Rapport définitif - Rapport No. 244, Juin 1986

Cas no 1342 (Espagne) - Date de la plainte: 24-JUIN -85 - Clos

1. 124. The complaint is contained in a communication from the Trade Union Confederation of Workers' Committees dated 24 June 1985. The organisation submitted new allegations in a communication dated 14 August 1985. The Government replied in a communication of 10 February 1986.
2. 125. Spain has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.87) and the Right to Organise and Collective Bargaining Convention, 1949 (No.98).

A. The complainant's allegations

1. 126. In a letter dated 24 June 1985, the complainant alleges that the workers of the undertaking AUMAR SA, the State concessionnaire that runs the Tarragona-Alicante motorway, called a legal strike with prior notice for 7, 8 and 9 April, which was later extended until 18 April. The grounds were based on the collective agreement.
2. 127. The complainant explains that the undertaking is composed of seven work centres (five road centres plus two administrative centres). Tolls are collected in motorway centres at four principal stations or sectors and 22 secondary toll-booths.
3. 128. The complainant adds that the first section of Royal Decree 1554/1982 of 18 June 1982, concerning the guaranteed maintenance of public services on State toll motorways, stipulates that strikes affecting motorway staff shall be subject to the maintenance of the public service, in other words to uninterrupted use of the road facilities, as laid down in the concession agreements. The second section of the Decree states that the government delegate to the State toll motorway concessionnaire company shall determine, on the basis of a restrictive criterion, and in a duly substantiated agreement, the minimum number of staff necessary, proportionate to the extent and length of the strike, to maintain the said public service.
4. 129. The complainant states that on the basis of the said Royal Decree, minimum services were imposed before and during the strike with the result that on all the days when the traffic was heaviest (7, 8 and 9 April) the minimum services involved more than 100 per cent of the staff required in normal conditions, and on the days when there was lighter traffic, the percentage varied between 60, 70 and 80 per cent. The complainant further states that the most serious change was at the secondary toll-booths since the minimum services imposed were exactly the same as the regular ones (one toll- collector per shift per day), in other words 100 per cent, so that the staff at 22 toll-booths representing rather more than half the workforce (a little over than 100 toll-collectors), are quite unable to exercise their constitutional right to strike.
5. 130. The complainant points out that even toll-collectors who would normally be scheduled to be on leave, had to work because of the strike to make up the minimum services mentioned above. Moreover, while the strike was on the minimum services were extended and new conditions were imposed verbally from the first day. The workers to fill these posts were designated unilaterally by the company. In fact, in accordance with the Royal Decree on minimum services, the strike committee was obliged to work, and it is quite clear that the minimum services affected all the staff called out on strike.
6. 131. In its communication of 14 August 1985, the complainant organisation alleges that, having fulfilled the legal requirements, it convened a 24-hour strike for 20 June 1985 to defend the general interests of the workers to protest against the reduction in pensions and to demand the maintenance of employment, and appointed a strike committee to arrange and operate the essential services. The complainant adds that under the umbrella of the decrees on minimum services to be maintained in the event of a strike in essential services (in particular Royal Decree 495/80 on the Metropolitan Railway of Madrid, and Royal Decrees 2771/83 and 1728/84 on the Post and Telecommunications Service), decisions were issued determining the minimum services to be maintained on 20 June in the Compañéa Metropolitana de Madrid (Metropolitan Railway Company of Madrid), the Posts and Telegraph Service and the Empresa Municipal de Transportes de Madrid (Madrid Municipal Transport Company).
7. 132. The complainant considers that these minimum services are excessive, not only because they involve the maintenance of services that can in no way whatsoever be considered essential (booking clerks, cleaners, warehousemen, office boys, etc.), but also because they limit the exercise of the right to strike of a large percentage of workers. These arrangements did not meet the formalities required by the national legislation for limitations on the right to strike to operate lawfully.
8. 133. The complainant explains that management circular No. 20/85 of the Compañéa Metropolitana de Madrid (CMM) lays down certain minimum services which do not correspond to "essential" needs in the strict sense, and prevent many workers from exercising the right to strike, or limit their possibility of so doing. Likewise, the decision of the Civil Governor of Madrid of 17 June 1985, introducing minimum services for urban bus transport in Madrid, besides extending the concept of essential services to cleaners, office boys, booking clerks and the like, affects almost 100 per cent of the staff, and results in their being deprived of the exercise of the right to strike. The complainant states that the same is true of the decision issued by the Provincial Head of Telecommunications concerning the Post and Telegraph Service. The complainant also points out that a factor common to all three of the above-mentioned decisions is that none of them was taken with the participation, or even consultations with the trade union that called the strike or any of its representatives, and none of the three decisions gives adequate substantial grounds for establishing the minimum services since, inter alia, no account was taken of possible alternative private transport and the fact that there would be fewer passengers because of the strike itself.
9. 134. The complainant mentions that appeals against previous decisions alleging violation of the fundamental right to strike, had been lodged in the Spanish courts by the Trade Union Confederation of Workers' Committees and that these appeals are at present pending. Two leaders of the Workers' Committees also complained of the Civil Governor to the Madrid Court, alleging that he had, by imposing certain excessive "minimum" services, infringed the exercise of the right to strike.
10. 135. None the less, the complainant concludes, the Empresa Municipal de Transportes de Madrid and the Compañéa Metropolitana imposed various sanctions for the reasons given above without awaiting the decision of the courts.

