Rapport définitif - Rapport No. 358, Novembre 2010

Cas no 2759 (Espagne) - Date de la plainte: 19-JANV.-10 - Clos

Allegations: The complainant organization objects to the legal criteria for obtaining the status of most representative organization in the agricultural sector

1. 491. The complaint is contained in a communication from the Confederation of Farmers’ and Livestock Breeders’ Unions (UUAG) dated 19 January 2010.
2. 492. The Government replied in a communication dated 4 March 2010.
3. 493. Spain has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Rural Workers’ Organisations Convention, 1975 (No. 141).

A. The complainant’s allegations

1. 494. In its communication of 19 January 2010, the UUAG explains that it is a nationwide agricultural confederation, that it deposited its statutes to the authorities in December 2008 and that the Farmers’ Union of Catalonia, the Labourers’ Union of the Valencia Region, the Free Agricultural Platform of the Canary Islands, the Farmers’ and Livestock Breeders’ Union of Extremadura, the Union of Farmers, Livestock Breeders and Foresters of Madrid and the Farmers’ Union of Castile and León, which operate in the autonomous communities in Spain, are part of this confederation.
2. 495. The UUAG alleges that sections 4 and 5 of Act No. 10/2009 of 20 October, establishing national advisory bodies in the agro-food sector and determining the basis for the representation of professional agricultural organizations, breaches the principles of freedom of association and Conventions Nos 87 and 141.
3. 496. The complainant organization points out that section 4(2) of the act sets out the first criterion to be taken into consideration:
4. To this end, the “most representative” professional agricultural organization of a general nature shall be considered to be that which, at the time of submitting its application to be recognized as such, has at least 15 per cent of the electoral votes cast in all the elections held by the autonomous communities to participate in the advisory bodies and entities of the autonomous communities, having run for election in at least nine autonomous communities.
5. For the purpose of this act, voters shall be understood to mean natural persons who are registered in the social security system as self-employed because of their agricultural activities and legal persons whose exclusive objective pursuant to their statutes is agricultural activity and who actually undertake such activity.
6. 497. Section 4(3) establishes the second criterion to be taken into consideration:
7. The professional agricultural organizations that do not obtain the status of “most representative” by means of the arrangements established in paragraph 2 of this section shall be granted such status when they are recognized as being the most representative in at least ten autonomous communities.
8. 498. According to the complainant organization, the first legal criterion to determine the most representative agricultural organizations (participation in elections in nine autonomous communities and obtaining an overall share of 15 per cent of the total number of votes at the national level) is reprehensible and discriminatory as it could mean that an organization is not considered “most representative” even if it obtains more than 15 per cent of the votes in fewer than nine communities (the current situation, furthermore, is that nine of the 17 existing autonomous communities account for only 18.82 per cent of agricultural professionals). It is also reprehensible because it could mean that an organization with the largest membership at the national level would not be considered the most representative if its coverage does not extend to nine autonomous communities, thereby forcing the establishment of organizations with such coverage.
9. 499. The complainant organization also criticizes the second, alternative, legal criterion for determining the most representative agricultural organizations (recognition as one of the most representative professional organizations in ten autonomous communities), which reflects a legal system that allows the autonomous communities to decide on the percentage of votes that are needed to determine the “most representative” organization, which depending on the case may be 10 or 15 per cent of the valid votes cast. In other words, there are no uniform criteria regarding the percentage required which creates problems, according to the complainant organization, given that the ten autonomous communities with the fewest professional natural persons account for only 24.25 per cent (76,527) of the total number of the country’s agricultural professionals and that obtaining 15 per cent would require the vote of 11,480 professionals. The complainant organization points out that in the last elections it represented 17,961 professionals in three of the autonomous communities in which it operates (but it is not considered to be “most representative” in ten autonomous communities). The current system could mean that an organization with the largest agricultural representation at the national level is not considered the most representative because it is not recognized as such in at least ten autonomous communities. This is likely to force agricultural professionals to set up more organizations so as to obtain such territorial coverage.
10. 500. Furthermore, the complainant organization notes that section 5 of Act No. 10/2009 establishes that professional agricultural organizations receive public assistance for their participation in the Agricultural Advisory Committee. The said committee was established under section 3 of Act No. 10/2009. This public assistance is awarded solely on the basis of the election results on the assumption that the “most representative” status has been granted in accordance with the provisions of section 4(2) of the act (15 per cent of the total number of votes in the country). This is reprehensible in the opinion of the complainant organization because the situation could arise where the most representative organization in the whole country is the organization that represents the largest number of professionals but does not reach this percentage.
