ISSUES

CEOE in the Spanish Constitution

The importance of employers’ organizations in our country is reflected in the Preliminary Title of the Spanish Constitution of 1978, where, in addition, its contribution to the defence and promotion of social and economic interests is highlighted.

 

Section 7 of the Spanish Constitution

"Trade unions and employers’ associations contribute to the defence and promotion of the economic and social interests which they represent. Their creation and the exercise of their activities shall be free in so far as they respect the Constitution and the law. Their internal structure and their functioning must be democratic."

 

Synopsis Section 7

The importance conferred by our Constitution to unions and employers’ associations within the social and democratic Rule of Law has led the constituent to refer to unions in several articles of our Fundamental Law. Within the Preliminary Title, section 7 of the Spanish Constitution establishes their role as essential organizations for the defence and promotion of social and economic interests. In connection with the above, Section 28.1 of the Spanish Constitution states the right to union freedom as a fundamental right (found in Section 1 of Chapter II of Title I), including in paragraph 2 the right to strike.

This is not the last, however, of the references that throughout the Constitutional Text keep cropping up with regards to the participation of trade unions and employers associations in economic and social life. Some of the many references included in the Fundamental Law on this issue are found in Section 37.1 of the Spanish Constitution on the right to collective labour bargaining; participation in the Social Security and in the activities of those public bodies whose operation directly affects quality of life or general welfare (Section 129.1 of the Spanish Constitution); participation in the enterprise (Section 129.2 of the Spanish Constitution); the right to adopt collective labour dispute measures (Section 37.2 of the Spanish Constitution), and the participation of unions and other professional, employers’ and financial organizations in financial planning (Section 131.2 of the Spanish Constitution). In any case, the enumeration of specific rights that make up the generic field of freedom of association is not limited to the above, and not even limited to all the references that occur throughout the Fundamental Text (Constitutional Court Rulings 23/1983 and 39/1986).

As for the most interesting precedent of our historical constitutionalism it is worth recalling Section 39 of the Spanish Constitution of 1931, which stated: "The Spaniards may join or organize freely for different purposes of human life, in accordance to the Laws of the State", with the requirement that both, unions and associations, must register with the relevant public Registry.

Without a doubt, regulation contained in Section 7 of the 1978 Constitution greatly exceeds the development of these freedoms contained in the Republican Constitution, inter alia by the alignment in the Constitution of 1978 with the concept of a union, which based on comparative Law differentiates the right of association (Section 22 of the Spanish Constitution) from the regulation of trade unions and employers’ associations (Section 7 of the Spanish Constitution), in two constitutional precepts with their own individual constitutional identity.

The Constitution of 1978 is, thus, in line with great constitutional Texts that, as the Italian Constitution of 1947, acknowledge the freedom of unions to associate, or among others, the Fundamental Law of Boon, which guarantees the creation of associations whose aim is to defend and improve the economic and work conditions.

As for the parliamentary drafting of Section 7 of the Spanish Constitution, the text contained in the draft Constitution was submitted for debate and amendments which, nonetheless, did not substantially alter its original configuration. It is only worth highlighting the addition of the last paragraph of the article concerning the "democratic structure and functioning", which is established in the Opinion of the Commission on Constitutional Affairs and Civil Liberties (BOC - Official Parliament Gazette of July 1, 1978), and the elimination of the reference to "professional associations or comparable bodies", in the Opinion of the Constitutional Commission of the Senate (BOC of October 6, 1978).

Debate on the provision during its processing was basically focused on two issues. First of all, the possibly corporatist content of the section in light of the convenience of eliminating echoes or derivations of said nature. The other significant debate pertained to the issue of Professional Associations, which was included in the same section on the Draft of the Constitution that contained the reference to unions and employers’ associations, and which was subsequently separated and recognized in Section 36 of the Constitution. In no event was the meaning or justification of the section in the Preliminary Title discussed or clarified, and, since there was general consensus on its convenience, its deletion was not contemplated.