B. The Government's reply

1. 136. In its communication of 10 February 1986, the Government states that on 29 March 1985 the government delegation to the State toll motorway concessionnaires received a document from Autopistas del Mare Nostrum SA, a State concessionnaire, together with a copy of the agreement reached by the works committee of the Ametllá de Mar Centre, concerning the calling of an indefinite legal strike from 6 a.m. on 7 April 1985. Since according to section 1 of Royal Decree 1554/1982 of 18 June 1982 strikes affecting the staff of State toll motorways are subject to the maintenance of the public service, in other words to uninterrupted use of the motorway facilities, as laid down in the concession agreements, the government delegation had to determine the minimum staff necessary - in accordance with a restrictive criterion and in a duly substantiated agreement - proportionate to the extent and expected duration of the strike so as to ensure the provision of the public service on the conditions mentioned above.
2. 137. The Government adds that before determining the minimum staff necessary, the government delegation asked the Directorate General of Highways, which controls motorway traffic, for a report on the minimum number of staff necessary to maintain an uninterrupted 24-hour service on the motorway, taking into account the staff at each work station in normal conditions and possible special conditions on the days when the legal strike was scheduled. Consequently, on 2 April 1985, the government delegation determined the necessary minimum services and informed the concessionnaire accordingly, so that it could take the necessary steps. The bases for the decision were mainly as follows:
   • a) the expected intensity of traffic on the days in question (on 7.4.85, 12,800 vehicles/day; on 8.4.85, 25,900 vehicles/day; on 9.4.85, 10,950 vehicles/day);
   • b) the number of toll-collectors necessary in previous traffic conditions (Hospitalet section: on 7.4.85, eight toll-collectors; on 8.4.85, ten toll-collectors; on 9.4.85, six toll-collectors; on all other days, five toll-collectors. At the Cambrils, Hospitalet and L'Ametlla accesses: one toll-collector per station every day);
   • c) the minimum number of toll-collectors necessary, according to the Concession Service of the Directorate General of Highways (Hospitalet section: on 7.4.85, three toll-collectors; on 8.4.85, four toll-collectors; on 9.4.85, three toll-collectors; on Saturdays, Sundays, holidays and the days before holidays, three toll-collectors; on all other days, two toll- collectors. At Cambrils, Hospitalet and L'Ametllá accesses: one toll- collector every day).
3. 138. The Government states that in view of all this and of the attendant circumstances, including the special nature of the days when the strike was scheduled to start (return from the Easter break, particularly in the area on Monday, 8 April), and the fact that some stations were usually served by a single toll-collector and therefore the only possible reduction would be none at all, in other words a closed station which would be incompatible with the mandatory maintenance of service, the government delegation considered the following minimum staffing to be necessary, and notified the concessionnaire accordingly: Hospitalet section station: on 7.4.85, three toll-collectors; on 8.4.85, four toll-collectors; on 9.4.85, three toll-collectors; on Saturdays, Sundays, holidays and the days before holidays, three toll- collectors; on other days, two toll-collectors. Toll-booths at accesses Cambrils, Hospitalet and L'Ametlla: one toll-collector every day.
4. 139. The Government also points out that subsequently, once the strike had started, on 8 April 1985, the government delegation received a communication from the Director-General of Traffic stating that, as a result of the strike and the fact that the minimum services granted were inadequate, problems were arising in the Hospitalet area where vehicles were piling up and that the effects were extending beyond mere traffic matters and becoming problems of law and order. Because of this, the minimum services necessary were increased, as explained below, by virtue of a document dated 8 April 1985, and supplemented by another dated 11 April 1985. At the Hospitalet section station, the number of toll-collectors was raised to six on 8.4.85, to five on 9.4.85, and to three every Friday between 2 p.m. and midnight. Finally, the government delegation, carrying out what it considered its essential duty to serve the general interest within the scope of its authority, tried to maintain a balance between the workers' legitimate right to strike, recognised and protected by the law, and the no less legitimate and essential right of citizens to the operation of public services, even at a basic level and with shortcomings.
