Spain has strong freedom of association protections for workers and unions founded on its Constitution and a host of new laws.  Today, Spanish workers enjoy a broad range of freedom of association rights, including the rights to form and join free and democratic unions, freedom of assembly, and the rights of collective bargaining and strike.  Spain’s 1978 Constitution prominently states that unions “contribute to the defense and promotion of their own economic and social interests” within the “social and...

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Spain has strong freedom of association protections for workers and unions founded on its Constitution and a host of new laws.  Today, Spanish workers enjoy a broad range of freedom of association rights, including the rights to form and join free and democratic unions, freedom of assembly, and the rights of collective bargaining and strike.  Spain’s 1978 Constitution prominently states that unions “contribute to the defense and promotion of their own economic and social interests” within the “social and democratic state.” Arts. 1, 7.  In 1977, Spain ratified ILO Conventions Nos. 87 and 98. 

Spanish unions wield strong influence, even beyond their 2.3 million members.  Workplace elections turn out huge numbers of workers, including non-union workers whose votes help to bolster union legitimacy.  The General Workers’ Confederation (UGT) and the Trade Union Confederation of Workers’ Commissions (CC.OO) have dominated these elections, earning bargaining rights and representation in labour relations bodies.  They also play an active role in shaping labour legislation and national-level collective agreements.

Union density is about 17% of the workforce and has nearly doubled from the early 1980s.  While this rate is among the lowest in Europe, Spanish laws provide workers and unions with added clout.  Workers do not have to join unions to be represented at work or covered by collective agreements.  Thus, collective bargaining coverage was more than 80 percent of the workforce from 2000-03.  Also, Spanish workers freely exercise their right to strike, although the number of strikes has plummeted in recent years.  In 1991, there were 1,552 strikes resulting in 4,421,000 lost working days; in 2005, there were 669 strikes and 758,900 days lost (still among the highest rates in the EU).  Strikes are occurring at the same rate in 2006. 

Labour laws have undergone major reforms recently, as the social partners have grappled with problems such as soaring unemployment and temporary employment rates.  For unions, enforcement of labour laws has become a priority and a 2005 law takes steps to sweep more workers under the scope of collective agreements.  But Spain also has been criticized for the Government’s use of compulsory arbitration during strikes and for a 2001 law that strips non-legal migrant workers of any freedom of association rights. 

RIGHT TO FORM AND JOIN TRADE UNIONS

Spain’s Constitution guarantees the free “foundation and activity” of trade unions.  Art. 7.  It also provides that all persons “have the right to unionize freely” and that freedom “includes the right to found trade unions and to join the union of one’s choice.”  Unions have the right to form and join confederations and international unions.  Art. 28.  Both the 1985 Trade Union Freedom Law (LOLS) and the 1995 Workers’ Statute (ET), Arts. 61-76, regulate these rights as well as workplace elections and the powers of the “most representative unions.”  Spain’s Constitutional Court has ruled that the LOLS does not violate the Constitution, STC 98/1985, and the ILO has found that Spain’s laws on workplace elections do not violate freedom of association principles.

There are no major Government obstacles to union formation.  Unions are free to organize themselves as long as their internal structure and functioning are democratic.  Constitution, Art. 7; LOLS, Title II.  For example, the Government does not approve unions nor does it issue unions collective bargaining licenses.  Moreover, “no one may be forced to join a trade union.”  Constitution, Art. 28.

Since 1978, millions of workers across Spain have regularly voted to elect representatives in workplaces with more than five employees.  In companies with 11-49 employees, workers vote for up to three workers’ delegates.   In companies with more than 50 employees, workers elect representatives to form a workers’ committee with 5 to 75 members, depending on the number of employees present.  ET, Arts. 62-63.  Union branches may be established in companies with more than 250 employees, composed of union representatives elected by union members.  In April 2004, Spain’s Constitutional Court ruled, STC 64/2004, that the ET allowed representative trade unions to call for workplace elections of a delegate at companies with six to 10 employees.  There is no statutory right to an elected delegate in a company with fewer than six employees (but the workers may be covered by a collective agreement). 

These elections help bolster worker and union rights, both at the company and nationally.  Elected workers and committees represent workers on working conditions, are responsible for collective bargaining and have the right to call strikes.  LOLS, Art. 6.  Elected delegates have a right to paid time off of between 15 to 40 hours per month to perform their duties (which is a critical resource for unions).  ET, Art. 68.e.  They also have the right to communicate with workers, Art. 68.d.  The Constitutional Court has held this includes the right to use company e-mail to send out union-related information to workers.  STC 281/2005.  Representatives also have the right to receive a wide variety of financial and work-related company information.  ET, Art. 64.  (In companies that operate on an EU-wide scale, European Works Councils must be established to inform and consult with workers.  Law 10/1997.) 

