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

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

Articles 3(1)(a) and (2), and 5(a) of the Convention. Additional duties of labour inspectors. Effective cooperation with other government services. The Committee notes that, according to information sent by the Government, in recent years a major effort has been made to increase the number of vacant positions in order to match the strength of the Labour and Social Security Inspectorate with current needs in the light of the high rate of industrial accidents, the growth of immigration and the “irregular economy” which have made it necessary to plan campaigns, particularly for the prevention of occupational risks and the supervision of foreigners and the irregular economy. The Committee notes that, according to data in the Annual Report of the Inspectorate for Labour and Social Security (ITSS) (2011) available on the website: http://www.empleo.gob.es/itss/ web/que_hacemos/Estadisticas/index.html, the Labour Inspectorate conducted a total of 356,535 visits in that year. Of these, 79,276 (22.24 per cent) concerned the prevention of occupational risks and 29,629 (8.31 per cent) concerned employment and labour relations. The Committee also notes from information in the same report that the greatest number of infringements in 2011 were related to conditions of safety in workplaces (2,199); working time (1,572) and wages, wageslips and wage settlement (1,089). The total number of workers in the enterprises visited in the same period was 451,861, of whom 123,598 work in establishments visited in connection with risk prevention and 194,118 in establishments visited in connection with labour relations. The Committee understands from this information that the activities of the ITSS to supervise foreigners and the irregular economy are on the increase.

The Committee also notes from information in the Annual Report of the ITSS, 2011, and from information in the Government’s report, that the ITSS has signed several cooperation agreements to improve the supervision of social security and the irregular economy and of the work of foreigners with: the General Social Security Treasury (TGSS), the National Social Security Institute (INSS), the Social Institute of the Navy (ISM) and the Public State Employment Service (SPEE), the Ministry of Development, the Ministry of the Interior and the State Agency for Tax Administration (AEAT). Furthermore, on the basis of these agreements several joint action plans have been developed to implement measures against social security fraud and obtain support for implementation, such as the ITSS–TGSS, ITSS–INSS, and ITSS–ISM joint objective plans; the ITSS–SPEE joint action plan; the plan to prevent and remedy tax, labour and social security fraud (PIF) of 5 March 2010, produced by the AEAT, the ITSS and the TGSS. This plan includes not only the measures and actions undertaken jointly by the three bodies, but also those that they undertake individually within their own remit. Furthermore, most of the measures established in the PIF that are specific to the ITSS were incorporated in the ITSS plan for 2011. The Committee also notes that the instruction issued jointly on 15 February 1994 by the subsecretariats of the Ministry of the Interior, Ministry of Labour and Social Security and Ministry of Social Affairs on cooperation between the ITSS and the law enforcement bodies of 15 February 1994, which aims to achieve maximum coordination between these bodies and obtain administrative support for supervision of the grey economy and unlawful immigration, has been taken as a basis for joint action in the sectors, areas and periods with the highest concentration of situations associated with the irregular economy, and particularly the unlawful employment of foreigners. This cooperation extends to instances of offences against freedom and safety at work, and in these cases it includes the Public Prosecutor as well. The Government also indicates that a cooperation agreement was signed on 30 April 2013 by the Ministry of Labour and Social Security and the Ministry of the Interior, the purpose of which is to secure coordination between the inspectorate of labour and social security and the state law enforcement bodies in tackling irregular employment and social security fraud.

The Committee also notes that on 27 April 2012, the Council of Ministers approved a plan to combat irregular employment and social security fraud for the period 2012–13, in order to step up action to deal with certain types of behaviour that cause a reduction in the inputs to the economic resources of the social security system, a deterioration of the rights of workers and unfair competition vis-à-vis enterprises, employers and self-employed workers who meet their obligations. The plan aims to: eradicate unlawful employment; eliminate the fraudulent obtention and enjoyment of unemployment benefits; overcome other fraudulent situations and tackle the improper use of bonuses or the improper reduction of social security contributions for enterprises.

The Committee refers the Government to paragraphs 75–78 of its General Survey of 2006 on labour inspection, and points out that according to Article 3(2) of the Convention, additional duties that do not seek to ensure the enforcement of the legal provisions on working conditions and the protection of workers may be assigned to labour inspectors only in so far as they do not interfere with their primary duties and do not in any way affect the authority and impartiality necessary to inspectors in their relations with employers and workers. In these circumstances, the function of verifying the legality of employment should have as its corollary the reinstatement of the statutory rights of all workers if it is to be compatible with the objective of labour inspection, an objective that can only be met if the workers covered are convinced that the primary task of inspection is to enforce the legal provisions relating to conditions of work and the protection of workers. The Committee requests the Government to indicate what percentage of all inspections carried out is accounted for by visits for the control of foreigners and the irregular economy. It would be grateful if the Government would provide disaggregated information on unlawful employment, specifying the number of cases in which migrant workers were found to be in an unlawful situation vis-à-vis immigration law. It also asks the Government to provide statistics of the number of infringements recorded, indicating the provisions to which they relate, the proceedings initiated and the nature of the penalties imposed.

The Committee would be grateful if the Government would specify how the labour inspectorate ensures compliance with employers’ obligations (such as payment of wages and other benefits for work actually done) towards foreign workers in an irregular situation, including in cases where such workers are subject to deportation or expulsion under immigration law.

The Committee raises other matters in a request addressed directly to the Government.