APPLICATION/REQUÊTE N" 16358/90 Miguel CERECEDA MARTIN and others v/SPAIN Miguel CERECEDA MARTIN et autres c/ESPAGNE DECISION of 12 October 1992 on the admissibility of the application DECISION du 12 octobre 1992 sur la lecevabiliie de la requête Article 27, paragraph 1 (b) of the Convention An application introduced with the Commission which has the same puipose as an uppln anon pi t'l loubh submitted lo the organs of the ILO and is hi ought by individual applitanls ~ ho were also the members of the trade union branches which paiticipated in the pioceedings before the ILO organs IS substantially the same as (he one submitted to the ILO Article 27, paragraphe 1, litt. b), dc la Convention Une leqnéte innoduiie decant la Commission, ayant le même objet d'une requête portée auparavant devant les organes de l'OIT et presentee par des reqiieiants individuels qui étaient aussi les membres des sections syndicales ayant af^i de\ani les oiganes de t OIT, est essentiellement ta même que celle soumise a l'OIT (TRANSLATION) THE FACTS (Extract) The applicants are Spanish nationals They were the members of the works council at the Aliimina-Alumimo factory in San Ciprian (Lugo province) Before the Commission they are represented by Messrs Peirad Rosenbiieh. Welschinger and Wiesel, lawyers practising in Colmar The facts of the case, as submitted by the parties may be summarised as follows On 5 December 1987 the ship ' Cason flying the Panamanian flag and loaded with dangerous chemical products, ran aground near Finisterre in nordi west Spam The accident claimed many victims among the ciew (23 dead including the captain) and caused a number of explosions on board These dramatic events, widely reported in the local and national media caused panic in the coastal towns and aroused some disquiet among the general public The administrative authorities ordered pan of the vessel's toxic carco to be unloaded and taken by road to the harbour adjacent lo the Alumina Aluminio industrial complex, situated about ~~~) kilometres from the sue of the aCLident there to be taken on board the Galerno , a ship chartered for that specific puipose When the convoy of lorries reached the appro iches to the industrial complex it was halted outside the factory limits pending (he order lo proceed to the harbour w. here it was intended to load the toxic cargo About twenty police ofticcis were detailed to guard the convoy As soon as the members of the works council learned of the convoy s arrival they informed the factory management of their extieme anxiety and deciaied that they were prepared to resist its entry into the factory As a result of a meeting attended by the works council the provincial head of the civtl defence services and the factory management the latter sent a telex to the amhortdes of Lugo province and the centra! Govemmenl's Delegate Cieneral in Gahcia, informing them of the very deep anxiety expiessed by the woiktorce who had de^^larcd that they were prepared to stop uork On ~ Decemlier 19S7 die management ind the woiks council reached an agreement under which the drums would be taken away not via the factory harbour. but via the factory's former haibour. situated further auay It was also agreed that as soon as the convoy set off for the disused harboui all the workers uould lea\e the 128 factory, with the exception of those working m theelecfiolssis plant who would in turn abandon their work stations while the drums were being loaded onto the bhip On 14 December 1987, by imprudence or mistake, the convoy took a wrong turning and set off in the direction of the factory Immediately the uorks council asked the management to get m touch with the administrative authorities with ~ view to persuading them to stop the convoy While this was taking place the workers left the factory in an atmosphere of panic Soon afterwards the lomes turned back and returned to the area where they had been parked The management then asked the works council to urge the workforce to return to work When the works council refused, the management ordered them to designate teams to carry out basic maintenance of the electrolysis plant (servicios minimos), emphasising the deleterious consequences of a total shutdown of this equipment The works council refused In the evening of 14 December 1987 the Galeino look the toxic pioducts on board and left port On 15 December 1987 the management issued a number of warnings informing the works council of the risk of sanctions if thevdid not call on the workforce to return to work In exchange for a resumption of work, the works council asked the company to undertake not to permit the vessel to enter the factory harboui again, not to take reprisals and lo pay the workforce in respect ot lime not woiked The management expressed reservations over this last condition In the meantime all work ceased in