Spain
A striking absence of legislation
Long hikes to get to work. Endless waits under packed bus stop shelters. A multitude of taxis with their green lights off: these are the images that dominated Madrid last week. The breaking of a 2009 collective agreement with the regional government led to the total closure of the Madrid Metro, after subway workers refused to meet their obligation to provide minimum services.
The most visible consequence was above-ground chaos that recalled a similar situation in Madrid 18 years ago that was caused by a protracted public bus strike that lasted 66 days.
But it has also rekindled an old debate: the lack of a strike law. "I can understand some of the things they're saying, but there's no way I can accept the need to bring an entire city to a halt," said Javier Rojo, the Socialist president of the Senate, last Wednesday, who also called for a debate about the subject.
Any debate would inevitably include fulfilling one of the mandates contained in the Constitution passed 32 years ago: to draw up a strike law. This right has still not been made law by any government or parliament.
According to Article 28.2 of the Constitution, "The right for workers to strike to defend their interests is recognized. The law regulating the exercise of this right shall establish the necessary guarantees to ensure that essential services are maintained." This provides a clear framework for the debate that Rojo wants to initiate in the hope of reconciling two rights that, as we have seen in the past couple of weeks, can end up colliding.
So far, Spanish legislation regarding a fundamental right such as the ability to go on strike, and regarding the provision of minimum services, is based on a 1977 decree. But as Enrique Lillo, a labor law attorney tied to the CCOO union, notes, it is adapted to democratic law by a string of Constitutional Court rulings. For example, as explains Jesús Cruz Villalón, a professor of social security and labor law at the University of Seville, "the existence of minimum services cannot prevent a strike from taking place. They can't rule that it must operate at 100 percent. It must even be determined whether or not the service is essential, and in the case of transportation, whether or not there are any alternative routes."
One thing is clear: what happened in Madrid last week with the subway, or what occurred years ago with a moratorium on garbage collection and citywide bus strikes show that there is a need for change. "The current system doesn't work," says Jesús Lahera, professor of labor law at Madrid's Complutense University. This opinion, and the need to address the legal vacuum, is widespread among the academic community.
"There is unanimity," saidCruz Villalón last Wednesday. He answered us by phone from Barajas airport, en route to his final destination: "I'd planned on going into the city, but I've been told it’s chaos." Villalón thus became one of the two million people affected by the subway strike, and the debate over whose rights come first is unlikely to go away. "Every time one of these episodes occurs, it comes up," says Juan Carlos Aparicio, a former labor minister for the Popular Party.
Toni Ferrer, secretary of union action for UGT, agrees: "We always remember St Barbara when it rains," he says, quoting the popular saying to argue that this is an issue that should not be legislated on "in the heat of the moment."
Certainly, the atmosphere is too heated right now. As a result of the Madrid strike, disciplinary action has been taken against 400 subway workers. Why? "Once minimum services are established, they must be met. Workers have the obligation to fulfill them. Otherwise, they break the contract. This can lead to a sanction that can include suspension of employment and salary or even dismissal," says Lahera. And last Tuesday and Wednesday, Metro workers failed to meet minimum services. In the following days a minimum Metro service was provided before Monday’s decision to postpone further stoppages for a week to allow for negotiations on the regional government's plan to cut subway staff's wages.
The current law is vague. To begin with, it doesn't specify which sectors must provide minimum services. The Constitution refers to "services essential to citizens;" the 1977 decree to "any kind of service that is public or of recognized, pressing necessity."
According to a 2008 article by Raquel Quintanilla, a professor at Rey Juan Carlos University, jurisprudence and different governments have declared sectors such as electricity, radio and television to be essential.
This is also true of transportation, a strategic service in modern societies that can cause scenes like the ones seen in Madrid last week. This is the gripes with the law. "As the decree says, it's the governing authority that dictates what is an essential service," says Lillo.
The other complaint is heard more often these days. "The administration is set on imposing abusive minimum services so that strikes have no effect. You've got to be able to notice [the stoppage], otherwise the right is a reduced one," says Ferrer, the number two man from the UGT union, justifying the Metro workers' decisions.