5. 140. The Government also states that in accordance with the decision of the works committee of the Compañéa Metropolitana de Madrid (CMM) to support the general strike of 20 June 1985, the management of the said company, in its Circular No. 20/85, laid down the essential transport services for the Metropolitan Railway of Madrid and the Suburban Railway of Carabanchel for that day. On 19 June the management of the company issued its Circular No. 21/85 stating that all officials who decided not to strike would be free to work, and that workers appointed to carry out essential services and maintenance had to be at their work stations. Workers were requested to be very careful to avoid damage to the equipment. Later, Circular No. 81/85 named the officials who were to provide essential services on 20 June. When the strike took place it affected the public service as far as the attendance of crews and the number of trains that ran were concerned. The Government supplied data by category on the number of regular staff, the number of staff who went to work and the number who provided the mimimum service. It also supplied a table showing the usual timetable and giving details of the trains designated to maintain mimimum services and those that actually ran.
6. 141. As a general point, the Government states that the demand for journeys by metro on an average working day is 1.2 million (January 1985 figures). This figure represents approximately 27 per cent of journeys in Madrid by mechanised means and 38 per cent of journeys by public transport. These levels of demand cannot be absorbed by other means of transport because neither the vehicle nor the route capacity is adequate. Studies carried out by the undertaking identified one half-hour period in the morning, from 8.30 to 9.00 a.m. with 56,900 passengers, and another half-hour period in the evening, from 6 to 6.30 p.m., with 49,300 passengers, which are the two periods when demand is heaviest. It was also established that 93 per cent of journeys early in the day were to go to work (75 per cent) or to education institutions (18 per cent), while 80 per cent of journeys in late afternoon were to go home. Those two considerations identified the periods when demand has to be met as to 6.00 to 9.30 a.m. and 6 to 9 p.m. These two periods account for 33 per cent of the normal scheduled service and generate 43 per cent of all daily journeys. Any essential transport service must therefore take these points into consideration.
7. 142. The Government adds that because the minimum or essential services specified for 20 June 1985 were not provided, disciplinary measures were taken as prescribed by the regulations against two station masters, one booking clerk and six drivers, who were punished for unjustifiably failing to work and suspended without pay for ten days, their action being described as "very serious". Later, upon appeal to the management of the undertaking, it was agreed that there were extenuating circumstances, and the punishment in four cases was reduced to two days' suspension without pay, the action being described as "serious".
8. 143. With regard to the Post and Telegraph Service, the Government states that on 19 June the Provincial Communications Headquarters of Madrid, draw up a decision on the basis of Royal Decrees 2775/1983 of 2 November 1983 and 1728/1984 of 26 September 1984, establishing the minimum services to be provided on 20 June 1985, to come into force only in the event of disruption of regular operation of the services on that day. Minimum services were established only for the unloading and warehousing unit at the Chamartén Sorting Office since many of the staff seemed to be intending to join the strike, and for the evening service, from 2 to 9 p.m., in the reception and delivery unit at the transfer service at Madrid Barajas airport, where all the staff said that they were prepared to join the strike. If service at the unloading and warehousing unit had stoppped, all the mails received by postal train from provincial and Madrid branch offices would have been held up, affecting between 30 and 40 per cent of outgoing mail from Madrid and incoming mail in transit. The Barajas reception and delivery service is the crucial post at the airport, since it receives mail from and delivers it to domestic and foreign flights, receives mail from and delivers it to special delivery vehicles at Madrid stations and receives mail from and delivers it to Cibeles and the Chamartén Sorting Office.