11. B. The Government’s reply
12. 501. In its communication of 4 March 2010, the Government states that the UUAG (hereinafter the Confederation) is a confederation made up of six professional agricultural organizations at the autonomous-community level, of which the Farmers’ Union of Catalonia is the most representative. Most of the said agricultural organizations split from the national agricultural professional organization, the Coordinating Body for Farmers’ and Livestock Breeders’ Organizations (COAG), to create the Confederation, including the aforementioned Farmers’ Union of Catalonia, which is the largest organization in the Confederation. By decision of the General Labour Directorate of the Ministry of Labour and Immigration of 16 December 2008, the deposit of statutes and the constituent instrument of the Confederation were accepted and authorized after verification that they met the requirements provided for in Act No. 19/1977 of 1 April governing the right to organize. As the statutes were not challenged within the statutory period of 20 days, the said organization acquired full legal personality as of January 2009.
13. 502. With regard to the argument set forth by the Confederation to be considered the “most representative agricultural professional organization at the national level”, the Government states that Act No. 18/2005 of 30 September, which repealed Act No. 23/1986 of 24 December (Framework Act on the legal regime governing chambers of agriculture), established transitional provisions pending the adoption of a new law governing the representativeness of professional agricultural organizations. Such a law has now been adopted, in the form of Act No. 10/2009 of 20 October. The sole transitional provision of Act No. 18/2005 provided in paragraph 4.2(d) that the professional agricultural organizations considered to be the most representative in the area of the General Administration of the State shall be those which have obtained at least 10 per cent of the valid votes in the relevant elections. In addition, in paragraph 4.2(e), it provided that the professional agricultural organizations which are recognized as being the most representative shall carry out institutional representation functions before public authorities, entities and bodies.
14. 503. In accordance with the said act and with the electoral processes held, the professional agricultural organizations considered by the Ministry to be the most representative at the national level are the Association of Young Farmers of Aragón (ASAJA), COAG and the Union of Small-Scale Farmers (UPA), as they obtained a national average of at least 10 per cent of the votes.
15. 504. Notwithstanding the above, the Confederation has, since it was established, brought complaints and appeals through administrative channels and before administrative courts against several of the Ministry’s acts in order to be considered the “most representative professional agricultural organization at the national level”, which would entitle it to carry out institutional representation functions before the General Administration of the State and its subordinate agencies. As recorded by the Ministry, the Confederation filed the following appeals:
16. – Appeal of 23 April 2009 in order to participate in the advisory bodies of the State Agency for Agricultural Insurance (ENESA) as “most representative professional agricultural organization at the national level”. The appeal was rejected by a decision of the Minister dated 24 June 2009.
17. – Administrative appeal for the protection of fundamental rights against Decree
18. No. ARM/1038/2009 of 22 April which establishes the regulatory framework for the granting of subsidies; the appellant considers there to be an infringement of the right to the freedom of association and the principle of equality established in articles 28(1) and 14 of the Constitution respectively, due to the unequal treatment of the Confederation by the Ministry compared to the other most representative professional agricultural organizations at the national level. The Ministry contested the appellant’s allegations.
19. – Appeal of 3 August 2009 against the decision by the Deputy Secretary dated 29 June 2009 in order to be considered the “most representative professional agricultural organization at the national level”. The appeal was rejected by Decision of the Minister dated 14 December 2009.
20. 505. The draft of Act No. 10/2009 was adopted by the Council of Ministers in January 2009 in line with the legal mandate conferred on the Government under paragraph 2 of the sole transitional provision of Act No. 18/2005 of 30 September, which repealed Act No. 23/1986 of 24 December (Framework Act on the legal regime governing chambers of agriculture), to submit a bill to the Parliament establishing a new system governing the representativeness of professional agricultural organizations.
21. 506. During the preparation of the text, the opinion of a committee of renowned experts in the field was sought; their unanimous opinion was fundamental in the drawing up of the preliminary draft, which was submitted for review by the then Ministry of Public Administration and made available as public information to the sectors concerned. The opinion of the Economic and Social Council of Spain was also sought; the Council issued a favourable opinion. This therefore constitutes a dialogue and social consensus with the most representative professional agricultural organizations at the national level such as ASAJA, COAG and the UPA, which represent a majority and work to protect all agricultural interests without limitation as to the productive sector or the personal characteristics of the respective professionals, and whose observations have been incorporated into the text.