the electrolysis plant On 16 December 1987, after unsuccessfully issuing a number of further warnings the management decided to institute disciplinary proceedings against the members of the works council, to bring actions for damages and criminal procecdmgs against them to dismiss those workers employed in the electiolssis plant who had refused to carry out maintenance work and to lav off several hundred emplo>ees In the late evening of the same day the works council informed the management of their decision to ask the workforce to return to woik However, the management refused the workers on whom sanctions had been imposed access to the factory A few days later the management seni notice^ of dismissal to 118 of the 240 workers employed in the electrolysis plant, expressing the view that dicy had failed to fulfil their contracts m good faith as required by section 54 (2) (d) ot the Contracts of 129 Employment Act (1) The number of workers dismissed was subsequently reduced to 111 during the conciliation procedure provided for bv Sp.ti)ish legislation on industrial disputes, and then to 110 alter one of them died At the same time, and on the same legal basis, the management dismissed the applicants, as members of the works council, without paying them redundancy pay The two groups of workers instituted court proceedings to have the employer's dismissal notices set aside In a judgment dated 9 March 1988 the Lugo No 1 Industrial Tribunal declared the dismissal of the 110 employees working ~ the electrolysis plant null and void, on the ground that the procedural rules for dismissal had not been followed, and ordered the company to take them back On the other hand, in a judgment dated 23 March 1988, the Lugo No 2 Industrial Tribunal held that the dismissal of the applicants without compensation was well founded The company's appeal on points of law against the first of these judgments «Aas dismissed in a judgment given by the Social Division of the Supieme Court on 7 February 1989 The same Social Division dismissed, in a judgment dated 30 Janu.iry 1989 the appeal on points of law lodged by the applicants against the judgment of die Lugo No 2 Industrial Tribunal One of the judges sitting in die Social Division expressed the view, in a dissenting opinion (voto particular), that the dismissal of the members of the works council was null and void The members of the works council lodged a de amparo appeal with [he Constitutional Court, relying on Articles 24 para 1 (right to a fair hearing). 14 (right to equality and freedom from discrimination) and 28 para 1 (right to freedom ot association) of the Constitution, and on the provisions of a number of international instruments ratified by Spain including Articles 6. 14 and 11 para 1 of the European Convention on Human Rights In a decision dated 19 lunc 1989 the Constitutional Court dismissed the appeal on the ground that it raised no issues under the Constitution (1) Dismissal for disciplni.iry ruiviiis 54 1' A conincl of unplymcni m ly be nvnided hy ilic employer wlicre m employLL is dismissed for a senous inieniioii.i] breacli ilicreol 2' Tlie following shall consuiuiL breacli of conir ici d lact; of good failli m fultilmi.111 of ilie uimr.iei or 1 uluri. lu resiwcl IIIL Linployer s trusi iti performance of Hie work no In the meantime, in early 1988, the applicants, acting through the union branches representing the workers at Alumina-Aluminio, complained to the Freedom of Association Committee of the International Labour Organisation (ILO) of an infnngement of their right to freedom of association The complaint was investigated by that body in 1988 and this resulted in the adoption of a report addressed to the Governing Body of the International Labour Office in w hich the Freedom of Association Committee held that in the particular circumstances of the case, and having regard to the decision of the Lugo No 2 Industrial Tribunal the dismissal of the members of the works council did not infringe the freedom of association The above report was submitted to the Governing Body of the International Labour Office, which adopted it on 3 November 1988 THE LAW (Extract) 2 The applicants consider that their dismissal was prompted by their attitude as members of the works council and complain that they were tiie victims of an infnngement of the right to freedom of association They rely on Article 11 of the Convention, taken separately and in conjunction with Article 14 Article 11 reads as follows 1 Everyone ~~\ the right to freedom of pe^^.eful assembly and to freedom of association with others, including the right to form and to |oin trade unions for the protection of his interests 2 No restrictions shall be placed on the exercise ot these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for die proteclion of the rights and freedoms of others