Beyond the worksite, unions earn special legal status as “most representative unions” if they are able to win 10% or more of the total number of the elected delegates at the national level or 15% at the regional level (and have at least 1,500 members).  LOLS, Art. 6.  These rules favor the largest unions.  Based on worker turnout estimated to be more than 70%, UGT and CC.OO dominated the most recent workplace elections held in 2003, as they have done since 1978, together obtaining more than 217,000 (or about 70%) of the total elected delegates.  The next highest level of delegates was the Basque Workers’ Solidarity union (9,035).

“Most representative union” status confers other critical rights, such as negotiating power at regional and national levels (ET, Art. 83.2-3), representation rights on public bodies and in collective bargaining commissions (e.g., Social Security, National Occupational Health and Safety Commission, National Employment Institute and CES), initiating elections, annual Government subsidies and assignment of offices.  LOLS, Art. 6.3.  Delegates for most representative unions have rights to workplace access for union activities. LOLS, Art. 9.1.

Freedom of association rights have improved for Spain’s 2.5 million public sector employees.  Initially, they were excluded from the scope of the ET (Art. 1.3) and were not allowed to elect workplace delegates until 1987.  The Constitution, Art. 103.3, gives the Government the power to regulate, via law, “trade union rights” for civil servants.  Almost twenty years later, the Government, after consultation with both UGT and CC.OO, is on the verge of passing a comprehensive Civil Service Statute (Estatuto de la Función Pública) that should take effect in 2007 and revise existing laws, including Law 9/1987, for public service employees, including provisions on collective bargaining rights and the right to strike, with limitations. 

Other workers also are excluded from the ET, including members of the armed forces and the national police.  Constitution, Art. 28.1; ET, Art. 1.  Magistrates, judges and public prosecutors are excluded from the ET (Constitution, Art. 127.1, ET, Art. 1.4), but are allowed to form and join professional associations.  Act 6/1985, Art. 401.

Finally, Spain now excludes foreign undocumented workers from the right to join unions and the right to strike.  Foreign nationals “shall have the right to form or join a trade union” which only “may be exercised when the persons concerned are authorized to stay or reside in Spain.”  Law 14/2003, Art. 11.  In 2005, ILO’s Committee of Experts requested that Spain amend the law because it violated Convention No. 87, since “workers must be accorded the right, without distinction whatsoever, to join organizations of their own choosing.”

RIGHT TO COLLECTIVE BARGAINING

Spain has enshrined the right to collective bargaining in the Constitution as an essential component of freedom of association.  Article 37 establishes “the right to collective labour negotiations” and the Government must guarantee “the binding force of the agreements.”  ET, Art. 82.1-2 (same).  The Constitutional Court has affirmed that fundamental principle and has repeatedly held that agreements even limit less favourable clauses in individual contracts.  Collective bargaining is regulated by the 1995 Workers’ Statute, Arts. 82–92. 

The ET promotes workers’ bargaining rights in several ways.  As noted above, both workers’ representatives and the most representative unions have legitimacy to participate in the bargaining process and the parties must bargain in good faith.  ET, Art. 89.1.  Given that strong legal base, and combined with the fact that there is no statutory limit on either the level or scope of collective bargaining, ET, Art. 83.1, Spain has thousands of collective agreements in force, negotiated by different parties and cutting across all levels of the economy and country.  In 2005, there were a total of 5,010 collective agreements that covered 1,183,403 employers and 9,846,740 employees.  UGT and CC.OO participate in the negotiation of nearly all of these agreements.  For example, every year since 2002, the social partners, including UGT and CC.OO as most representative unions, have signed annual intersectoral collective bargaining agreements.  

Once an agreement is signed, both the Constitution and ET establish that it has the force of law for those workers and companies included within its scope.  ET, Art. 3.1.  Written collective agreements registered with the Labour Ministry have “binding force.”  ET, Arts. 85.3, 90.1, 90.3.  (By contrast, the Government must approve collective bargaining agreements for civil servants.)   Moreover, the terms of collective agreements may be extended even after expiration.  ET, Art. 86.