22. 507. Furthermore, in order to ensure greater involvement and transparency during the preparation of the bill, a consensus was reached in Parliament especially by the two major political parties of Parliament, the Spanish Socialist Workers’ Party (PSOE) and the People’s Party (PP), which voted in favour of passing the bill, which is now Act No. 10/2009 of 20 October.
23. 508. As stated by the Minister, this is part of an effort to debate all initiatives in the Congress of Deputies, in full respect of the distribution of power between the State and the autonomous communities, as well as respecting the law and international conventions concerning the subject of this legislation, as provided for under articles 52, 129(1) and 149(1)(18) of the Constitution.
24. 509. With regard to the position taken towards the bill by the parliamentary groups Convergencia i Unió and Esquerra Republicana, both groups separately submitted amendments to the bill as a whole, inter alia setting out similar arguments to those now being presented by the Confederation in its written complaint regarding the act; the requisite criteria for representation are considered by both groups to violate the ILO Conventions on freedom of association.
25. 510. These amendments were rejected by parliamentary majority on the grounds that the bill respects the area of competence of the autonomous communities and the Conventions entered into by Spain with the ILO, given that the criteria established to measure the representativeness of professional agricultural organizations at the national level are completely objective and are in line with the decisive action of the autonomous communities within whose remit it is to call elections to determine the representativeness of professional agricultural organizations or to determine that the professional agricultural organization is sufficiently representative.
26. 511. The positions of these political parliamentary groups and the Confederation suggest that there has been some scheming, especially with the Farmers’ Union of Catalonia, which is the most representative professional agricultural organization in the autonomous community of Catalonia.
27. 512. The Confederation argues in its appeals, both through administrative channels and before the administrative courts, that there is an alleged breach of constitutional rights, specifically of the right to freedom of association and the principle of equality established in articles 28(1) and 14 of the Spanish Constitution respectively, resulting from the unequal treatment of the Confederation by the Ministry compared to other most representative professional agricultural organizations at the national level.
28. 513. In this respect, it is necessary to recall the Constitutional Court’s extensive case law on issues related to trade unions, to which professional agricultural organizations can be equated to a certain extent, including Ruling No. 7/1990 of 18 January (Official State Gazette of 15 February 1990), which clearly outlines the grounds which constitute a breach of the rights in question. The ruling states in paragraph 2 of the preambular part:
29. With regard to the principle of equal treatment, this Court has confirmed that it is possible to make a distinction between unions in order to ensure the effectiveness of the activity with which they are entrusted, provided that the distinctions are not inconsistent or arbitrary because, where this is the case, making such distinctions would be an infringement of the principle and would breach the free and equal enjoyment of the right provided for in article 28(1) of the Spanish Constitution on the freedom of association. To this end, the Court has decided that the concept of majority representation and majority coverage are objective criteria and are therefore constitutionally valid.
30. 514. The Court goes on to state in the said ruling that:
31. The purpose of the trade union elections is twofold; first, they serve to elect the workers’ representatives, and second they allow various trade unions to be heard within the unitary or elected bodies for workers’ representation, thereby establishing what is known as the “majority representation” and “partial or sufficient representation” of trade unions.
32. 515. Given that the elections to measure representativeness of unions are important, the Ministry has granted the status of most representative professional agricultural organization at the national level to those organizations that, in accordance with the laws in force and until the entry into force of Act No. 10/2009, have run in the elections called by the autonomous communities and have obtained an average of at least 10 per cent of the votes at the national level, the only objective criterion applicable and regulated by law (Act No. 18/2005).
33. 516. The Government therefore considers that Act No. 10/2009 of 20 October has been prepared in keeping with the constitutional principles of freedom of association and equal treatment, which are principles that are contained in the agreements entered into by Spain with the ILO. This act, which has been adopted by majority in Parliament and with the consent of the PSOE and the PP, has not been the subject of a complaint on the grounds of unconstitutionality by any autonomous community and has received broad consensus and support from the sectors concerned. Nevertheless, the Confederation may initiate the applicable amparo proceedings for the protection of constitutional rights where it considers that there has been a breach of its rights and freedoms as recognized by the Constitution.

