Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

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

The Committee notes the observations of the Trade Union Confederation of Workers’ Commissions (CCOO), received on 11 August 2017, and the General Union of Workers (UGT), received on 17 August 2017, both of which were also forwarded by the Government, and the corresponding replies of the Government.

Article 1(a) of the Convention. Information on national policies, laws and regulations. In its previous comments, the Committee asked the Government to continue providing 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. It also asked the Government to provide information on any measures taken to eliminate, in particular, any form of discrimination against migrant women, and on the activities of the Forum for the Social Integration of Immigrants. The Committee notes that the Government refers in its report to the implementation of the “Comprehensive strategy against racism, racial discrimination, xenophobia and related forms of intolerance” (“Comprehensive anti-racism strategy”), which, although not designed for specific population groups, gives special attention to the situation of the migrant population and provides for various measures to combat discrimination in the area of employment, including actions aimed at labour integration, promotion of dialogue with the social partners to develop codes of conduct and good practices in employment, and awareness raising. The Committee also notes the information supplied by the Government on programmes subsidized by the Secretariat-General for Immigration and Emigration (SGIE) during the 2014–17 period, including programmes for the social and labour integration of immigrant families in sparsely populated rural areas, programmes for promoting the work–life balance, and support programmes for occupational diversification. The Government also refers to various measures adopted under the “Act issuing urgent measures for labour market reform” (No. 3 of 6 July 2012), which are intended to help women, including migrant women, to find and keep employment. The Government further mentions general measures planned under the “Strategic equal opportunities plan 2014–16” and the “Comprehensive family support plan 2015–17”. With regard to the activities of the Forum for the Social Integration of Immigrants, the Committee notes the Government’s reference to periodic reports drawn up by the Forum. The Committee takes note in particular of the report on the situation regarding the integration of immigrants and refugees in Spain, approved at the ordinary plenary meeting of 6 April 2017 and available on the website of the Forum, which indicates, among other things, that: (i) the economic activities in which the highest proportion of foreigners were employed were domestic work (53.4 per cent) and agriculture, livestock farming, hunting and related services (41.2 per cent); (ii) the unemployment crisis has had a direct impact on work permits, with domestic work accounting for more permits since 2010 than agriculture and construction; and (iii) the cumbersome process of approval and validation of university qualifications has obstructed and adversely affected the social and labour integration of migrant workers. The Committee also notes that the report contains a number of recommendations, including: establishing active employment policies to enable the entry or re-entry into the labour market of migrant workers and access to jobs that match their qualifications; and, in the case of applicants for international protection, allowing them to work from the time the application for protection is made.

The Committee notes that the UGT, in its observations, indicates that the community of foreign workers, particularly non-European Union (EU) citizens and migrant women, is the one most heavily penalized by unemployment and poverty because of the long period of crisis; however, the Government has not adopted any specific measures for the foreign working population. The UGT indicates that there is no budget for the “Comprehensive anti-racism strategy” and in 2012 the Government suspended the “Support fund for the welcome and integration of immigrants”. The Committee also notes the indication of the CCOO that, inter alia, the SGIE programmes are adversely affected by cuts in public funding. With regard to migrant women, the UGT indicates that one thing omitted from the assessment undertaken by the “Strategic equal opportunities plan 2014–16” was information disaggregated by nationality, and the number of women and their nationalities who have benefited from the adopted measures is unknown. The Committee notes that the Government, in its reply to the observations of the UGT, states that the budget allocation for the “Comprehensive anti-racism strategy” comes from the SGIE budget, which was increased in 2015 and 2016 and was kept at the same level in 2017. The Committee requests the Government to continue providing information on the application in practice of any measures adopted in relation to the Convention and to provide information in particular on any measures taken or contemplated on the basis of relevant recommendations made in the report of the Forum for the Social Integration of Immigrants, and on any measures specifically designed for migrant women.

In its previous comments, the Committee asked the Government to provide information on the collective management of recruitment in countries of origin – relating to foreign workers from outside the EU – 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. The Committee notes the information provided by the Government on the number of permits issued for the 2011–16 period in relation to the collective management of recruitment in countries of origin, disaggregated by sector (agriculture and services), country of origin and sex. The Committee also notes that the CCOO emphasizes that the figures quoted show the effects of the employment crisis on this category of foreign workers. The Committee requests the Government to continue providing information on the number of foreign workers selected via the collective management of recruitment in countries of origin, indicating their sex, place of origin and economic sector, and any obstacles encountered in the application of this scheme that relate to the application of the Convention.

