agencies of the State or autonomous regional authorities endowed with such representation.
   • b) Collective bargaining in the terms provided by the Worker's Statute through their participation in the committees which negotiate the agreements.
   • c) Participation in the determination of conditions of employment in the public administration through the appropriate consultation or negotiation procedures.
   • d) The establishment of trade union branches and the development of trade union action in the work centres in the framework of and with the guarantees provided by this Act and the Workers' Statute, without prejudice to the provisions contained in collective agreements.
   • e) The collective exercise of the right to strike as well as the adoption of collective dispute measures within the legally established framework.
   • f) Participation in the non-jurisdictional machinery for the settlement of labour disputes.
   • g) The holding of elections for staff delegates and works councils and the corresponding bodies of the public administration.
   • h) Any other representative function as may be established."
     • The complainant organisation believes that both these provisions will result in the representation of public officials on the Superior Council of the Public Service being systematically denied to the democratically elected representatives of the officials and being assumed by persons appointed by trade union organisations which had obtained practically no votes from the workers concerned. This situation is particularly serious when the State is the employer and where there exists, as is the case in Spain, a powerful trade union which maintains political links with the party in power.
   • 56. Finally, the complainant points out that the bill regulating freedom of association excludes the establishment of trade unions for workers employed on their own account who do not have other workers in their service.