On the other hand, regulation of our national legal system that develops the right to trade union freedom has found a variety of sources in different provisions and rules of international scope, which have affected a configuration of Section 7 of the Spanish Constitution that is in line with the values and principles expressed in these texts, among which we select the following list:

  • The Universal Declaration of Human Rights of 1948.
  • The European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 1950.
  • The International Covenant on Civil and Political Rights, New York, 1966.
  • Convention 87/1948 of the International Labour Organization (ILO), which defines the freedom of association as a right of workers and employers to self-organize, including the right to establish and join organisations of their own choosing, as well as the right of those organizations to self-regulate, and the right to establish and join federations and confederations and be recognized as such.
  • Convention 98/1949 of the ILO, which supplements the right to freedom of association with rules referring to protecting its exercise, and requires national regulations to adequately support and promote it.
  • The European Social Charter of the Council of Europe 1961, which defines the Right of Association in Section 5 as the freedom of employers and workers to form local, national or international organisations for the protection of their economic and social interests, and states that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom.
  • The Community Charter of Fundamental Social Rights of Workers of 9 December 1989, which, within the framework of the European Economic Community, includes in its
  • Section 11 certain principles on the freedom of association similar to those defined by the ILO.

 

All these rules have had a decisive influence on Section 7 of the Spanish Constitution. Thus, for example, the fact that the Constitution has included the right of employers’ association next to the right of trade unions’ to defend their respective interests may be viewed as a logical corollary of transferring to our country Conventions 87 and 98 of the ILO, which, as seen above, refer indistinctively to both types of organizations when regulating the freedom of association.

As for employers’ associations, they are difficult to frame due to the confusing wording, since the Derogating Provision of the Organic Act on Freedom of Association establishes freedom of association as applicable "for the purposes provided in Section 28.1 of the Spanish Constitution and the international agreements signed by Spain", while the Constitutional Court has interpreted that employers’ associations do not fall under the right to union freedom established in Section 28.1 of the Spanish Constitution (Const. Court Ruling 4/1983), but rather under Section 22 of the Spanish Constitution, where the generic right to association is recognized (Const. Court Rulings 52/1992 and 75/1992).

On the other hand, in relation to the exegesis and contents of Section 7 of the Spanish Constitution we can point out the following features of the provision in question: 

1º. To situate, firstly, workers unions and employers’ associations as important pillars within the social and democratic Rule of Law by occupying “basic bodies” in the political system (Const. Court Ruling 11/1981).

Indeed, unions are depicted as a political subject capable of achieving through their advocating actions a transformation in the power relationship between enterprises and the society. Their constitutionalisation shall have important legal and social consequences, opposite to what happens with the worker’s committee, which, by not being constitutionalized, is not considered more than a creation of the Law (Const. Court Ruling 118/1983).

If we understand the act of associating in a broad sense, i.e. as that action that aims to represent and defend the interests of workers, we can say that in our legal system there is a dual association system whereby such association action can be exercised not only by the union but also by the company’s workers’ committee, although they are not two identical subjects from the point of view of the exercise of associative functions, since section 7 of the Spanish Constitution constitutionalises the union but, as we have already noted, does not constitutionalize the workers’ committee (Const. Court Ruling 134/1994).

2º. Secondly, another important defining feature of the formalization of unions and employers organizations set forth in Section 7 of the Spanish Constitution is the function assigned by the Constitution for the "defence and promotion of the economic and social interests which they represent". In this sense, the nature and the function entrusted upon both organizations by the section analysed have led to them being considered as associations "of constitutional importance" (Const. Court Rulings 4/1981 and 20/1985), which fulfil an essential function in accordance with the Constitution itself (Const. Court Rulings 70/1982, 4/1983 and 20/1985).

From the stance of the essential content of the right, both the Constitution and Organic Act 11/1985, of August 2, Workers’ Freedom of Association (hereinafter LOLS), establish that the right to trade union freedom is composed of the rights and powers that identify and allow its exercise (Const. Court Ruling 11/1981).

