Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Labour Inspection Convention, 1947 (No. 81) - Spain (Ratification: 1960)

The Committee notes the Government’s detailed report for the period ending on 1 June 2007. It notes with interest Royal Decree No. 1299/2006 approving a new schedule of occupational diseases, and also the implementing regulations for the legislation recently adopted to respond to changes made in modes of production: Order TAS/1/2007 concerning the notification of cases of occupational disease and the resolution on the Labour and Social Security Inspectorate of 11 April 2006, amending employers’ records of inspection visits.

The Committee also notes the information supplied in reply to its previous comments and to the comments dated 20 September 2005 from the Trade Union Confederation of Workers’ Commissions (CC.OO.) and sent to the Government by the ILO on 20 October 2005.

The CC.OO. made proposals on ways to strengthen the labour inspectorate with a view to improving its functioning. The proposals are based on: (1) cooperation between its services and other institutions; (2) collaboration of the social partners; (3) the number of inspectors and deputy inspectors; (4) the computer resources and systems available to inspectors; (5) the planning of inspection visits; (6) the deterrence of fines; and (7) the content of annual inspection reports.

1. Article 5(a) of the Convention. Cooperation between the labour inspection services and other institutions. According to the Government, even though Spain is not a federal State, the autonomous communities have their own competence with regard to the application of labour legislation, especially the performance of inspection visits and the implementation of procedures for the enforcement of penalties imposed by the Labour and Social Security Inspectorate. Act No. 42/1997 establishing the structure and functioning of the labour inspectorate established two mechanisms for collaboration between the general administration of the State and the autonomous communities: the Sectoral Conference for Labour Affairs and the territorial committees of the Labour and Social Security Inspectorate. The first of these bodies is a forum for meetings and deliberations in which the Ministry and some autonomous communities are represented. The central inspection authority presents a report once a year to this forum on the work of the labour inspectorate during the previous year. In this context, it takes note of general and territorial programmes setting objectives, proposals for coordination or integration of territorial plans, resources of the system and the distribution thereof, and any other relevant question. Within the Sectoral Conference, a labour committee constitutes a standing entity for communication, collaboration and information between public administrative bodies on issues relating to labour inspection. The other mechanism for collaboration comprises the territorial committees of the Labour and Social Security Inspectorate. These are bilateral cooperation bodies whose objective is to facilitate the performance of inspection duties in each autonomous community. Their composition, powers and rules of operation are established by means of bilateral agreements between the general administration of the State, on the one hand, and each autonomous community, on the other. Under these agreements, rules may be laid down for technical support and expert collaboration, and for programming and follow-up regarding enforcement of the legal provisions adopted by the communities, the monitoring of which, however, comes under the competence of the labour inspectorate.

Since the criteria on which the CC.OO. bases it assessment regarding the inadequacy of such cooperation are not clear to the Government, the latter points out that the plans for annual objectives are as a rule drawn up on the basis of information available in their respective areas of interest by the Labour and Social Security Inspectorate and other public administrative bodies such as the General Social Security Treasury, the Public Employment Service and the National Social Security Institute. The Committee understands that the CC.OO. would like such cooperation to be extended to analysis of the results of labour inspection activities as they should appear in the annual report on its work, including follow-up to reports of contraventions and information on the implementation of decisions issued in cases referred to the courts. The Committee hopes that the Government will invite the CC.OO. to specify the subjects for which it would like to see the inter-institutional cooperation referred to by this Article developed, and in what form, and that it will inform the Office of its position in this respect.

2. Article 5(b). Collaboration between the social partners and the inspection services. The Government states that such collaboration is provided for by section 10 of the Act on the structure and functioning of the labour inspectorate and that a Tripartite Advisory Committee on Labour and Social Security Inspection, established in 2006, is responsible for supplying advice, formulating proposals on strategies for action, priorities and general objectives in the field of labour inspection, inspection campaigns, staff and material resources of the inspection system, procedures for the selection of inspection staff and their training, etc. The Committee notes this information with interest and requests the Government to send, if possible, copies of extracts from any reports on the work of the Tripartite Advisory Committee indicating the examination of the subjects covered by the Convention.

