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

Spain

Protection of Wages Convention, 1949 (No. 95) (Ratification: 1958)
Protection of Workers' Claims (Employer's Insolvency) Convention, 1992 (No. 173) (Ratification: 1995)

The Committee notes the observations of the Trade Union Confederation of Workers’ Commissions (CCOO) and the General Union of Workers (UGT), received in 2017, regarding the application of Convention Nos 95 and 173. The Committee further notes the Government’s reply to these observations. The Committee also notes the observations of the Spanish Confederation of Employers’ Organizations (CEOE), supported by the International Organisation of Employers (IOE), concerning the application of Convention No. 95, received with the Government’s report in 2017, and the Government’s reply to these observations. With the aim of providing a comprehensive view of the issues relating to the application of the ratified Conventions on the protection of wages, the Committee considers it appropriate to examine Conventions Nos 95 and 173 together.

Protection of Wages Convention, 1949 (No. 95)

Article 4(2)(b) of the Convention. Partial payment of wages in the form of allowances in kind. In its previous comments, the Committee requested the Government to provide further information and, in particular, copies of court rulings, on issues relating to the application of this Article of the Convention. The Committee notes the CCOO’s indication that the payment of wages in kind gives rise to significant problems insofar as, in many cases, it is difficult to determine the value of the allowances, and that these difficulties lead to an increase in the number of cases being brought to court, mainly in relation to claims relating to dismissals for the purpose of calculating the compensation to be paid for the termination of the contract. The Committee notes the UGT’s indication that section 26(1)(2) of the Workers’ Statute restricts payments in kind by establishing a ceiling for such allowances in relation to the wages received in cash, and by guaranteeing the payment of a minimum proportion of the wage in cash. The Committee observes that the Government and the CCOO have communicated several court rulings that reflect the application of the legislation on personal income tax to determine the cash value of payments in kind.

Article 12(1). Regular payment of wages. Application in practice. In its previous comments, the Committee requested the Government to provide information on the action taken to address the non-payment or delayed payment of wages, and to provide information on the manner in which the Convention is applied in practice, including on the outcome of labour inspection activities. The Committee observes the indication by the CCOO and the UGT that, despite the increase in cases of non-payment and delayed payment of wages in recent years, the number of interventions carried out by the Labour and Social Security Inspectorate (ITSS) in this regard decreased. The Committee notes the Government’s indication that: (i) the ITSS carries out continuous monitoring of the regulations governing wages, particularly with regard to their payment in time and the amount paid; (ii) many of the activities of the ITSS have their origin in complaints made by the workers concerned, and that there have been fewer complaints of delays in the payment of wages; (iii) it should be borne in mind that the labour inspectorate is not the only competent body for wage-related claims, and that since 2012, there have been mechanisms for the swift resolution of wage-related claims by the labour courts; (iv) the ITSS undertakes various inspection campaigns that have a very direct impact on the supervision of wages, such as campaigns to monitor part-time recruitment, overtime and illegal subcontracting and assignment; and (v) the ITSS plays a proactive role in this regard, and over half of its inspections are not based on complaints. The Committee requests the Government to provide information on a number of complaints received by the ITSS concerning the regular payment of wages, as well as on the number of complaints filed with the courts on the same matter, and their respective outcomes. The Committee also requests the Government to provide information on the mechanisms which have been established since 2012 for the resolution of wage claims by labour courts.

Protection of Workers’ Claims (Employer’s Insolvency) Convention, 1992 (No. 173)

Articles 1, 9 and 13 of the Convention. Protection of workers’ claims in pre insolvency proceedings. The Committee notes the allegations by the CCOO that the pre-insolvency proceedings established through various reforms of the Insolvency Act (Act No. 22/2003 of 9 July 2003) affect the protection of workers’ claims. The CCOO specifically indicates that: (i) the commencement of negotiations on pre-insolvency agreements gives rise to the freezing of the debtor’s assets, which prevents the payment of workers’ claims; (ii) the conclusion of pre-insolvency agreements allows for the imposition on workers of reductions in the debt for workers’ claims or deferral in the payment of such claims for up to ten years; and (iii) the legislation does not allow workers to have access to coverage by the Wage Guarantee Fund (FOGASA) during the negotiation of such agreements, and does not require the FOGASA to assume responsibility for labour debts if a pre-insolvency agreement is reached which reduces such debts. The Committee notes the Government’s indication that: (i) the pre-insolvency situation of the negotiation of an out-of-court agreement on payments does not imply a legal situation of insolvency; (ii) the enterprise concerned will attempt to guarantee workers’ claims through the out-of-court agreement; and (iii) in the event of a subsequent declaration of insolvency, the workers’ claims will be guaranteed by the FOGASA. The Committee observes that the legislation allows the initiation of pre-insolvency procedures and the conclusion of pre-insolvency agreements when employers are already in a situation of insolvency, that is, when they can no longer regularly meet their obligations (sections 2, 5 bis and 231 of the Insolvency Act). The Committee also observes that pre-insolvency agreements may include other measures, such as: waiting periods not exceeding ten years, discharges, transfers of assets or rights to creditors in payment or for the payment of the whole or part of their claims, and the conversion of debts into shares or holdings in the debtor enterprise (section 236(1)(a)–(e) of the Insolvency Act). Lastly, the Committee observes that in no case may the proposal for an out-of-court agreement change the order of priority of claims legally established, without the explicit agreement of creditors whose claims are postponed (section 236(1)(3) of the Insolvency Act). In this regard, the Committee requests the Government to indicate the remedies that exist in legislation and practice to give effective protection to workers’ claims in cases in which pre-insolvency agreements are concluded without the consent of the workers and which adversely affect the payment of their claims, once the employer’s insolvency has been declared.

Article 8. Rank of privilege in insolvency proceedings. The Committee recalls that, in its previous comments, it requested the Government to indicate the measures adopted or envisaged to ensure that workers’ claims, in accordance with the definition and limits established by Article 8(1) of the Convention, have a higher rank of privilege than most other privileged claims. The Committee notes the UGT’s indication that the system of guarantees for workers’ claims established by national legislation does not sufficiently and adequately comply with Article 8. The Committee notes the Government’s indication that, in the context of insolvency proceedings, in the event of liquidation, workers’ claims may be considered as claims against the assets of the insolvent employer (sections 84(2)(1) of the Insolvency Act), claims with a special privilege over the items produced by the workers concerned (section 90(1)(3) of the Insolvency Act) or claims with a general privilege (section 91 of the Insolvency Act), and that these privileges give such claims preference for payment over most other privileged claims. The Committee also notes the Government’s indication that when the insolvent enterprise does not have sufficient assets for the liquidation of workers’ claims, such claims are protected by the FOGASA.

Articles 9–13. Protection of workers’ claims through a guarantee institution. Application in practice. With reference to its previous comments, the Committee notes that the Government provides statistical information on the activities of the FOGASA. The Committee also notes that the CCOO reports repeated delays in the finalization of proceedings by the FOGASA. The Committee notes the Government’s indication that: (i) the serious economic crisis that affected the country between 2008 and 2014 led to a significant rise in the number of claims submitted to the FOGASA, which required an increase in its material and human resources, and that it is currently undergoing a process of modernization; (ii) the proceedings brought before the FOGASA are generally processed within the period of three months set out in section 28(7) of Royal Decree No. 505/1985 on the organization and operation of the FOGASA.