Defined as such, the right would cover a double purpose, depending on the subject to which the right or freedom in question is attributed. First, from an individual perspective that confers the right to workers to form unions and join whichever one they choose (Const. Court Ruling 73/1984), or to remain on the sidelines and not be forced to join any of them (Const. Court Ruling 12/1983). From a collective stance, freedom of association is the right of unions to freely exercise their activity, by defending and promoting their own economic interests (Const. Court Rulings 70/1982 and 73/1984), as well as, in general, in the defence and promotion of workers’ interests (Const. Court Rulings 4/1983 and 39/1986).

These rights and freedoms that identify and enable their exercise are going to be shaped by a generic property of representing and defending workers’ interests, not based exclusively on the bond of being an affiliate, but in the actual associative nature of the group (Const. Court Ruling 101/1996). Therefore, from a constitutional point of view, its functions are not exhausted with the mere representation of its members, through empowering schemes and private Law representation. In other words, through the so-called institutional representation, adhering to an institution implies an acceptance of its legal system and, therefore, its representative system. The institutional representation of unions and employers’ organizations is important, because the law will grant to  oth entities the defence and management of the rights and interests of categories or groups of people (Const. Court Rulings  0/1982 and 11/1998).

Precisely because the functions of labour unions include the defence and promotion of the economic and social interests of workers, for the sake of the freedom of association, it is understandable for the legal system to, first of all, confirm and protect the right of individuals to create labour unions and join whichever ones they choose. Because the freedom of association, once affiliation has taken place, continues with the performance of those functions expected of them, in accordance with the State’s democratic nature and the role held by this institution, and which can be easily considered the “essential content” of said right (Const. Court Ruling 70/1982).

Hence, when the Constitution and the Law confer onto them the function of defending the interests of workers, they are legitimized to exercise those rights that, even though strictly speaking are associated to workers, are, nonetheless, necessarily exercised collectively (Const. Court Ruling 70/1982).

3º. Third, Section 7 of the Spanish Constitution not only grants the freedom of association, it also states that both, the creation and the exercise of activities are free insofar as they respect the Constitution and the law, being limited by the requirement of an internal structure and democratic functioning.

In this sense, it is not contradictory to assert that the right to association implicitly holds the right to equal treatment among labour unions (Const. Court Ruling 168/1996), while the law sets the so-called institutional  representation, referred to above,  which corresponds to the most representative unions (Section 6.3 a) LOLS; Const. Court Rulings 39/1986 and 9/1988).

Indeed, promoting the freedom of association that connects with Section 7 of the Spanish Constitution should not be hampered by a stubborn defence of the equal treatment to unions, derived from Section 28.1 of the Spanish Constitution (in relation to sect. 14 of the Spanish Constitution). In this way, we resort to the rule of "greater representation" to accept assumptions of institutional representation before administrative bodies (Const. Court Ruling 53/1982), representation before the ILO (Const. Court Ruling 65/1982), and collective bargaining of general effectiveness (Const. Court Rulings 4/1983, 12/1983 and 73/1984). None of the cases  entioned considers that the existence of the most representative labour union is a violation of 14 and 28.1 of the Spanish Constitution, conferring, on the contrary, a unique legal position to the most representative unions, for the purpose of institutional participation and union action (Const. Court Ruling 98/1985).

The unions and union delegates can be described as internal organizational bodies within the union and also as external  representations. As internal organizational bodies, the creation of unions and the election of union delegates, who will act on behalf of the affiliates, show the exercise of the internal union’s freedom to self-organize, being part of the essential content of the freedom of association (Const. Court Ruling 168/1996).

The establishment of unions, the election or appointment of representatives, spokesmen or delegates and for these to act on behalf of the affiliates, constitutes the exercise of the internal union’s freedom to self-organize, and it is not prohibited for unions by the LOLS, and neither can it be restricted or prevented (Const. Court Rulings 61/198984/1989, 173/1992 and 292/1993).

