Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Spain

Labour Inspection Convention, 1947 (No. 81) (Ratification: 1960)
Labour Inspection (Agriculture) Convention, 1969 (No. 129) (Ratification: 1971)

In order to provide a comprehensive view of the issues relating to the application of the ratified governance Conventions on labour inspection, the Committee considers it appropriate to examine Convention No. 81 and Convention No. 129 in a single comment.

The Committee notes the observations from the General Union of Workers (UGT) and the Trade Union Confederation of Workers’ Commissions (CCOO), received on 22 August 2016 and 31 August 2016, respectively, and also the Government’s reply.

Article 3(1)(a) and (c) of Convention No. 81 and Article 6(1)(a) and (c) of Convention No. 129. Contribution of the labour inspectorate to improving labour law. The Committee notes the information sent by the Government in reply to its previous request concerning the follow-up action taken by the Directorate-General for Labour Inspection and Social Security (DGITSS) in relation to the gaps and defects in the law detected by the Labour and Social Security Inspectorate (ITSS).

Articles 3(1)(a) and (b) and 2 of Convention No. 81 and Articles 6(1)(a) and (b) and 3 of Convention No. 129. Duties of labour inspectors relating to controls on migrant workers. In its previous comment, the Committee asked for information on inspections concerned with controls on migrant workers and the irregular economy, and on the manner in which the labour inspectorate ensures that employers’ obligations towards migrant workers in an irregular situation are fulfilled. The Committee notes that Basic Act No. 4/2000, which regulates the rights and freedoms of migrants in Spain and their social integration, recognizes the rights of migrant workers in an irregular situation, and also recognizes that the latter are entitled to exercise such rights before the relevant judicial bodies and to have access to justice free of charge under the same conditions as Spanish nationals. The Committee also notes that penalties for administrative infringements are not imposed by the ITSS but by the Government Commissioner or Assistant Commissioner or, if applicable, by the administrative authority determined by the Autonomous Community concerned. It also notes the proportion of inspections devoted to controls on migrant workers, namely 4.18, 2.8 and 1.75 per cent for 2013, 2014 and 2015, respectively.

Moreover, section 36 of Basic Act No. 4/2000 provides that the lack of a residence/work permit does not invalidate the employment contract with regard to the migrant worker’s rights, nor is it an obstacle to obtaining benefits deriving from contingencies envisaged by international agreements for worker protection or any other relevant benefits. Section 42.2 of Royal Decree No. 84/1996 of 26 January 1996 adopting the General Regulations concerning the registration of enterprises and social security affiliation, entries, departures and data changes for workers, considers migrant workers from countries that have ratified the Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19), who provide their services without residing legally in Spain and without a work permit, to be included in the Spanish social security system and affiliated to the corresponding scheme, for the sole purpose of protection with respect to the contingencies of industrial accidents and occupational diseases. The Committee recalls that 121 countries have ratified the abovementioned Convention. The Committee notes this information.

Article 3(2) of Convention No. 81 and Article 6(3) of Convention No. 129. Additional duties of labour inspectors. Mediation and conciliation. The Committee notes the UGT’s statement that Act No. 23/2015 reinforces the mediation function of the ITSS and could have negative repercussions on the resources available for inspection duties. The Government states that the mediation function of the labour inspectorate accounts for a very small part of its activities as a whole and that Act No. 23/2015 maintains the same scenarios for mediation action (strikes or other disputes where mediation is accepted by the parties) as previous Act No. 42/1997. However, the Committee recalls that, in conformity with Article 3(2) of Convention No. 81 and Article 6(3) of Convention No. 129, any additional duties that are not aimed at securing enforcement of the legal provisions relating to conditions of work and the protection of workers should 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. The Committee requests the Government to indicate the number of inspectors and the proportion of their time that is devoted to mediation activities.

Articles 4 and 5(b) of Convention No. 81 and Articles 7(1) and 13 of Convention No. 129. Supervision and control of the labour inspection system by a central authority. Collaboration with employers and workers. In its previous comments, the Committee noted that the General Administration of the State had transferred the labour inspection function and services to the Autonomous Community of the Basque Country and the Autonomous Community of Catalonia. The Committee notes the cooperation agreements – available online – which the Ministry of Labour signed with the Autonomous Community of the Basque Country and the Autonomous Community of Catalonia for the purpose of transferring competencies on the basis of the principle of a single and comprehensive structure for the inspection system.

The Committee also notes with interest that Act No. 23/2015 establishes the state labour inspection and social security body as an autonomous entity with its own legal personality and a central and regional structure. The central structure includes an executive council, which has a joint structure comprising members of the General Administration of the State and of each of the Autonomous Communities. The Committee also notes that the CCOO welcomes the content of this Act, even though it points out that it will be necessary to wait to assess whether the model functions effectively with the participation of the trade unions and employers’ organizations. The UGT observes that by September 2016 the statutes envisaged in the Act, which provide for the institutional participation of the social partners, had still not been adopted and considers that until now the form of such participation has been inadequate. The Government indicates in its reply that, pending the adoption of the statutes, the participation of the trade unions continues through the ITSS Tripartite Advisory Board and that during the period covered by the submitted report both the Advisory Board and its standing committee have met at intervals. The Committee requests the Government to provide information on the adoption of the abovementioned statutes and to send a copy of them, once they have been adopted.