9. 144. The Government stresses that these sectors have to be considered as strategic ones since a work stoppage by staff there would inevitably prevent the vast majority of the Madrid workforce from working as well. This would clearly be "unjust because it would unavoidably involve non-strikers in the strike plan, so that an agreement by some would extend the strike to all", in the words of Decision No. 11/1981 of 8 April 1981, handed down by the Constitutional Court.
10. 145. The Government states that when the minimum services in the unloading and warehousing sections were established, 17 out of 376 staff went on strike. Four officials provided mimimum services at the reception and delivery unit. In the absence of a strike committee, it was impossible for the Provincial Communications Headquarters in Madrid to consult it in determining which staff should provide essential services in the said sections. The Government enclosed communications from the Provincial Head of Communications in Madrid, reflecting the limited effects of the strike call on services throughout the country, including Madrid, only 4.08 per cent of the workforce exercised the right to strike.
11. 146. With regard to the urban bus strike in Madrid, the Government states that on 15 June 1985 the Empresa Municipal de Transportes de Madrid requested the introduction of minimum services for the strike on 20 June, and the government delegation in the autonomous community of Madrid adopted a decision in that regard on 17 June. The Empresa Municipal's minimum bus services were established on the basis of two types of service: first, bus and minibus services with the possibility of alternative means of transport by metro, and second, services with no alternative means of transport but other bus services. The minimum services applied to three areas: traffic, workshops and stores, and general services. On services where passengers had the possibility of using the metro instead of buses it was decided that the service should be maintained normally at peak hours and that at other times it would be cut to 50 per cent. The minimum laid down for bus services with no alternative means of transport but other bus services followed the same principle, only 60 per cent of the usual numbers being maintained during non-peak periods. In the services considered as supplementary, the number of buses was mostly cut to half and regular service was maintained only for activities that might affect the safety and hygiene of vehicle movement.
12. 147. The Government states that on the basis of these arrangements, the minimum services for the Empresa Municipal de Transportes de Madrid were laid down. It was essential that that service should not be paralysed, for that would have immediate effects on the civic life of the capital and very considerable effects on the operation of hospitals, administrations, schools, public establishments, etc. It was therefore considered that the decision taken in no way infringed the free exercise of the right to strike, but only limited that right in order to avoid serious harm being caused to the community.
13. 148. Finally, the Government states that the legal foundation for the four decisions that are criticised is in Articles 28.2 and 37 of the Spanish Constitution and section 10 of the Royal Legislative Decree of 4 March 1977, examined and interpreted in the decision of 8 April 1981 handed down by the Constitutional Court. The Government states that the right to strike is a constitutional right but that no constitutional right is unlimited. The right to strike, like any other constitutional right, must have limits based not only on its connection with other constitutional rights but also with other constitutionally protected benefits. The right of striking workers has to be reconciled with that of the other citizens, whose guarantee of safe and healthy living conditions might be affected. This means that the workers' right to defend their interests by the use of a means of pressure, in the process of producing goods and providing services, diminishes when it causes more serious harm than would be caused to the strikers if their claims did not succeed. It is the Government's duty to take a timely decision in order to prevent disruption of essential services that would undoubtedly cause very serious harm to the community.