Collective agreements have legal weight even beyond the signors.  Agreements are similar to regulations because they statutorily extend to all companies and workers included in the same geographical and industry level, even if the workers did not participate in the bargaining, are not union members or if there is no union present.  ET, Art. 82.3  In the wake of concerns that collective bargaining coverage was shrinking in small companies (in Spain over 90% of companies have fewer than 50 workers), Spanish unions pushed for a new law to help extend the scope of agreements.  (The reform also reflects an underlying concern that extension laws may limit a union’s ability to organize more members.)  Law 718/2005 creates a procedure to extend collective agreements to companies or sectors without an agreement and where there is no authorized bargaining party.  More than 2,650,000 workers are eligible to be covered by the new law.  The procedures are managed the labour ministry and regional authorities. 

Another principle that has tended to support workers’ collective bargaining rights is that, as a general matter, lower-level agreements cannot diminish standards set by higher-level (such as national, regional, sectoral or company-wide) agreements.  ET, Arts. 83.2.  However, the intersection of conflicting collective agreements has become increasingly complex under the laws as the Government has attempted to legislatively promote greater decentralization.

Unions can enforce agreements in a variety of Spanish courts.  Violators may be fined up to 90,152 euros.  Law 5/2000, Art. 40.  Conciliation or mediation of a collective dispute is required before Court filing.  If the parties are in mediation, neither may initiate a Court case or a strike or a lockout.  There are multiple bodies that promote out of court settlements, including local mediators and labour courts as well as Autonomous Community and national-level agencies.  For labour disputes affecting more than one region, the parties can use the Intersectoral Mediation and Arbitration Service (SIMA).  SIMA was created as the result of a 1996 agreement (known as ASEC) among the social partners, including UGT and CC.OO.  By the end of 2004, the voluntary ASEC agreement covered about 7 million workers.  It is quite common in Spain for labour disputes to proceed to conciliation and/or Court.  For instance, SIMA handled 168 labour disputes in 2004, covering more than 1 million workers.  Also in 2004, 796 cases were conciliated in the Autonomous Regions, impacting almost 1.2 million workers.  And in 2005, 2,069 collective dispute cases were filed in Court. 

RIGHT TO STRIKE

Every Spanish employee has the right to strike, as guaranteed by the 1978 Constitution.  Arts. 28.2, 53.  The Constitution states that strike activity should be regulated by law.  However, the Government still has not passed any unified legislation, and a 1977 law (RDL) governs strike procedures, as interpreted by a 1981 Constitutional Court ruling. 

Strikes may be authorized by unions, by the majority of the workers’ delegates or by a majority of workers at the company who cast secret ballots.  RDL, Art. 3.2.  A union must give five days notice (ten days for public services) of its resolution to strike.  Arts. 3-4.  Once a strike is called, workers must create a strike committee.  Both the workers and the employer have a shared duty to negotiate to end the strike.  Arts. 5, 7.  In addition, the committee must help guarantee the security of the job site.  Art. 6.7.  Peaceful picketing is allowed.

The law imposes several restrictions on the right to strike.  Arts. 7, 11.  Workers cannot strike to change the terms of a collective agreement that is in force.  Art 11.c.   Political strikes are illegal, Art. 11.a, but strikes that strive for better working conditions or that concern labour legislation, such as the nationwide 2002 strike, are legal.  Secondary strikes are allowed only if the underlying dispute affects the “professional interests of the strikers.”  The 1981 Court ruling struck down as unconstitutional a more restrictive wording in the 1977 law.  Another practical limit on strikes is that the “essential services of the community” must be maintained during a strike.  Constitution, Art. 28.2; RDL Art. 10.  The parties must agree on a minimum service level, Arts. 3, 7.7, but if they fail to reach an agreement, the Government can (and does) decree the service level.  As a result, the Government can limit the impact of a strike.

In exceptional cases, the Government may impose compulsory arbitration to end a strike, for example, in cases where the parties’ positions are irreconcilable or if there is serious economic damage.  RDL, Art. 10.1.  The 1981 Court ruling held that Art. 10.1 did not violate the Constitution to the extent that all arbitrators must be impartial.  However, the Council of Europe’s Committee of Social Rights found that, in practice, Art. 10.1 does not conform with the European Social Charter because it allows the Government to impose compulsory “arbitration to end a strike in cases that go beyond the requirements . . . of the Charter.”

Workers cannot be fired for taking part in a legal strike and also an employer cannot use replacement workers to replace legal strikers.  RDL, Art 6; ET, Art 45.1.  An employer may fire workers who strike illegally, but only a Court is authorized to distinguish between legal and illegal strikes.  RDL, Art 16.1.  In court, an employer must prove that the strike was illegal and also that it attempted to settle the dispute before firing any striking workers.

