The institutional framework of public sector industrial relations

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Industrial relations in the Spanish public sector are undergoing change, moving closer to the private sector model, with a greater role for collective bargaining rather than state intervention. This feature examines this process and outlines some key features of public sector industrial relations in Spain, such as: the distinction between civil servants and non-civil service employees; the content and structure of collective bargaining; and the division of responsibilities among the different levels of public administration.

The organisational structure of public administrations in Spain has certain particular characteristics resulting from the process of decentralisation that began with the country's transition to democracy in the late 1970s. The most significant aspect of this process was the setting up of regional administrations, so there are now three levels of government, each with their respective administrations: the state, the autonomous communities (regions) and the local authorities.

The Spanish public administrations do not yet have a basic set of employment law regulations for their personnel, such as that which applies to the private sector. Instead, industrial relations have been progressively – and at times provisionally – defined and regulated by a series of legislative measures. Furthermore, some autonomous communities have adopted their own regulations with regard to their civil servants.

Employment and employment status in the public sector

Employment in the various public administrations has increased greatly in recent years, rising from 1,438,700 employees in 1985 to 2,037,400 in 1999, when the public sector employed slightly over 20% of all Spanish wage earners. Decentralisation has led to a major redistribution of public administration employment. From 1985 to 1999, the central state's share of public employment fell from 39.7% to 26.2%, while the regional administrations experienced a considerable increase from 22.3% to 34.2%. There was less change in local administrations, whose share of public employment rose slightly from 21.2% to 22.3%, and in the social security system, whose share went from 16.8% to 17.3%.

Distinction between civil service and non-civil service staff

The most important distinction among public sector workers is between civil servants (funcionarios públicos) and non-civil service employees. The former are appointed with tenure and regulated by administrative law, whereas the latter are hired according to the labour legislation for the private sector. Law 30/1984 on Civil Service Reform Measures (Ley de Medidas de Reforma de la Función Pública, LMRFP), which is the basic regulation for civil service staff, opened the way for non-civil service recruitment in the public sector, although limited to jobs involving specific trades, maintenance work and specialised technical knowledge (see "Relaciones de empleo, trabajo y seguridad social en el sector público", MN García and JE Hernández, Tecnos, Madrid (1999)). The result is that at the present time a quarter of public administration employees are non-civil service staff. This process of recruiting non-civil service staff has arguably been carried out in a contradictory way and often covertly, leading to disputes with the trade unions.

Temporary staff, either to meet urgent needs or to fill posts for a given period, may be recruited either as temporary civil service staff or non-civil service staff on fixed-term contracts. In both cases, the process is informal, so this has become a "back door" into public administration employment. This system is used widely because it allows flexibility and autonomy in the selection of personnel, but it has also been the cause of disputes with the trade unions.

Industrial relations for non-civil service staff are governed by the normal labour legislation for the private sector, although subject to some budgetary and formal limitations (see below). Thus numerous collective agreements, at both sectoral and territorial level, regulate the employment conditions of the various administrations' non-civil service staff. However, there is a tendency towards a smaller number of agreements and greater harmonisation, as is indicated by the first single collective agreement for all non-civil service staff of the central state public administration, concluded in 1998 (ES9812190F).

Civil servants, on the other hand, are covered by a limited, but increasingly important collective regulation. In 1984, the LMRFP legislation marked the first break with the principle of unilateral regulation of employment conditions, formally recognising collective bargaining in the civil service, though without laying down specific regulations on the issue. Law 11/1985 on Trade Union Freedom (Ley Orgánica de Libertad Sindical, LOLS) recognised the right to collective bargaining and trade union freedom for civil servants (see "Problemas de la representación sindical y la negociación colectiva en la función pública. Convergencias y divergencias con el empleo privado", J Mauri, Documentación Administrativa, n. 241-242 (1995)). These rights were given effect by: Law 9/1987 on Representative Bodies, Determination of Working Conditions and Staff Participation in Public Administrations (Ley de Órganos de Representación, Determinación de las Condiciones de Trabajo y Participación del Personal al Servicio de las Administraciones Públicas) modified by Law 7/1990; and Law 18/1994 on Staff Representative Bodies in the Public Administrations (Ley sobre Órganos de Representación del Personal al Servicio de las Administraciones Públicas, LORAP). The LORAP legislation establishes the channels for public employees' participation in determining their employment conditions and defines the main subjects of bargaining and consultation: pay; preparation of recruitment plans; classification of jobs; recruitment; benefits and promotion systems.

