The European Committee of Social Rights (ECSR) adopted during its 343rd session (9-13 September 2024):
The complaint was registered on 31 July 2023. It relates to Article 4§2 (the right to a fair remuneration) of the revised European Social Charter (“the Charter”). The trade union Federación de Servicios a la Ciudadanía de Comisiones Obreras Región de Murcia (FSC-CCOO) alleges that Article 43 of the collective agreement for the road haulage sector in the Murcia Region, which provides for drivers covered by this agreement to be paid a mileage allowance to compensate for overtime worked, does not guarantee compliance with Article 4§2 of the Charter. According to FSC-CCOO this is because the mileage allowance system established by the collective agreement neither ensures that the payment for overtime work is actually dependent upon the number of hours worked nor ensures that the payment for overtime work is higher than payment for ordinary working time.
The ECSR unanimously declared the complaint admissible on 11 September 2024.
The complaint was registered on 12 February 2024. It relates to Article 5 (the right to organise) of the revised European Social Charter (“the Charter”). The Norwegian Association of Small & Medium Enterprises (SMB Norge) alleges that the exception in the Working Environment Act, Section 14-12, second paragraph, on the hiring of workers from temporary work agencies is in breach of the right to organise guaranteed by Article 5 of the Charter. Said exception provides that in undertakings bound by collective agreement with trade unions with the right of nomination (instillingsrett) pursuant to the Labour Disputes Act, only trade unions with a right of nomination may conclude agreements with the employer on the hiring of workers from temporary work agencies. Under Section 39 of the Labour Disputes Act, a trade union must have at least 10,000 members in order to qualify for the right of nomination. According to SMB Norge, the law thereby provides for preferential treatment of trade unions with 10,000 members or more in violation of the positive and negative aspects of the right to organise guaranteed by Article 5 of the Charter.
The ECSR unanimously declared the complaint admissible on 11 September 2024.
• The decision on the merits in European Organisation of Military Associations and Trade Unions (EUROMIL) v. Portugal, Complaint No. 199/2021
The complaint was registered on 12 May 2021. It relates to Articles 5 (the right to organise) and 6 (the right to bargain collectively) of the revised European Social Charter (“the Charter”). In its complaint, EUROMIL alleged that the Portuguese professional military associations are not allowed to exercise their trade union rights and hence to bargain collectively for the protection of the economic and social interests of their members in violation of Article 5 of the revised European Social Charter (“the Charter”). EUROMIL also alleged that Portugal fails to promote either joint consultation or voluntary bargaining mechanisms for the purpose of regulating the terms and conditions of employment by means of collective agreements between military associations and the Ministry of National Defence (as an employer), and that it bars military associations, as workers' organisations, from exercising the right to strike in violation of Article 6§§1, 2 and 4 of the Charter. Finally, EUROMIL maintained that the prohibition of trade union rights for military personnel in Portugal is neither necessary nor appropriate within the meaning of Article G of the Charter.
Pursuant to Article 8§2 of the Protocol providing for a system of collective complaints, this decision will not be made public until after the Committee of Ministers has adopted a resolution or a recommendation, or no later than four months after it has been transmitted to the Committee of Ministers.
• The decision on the merits in Defence for Children International (DCI), European Federation of National Organisations working with the Homeless (FEANTSA), Magistrats Européens pour la Démocratie et les Libertés (MEDEL), Confederación Sindical de Comisiones Obreras (CCOO) and International Movement ATD Fourth World v. Spain, Complaint No. 206/2022
The complaint was registered on 2 March 2022. It concerns Articles 31 (the right to housing), 16 (the right of the family to social, legal and economic protection), 17 (the right of children and young persons to social, legal and economic protection), 30 (the right to protection against poverty and social exclusion), 23 (the right of elderly persons to social protection), 11 (the right to protection of health), 15 (the right of persons with disabilities to independence, social integration and participation in the life of the community), 20 (the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex), 27 (the right of workers with family responsibilities to equal opportunities and equal treatment) and to Article E (non-discrimination) in conjunction with each of the concerned provisions of the Revised European Social Charter (“the Charter”). In their complaint, the complainant organisations alleged that power outages, which started in October 2020 and are still ongoing, affect parts of Cañada Real Galiana (hereinafter “Cañada Real”) shantytown in Madrid, Spain, and have a serious negative impact on the lives of at least 4,500 inhabitants, including about 1,800 children, constituting a breach of the aforementioned provisions of the Charter. More specifically, the complainant organisations alleged the following violations:
- violation of Article 11, and particularly §§1 and 3, read alone and in conjunction with Article E, because the power outages have had a clear negative impact on the health of the affected persons, including an increase in respiratory infections, cold-related dermatologic and circulatory diseases, difficulties in the use of essential medical devices, cases of carbon monoxide poisoning, burns, etc.
- violation of Article 15, read alone and in conjunction with Article E, as the lack of electricity prevents persons with disabilities from fully exercising their right to independence, social integration and participation in the life of the community;
- violation of Article 16 of the Charter, read alone and in conjunction with Article E, due to the State’s failure to ensure the right to housing of an adequate standard for families living in affected sectors and to the State’s failure to guarantee the participation of family associations when formulating policies related to the neighbourhood;
- violation of Article 17§1(a) and (b) and Article 17§2, read alone and in conjunction with Article E, because without access to electricity, the full development of the personality of children and young persons is hindered and the resulting living conditions impact their access to education, fostering absenteeism and making it harder to study, revise or do homework;
- violation of Article 20(a) and Article 27§1(a), read alone and in conjunction with Article E, as the power outages have a disproportionate effect on the lives of women workers, including those with family responsibilities, inasmuch as they carry out most of the housework and unpaid work, which in turn makes it harder for them to enter, remain in or re-enter employment;
- violation of Article 23 because the State has failed to implement adequate measures designed to protect older persons affected by the power outages;
- violation of Article 30, read alone and in conjunction with Article E, because the State has failed to take measures within the framework of an overall and coordinated approach to promote the effective access of people living in Sectors 5 and 6 of Cañada Real to electricity and, thus, to enjoyment of basic human rights, failing to protect them against poverty and social exclusion;
- violation of Article 31, read alone and in conjunction with Article E, because the State has not adopted any effective measures to prevent the interruption of essential services, including supply of electricity.
Pursuant to Article 8§2 of the Protocol providing for a system of collective complaints, this decision will not be made public until after the Committee of Ministers has adopted a resolution or a recommendation, or no later than four months after it has been transmitted to the Committee of Ministers.
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