Referring also to the suggestion made by the CC.OO. to promote further the function of providing information to employers and workers, the Committee requests the Government to indicate any measures taken or contemplated in this regard.

3. Articles 9 and 10. Collaboration of technical experts and specialists.  Numbers and qualifications of labour inspection staff. The Committee notes with interest the increase in inspection staff between 2002 and 2006, from 739 inspectors and 806 deputy inspectors to 814 inspectors and 854 deputy inspectors. With reference to its previous comments, the Committee also notes with interest that 137 technical officers from the autonomous communities are collaborating with the labour inspectorate in the area of occupational risk prevention and that their numbers are set to rise. However, it notes that the Government does not reply to the comment made by the CC.OO. regarding the need to update the qualifications of inspection staff, given the increasing complexity and diversity of employment relations, the increase in temporary work, the size of the immigrant workforce, illegal employment, and the high frequency of industrial accidents. As regards the CC.OO.’s suggestion to consider extending to deputy inspectors some of the prerogatives assigned solely to inspectors, the Committee notes that, according to the Government, this matter is still under consideration. The Committee requests it to supply information on any new measures taken with a view to enhancing the training of labour inspectors in the abovementioned areas and to supply information on any development regarding any additional prerogatives which might be assigned to deputy inspectors.

4. Article 11, paragraph 1(a). Labour inspection information system. The Committee notes with interest the information supplied by the Government in reply to the comments made by the CC.OO. regarding the need to improve the computer systems of the Labour and Social Security Inspectorate. This information is also given on the latter’s web site and is mainly concerned with the development, since 2004, of the “Lynx” computer project (Proyecto Lince), the purpose of which is to modernize the information systems of the Labour and Social Security Inspectorate, facilitating the work of the staff. Launched in the autonomous community of Aragón, this project is set to be extended to the other 49 labour inspectorates. It is based on a new approach to labour, centralizing information in a portal which is also accessible to other public stakeholders. This system allows the following functions: (1) issue of service orders relating to the planning of inspection visits; (2) collection of information necessary for the performance of visits by inspectors and deputy inspectors; (3) administrative or judicial follow-up to reports of contraventions; and (4) evaluation and exploitation of data. The Committee would be grateful if the Government would supply a regular evaluation in its subsequent reports of the impact of the implementation of the “Lynx” project on the results achieved by the Labour and Social Security Inspectorate and on the development thereof.

5. Article 18. Penalties applicable to contraventions. According to the CC.OO., the system of penalties is not adequate in that it does not take account of the reality of the labour market. All too often, employers prefer paying fines to taking the necessary steps to put a stop to the contraventions concerned. The Confederation therefore suggests that penalties should be increased for the most serious violations, such as those giving rise to occupational risks, recruitment fraud, undeclared work and gender-based discrimination. It adds that the system of sanctions should be extended to areas where no penalties apply at present. The Committee notes with satisfaction in this respect that major legislative amendments have made it possible to bridge the legal gaps which have been identified, and define new contraventions and penalties. Such legislation includes: Royal Decree No. 689 of 10 June 2005 amending the regulations on the structure and functioning of the Labour and Social Security Inspectorate and the general regulations on the procedures for the imposition of penalties for contraventions of a social nature and in relation to the payment of social security contributions; Act No. 32/2006 of 18 October 2006 on subcontracting in the construction industry and incorporating new contraventions in the Act on contraventions of a social nature and their related penalties; Order TAS/3869/2006 of 20 December 2006 establishing the Tripartite Advisory Committee on Labour and Social Security Inspection (see above); Royal Decree No. 306/2007 revising the amounts of fines provided for by Royal Decree No. 5/2000 and Royal Decree No. 597/2007 on the publication of penalties imposed in cases of serious violations of the legislation on the prevention of occupational risks; Act No. 3/2007 on gender equality; Royal Decree No. 5/2006 for improving growth in employment; Act No. 31/2006 on the participation of workers in public limited companies and European cooperatives; and Act No. 40/2006 concerning the status of Spanish citizens abroad. The Committee would be grateful if the Government would ensure that information on the practical implementation of these provisions is included on a regular basis in the annual inspection report.