Lockouts are rare in Spain.  A lockout is permitted only if there is a clear danger of violence or if workers have occupied the worksite or have taken steps that seriously impede production.  Employers must give twelve hours notice of a lockout and must end it promptly.  RDL, Arts. 12-14.  If a company fails to unlock, after being ordered to do so, then the lockout is illegal, and it may be liable for backpay or criminal sanctions.  Law 10/1995, Art. 315.1.

PROTECTION OF TRADE UNION MEMBERS

Spain bars discrimination and retaliation against persons because of union membership, the exercise of union rights or the right to strike.  The law also protects workers’ representatives against discrimination.  The ET prohibits discrimination against trade unions and union members, and that right is rooted in the Constitution’s (Art. 14) ban against discrimination.  Workers have a right “not be be subjected to discrimination for the purpose of employment or, once employed, for reasons of . . . trade union affiliation or lack thereof.”  ET, Art. 4.2(c).  The ET further states that any discriminatory conduct on the basis of union membership by an employer shall be “null and void.”  ET, Arts. 17, 55.  The ET was amended in 2003, inter alia, to expressly bar retaliatory conduct.  Law 62/2003, Arts. 27-28, 34, and 37. 

Elected worker representatives also are shielded against any discriminatory conduct, such as dismissal, sanction or non-promotion, resulting from the exercise of their duties (the right extends one year beyond their elected term).  They also have priority over other employees in case of a reduction in force.  ET, Art. 68(c).  Employers must justify any proposed dismissal of a union representative prior to taking action.  ET, Art. 55. 

Employees may file discrimination claims in Court to have the conduct declared void, for compensation and/or to be reinstated.  Conciliation is required before litigation.  RD 2/1995, Arts. 63-68.  In labour or ordinary courts, special summary proceedings are designed to safeguard union freedom of association rights.  Id., Arts. 175-182.  After exhausting the lower level court process, an employee may appeal to the Constitutional Court on issues involving fundamental discrimination.  Constitution, Art. 53.2.  Unions may represent their members in court.  RD 2/1995, Art. 20.  In cases of discrimination involving union liberty, the employer bears the burden of proof.  Id., Art. 179 (and Law 62/2003, Art. 36).

In cases of unlawful dismissal, workers may be reinstated or receive a severance payment up to a maximum of 42 months pay, based on 45 days’ wages for year of work.  ET, Art. 56.  (RD 5/2006 lowers the rate for new workers to 33 days pay for up to two years.)  Workers also may be paid for any interim period of unemployment between dismissal and the end of the litigation.  However, if a Court voids conduct that violates the Constitution or a statute, then the employee must be reinstated with backpay.

Companies may be subject to civil or even criminal liability.  Employers who discriminate or retaliate in any condition of hiring or employment, including on the basis of union membership, may be fined between €3,005 and €90,152.  RD 5/2000, Arts. 8, 16 (amended by Law 62/2003, Art. 41).  As for criminal liability, persons held responsible for serious discrimination against an employee on the basis of their status as a worker representative, and who fail to appropriately remedy the discrimination, shall be punished by up to two years in prison or a fine of up to twelve months pay.  Law 10/1995 (Penal Code), Art. 314.

GOVERNMENT PROTECTION FOR FREEDOM OF ASSOCIATION RIGHTS

Spain has broad legal protections for freedom of association rights and a well-developed legal system to protect those rights.  However, there is still a need for effective enforcement.  In 2005, Spain’s labour inspection agency, ITSS, found 4,580 labour violations (including more than just those affecting trade union rights), involving 106,045 workers and resulting in fines of about 13 million euros.   The ITSS has authority to police and enforce existing labour laws, including rights to freedom of association, but has been hampered by lack of resources and inspectors.  (Spain has relatively less inspectors than other European countries).  Unions have repeatedly complained that the Government must improve enforcement of labour laws.  In June 2006, the Government passed Law 5/2006, with the approval of the UGT and CC.OO, that calls for improving the performance of ITSS.  The 2006 law will increase the budget (to fund educational campaigns, for example) and it approves hiring about 400 more inspectors.  Also, at the end of 2006, a new tripartite consultative commission, including union representatives, was created to help improve ITSS’s performance.

Analysis provided by Philip Simon, OSCE/ODIHR consultant.

Posted: Arpil 2007

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