Article 1(c). Information on general agreements and special rules. In its previous comments, the Committee asked the Government to continue sending 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 – publishing the agreement of the Council of Ministers relating to the transition period in relation to the free movement of workers from Romania – and its impact on the immigration of Romanian workers. The Committee notes the Government’s statement that since 1 January 2014 Romanian nationals have not needed a permit for work within an employment relationship, since the regulations covering the citizens of EU Member States have applied to them since this date. The Committee requests the Government to continue providing information on the general agreements and special rules adopted.

Article 2. Return. In its previous comments, the Committee noted 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 asked the Government to provide information on the application in practice of Act No. 40/2006, including statistical information on the number of Spanish migrant workers who have benefited from it and on any obstacles to its implementation. The Committee notes that the Government provides information on the measures taken under Title II of the abovementioned Act in the areas of information and social protection. It notes in particular that Spanish migrants are provided with a “Guide for returnees” and various online information sources, as well as a physical office and electronic mailboxes for handling individual consultations, of which 3,000 were processed in 2016. With regard to social protection, the Government refers, inter alia, to: (i) unemployment subsidies, to which Spanish migrants can have access under the amended General Social Security Act (Royal Legislative Decree No. 8/2015 of 30 October 2015), provided that they meet the specified requirements; (ii) needs-based benefits, including old-age welfare pensions, from which 336 persons benefited in 2016; (iii) financial benefits for citizens of Spanish origin who were displaced abroad when they were minors, as a result of the Civil War, and who are returning to the country after spending most of their lives outside it; 88 persons were recipients of such benefits in 2016; and (iv) exceptional aid for returnees (granted in 505 cases in 2016). With regard to the question of obstacles encountered in the implementation of the return policy, the Government indicates that the relevant measures have not been subjected to reduction or cancellation as a result of austerity requirements in public spending. The Committee also notes the observations of the UGT, which state that since 2011 there have been cuts in financial resources earmarked for Spanish citizens abroad. The Committee requests the Government to continue providing information on assistance programmes related to the return of Spanish migrant workers and any obstacles encountered in the implementation thereof.

Article 3. Measures against misleading propaganda. The Committee notes the Government’s reference to the monitoring activities carried out by the labour inspectorate. While noting this information, the Committee requests the Government to provide information on the specific measures taken to prevent misleading propaganda and to penalize conduct that is misleading and harmful to migrants for employment, in addition to the monitoring activities carried out by labour inspectors.

Article 6(1)(a)(iii). Equal treatment in respect of accommodation. The Committee notes that the UGT refers to section 13 of Basic Act No. 4/2000 of 11 January 2000 concerning rights and freedoms of foreign citizens in Spain and their social integration, indicating that the aforementioned section guarantees conditions of equality with long-term residents as regards housing accommodation. The same section provides that foreign residents have the right of access to public assistance schemes concerning housing in accordance with the terms established by the legislation and the competent authorities, and provides that long-term foreign residents are entitled to such assistance under the same conditions as Spanish citizens. The Committee notes the Government’s reply to these observations, indicating that the Act only provides that in the hypothetical case that it was strictly necessary to make distinctions between Spanish and foreign citizens as regards access to assistance, this could never affect long-term residents. To this end, the Committee notes Royal Decree No. 106/2018 of 9 March 2018 regulating the “State housing plan 2018–21”, which includes foreign citizens who are legally resident in the country as potential beneficiaries (section 7), without any distinction between temporary residents and long-term residents. The Committee requests the Government to provide information on the application of the “State housing plan 2018–21” to migrant workers and on any cases where section 13 of Basic Act No. 4/2000 has been applied that have involved differences of treatment between foreign workers who are long-term residents and other workers with respect to housing.