This Article shall not prevent [he imposition of lawful restrictions on the exercise of these rights by membeis of the armed forces, of the police or of the administration of the State The respondent Government first plead inadmissibility under Article 27 para 1 (b) of the Convention which provides as follows I The Commission shall not deal with any petition submitted under Article 25 which 131 b IS substantially the same as a matter which has already been examined by the Commission or has already been submitted to another procedure of international investigation or settlement and if It contains no relevant new information In that connection the Government maintain that, according to a communication dated 9 February 1988, the World Federation of Industry Workers (WFIW) submitted a complaint to the Freedom of Association Committee of the International Labour Organisation (ILO) alleging an infringement by Spain of the freedom of association They assert that in support of this complaint the four trade union branches representing the workers at the Alumina Aluminio factory sent a letter to the Freedom of Association Committee on 28 February 1988 The Government assert that the complaint to the Freedom of Association Committee concerned the alleged violation of the fieedom of association caused by the dismissal of the 23 members of the works council as a result of the events of the period beginning on 14 December 1987 The Government note that after examining this complaint the Freedom of Association Committee held as follows having regard to the decision of the Lugo Industrial Tribunal the Committee considers that in the particular circumstances of the case the dismissal of the members of the works council did not infringe the freedom of association The Committee s report uas submitted to the Governing Body of the International Labour Olticc which adopted it on 3 November 1988 at its 241st meeting, held in Geneva The Government maintain that the Freedom of Association Committee responsible to the Governing Body of the International Labour Office is a procedure of international investigation or settlement within the meaning of the above mentioned provision of the Convention They also consider that the complaint submitted to the Geneva organisation is identical to that submitted to the Commission in Strasbourg They consider that the persons who applied to the two international bodies were also the same in each case Fuither to this last point they obseive thit the applicants before the European Commission of Human Rights comprising all the members of the works council, are the very persons who make up the four trade union branches representing the workers at Alumina Aluminio In that connection the Government add that in proceedings before the ILO legal standing is enjoyed bv the oiganisations representing workers and employers Lastly, they note that the compi iint to the II ~ was submitted on 9 February 1988 by the WTIW and then on 28 Febiuaiv 1988 bv the four trade union branches at the Alumina Aluminio compan) In conclusion, the Government who note incidentally that the applicants omitted to report the existence of these other proceedings in their application to the Commission, consider that the complaint must be declared inadmissible pursuant lo Article 27 para 1 (b) of the Convention 132 The applicants, for their part, consider that the Freedom of Association Committee cannot be regarded as a judicial body tor the purposes of Article 27 para 1 (b) of the Convention That being the case, its decisions do not have the status of final bindmc decisions ~ relation to the issues submitted to the European Court of Human Rights Before stating its opinion as to whether the application reveals any appearance of a violation of the rights relied on by the applicants the Commission must determine whether, as the Government maintain, it is inadmissible under Article 27 para 1 (b) of the Convention The Commission notes that it apjjears from the tile that on 9 and 28 February 1988 the applicants, acting through the trade union branches representing the workers at the Alumina-Aluminio company, submitted a complaint to the Freedom of Association Committee of the International Labour Organisation (ILO) alleging an infringement by Spain of the nght to freedom of association Befoie that Committee the applicants complained that the dismissals represented victimisation for trade union activity and a serious infringement of the right to freedom of association, both being imputable to the Government, contrary to Convention No 87 of 1948 concerning Freedom of Association and Protection of the Right to Organise and Coiuention No 98 of 1949 concerning the Right to Organise and to Baigain CollectiveK, instruments to which Spain is a party The Commission notes that on 3 November 1988 tlie Governing Body of the