The leaders of the two main unions, Ignacio Fernández Toxo and Cándido Méndez, have used the same argument: it is regional and national governments that usually dictate minimum services which judges usually end up finding "abusive." But trade unionists complain that judicial rulings only come after years of delay, when the strike, its reasons and effects are largely forgotten. This was the case for minimum services in the electricity sector that were established for the general strike of 2002 and declared abusive years after the fact.
"The right to strike is as constitutional as ensuring that essential minimum services are maintained; it's in the same article of the Constitution. But some people interpret the Constitution in a biased manner," says the former minister Aparicio.
José Manuel Ruiz, magistrate of Madrid's Contentious- Administrative Court, admits that "the sentences always come after the strike." Of course, injunctions can be issued, but this rarely occurs. Ruiz cites the length of the red tape that characterizes all legal procedures in Spain as the underlying reason for such delays.
Thus, when it comes to establishing minimum services the first demand of unions is that they should be negotiated. In fact, when a strike affects an essential service, the consultation period is established as lasting 10 days, and twice as long for an ordinary strike. But the fact is that the authorities have no obligation to enter talks.
This is the basis of recommendations from academic circles about drawing up a strike law. Lahera talks about "self-regulation" to involve unions in the establishment of minimum services and compliance therewith.
Cruz Villalón thinks that a list of sectors "essential to the community" should be drawn up, and that some kind of mediating body be created. These three initiatives reflect what has happened in Italy, where strike legislation is more advanced.
These proposals are also based on the only serious attempt to get strikes regulated in Spain. This attempt failed in the final phase, the congressional vote, when the bill, drawn up by the Socialist parliamentary group with the consent of the labor unions, had already come back from the Senate. Just then, in 1993, Felipe González dissolved parliament and never showed any interest in recovering the bill during the next congressional session.
This bill established a list of 17 essential sectors, including healthcare, garbage collection, transportation, public radio and television and electricity. It also stipulated a one-year period for each of these sectors to establish what would constitute a minimum service before any conflict were to break out.
If the model to follow were the one outlined nearly two decades ago, unions would have no objection to negotiating a strike law. "But when they talk about regulating the right to strike, what they really want is to reduce it. And it’s a fundamental right," says Ferrer.
But Aparicio, the former PP minister, has doubts about the desire for real regulation. "In 2002 I put a proposal on the social dialogue table, but I didn't see any real intentions on either side," he says. "There never have been any good intentions, and when I say that I'm including labor unions and the employers' confederation. We're in an anomalous situation."
For Fernando Moreno, an attorney and the former head of labor relations for the Spanish Confederation of Business Organizations (CEOE), employers have never been firmly committed to a clarification of strike legislation: "There are those who think that the best strike law is the one that doesn't exist." In his view, "The damage can’t be out of proportion to the ends that are being pursued. The problem is many strikes become illegal when they start out with picketing."
In other words, for this attorney, the fundamental problem does not lie in minimum services. The former secretary general of employment, Valeriano Gómez, is not so keen on regulation.
For him, the fact that the law is reflected in the Constitution has prevented the development of a new one. As he sees it, problems like that of the Madrid subway cannot only be traced to a lack of legal clarification, but also to the media. "When there's a strike and minimum services are met, the press shouldn’t talk about normality, but rather stress that minimum services are being met." In other words, that labor disputes are also decided by public opinion, and emphasizing normality does not reflect the conflict.
One of the negotiators of the stillborn 1993 law, Francisco González de la Lena, once a senior official in the Labor Ministry, isn't in favor of it either. "We don't want regulation focused only on the compliance or failure to comply with minimum services. What's more, there is no legal void. The bill proposed establishing criteria [for minimum services], but no detailed list was ever made. These will always have to be established for each case and each strike, whether or not there is a new law: for instance, a one-hour strike is not the same as a half-day or one-day stoppage, or one that takes place on the weekend. All this requires specific treatment that no law can determine. It's a mistake to think that the conflict will disappear just because there is a law."
(Published by El País – July 8, 2010)