Therefore, the above bodies are part of the essential content of the freedom of association, because through them the union is present in the work place and can carry out its representative functions (Const. Court Ruling 173/1992) and exercise those activities that allow the defence and protection of the actual workers (Const. Court Ruling 292/1993). However, the right of certain unions to be represented by union Delegates does not fall under the essential content of the freedom of association, but rather under the so-called additional content (Const. Court Ruling 173/1992).

The requirement of Section 7 of the Spanish Constitution that both, the structure and the functioning of unions, must be democratic has an important repercussion in the election or appointment of representatives in the so-called “union elections”. This condition is an indispensible element for the free exercise of union activities, since, as indicated by the Constitutional Court in a repeatedly set doctrine, the scope of the right to freedom of association means that unions may freely exercise their activities and implement their programs of action without unreasonable restrictions (Const. Court Rulings 23/198399/1983, 20/1985, 98/1985 and 208/1989, among other).

In fact, of the dual role of union elections it is worth highlighting not just the election of the workers’ representatives at the workplace or company, but also that this election directly impacts union activity by promoting the presence of the different unions in the workers’ unitary or elective representation bodies. Hence, our system may be based on the “greater representativeness” approach and “mere or sufficient representativeness” of unions, defining, once their representativeness’ “quantum” has been established, their corresponding responsibilities to which the Law confers important consequences (Const. Court Ruling 208/1989).

Currently, the most representative national labour unions are UGT and CC.OO.; and at a regional level ELA-STV and Convergencia Intersindical Gallega. On the other hand, the most representative employers’ association in our country is the Spanish Confederation of Employers'; Organizations (CEOE), to which the Spanish Confederation of Small & Medium- Sized Enterprises (CEPYME) is adhered.

With regard to the protection of union rights, Section 7 of the Spanish Constitution, by being found within the Preliminary Title, does not have a constitutionally established guarantee, except the one that refers to the use of the aggravated procedure for its amendment. This may be explained by the fact that the provision in question, by acknowledging the role of unions and employers’ associations as key elements of a social and democratic State, does not go on, unlike what happens in Section 28 of the Spanish Constitution, to establish the right to freedom of association. In the latter case, by being part of Section 28 of the Spanish  Constitution of the first part, chapter 2 of Title I of the Constitution, it does confer the maximum protection, being, according to Section 53.2 of the Spanish Constitution, possible to assert a claim to protect the freedoms and rights recognised, by means of a preferential and summary procedure before the ordinary courts and, when appropriate, by lodging an individual appeal or protection (recurso de amparo) to the Constitutional Court, with the guarantee established in Section 81 of the Spanish  onstitution, whereby the regulating standard of this right must be an Organic Act.

On the other hand, in relation to the employers there is a discussion about whether the their association has coverage under the right of freedom of association expressed in Section 28 of the Spanish Constitution, or whether, on the contrary, it must be regarded within the general right of association. In both cases it would be subject to the maximum protection, being covered, also in the second case, under the fundamental right of association of Section 22 of the Spanish Constitution. At a sub-constitutional level, rights of freedom of association are complemented in our system with the Law on Judicial Protection of Fundamental Rights of the Individual (Act 62/1978) and through criminal measures. At a social level, with a series of standards which contain protection mechanisms, such as the Organic Law on Freedom of Association, the Workers' Statute and the Labour Procedure Act. At an international level, it is worth noting the protecting role of this right carried out by the CFA and the European Court of Human Rights.

Finally, the importance of the role of trade unions and employers’ associations as advocates of the economic and social interests which they represent, is evident not only at a national level but also within the European framework, where there are, on the one hand, union organizations such as the European Trade Union Confederation (ETUC) and the International Confederation of Free Trade Unions (ICFTU); and on the other hand, employers’ associations such as the Union of Industrial and  Employers'; Confederations of Europe (UNICE) and the European Centre of Employers and Enterprises providing Public Services (CEEP).

For more information about the content of this article, you may consult the works citedin the annexed bibliography. 

Synopsis written by: Oscar Ignacio Mateos and de Cabo, Associate Professor. Rey Juan Carlos University. December, 2003.

Copyright © 2003 Congress of Deputies.