B. The Government's reply

1. 57. As regards the allegation concerning the non-participation of the complainant in negotiations on the reform of the public service which took place in the Ministry of the Presidency of the Government - Secretariat of State for the Public Service (bill to reform the public service, bill regulating trade union membership and the right to strike of officials, etc.), the Government states that given the small number of existing standards governing the freedom of association of public employees, recognised in article 28 of the Spanish Constitution, and which is only explicable in terms of the well known circumstances which until very recently characterised trade union life in general in Spain and in particular that of public officials, it must be pointed out first that general trade union elections have not yet been held in the Spanish public service. Nevertheless, and in a clearly temporary manner, pursuant to the provisions of existing legislation (Act 19/1977 on the right to trade union membership; Decree 873/1977 on the registration of the statutes of trade union organisations; Decree 1522/1977 on the right of public officials to trade union membership and the Order of the Secretariat of State for the Public Service dated 7 June 1979), since March 1982 the superior bodies of the state administration have comprised representatives of the major central trade union organisations which group together public officials. These are, in particular, the Independent Trade Union Confederation of Officials (CSIF), the Federation of Public Services of the General Trade Union of Workers (FSP-UGT) and the Trade Union Confederation of Workers' Committees (CCOO), which have given ample proof of their representative nature in various sectoral elections held in the public administration, in which all three have invariably appeared in a prominent position and obtained relatively homogenous and significant results.
2. 58. The Government continues that it is logical to conclude from these results that these three central organisations are those which today best represent the interests of public officials vis-à-vis the public administration, and have clearly global and widespread capacities as compared with the other associations of officials which have achieved significant electoral results in specific administrative bodies, which shows once again their particular sectoral character and which results in their participation in important rounds of negotiations being held in the various ministerial departments (in particular, in Education and Science, and in Transport and Communications).
3. 59. The Government points out that there exist approximately 1,000 associations of public servants. It is easy to single out those in which membership is based on groups of officials or specific sectors of activity from those trade unions of a more general nature with a national membership which covers both the public and private sectors . In addition to the 1,000 associations, there exist 36 federations of public servant associations, without including the Independent Trade Union Confederation of Officials (CSIF), which is one of the three central trade union organisations having general membership; the CSIF groups together 50 other bodies. For its part, the Federation of Associations of Senior Public Servants' Bodies (FEDECA) is composed of 26 associations at least five of which belong also to the CSIF; as defined in its own statutes, its scope covers bodies of public servants who must hold higher university qualifications, which is not the case with the CSIF. The Government concludes that it would be clearly impractical to organise general negotiations with all these associations and that it has had to limit such negotiations, until general trade union elections are held in the public service, to the representative central trade union organisations indicated above; this has not proved an obstacle to maintaining open dialogue and formal consultations with various associations of officials, including FEDECA itself, in addition to the above-mentioned sectoral negotiations being held in various ministries.
4. 60. The Government also refers to the special meaning of the expression "negotiation of conditions of employment" in the legislative framework of the public service and points out that Article 7 of Convention No. 151 provides that measures which take account of national conditions should be adopted to encourage and promote the development and use of bargaining procedures between the public authorities concerning conditions of employment, or any other methods which allow public employees to participate in the determination of such conditions, all of which illustrate the variety of possible procedures.
5. 61. For all these reasons, the Government concludes that there has clearly been no infringement of Convention No. 154, independently of the fact that this Convention has not yet been ratified by Spain, and that in the same way there has been no infringement of any of the provisions of Convention No. 151.
6. 62. With regard to the allegation that the official information media distorted reality by presenting the trade union which supports the Government, and is an offshoot of its political party (FSP-UGT), as a "protagonist and champion of benefits" gained for officials during negotiations which FEDECA was not allowed to attend, the Government states that the Spanish Constitution recognises and guarantees freedom of information (article 20), but that it also establishes that "the law shall regulate the organisation and parliamentary control of the social communications media dependent upon the State or upon any public agency and shall guarantee access to such media by significant social and political groups, respecting the pluralism of society and of the various languages of Spain" (article 20.3). In 1980 the Spanish Parliament passed legislation (Act 4/1980) which defined the public agency "Radio and Television of Spain" and set up a council of 12 members, elected by the Parliament itself and not by the Government, to control the body. To refer to it therefore as "... the official information media (official press, radio, television, etc.)" does not accurately reflect the real situation in Spain today. Furthermore, no other documentation has been received from FEDECA to support such a categorical statement.
7. 63. The Government adds that with regard to the three central trade union organisations mentioned, the facilities granted to their representatives fully conform with the provisions of Article 6 of Convention No. 151 and section 9 of the bill regulating freedom of association, which was sent to Parliament on 30 November 1983. Furthemore, in any case Convention No. 98 refers to workers and expressly excludes public officials (Article 6 of the Convention), thus making it once again inappropriate to speak in this connection of infringement of Article 2 of Convention No. 98.
8. 64. The Government adds that independently of all these points, it is inadmissible to accuse the Federation of Public Services of the General Union of Workers (FSP-UGT) of being a trade union federation in the pay of the Government. It should be pointed out that the UGT is a trade union organisation which was founded nearly 100 years ago (in 1888), a member of the International Conferation of Free Trade Unions and that, as is well known, even during those periods when trade union activity in Spain required the utmost secrecy, it represented, along with a small number of specific trade unions in Spain, the interests of the Spanish workers vis-à-vis the ILO. At the present time, amongst officials of the state administration, the UGT enjoys the most represen tative status (in the 1983 trade union elections in the administration: of a total of 3,537 staff delegates elected, 45.4 per cent were from the UGT and 31 per cent from the CCOO).
9. 65. As regards the bill to reform the public service, which was sent by the Government to Parliament on 2 November 1983, and section 5 of which establishes that the Superior Council of the Public Service, as a collegiate body for discussion between the different public administrations and the staff, whether public servants or not, in their service, the Government states that this body is a deliberative and advisory agency without decision-making powers and that it is responsible for co-ordination between public administrations. In no way is it a body empowered to negotiate in the sense used in Article 5 of Convention No. 151.
10. 66. The Government also states that the second additional provision contained in the bill regulating freedom of association which was sent by the Government to Parliament on 30 November 1983 provides the following: "1. The terms of office of staff delegates, members of the works councils and those persons who are members of the representative bodies established in the public administration will be four years and members may be re-elected for successive electoral periods. 2. Without prejudice to the provisions of article 103.3 of the Constitution ('the law shall regulate the status of public servants ..., the special features of the exercise of their right to associate ...'), the Government shall issue as many provisions as may be necessary regarding elections to the representative bodies of staff in the public administration". That is, the subsequent instruments for the implementation of this provision shall determine which bodies shall represent the staff in the public administration and the procedure regarding trade union elections for staff representatives in such bodies. Therefore FEDECA's allegation concerning the infringement of Article 5 of Convention No. 151 by the bill to reform the public service is unjustified since, in any event, it will be the legislation to implement the bill regulating freedom of association which will establish the representative bodies of the public administration and this legislation will take into account the provisions of Convention No. 151.