International Labour Office adopted the report submitted by the Freedom of Association Committee concerning the complaint lodged by the trade union branches represented on the works council ot die Alumina-Aluminio company The Commission notes in ihis connection that in the relevant section of their application form the applicants make no reference whatsoever to the existence of these proceedings The Commission recalls that for the ground of inadmissibility set out in Article 27 para 1 (b) of the Convention to be applicable the application must be substantially the same as a matter which has previously been examined or has already been submitted to another procedure of international investig<iiion oi settlement The Commission notes in the first place dial the lights set torih in Aiiicle 2 taken together with Article 10 of Convention No 87 of 1948 (1) include the right to freedom of association, which is also guaranteed by Aiiicle II para I ot the (1) Aflicic 2 of Convenliori No S7 Workers aiid employers willioiil dislmciion wli ilscx-ver sli ill li IVL IIIL riutii lo csi iblish and subject only lo ihe rules of the org.inisalion concerned lo join org misaiions ol iliLir ow.n cliixismg wilhoiii previous authorisaiion Ajticlc 10 of Convciiuoii No H7 InihisCon\en(ionilieierm organisation mcKisanyorginisiHonofworkLisorofcmplnversfor tiinlicrinj; and defending ihc inicrisis of workers and employers 133 Convention The Commission accordingly notes that the complaint submitted to the ILO and the complaint submitted to the European Commission of Human Rights are identical With regard to the condition as to identity of the parties, the Commission recalls that when it examined this question in the Council of Civil Service Unions and others V the United Kingdom case (No 11603/85, Dec 20 1 87, D R 30 pp 228, 237) it gave the following ruling " the present applicants, namely the Council of Civil Service Unions and six individual applicants, aie not identical with the complainant before the ILO organs concerned Rather the complaints before the ILO were brought by the Trades Union Congress, through its General Secretary, on its own behalf Indeed, the six individual applicants before the Commission would not have been able to bring such complaints since the Committee on Freedom of Association was set up to examine complaints from organisations of workers and employees as opposed to individual complainants Accordingly, [he present application cannot be regarded as being substantially the same as the complaints brought before the 11 ~ withm the meaning of Article 27 para 1 (b) of the Convention In the present case, with regard to the proceedings before the ILO bodies the Commission notes that, although the main complainant was the WFIW, the four trade union branches representing the workers at the company on the works council joined the proceedings, which precisely concerned the dismissal of the 23 applicants the very persons who now petition the Commission In that connection the Commission notes that in Its report the Freedom of Association Committee held that having regard to die decision of the Lugo No 2 Industrial Tribunal, and to the particular circumstances of the case, the dismissal of the members of the woiks council did not infringe the freedom of association While it is true that formally the 23 individual applicants before the Commission are not the complainants who appealed before the ILO organs, access to those bodies being reserved for trade union organisations it is no less true that in the present case, unlike the case mentioned above the complaint was. in substance, submitted by the same complainants On that basis the Commission concludes that in this case the parties were substantially ihe same Consequently, applications conceming substantiallv the same subject mattei were submitted by the same complainants to two international bodies in turn the Freedom of Association Committee of the ILO and the Commission The Commission takes the view that a situation of this type is not compatible with either the spirit or the letter of the Convention which seeks to avoid a plurality of iiuemational proceedings rel iiing to the same cases Under Article 27 para I (b) of the ~ oiivention the Commission 134 cannot deal with any application which has already been inves[iga[ed or is being investigated by an international body (No. 17512/90. Dec. 6 7 92. D R 73 p 214) It follows, as this part of the application is substantially the same as the petition previously submitted by the applicants to the Freedom of Association Committee of the ILO, and already examined by that Committee, that it falls within the scope of Article 27 para. 1 (b) of the Convention, and must accordingly be i ejected pursuant to that provision. For these reasons, the Commission, by a majority, DECLARES THE APPLICATION INADMISSIBLE. 135