C. The Committee’s conclusions

1. 517. The Committee notes that in this complaint the complainant organization objects to the criteria established in sections 4 and 5 of Act No. 10/2009 for obtaining the status of most representative agricultural organization at the national level and for participating in the Agricultural Advisory Committee provided for in section 5. The complainant organization considers that the requirement for territorial coverage of organizations provided for in section 4 is biased and discriminatory, and could even mean that an organization with the largest membership in the country but whose coverage does not extend to nine autonomous communities is not granted the status of “most representative”, especially taking into account that the number of workers in the agricultural sector in the different autonomous communities varies greatly and that the percentage required in each one in order to be recognized as most representative organization is not uniform (in some cases 10 per cent is required while in others 15 per cent is required).
2. 518. The Committee notes the Government’s statements on the reason and logic behind the legal conditions for obtaining the status of most representative agricultural organization at the national level, which indicate that: (1) Act No. 10/2009 was the result of a consensus reached with major political parties and of a broad dialogue and consensus with the most representative agricultural organizations (ASAJA, COAG – from which the complainant organization split – and the UPA), after seeking the opinion of a committee of experts and the Economic and Social Council of Spain; (2) the bill respected the distribution of power between the State and the autonomous communities and the ILO Conventions; (3) the act sets forth objective criteria and the responsibility for taking decisive action falls to the autonomous communities which are vested with the power to call the elections that determine the representativeness of the organizations; (4) the Constitutional Court has recognized that the concept of majority (territorial) representation and majority coverage are objective criteria and are therefore constitutionally valid; and (5) pursuant to the provisions of Act No. 10/2009, “most representative” status has been granted to those organizations that have run in elections called by the autonomous communities and have obtained an average of at least 10 per cent of the votes at the national level.
3. 519. The Committee notes that the sections criticized by the complainant organization stipulate the following:
4. Section 4. Criteria for representativity
5. 1. The professional agricultural organizations that obtain the status of “most representative” in accordance with the provisions of this act shall be entitled to institutional representation before the General Administration of the State and other entities and bodies of a public nature pertaining thereto.
6. 2. To this end, the “most representative” professional agricultural organization of a general nature shall be considered to be that which, at the time of submitting its application to be recognized as such, has at least 15 per cent of the electoral votes cast in all the elections held by the autonomous communities for participation in the advisory bodies and entities of the autonomous communities, and has run for election in at least nine autonomous communities.
7. For the purpose of this act, voters shall be understood to mean natural persons who are registered in the social security system as self-employed because of their agricultural activities and legal persons whose exclusive objective pursuant to their statutes is agricultural activity and who actually undertake such activity.
8. 3. The professional agricultural organizations that do not obtain the status of “most representative” by means of the arrangements established in paragraph 2 of this section shall be granted such status when they are recognized as being the most representative in at least ten autonomous communities.
9. Article 5. Weighting of representativity
10. The participation in the Agricultural Advisory Committee established by this act and its respective budget and resources shall be shared in proportion to the level of representation and in accordance with the results obtained in the respective elections for the entities recognized as most representative on the grounds established in section 4(2).
11. 520. The Committee wishes to refer to the principles which it has established:
12. – The Committee has pointed out on several occasions, and particularly during discussion on the draft of the Right to Organize and Collective Bargaining Convention, that the International Labour Conference referred to the question of the representative character of trade unions, and, to a certain extent, it agreed to the distinction that is sometimes made between the various unions concerned according to how representative they are. Article 3, paragraph 5, of the Constitution of the ILO includes the concept of “most representative” organizations. Accordingly, the Committee felt that the mere fact that the law of a country draws a distinction between the most representative trade union organizations and other trade union organizations is not in itself a matter for criticism. Such a distinction, however, should not result in the most representative organizations being granted privileges extending beyond that of priority in representation, on the ground of their having the largest membership, for such purposes as collective bargaining or consultation by governments, or for the purpose of nominating delegates to international bodies. In other words, this distinction should not have the effect of depriving trade union organizations that are not recognized as being among the most representative of the essential means for defending the occupational interests of their members, for organizing their administration and activities and formulating their programmes, as provided for in Convention No. 87.
13. – The determination of the most representative trade union should always be based on objective and pre-established criteria so as to avoid any opportunity for partiality or abuse.
14. – Pre-established, precise and objective criteria for the determination of the representativity of workers’ and employers’ organizations should exist in the legislation and such a determination should not be left to the discretion of governments [see Digest of Decisions and Principles of the Freedom of Association Committee, fifth (Revised) edition, 2006, paras 346–348].
15. 521. With regard to the legal provisions of Act No. 10/2009 to which the complainant organization objects, the Committee wishes to point out that, in light of the national conditions, the legal requirement to have a given national coverage in order to enjoy at a national level the status of most representative agricultural organization and participate in the Agricultural Advisory Committee – specifically: (a) running in elections in at least nine of the 17 autonomous communities; or (b) being recognized as most representative in ten autonomous communities, which in practice requires 10 or 15 per cent of the votes, depending on the case – is an objective and relatively frequent criterion in comparative law aimed at ensuring that the strongest and largest organizations are those which are integrated into the state advisory bodies. With regard to the additional requirement – in case (a) – to have 15 per cent of the total number of votes in all the elections held by the autonomous communities, the Committee wishes to recall that in previous cases concerning Spain it considered that 15 per cent at the level of the autonomous communities was not incompatible with Convention No. 87 [see 243rd Report, Case No. 1320, para. 113, and 311th Report, Case No. 1968, para. 501]. Thus the Committee of Experts on the Application of Conventions and Recommendations, upon reviewing the act and the application of Conventions Nos 87, 98 and 141, did not have any objection to the provisions of the act which stipulate that 15 per cent of votes in autonomous communities must be obtained in order to be recognized as most representative organization for the purposes of participating in advisory bodies. Finally, the Committee notes that section 6 of Act No. 10/2009 provides for a review every five years of the representativeness of the professional organizations recognized by the authorities, and that the Confederation may initiate the applicable amparo proceedings if it so wishes.

The Committee's recommendations

1. 522. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.