Constitutional Court of Spain, Second Chamber, 23 November 1981, Case No. 38/1981

Constitution of Spain

Article 10, paragraph 2

Provisions relating to the fundamental rights and liberties recognized by the Constitution shall be interpreted in conformity with the Universal Declaration of Human Rights and international treaties and agreements thereon ratified by Spain.

Article 96, paragraph 1

Validly concluded international treaties, once officially published in Spain, shall be part of the internal legal system. Their provisions may only be repealed, amended or suspended in the manner provided for in the treaties themselves or in accordance with general norms of international law.

Dismissal , Protection against discrimination in employment and occupation , Freedom of association
Role of International Law:
Use of international law as a guide for interpreting domestic law
Type of instruments used:

Ratified treaties;1 Instrument not subject to ratification;2 Work of international supervisory bodies3

Dismissal/ Freedom of association/ Protection from anti-union discrimination/ Recourse for violation of freedoms and fundamental rights — Appeal on the ground of unconstitutionality (“Recurso de amparo”)/ Reversal of the burden of proof/ Reinstatement in employment/ Use of international law as a guide for intepreting domestic law

Several workers had been dismissed for economic reasons one day after having submitted their candidature for the functions of workers’ representatives. They challenged their dismissal before the Labour Tribunal and, upon appeal, before the Central Labour Tribunal.

The courts had dismissed the claimants’ action, finding that anti-union discrimination had not been proven, but they declared, nonetheless, the invalidity of the dismissals because of non-respect for the rules of procedure. Because of the legislation in force at that time, that annulment gave the employer the possibility of compensating the workers as a substitute solution to their reinstatement, which at that time was obligatory only in the case of the illegal dismissal of workers’ representatives.

In reply to that decision, the workers then entered an appeal on the ground of unconstitutionality (“recurso de amparo”) before the Constitutional Court of Spain, invoking a violation of the principle of freedom of association and demanding their immediate reinstatement.

Settlement of this case required  the Constitutional Court to solve two major legal issues: firstly, it was a question of deciding whether the constitutional protection of the freedom of association implied the reversal of the burden of proof in the case of alleged anti-union discrimination and secondly, of determining whether the constitutional protection of that principle required extending reinstatement in their employment (null and void) in the event of anti-union dismissal to candidates for positions as workers’ representatives.

Finding that “in accordance with article 10, paragraph 2, of the Constitution, international texts ratified by Spain are valid instruments for determining the sense and scope of the rights established by the Constitution”, the Court made reference to ILO instruments in order to interpret that article of the Constitution of Spain recognizing freedom of association. The Court took into consideration not only the ILO Conventions ratified by Spain, which were legally binding instruments, but also used non-binding sources, such as international labour Recommendations and the decisions of the ILO Committee on Freedom of Association. As to the value of international labour Recommendations, the Court declared that “these are texts providing guidance which, without being of a binding nature, can act as criteria for interpretation or clarification of the Conventions.”4

As for the assignment of the burden of proof in cases of anti-union discrimination, the Court based its decision on the work of the ILO Committee on Freedom of Association and ILO Recommendation No. 143 in order to interpret the National Constitution. The Court declared that:

“The difficulty of proof of anti-union discrimination could be avoided by transferring the proof of the existence of a reasonable cause for dismissal to the employer, regardless of its official justification and the “substantial viability” of the termination of employment. This solution stems from the decisions of the ILO Committee on Freedom of Association that bases itself on ILO Recommendation No. 143, Article 6, paragraph 2(e), within the general framework of ‘measures necessary and appropriate to guarantee freedom of association to workers’, made obligatory by ILO Conventions Nos. 87 (Article 11), 98 (Article 1) and 135 (Article 1).”

Furthermore, the Court considered that the absence of a legal provision stating that guarantee and the fact that the protective legislation was not applicable to candidates for the position of workers’ representatives did not present an obstacle to recognizing, in cases of freedom of association, that it is up to the employer to prove that the dismissal suspected of being discriminatory is linked to reasonable cause, foreign to any anti-union discrimination.

As to the extension of the declaration of null and void (with the consequent reinstatement in employment) as a sanction in the event of anti-union dismissal of candidates for positions as workers’ representatives, the Court primarily based its decision on its own interpretation of Article 28 of the Constitution of Spain, which protects freedom of association. The Court affirmed that freedom of association was a subjective right of all workers and that this benefit is not limited to their representatives. The Court added that violation of a fundamental right would require full reestablishment of the victim in his rights. Therefore, any worker dismissed for union activity has the right to reinstatement in his employment. In support of its decision, the Court cited Paragraph 7(1) of ILO Recommendation No. 143, which suggests extending the added protection of the workers’ representatives to candidates.

By using ILO Conventions as well as non-binding instruments that complement them to interpret constitutional provisions, the Constitutional Court of Spain pronounced the anti-union dismissals null and void even though the victims were not union representatives and established the reversal of the burden of proof in cases of suspected anti-union discrimination.

Full text of the decision