Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

Migration for Employment Convention (Revised), 1949 (No. 97) - Spain (Ratification: 1967)

The Committee notes the Government’s report and the many attached appendices.

1.  The Committee notes that Act No. 7/85 on the rights and freedoms of foreigners in Spain has been repealed and replaced by Act No. 4/2000 (of 11 January 2000) on the rights and freedoms of foreigners in Spain and their social integration. The main purpose of this Act is to guarantee equality of treatment between nationals and foreigners lawfully present on Spanish territory with a view to better social integration of this category of the population. One of the major innovations of this Act concerns the introduction of a chapter on discrimination which defines precisely the discrimination against foreigners which is illegal in general but also particularly in the employment field (section 21). Another innovation in this Act concerns the granting to foreign workers who are legally on Spanish territory of access to the same social benefits as nationals, particularly in regard to unemployment benefit. The Committee considers that the entry into force of this new Act requires it to carry out a thorough examination. It notes, however, that the implementing regulations for this Act have not yet been enacted and that discussions are continuing within the Government on the possible attraction that this Act may exert on potential immigrants and therefore the need to amend it. It therefore proposes to carry out an analysis of this new Act once it is in possession of the implementing decree.

2.  The Committee notes in addition that Chapter XV of the new Penal Code adopted in 1995 (Organic Law No. 10/1995 of 23 November 1995) is devoted to infringements of workers’ rights, including those concerned with migration for employment in illegal conditions (sections 312-314). This chapter groups the provisions which were formerly dispersed and the various types of offence are defined with greater detail: for example, section 312.2 under which participation in migration for the purpose of employment in fraudulent conditions is henceforth described as an infringement of the rights of the workers concerned, as is the employment of foreign workers who do not have a work permit, in conditions prejudicial to the rights to which they are entitled by the law, collective agreements or contractual clauses; or again section 314 which describes as an offence any discriminatory action in regard to employment committed against a person because of his ethnic, racial or national extraction and requires re‑establishment of equality before the law, subject to punishment, as well as compensation for any economic prejudice which may have resulted. The Committee also notes that the adoption of Organic Law No. 4/2000 has resulted in amendments to the Penal Code: for example, under section 312.1, the penalty for illegal trafficking in workers rises from between six months and three years of imprisonment to between two years and five years. It requests the Government to supply information, including statistics, on the application of sections 312-314 of the Penal Code.

3.  According to the 1999 annual report of the Organization for Economic Cooperation and Development (OECD) on international migration trends, Spain has a growing number of female migrant workers. Recalling that under Article 6, paragraph 1, of the Convention, any State which has ratified the Convention undertakes to apply, without discrimination in respect of nationality, race, religion or sex, treatment no less favourable than that which it applies to its own nationals in respect of the matters listed in Article 6(a) to (d), the Committee would be grateful if the Government would indicate the measures taken or envisaged to ensure that female migrant workers are treated on the same footing of equality with their male counterparts - foreign or not - in regard to their working and living conditions, social security, employment taxes and access to legal proceedings.

4.  Finally, the Committee has noted the judicial rulings concerning application of the Convention, particularly that handed down by the Supreme Court on 21 December 1994, on an appeal in which the Supreme Court judged that the absence of a valid work permit does not prohibit a foreign worker from receiving unemployment benefit, provided that he has a residence permit valid for the duration of payment of the unemployment benefit. He may even, during this period, seek work and obtain a new work permit. It requests the Government to continue to keep it informed of judicial or other decisions made by the courts in respect of application of the Convention.