Labour inspection. In its previous comments, the Committee asked the Government to continue: (i) 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; and (ii) to provide information on the measures taken by the labour inspectorate in the context of the “Citizenship and integration strategy 2011–14”, and on infringements reported and penalties imposed for violations of immigrants’ rights, particularly those relating to the matters enumerated in Article 6(1)(a)–(d) of the Convention. The Committee notes the information supplied by the Government concerning the inspection campaign relating to discriminatory conditions of work for immigrant workers conducted in the context of the “Citizenship and integration strategy 2011–14”, which detected non-compliance chiefly with regard to hours of work, wages, health checks, employment contracts, training and information on occupational risks, and lack of social security affiliation/discharge for workers. With regard to the sectors concerned, according to the statistics supplied by the Government, the agriculture, fishing and services sectors were the areas where the most infringements were detected. The Committee notes that the Government also refers to other inspection campaigns, including on effective gender equality and pay discrimination, which, albeit not specifically targeting them, also cover migrant workers. The Committee also notes the observations of the CCOO, which highlight the lack of resources and limited action of the labour inspectorate, and the observations of the UGT, which refer to the situation of migrant workers in the fishing sector and underlines the inadequacy of inspection plans (small number of vessels to be inspected) and also the need to disaggregate the detected infringements by nationality and administrative status of the workers. The Committee notes that the Government, in reply to these observations, provides information on the inspection activities undertaken as part of the Segumar (Panama Maritime Authority) campaign. The Government also indicates that classifying inspection information by nationality could give rise to unwanted situations and create discrimination or xenophobic sentiments against particular immigrant communities. It also points out that, even though it is desirable to increase the number of inspections, the labour inspectorate has extensive competencies but limited resources to allocate to them; hence priorities are defined, which in recent years have been to combat unofficial employment and social security fraud. The Committee requests the Government to continue providing information on the action of the labour inspectorate in relation to the application of the Convention, on infringements reported and penalties imposed, and to indicate whether other special inspection campaigns are planned aimed at monitoring the conditions of work of migrant workers, especially in the fishing and agriculture sectors.

Annex I, Article 3. Operations of recruitment, introduction and placement of migrant workers. Articles 2 and 7 of the Convention. Employment services. The Committee once again requests the Government to provide information on the number of migrant workers who have benefited from employment services, disaggregated, where possible, by sex, place of origin and sector of activity, and also to indicate procedures for cooperation with the corresponding services of other countries.

Private employment agencies. In its previous comments, the Committee noted the adoption of Act No. 35/2010 of 17 September 2010, Royal Decree No. 1796/2010 of 30 December 2010, and Royal Decree-Law No. 3/2012 of 10 February 2012, which establish urgent measures for the reform of the labour market and, inter alia, recognize the legality of the action of private intermediaries in the placement of workers. The Committee asked the Government: (i) 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; (ii) to indicate any difficulties arising from the application of the legislation on private employment agencies in relation to the Convention; and (iii) to provide information on the application of section 36 of Royal Decree-Law No. 5/2000, which prohibits the establishment of recruitment agencies for emigrants. The Committee notes the Government’s indications that the regulations governing job placement activities are those established by the amended Employment Act, adopted by Royal Legislative Decree No. 3/2015 of 23 October 2015, which provides that job placement activities may also be carried out by “services to be determined by regulation for workers abroad” (section 32(c)). The Government indicates that the labour inspectorate monitors compliance with regulations governing job placements and monitors temporary work placement agencies and enterprises, irrespective of whether the workers concerned are migrants or other workers. The Committee also notes the UGT’s indication that a number of employment agencies specializing in domestic work do not comply with labour standards and even offer starting wages for workers recruited abroad which are lower than those for local workers, and propose hours of work that are more subject to change. The Committee requests the Government to provide information on the application in practice of section 36 of the amended Employment Act with regard to the placement in employment of migrant workers and on any non-compliance with the regulations in force detected by the labour inspectorate and the penalties imposed, and also on any other measures taken or contemplated to protect migrant workers against any form of abuse.

Statistics. In its previous comments, the Committee asked the Government to provide information on the number of foreign workers resident in Alicante, Almería and Murcia, 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. The Committee notes the statistical information provided by the Government regarding residence and employment permits issued in Alicante, Almería and Murcia from 2011 to 2016. The Committee also notes the observations of the CCOO referring to the situation of migrant workers in agriculture in these provinces and the frequently appalling housing conditions that they experience. The Committee requests the Government to continue providing information on foreign workers resident in Alicante, Almería and Murcia, including information on any assistance and information service available for these workers and any measures taken to guarantee them treatment no less favourable than that given to Spanish citizens.