Article 7(2) and (3) of Convention No. 81 and Article 9(3) of Convention No. 129. Adequate training for inspectors. In its previous comment, the Committee noted a reduction in the number of courses owing to budget cuts for vocational training. The Government indicates that the budget has increased by 10 per cent for 2016. It also indicates that the creation of an online platform in 2013 has enabled a 76 per cent increase in training activities by comparison with the previous year. In addition, courses on occupational risk prevention and labour relations increased from 16 in 2012 to 42 in 2014 and 86 in 2015. However, the Committee notes the observation of the CCOO that the courses on occupational risk prevention and labour relations are still insufficient.

With regard to agriculture, the Committee asked the Government in its previous comments for information on the training activities that had been carried out. The Committee notes that, according to the ITSS annual report, initial training for labour inspectors in 2013 totalled 480 hours; according to the Government’s report, the course included 12 hours on agriculture, eight hours on social security and four hours on risks in agriculture. With regard to further training, a centralized course on social security in agriculture was held in 2013, 2014 and 2015. Another course was provided online in 2015 and 2016 on the prevention of occupational risks in relation to agricultural and forestry machinery and plant protection products. The Committee requests the Government to continue its efforts to develop both initial and further training in the area of occupational risk prevention.

Articles 9, 10, 13 and 17 of Convention No. 81 and Articles 11, 14, 18 and 22 of Convention No 129. Strength of the inspectorate and supervision of safety conditions in workplaces. Balance between prevention and the imposition of penalties. In its previous comments, the Committee asked the Government for information on any measures envisaged or adopted to increase the number of risk prevention technicians and reduce the risk factors of accidents. The Committee notes the concern expressed by the CCOO regarding the accident rate, which is related to a low number of infringement reports and a reduction in the number of inspectors, which decreased from 1,857 in 2010 to 1,842 in 2014. The Committee also notes the drop in the industrial accident rate referred to in ITSS annual reports over the last five years. The Government points out that the number of infringements officially recorded in the area of occupational risk prevention rose by 10 per cent in 2015 by comparison with 2013 and 2014, and that actions undertaken in this sphere should be the subject of an overall assessment. The Committee notes with interest that an occupational safety and health (OSH) strategy for 2015–20 has been adopted, with a special focus on prevention, and that Act No. 23/2015 establishes a new category of OSH sub-inspectors within the Corps of Labour Sub-inspectors with specific duties in this area whose content will be established by regulations. The Government indicates that the creation of 50 posts in 2016 for the aforementioned category of sub-inspectors has been approved. Recognizing the major efforts made in the area of prevention, the Committee requests the Government to take the necessary steps to ensure that its occupational health (OSH) strategy achieves an appropriate balance between prevention and advice, on the one hand, and the imposition of penalties, on the other. The Committee also requests the Government to send a copy of the abovementioned regulations and to send information on the recruitment of OSH sub-inspectors and the impact thereof on inspection activities relating to occupational risk prevention, with particular reference to the industrial accident rate.

Specific issues relating to labour inspection in agriculture

Articles 6(1)(a), 21 and 24 of Convention No. 129. Enforcement duties of labour inspectors in agriculture. In its previous comments, the Committee asked the Government for information on inspections conducted in agriculture, infringements detected and fines imposed. In particular, further to the observation made by the CCOO, it asked for information on infringements reported regarding the differences between actual working hours and those declared to the social security authorities. The Committee also asked the Government to describe the steps taken to ensure the effectiveness of controls and the frequency of inspections. The Government indicates that the number of inspections in agriculture was 10,075 for 2013, 11,527 for 2014 and 9,846 for 2015. It also states that it is unable to provide specific data relating to the difference between actual and declared working hours since these form part of the calculations relating to differences in social security contributions and cannot be disaggregated.

The Committee notes the UGT’s allegation that working hours in agriculture are excessively long and no account is taken of rest periods or overtime. The UGT also states that there is a proliferation of labour cooperatives and/or “fake self-employed” persons as a means of evading legal restrictions regarding conditions of work. In its reply, the Government indicates that such instances of non-compliance may arise from incorrect classification of cooperative members or employed workers in the special scheme for self-employed workers (RETA) and that the ITSS is undertaking inspections in response to requests as well as on the basis of its own planning to control this type of activity. The Committee requests the Government to provide information on the steps taken to ensure performance of the inspection function provided for in Article 6(1)(a) with regard to hours of work. The Committee also requests the Government to provide information on the measures taken or contemplated to secure the enforcement of the legal provisions relating to conditions of work with respect to labour cooperatives or “fake self-employed” persons seeking to evade legal obligations regarding conditions of work.