Supreme Court of Spain, Secundino C.R. v. TOVIC S.L., 2 October 1989

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 Their provisions may only be repealed, amended or suspended in the manner provided for in the treaties themselves or in accordance with general norms of international law.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 , Freedom of association
Role of International Law:
Use of international law as a guide for interpreting domestic law
Type of instruments used:

Ratified treaty1

Dismissal/ Freedom of assembly/ Time dedicated to the activity of trade union representation/ Use of international law as a guide for interpreting domestic law

An undertaking dismissed a worker, alleging a break in good contractual faith because of absence from the workplace. The worker made application for rejection as inappropriate because the alleged fault of absences from work was justified by his attendance at meetings of the commission negotiating the collective agreement in the metallurgy sector. The decision of the Court of First Instance accepted the thesis of the undertaking, according to which the worker should have returned to his duties when his work as trade union representative finished, instead of remaining at home or frequenting bars, which constituted an abusive use of time dedicated to the trade union activity.

Given this situation, the applicant made an appeal, arguing that the time dedicated to trade union representation should be considered using broad criteria, which includes an exchange of impressions with colleagues. Therefore, his conduct was in accordance with the law.

In order to determine whether dismissal for incorrect use of the time given to the trade union representative to carry out his trade union activities was inappropriate, the Supreme Court interpreted the Basic Law of Trade Union Freedom2 in light of the National Constitution and ILO Convention No. 135. The Court held that that Convention covered the concession of paid leave that was necessary for the proper exercise of the work of negotiation by trade union representatives. The Court considered that, within the framework of the Convention, the use of the leave should not have been subject to rigorous control and should have taken into account criteria of reasonableness.

The Court stated the following:

 (…) interpretation that does not conform with the purpose of the provision, in which the objective of facilitating the negotiating functions of representatives should not impair the efficient operation of the undertaking concerned, as provided for in Article 2(3) of ILO Convention No. 135.3 Therefore, the need that the justification provided for in Article 37(3) of the Workers’ Statute4 should include in these cases not only the activity that led to the leave but also justification for the activity with the time used in accordance with criteria of reasonableness.

“(…) That cannot require a minute calculation in the time used, which should be flexible and should preserve the independence of the representative, (…) workers’ representatives have a right to carry out their functions without being submitted to close scrutiny, because that would be hindrance or limitation on their right of freedom or free exercise of the responsibility, a conclusion that is obtained in that decision in light of Article 28(1) of the Constitution5 and ILO Convention No. 135.”

In conclusion, the Supreme Court of Spain interpreted the domestic regulation in light of ILO Convention No. 135 in order to point out that the leave for a workers’ trade union activity should not be subject to strict control, concluding that the conduct of the applicant did not justify the sanction of dismissal.

1 ILO Convention on Workers’ Representatives, 1971 (No. 135).

2 Article 9(2) of the Basic Law of Trade Union Freedom No. 11/1985 of 2 August 1985: “Trade union representatives who participate in commissions negotiating collective conventions, maintaining their ties as active workers in an undertaking, shall have the right to the concession of paid leave that is necessary for the adequate exercise of their work as negotiators, as long as the undertaking is affected by the negotiation.”

3 Article 2(3) of Convention No. 135: “The granting of such facilities shall not impair the efficient operation of the undertaking concerned.”

4 Article 37(3) of the Workers Statute: “A worker, after giving notice and with justification, may be absent from the job, with a right to remuneration, for any of the following reasons and for the following time: (…) (e) in order to carry out trade union functions or representation of the personnel within the terms established by law or convention.”

5 Article 28(1) of the Spanish Constitution: “All have the right to freely join a trade union. The law may restrict or except the exercise of this right in the armed forces or institutes or other bodies subject to military discipline, and shall lay down the special conditions of its exercise by civil servants. Trade union freedom includes the right to set up trade unions and to join the union of one’s choice, as well as the right of trade unions to form confederations and to found international trade union organizations, or to become members thereof. No one may be compelled to join a trade union.”

Full text of the decision