C. The Committee's conclusions

1. 149. The Committee notes that this complaint refers to the minimum services established by the authorities in connection with a 24-hour strike in the Compañéa Metropolitana de Madrid, the Post and Telegraph Service and the Empresa Municipal de Transportes de Madrid, and another strike lasting several days in the AUMAR undertaking (the State concessionnaire that runs the Tarragona-Alicante motorway), both called by the complainant organisation. The complainant alleges, in particular, that it was unable to take part in establishing the minimum services and that these services were excessive since they limited the exercise of the right to strike of a large percentage of workers and because, inter alia, they included services which could not be considered as essential.
2. 150. The Committee notes the information provided by the Government and, in particular, the reasons it gives for establishing the minimum services and the relevant legal bases. The Committee also notes that the versions of the complainant and the Government differ to a large extent concerning the scope of the minimum services in question.
3. 151. On previous occasions, the Committee has considered it legitimate for a minimum service to be maintained in the event of a strike, the extent and duration of which might be such as to result in an acute national crisis endangering the normal living conditions of the population. The Committee has also stated that to be acceptable a minimum service should be confined to operations that are strictly necessary to avoid endangering the life, personal safety or health of the whole or part of the population and that, in defining minimum services, workers' organisations as well as employers and the public authorities should be involved. (See 234th Report, Case No. 1244 (Spain), paras. 153 to 155.)
4. 152. In the Committee's view, the strike situations mentioned in the complaint meet the requirements of the principle of the legitimacy of maintaining minimum services. On the other hand, the Committee considers that it does not have sufficient information at its disposal to decide whether the minimum services were only those that were absolutely essential, since that would require a thorough knowledge of the structure and operation of the undertakings concerned and of the actual impact of the strikes. The Committee notes, however, that this matter has been put by the complainant organisation to the Spanish judicial authorities which doubtless have available all the facts necessary to reach a conclusion on this point.
5. 153. The Committee observes, furthermore, that the Government has not denied the complainant's allegation that in determining the minimum services it had omitted to take into account the participation of the complainant organisation which had convened the strikes in question. The Government has merely mentioned, in referring to the minimum services set by the Post and Telegraph Service (one of the four companies referred to by the complainant) that because no strike committee was set up it was not possible to consult it.
6. 154. In this regard, the Committee wishes to stress the principle that the determination of minimum services to be maintained in the event of a strike should involve not only the public authorities, but also the relevant employers' and workers' organisations. This not only allows a careful exchange of viewpoints on what in a given situation can be considered as minimum services limited to the absolutely essential, but also contributes to guaranteeing that the scope of the minimum services does not result in the strike becoming ineffective in practice because of its limited impact, and to dissipate possible impressions in the trade union organisations that a strike has come to nothing because of over-generous and unilaterally fixed minimum services.
7. 155. Finally, the Committee notes that, according to the Government, the sanctions imposed upon nine workers of the Compañéa Metropolitana de Madrid for unjustified absence from work, and not having provided the minimum services, were reduced to two days' suspension and loss of pay, and described as a "serious" action instead of "very serious" one, on the basis of an appeal to the management of the company.

The Committee's recommendations

1. 156. In these circumstances, the Committee recommends the Governing Body to approve the present report and, in particular, to draw the Government's attention to the fact that the determination of minimum services in the event of a strike should involve not only the public authorities, but also the relevant employers' and workers' organisations.