Increasing role for bargaining

There has been a significant tendency to replace the former unilateral statutory relationship for civil servants with a negotiated relationship: several agreements between public administrations and the unions have contributed to changing the unilateral model by increasing the number of topics that can be dealt with in bargaining. The June 1990 pact on collective bargaining for civil servants, signed by the state administration and the Trade Union Confederation of Workers' Commissions (Comisiones Obreras, CC.OO) and General Workers' Confederation (Unión General de Trabajadores, UGT), was decisive in this process. Furthermore, measures aimed at modernising the administration, introduced following agreements reached in November 1991 and September 1994, led to the introduction of certain improvements in employment conditions and a fuller development of the bargaining framework. Finally, a February 1998 agreement approving a draft Statute for the Civil Service (ES9803143F) (still pending parliamentary approval) established a basic common model for the employment of all public employees, which can be developed by the autonomous communities. The fact that a Statute for the Civil Service has not yet been approved, although the Spanish Constitution established a mandate to do so in 1978, is an indicator of how difficult it is to reach a consensus on this question.

The right to collective bargaining and participation for civil servants is not equivalent to that which applies in the private sector. The content of the bargaining is usually poor, although this is also due to the trade unions and civil servants' representatives. Furthermore, the government ultimately reserves the right to establish employment conditions (ES0010214N and ES9712236N), which also affects trade union credibility (see "La Administración Central: problemas y respuestas sindicales en Alemania, España, Italia y el Reino Unido", R Morillo, CC.OO, Documentos de Gabinete Técnico Interfederal (1997)) insofar as there is no guarantee that the points agreed in the bargaining will be implemented (see J Mauri, cited above).

Although the Spanish Constitution recognises the right of civil servants to strike, this has not been developed legally, so the same legislation as that for the private sector is applied, with the exception of sectors which do not enjoy this right (the armed forces and police), and with guarantees to ensure essential services to the community.

The LOLS legislation established some exceptions to trade union freedom. It does not recognise the right of members of the armed forces and the other military-type armed services - the Guardia Civil and parts of the National Police (Cuerpo Nacional de Policía) - to join trade unions. Other civil service professions that are excluded are judges, magistrates and public prosecutors, who cannot belong to any trade union, although they can join "corporate" associations to defend their professional interests. Finally, because the police forces are armed, the right of non-military police to join unions is governed by specific regulations in Organic Law 2/1986 on the Security Forces (Ley Orgánica de Fuerzas y Cuerpos de Seguridad). For all these categories, employment conditions are determined by the competent administration. Nevertheless, trade unions have appeared in some groups, and they have even been involved in collective action and participated in joint mobilisations with the traditional unions. Furthermore, for practically all groups there is occasional bargaining between the administration and the "corporate" associations, although the procedures for this tend to be informal

Representation and bargaining in the public administration

Because of the distinction between civil servants and non-civil service staff, these two groups have differentiated bargaining systems, though in recent years there has been a tendency towards unification, which could be reinforced in the future because the draft Statute for the Civil Service (see above) provides for a joint bargaining body.

Non-civil service staff

Similar to the current legislation in the private sector, at establishment level non-civil service staff elect a single representative body, the staff committee (comité de personal), every four years. The trade unions, as well as professional and independent groups, put up slates of candidates for these elections. The staff committees have powers to negotiate collective agreements, but at times the bargaining is carried out by a joint staff committee for both civil servants and non-civil service staff, a body which is not legally regulated.

