Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

The Committee notes the observations dated 31 August 2012 of the General Union of Workers (UGT) referring to the suspension of the budget allocation to the Immigrant Welcome and Integration Support Fund provided for in Organic Act No. 4/2000, the replacement of integration policies with those that favour the return of migrants to their countries of origin and the budget cuts which affect the implementation of the Citizenship and Integration Strategy 2011–14 and the Comprehensive Strategy against Racism and Xenophobia. The Committee notes that the Government’s reply makes no reference to these matters. The Committee requests the Government to send its comments on the observations from the UGT.

Article 1. Information on national policies, laws and regulations. The Committee notes the adoption of Organic Act No. 2/2009 of 11 December 2009 and Organic Act No. 10/2011 of 27 July 2011 amending Organic Act No. 4/2000 concerning the rights and freedoms of foreign nationals in Spain and their social integration. These reforms transpose into Spanish law the latest European Union (EU) directives on immigration and the most recent decisions of the Constitutional Court concerning fundamental rights, including the right of association; establish provisions concerning the protection of women who are victims of gender violence and trafficking; and amend the provisions governing infringements and penalties relating to the status of foreigners. The Committee also notes Royal Decree No. 557/2011 of 20 April 2011 adopting implementing regulations for Organic Act No. 4/2000 further to its reform and regulating procedures for authorizing the entry, residence and work in Spain of foreign nationals whose occupational activities involve economic, social or labour interest or entail research or development work, or teachers, who need to have high levels of qualifications (“blue card”), or artistic activities of special cultural interest. The Committee further notes the Citizenship and Integration Strategy 2011–14 based on the principles of equality and non-discrimination, citizenship, inclusion and multiculturalism. It notes in particular the evaluation of the previous plan for 2007–10, according to which progress was achieved in, among others, social integration and cohesion, and measures for the adaptation of society to the phenomenon of migration. The Committee further takes note of the Forum for the Social Integration of Immigrants. In addition, the Committee notes the concluding observations of the United Nations Committee on Economic, Social and Cultural Rights, which expresses concern at the situation of immigrants in the context of the economic and financial crisis and at the constant growth in unemployment rates (E/C.12/ESP/CO/5, 6 June 2012, paragraph 12). The Committee requests the Government to continue to provide information on the application in practice of any measures adopted in relation to the Convention and in particular on the impact of the employment crisis on migrant workers. While noting the information supplied by the Government on the steps taken to increase employment for women, the Committee requests the Government to provide information on any measures taken with a view to eliminating, in particular, any form of discrimination against migrant women. The Committee also requests the Government to send information on the activities undertaken by the Forum for the Social Integration of Immigrants.

Furthermore, the Committee notes the statistical information for the 2007–11 period supplied by the Government in relation to quotas of foreign workers from outside the EU, which currently come under the heading of collective management of recruitment in countries of origin. It also notes the Government’s indication that, in view of the national employment situation, the Ministry of Employment and Social Security decided not to authorize the recruitment of foreign nationals in 2013. However, this mechanism is still being used for hiring workers who already worked in previous years and were holders of residence and work permits. The Committee requests the Government to continue to provide information on the collective management of recruitment in countries of origin and the rules that govern it, and also on the numbers of workers selected in this way each year, disaggregated by sex, place of origin and economic sector.

Information on general agreements and special rules. The Committee notes the Government’s statement that limits have been placed on bilateral agreements due to the national employment situation. However, the Government reports on the agreements signed with El Salvador, Mali, Mauritania, Mexico, Senegal and Ukraine. The Committee further notes Order No. PRE/2072/2011 publishing the agreement of the Council of Ministers relating to the transition period in relation to the free movement of workers from Romania. The Committee notes that under this agreement measures have been taken to regulate access by Romanian nationals to the labour market pursuant to the treaty governing Romania’s accession to the EU. The Committee requests the Government to continue to provide information on the general agreements and special rules concerning the regulation and management of migration flows, and also on the application of Order No. PRE/2072/2011 and its impact on the immigration of Romanian workers.

Article 2. Return. The Committee notes Act No. 40/2006 of 14 December 2006, Title II of which establishes the comprehensive policy regarding return, with the aim of ensuring access to social benefits and housing and facilitating the social and labour integration of Spanish returnees. The Committee also notes the production of the “Guide on return”. The Committee requests the Government to provide information on the application in practice of Act No. 40/2006, including statistical information on the number of Spanish migrants for employment who have benefited from it and on any obstacles to its implementation.