C. The Committee's conclusions

1. 67. As regards the exclusion of FEDECA from the negotiations on the reform of the public service (dealing, inter alia, with hours of work and remuneration of officials; the preliminary draft of a bill to reform the public service; bill regulating trade union membership and the right of officials to strike; and incompatibility of interests of officials), the Committee notes that according to the Government, since March 1982 the principal central trade union organisations which cover public servants (CSIF, FSP-UGT and CCOO), have been representing officials vis-à-vis the executive bodies of the state administration. These organisations always appear well placed, with relatively homogenous and significant results in various sectoral elections held in the public administration and have clearly global and widespread capacities as compared with the other associations of officials which figure prominently in electoral results for specific administrative bodies, which shows once again their sectoral and specific character. The Committee also notes that in the 1983 trade union elections in the public administration, 45.4 per cent of the 3,537 staff representatives elected came from the UGT, whereas 31 per cent came from the CCOO.
2. 68. On previous occasions, the Committee has stated that the mere fact that legislation or practice in a country draws a distinction between the most representative trade union organisations and other organisations for the purposes of granting certain privileges or advantages to the former, for example, regarding representation or consultation, is not in itself a matter for criticism, nor does it give rise to objections from the viewpoint of the principles of freedom of association, provided that such a distinction is based on objective criteria, such as majority of members, and that the fundamental rights and guarantees of the less representative organisations are not brought into question (see 217th Report, Case No. 1061 (Spain), para. 133). In this respect, the Committee notes that according to the annexes sent by the complainant organisation (FEDECA), this organisation represents approximately 7,500 of the almost 12,000 public servants employed in 26 senior administrative bodies (state lawyers, career diplomats, highway engineers, technicians of the state civil administration, etc.). The Government has pointed out moreover that the scope of FEDECA, as defined by its own statutes, covers those public servants who must hold advanced university qualifications.
3. 69. In these circumstances, in view of the number of public servants affiliated to the member associations of FEDECA (7,500, a very small number when compared with the total number of Spanish public servants), and since the organisation, apart from stating without further detail that FSP-UGT has a very small number of public servant members, has not produced any proof to contradict the Government's statement that the three organisations invited to participate in the negotiations on matters relating to the public service (CSIF, FSP-UGT and CCOO) are the principal central trade union organisations covering public servants and which have, in comparison with the other public servants' associations, clearly global and widespread capacities, the Committee considers that the non-participation of FEDECA in the above-mentioned negotiations does not appear to infringe the principle in question.
4. 70. With regard to the complainant's allegation that the official information media presented the FSP-UGT as a "protagonist and champion of benefits" gained for officials during the negotiations, the Committee observes that the complainant has not supplied examples of the information which it criticises and that the trade union organisation to which it refers was in fact one of the negotiating organisations. In these circumstances, and noting the information supplied by the Government, the Committee concludes that there are no grounds enabling it to conclude that there has been any infringement of the principles of freedom of association.
5. 71. As regards the allegation that despite the small number of officials who are members of FSP, a very high proportion of them have been granted leave of absence for trade union duties, the Committee notes that the Government has not replied to this. However, since the complainant has not indicated what proportion of members and trade union leaders enjoy such leave of absence within FSP-UGT and other organisations, the Committee is not in a position to come to any conclusion on this allegation.
6. 72. Finally, as regards the provisions of the bills referred to by the complainant, the Committee notes that according to the Government, the Superior Council of the Public Service, provision for which is made in section 6 of the bill to reform the public service, is a deliberative and advisory body without decision-making powers responsible for co-ordination between the public administration, and that it is not a body empowered to negotiate in the sense used in Article 7 of Convention No. 151. The Committee also notes that the Government states that the legislation to implement the bill regulating freedom of association will establish the representative bodies of the public administration and that this legislation will take into account the provisions of Convention No. 151. In the light of the explanations given by the Government, the Committee considers that the fact that under section 6 of the bill to reform the public service, the representatives of the Government, the autonomous regional and local authorities are several times more numerous than the representatives of the workers does not bring into question the principles of freedom of association. In the same way the Committee considers that the text of section 6 of the bill regulating freedom of association does not infringe the above-mentioned principle as regards the privileges or advantages concerning representation or consultation.
7. 73. As regards section 3(1) of the bill regulating freedom of association ("persons employed for their own account who do not have workers in their service may become members of trade union organisations established in accordance with the provisions of the present Act, but may not establish trade unions which are specifically designed to protect their individual interests"), the Committee notes that this section recognises in any case the right of this category of workers "to establish associations under this specific legislation". In these circumstances, the Committee considers that this provision does not infringe the principles contained in Convention No. 87.

The Committee's recommendations

1. 74. In the circumtances, the Committee recommends the Governing Body to decide that this case does not call for further examination.