Civil service staff

Civil service staff, on the other hand, have two types of representative body: staff councils (juntas de personal), elected in a similar way to the staff committees; and bargaining commissions (mesas de negociación), which are made up of the most representative unions in each area of the administration. The representativeness of the unions is measured on the basis of the results of the elections for the staff councils in each area of the administration. The staff councils have no bargaining powers, and can only receive information. Bargaining is therefore carried out by the bargaining commissions. As laid down by the LORAP legislation, the commissions are formed at several levels. At central level is the General Civil Service Commission for the State Administration (Mesa General de la Función Pública para la Administración del Estado), composed of representatives of the central government and the most representative trade unions. There is also a general commission in each autonomous community and each local authority (or grouping of municipalities, if they are small), composed of representatives of the regional or local government and the most representative trade unions at that level.

They are also sectoral commissions for specific sectors of the administration. Such commissions must be set up for: educational staff in non-university public institutions; university civil service staff; posts and telegraphs staff; public health institution staff; legal administration staff; and staff of social security management entities. Sectoral commissions may also be set up in the autonomous communities, if the competences for a sector have been transferred to this level. These commissions are composed of representatives of the administrations and the most representative unions in the area. Finally, ad hoc commissions may be set up to cover specific areas when the relevant administration and the trade unions see fit.

The structure of bargaining is hierarchical. The general commissions deal with the general conditions of employment that affect all public administration employees. The regional, local and sectoral commissions deal with the specific employment conditions of the corresponding area or sector, and apply and develop agreements reached at higher levels. The commissions can negotiate questions that affect employment conditions (training, health and safety etc) and the relationships with the corresponding administration. However, for questions regulated by law, especially the state budget law (pay, offers of public employment, recruitment and promotion in the civil service etc), they have only an advisory function. Wage increases are approved in the state budget and can only be considered, but not negotiated, in the General Civil Service Commission of the State Administration or other territorial or sectoral commissions. However, some agreements have been reached on these points, openly or covertly, in some autonomous communities and city councils. Because bargaining is highly centralised, the general agreements have wide-ranging effects in most areas of the public administration. Despite this, at some levels industrial relations have been very dynamic, with bargaining on a wide range of topics and significant agreements that have gone beyond the more limited bargaining at higher levels (ES0007198N).

The state as employer

The role of the employer in the public administrations is difficult to define because of the legislative complexity, as is shown by the frequent conflicts among administrations on their respective competences. In general, it has been established that the state government governs staffing policy and has executive and regulatory powers over employees of the state administration, while each regional government has similar functions with regard to its own employees, as well as offering tutelage to the local administrations in its territory.

In the central state administration, the most importance body after the government is the Ministry of Public Administrations, which is responsible for the general development, coordination and control of government staffing policy. The Civil Service Coordination Commission (Comisión de Coordinación de la Función Pública) is responsible for coordinating the staffing policy of the state administration, drawing up public recruitment plans and proposing the necessary measures for implementing the provisions of the statutory regulations for civil servants. The Ministry of the Economy and Treasury proposes to the government the guidelines on personnel expenditure as part of the process of drawing up the state budget (which have to be approved by parliament), and authorises any staffing measures that involve modifying public expenditure.

Finally, the Higher Civil Service Council (Consejo Superior de la Función Pública), created by the LMRFP legislation, is a collegiate body for coordination and consultation on civil service staffing policy between the state, regional and local administrations and the representatives of civil servants. This body is composed of representatives of the trade unions, the regional and local administrations and the Ministry of Public Administrations.

Main trade union organisations in the public sector

The dual model of representation which exists in the private sector, involving workers' committees and trade union representation, was introduced much later in the public administration, and with significant modifications. In the public administration, trade union representation was developed mainly through the bargaining commissions, on which the unions that meet the representativeness requirements are represented. Trade unions are therefore the major form of representation and participation for civil servants (see "Public service employment relations since the transition to democracy", P Jódar, J Jordana and R Alós, in Public service employment relations in Europe, S Bach, L Bordogna, G della Rocca and D Winchester (eds), Routledge, London (1999)).