Article 3. Measures against misleading propaganda. The Committee notes the statistical information, which however was not disaggregated according to the level of the offence, relating to infringements of sections 34, 35 and 36 of Royal Legislative Decree No. 5/2000 adopting the amended text of the Act concerning infringements and penalties in the social order. The Act penalizes conduct that changes initial conditions of work, is misleading or is detrimental to migrant workers and simulation or deception in the recruitment or contracting of migrants for employment. The Committee further notes the measures for welcoming migrants for employment established in the context of the Citizenship and Integration Strategy 2011–14. The Committee requests the Government to continue to provide information on the application in practice of measures to prevent misleading propaganda and to penalize conduct that is misleading and harmful to migrants for employment.

Labour inspection. The Committee notes the information provided by the Government on the measures adopted by the labour inspectorate. The Committee also notes that in the context of the Citizenship and Integration Strategy 2011–14, the labour inspectorate was assigned the task of monitoring and imposing penalties in relation to situations of racial discrimination or xenophobia in certain enterprises in sectors such as food and beverages, supermarkets, clothing sales and sales of sports equipment. The Committee notes that 95 enterprises were selected in this context, 349 inspections were undertaken and 28 infringements were reported. The Committee further notes the statistical information on the infringements detected and the penalties imposed by the labour inspectorate between 2007 and 2011 and the Government’s indication of a considerable drop in the number of infringements, owing to the incorporation into the EU of the countries of origin of a large percentage of migrants for employment. The Committee requests the Government to continue to supply statistical information on the action of the labour inspectorate in relation to the application of the Convention, indicating in particular the sectors of activity and country of origin of the workers affected. The Committee also requests the Government to continue to provide information on the measures taken by the labour inspectorate in the context of the Citizenship and Integration Strategy 2011–14, and of infringements reported and penalties imposed for violations of immigrants’ rights, in particular those relating to the matters enumerated in Article 6(1)(a)–(d) of the Convention.

Annex I, Article 3. Operations of recruitment, introduction and placement of migrant workers; Articles 2 and 7 of the Convention. Employment services. In its previous comments, the Committee noted that Order No. TAS/3698/2006 of 22 November 2006 regulated the registration of foreign nationals from non-EU countries in public employment services and employment agencies. The Committee notes that the aforementioned order was amended by Order No. TAS/711/2008 of 7 March 2008. However, the Committee notes that the Government has not provided any information on the application of those orders. The Committee requests the Government to provide information on the number of migrant workers who have benefited from employment services, disaggregated, where possible, sex, place of origin and sector of activity. The Government is also requested to indicate procedures for cooperation with the corresponding services of other countries.

Private employment agencies. The Committee notes the adoption of Act No. 35/2010 of 17 September 2010, Royal Decree No. 1796/2010 of 30 December 2010 and Royal Legislative Decree No. 3/2012 of 10 February 2012, which establish urgent measures for the reform of the labour market. The legislation recognizes the action of private intermediaries in the placement of workers. Private employment agencies must have been granted authorization and must provide services free of charge to workers. For jobseekers to be eligible, they must be registered with the public employment services. Persons who register as jobseekers are informed by the public employment services about authorized employment agencies that operate in the country. The rules regarding infringements and penalties are those laid down by Royal Legislative Decree No. 5/2000 adopting the amended text of the Act concerning infringements and penalties in the social order. The Committee requests the Government to provide information on the number of migrant workers who have recourse to private employment agencies, the steps taken to protect them against abuse and the measures taken in cases of abuse. The Government is also requested to indicate any difficulties arising from the application of the legislation on private employment agencies in relation to the Convention. The Committee further requests the Government to provide information on the application of section 36 of Royal Legislative Decree No. 5/2000, which prohibits the establishment of recruitment agencies for emigrants.

Part V of the report form. Statistics. With regard to the situation of migrant workers in El Ejido, observing that the Government has not sent any information in this regard, the Committee again requests the Government to provide information on the number of foreign nationals resident in Murcia, Alicante and Almería, indicating the number of workers who have residence and work permits, the estimated number of foreign nationals working without permits, and the measures aimed at their regularization.