Although, in the period of democratic transition, associations of civil servants were legalised before trade union membership, thus leading to a proliferation of professional associations and "colleges", in 1985 the LOLS legislation came out clearly in favour of the model of trade union representation (see "La reforma de la función pública. Su impacto sobre la burocracia española", J Suay Rincón, Revista de Estudios Políticos (1987)) by introducing the concept of the most representative trade unions in the public administration (unions that obtain more than 10% of elected employee representatives at the national level, or more than 15% at the regional level, providing that they have over 1,500 representatives). The legislation entitles these unions to be represented at all regional and sectoral levels. Unions with over 10% of representatives in a given territory and/or sector are represented only in the territory and/or sector in question.

The first trade union elections in the public administration were not held until 1987, although for the non-civil service categories of the administration they had been held since 1978. This delay is indicative of the slowness of the public authorities in adopting measures to define and articulate the identity and role of the social partners in the public administration (see P Jódar et al, cited above). However, the trade union elections were the starting point for the growth of trade union organisations that had previously had little influence.

The main trade unions in the public administration are the Trade Union Federation of the Public Administration (Federación Sindical de Administración Pública, FSAP) affiliated to CC.OO and the Federation of Public Services (Federación de Servicios Públicos, FSP) affiliated to UGT. The nationalist trade unions Basque Workers' Solidarity (Eusko Langileen Alkartasuna/Solidaridad de Trabajadores Vascos, ELA/STV) and the Galician trade union confederation (Converxencia Intersindical Galega/Convergencia Intersindical Gallega, CIG) - both with over 15% of representatives in their respective regions, the Basque Country and Galicia- also have "most representative status", as does the Independent Trade Union Confederation of Civil Servants (Confederación Sindical Independiente de Funcionarios, CSI-CSIF), which was launched in the 1980s by various diverse professional associations in order to provide an alternative to UGT and CC.OO. These are the five unions that are represented on the General Civil Service Commission of the State Administration. There are also a large number of professional unions covering specific areas of the public administration, or civil service associations, such as: the National Association of Teachers (Asociación Nacional de Profesores, ANPE); the State Convergence of Doctors–Trade Union of Medical-Technical Assistants and Nursing (Convergencia Estatal de Médicos-Sindicato de ATS y Enfermería, CEMSATSE); the Trade Union of Nursing Assistants (Sindicato de Auxiliares de Enfermería, SAE); and the Union of Teaching Workers (Sindicato de Trabajadores de Enseñanza, STS).

However, during the 1990s there was a certain concentration of representativeness and political muscle towards CC.OO and UGT, and these are the predominant organisations in bargaining (see P Jódar et al, cited above). These two unions have thus reinforced their presence in the bargaining commissions, though particular organisations have consolidated niches with major bargaining capacity in specific sectors of the public administration.

Commentary

Industrial relations in the Spanish public sector have been undergoing a process of "normalisation", though still with many undefined aspects and obstacles inherited from the past. Even now there is no general legislative framework like the private sector Workers' Statute for the public administration. Without this fundamental basis, the current system suffers from the effects of the improvisation with which industrial relations in the public sector have been established.

Nevertheless, there is no doubt that the unilateral intervention of the state has decreased, allowing greater room for bargaining. In the 1990s in particular there was a major increase in the capacity for intervention and bargaining, together with some decentralisation of the bargaining levels. As P Jódar et al ( cited above) point out, the corporate associations lost representativeness in favour of the trade unions; although the presence and influence of the trade unions varies greatly according to sectors and territories.

Industrial relations in the public sector are clearly becoming closer to those in the private sector. The introduction of concepts such as human resources, efficiency and competitiveness is leading to a break with the traditional idea of the public administration. The introduction of non-civil service contracts, modifications in pay systems, performance-linked pay and flexibility are expressions of this tendency, though these are at an early stage in some cases. (Ramón de Alòs-Moner, QUIT-UAB)

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