Labour Inspection (Agriculture) Convention, 1969 (No. 129) - Spain (Ratification: 1971)

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on labour inspection, the Committee considers it appropriate to examine Conventions Nos 81 (labour inspection) and 129 (labour inspection in agriculture) together.

The Committee takes note of the Government’s reports and the supplementary information provided in light of the decision adopted by the Governing Body at its 338th Session (June 2020). It also notes the observations on Convention No. 81 made by the General Union of Workers (UGT), sent with the Government’s report, and by the Trade Union Confederation of Workers’ Commissions (CCOO), received on 9 August 2019. The Committee also notes the observations on Conventions Nos 81 and 129 made by the International Organisation of Employers (IOE) together with the Spanish Confederation of Employers’ Organizations (CEOE), received on 16 September 2019. The Committee also notes the Government’s replies to all these observations. In addition, the Committee notes the observations of the UGT and the CEOE submitted in 2020 together with the supplementary information provided by the Government, as well as the Government’s reply to these observations.

Measures adopted in the context of the COVID-19 pandemic. The Committee appreciates the Government’s efforts to provide information on the measures adopted in the context of the COVID-19 pandemic. In particular, the Committee notes the adoption of Royal Decree No. 463/2020 of 14 March, declaring a state of emergency and the adoption of exceptional measures to prevent the spread of the virus and protect the health of workers and the population, including: (i) streamlining of inspection visits; (ii) preventive and protective measures depending on risks at the workplace (including the establishment of a health crisis management unit); and (iii) reorganization of the resources of the Labour and Social Security Inspectorate (ITSS) so as to allocate all available means to the health emergency in the world of work, with priority given to activities related to the pandemic in provincial inspectorates.

In this regard, the Committee notes the observation of the UGT that the ITSS must receive the necessary means and resources to deliver additional work resulting from the temporary mandate that it received to supervise compliance by employers with their obligations related to public health in the context of the pandemic. It also considers that ITSS staff should have the power to stop the activities of enterprises that do not comply with the requirements related to the prevention of the spread of the virus.

The UGT also indicates that in the current context, the ITSS should intensify its activities in the agricultural sector, notably regarding contractual fraud, accommodation of casual workers and supervision of occupational safety and health measures. Finally, the UGT indicates that the General Council (the body that enables social partners’ participation in the labour inspection system) has not been meeting over the last year nor exercising its functions.

Furthermore, the Committee notes that the CEOE indicates that it is essential to intensify the assistance and information role of the ITSS for SMEs and microenterprises as they are heavily impacted by the pandemic, and to widely disseminate the ITSS instructions and criteria so as to facilitate the correct application of standards.

The Committee notes that, in reply to the UGT observations, the Government indicates that Royal Legislative Decree No. 21/2020 of 9 June, on urgent measures to prevent and contain the health crisis and coordinate the response, has temporarily enabled the undertaking of interventions in the area of public health not only by ITSS inspectors, but also assistant OSH inspectors  and, if need be, qualified technicians in  Autonomous Communities.

Regarding the UGT’s observations on the agricultural sector, the Government indicates that the number of ITSS activities planned for 2020 has increased by 21 per cent compared with 2019 and that these activities addressed all aspects of the labour relation, including living and working conditions as well as safety and health.

Regarding the General Council, the Government indicates that the current situation due to the pandemic has prevented the normal functioning of this body and that it would resume its work, in the same way as the Executive Board, the functions of which are interrelated, once the reorganization of the latter is finalized.

Finally, the Committee notes that in reply to the CEOE’s observations the Government indicates that the ITSS performs its assistance and information role in the course of inspection activities, with a view to facilitating better compliance by enterprises, and that the ITSS publishes the technical criteria adopted when it receives questions of interpretation relating to certain issues in the performance of its functions. The Committee expresses the hope that the UGT’s concerns and the priorities mentioned by the CEOE will be examined by the General Council when resuming its functions. It requests the Government to provide information in this regard.

Articles 3(1)(a) and (b), 10, 16 and 21(f) and (g) of Convention No. 81 and Articles 6(1)(a) and (b), 14, 21 and 27(f) and (g) of Convention No. 129. Number of labour inspectors who perform duties according to the terms of the Convention. Statistics included in the annual report. In its previous comment, the Committee asked the Government to provide information on the human resources policy followed for identifying the number of inspectors and sub-inspectors needed to ensure adequate coverage of workplaces liable to inspection and on any changes in selection procedures. The Committee notes the Government’s statements in its report that: (i) human resources needs in public administrations, with budget allocations, which cannot be covered by existing staff numbers are indicated in document entitled “Public employment posts”, which is approved annually by the governing bodies of public administrations in accordance with the criteria set forth in the General State Budgets Act, including the staff replacement rate established in that Act; (ii) under section 5 of Act No. 23/2015 of 21 July establishing the Labour and Social Security Inspectorate (ITSS), entry into the various corps comprising the ITSS occurs in accordance with the regulations for entry into the public service; and (iii) announcements of positions for each corps of the ITSS must contain the number of posts authorized by the Council of Ministers in the Royal Decree approving the public employment posts of the General Administration of the State and those proposed by Autonomous Communities that have received transfers of inspectors and sub-inspectors.

The Committee also notes the UGT’s indications in its observations that the number of officials belonging to the ITSS is insufficient given the objectives and extensive scope of their supervision and control duties and there is no mention of the number of support officials belonging to the ITSS or of the material resources to ensure its functioning. In this regard, the Committee notes the Government’s indication that: (i) between 2016 and 2018, inspection staff numbers increased from 944 inspectors and 854 sub-inspectors in 2016 to 999 inspectors and 922 sub-inspectors in 2018; in addition, in 2016 and 2017, a total of 119 inspector posts and 152 sub-inspector posts were filled; (ii) the report on the implementation of the Management Plan 2018-2019-2020, submitted to the Council of Ministers of 9 August 2019, indicates that it is planned to incorporate at least 833 new inspectors and sub-inspectors into the ITSS during the implementation period, which would signify a 23 per cent increase in staff numbers over the next five years; (iii) since the approval of the Management Plan in July 2018, a total of 33 new inspectors have already been incorporated into the ITSS and 154 new inspectors and sub-inspectors were due to be appointed as career civil servants in July 2019 (47 inspectors, 54 social security sub-inspectors and 53 occupational safety and health (OSH) sub-inspectors); (iv) by Royal Decree No. 955/2018 of 27 July, the public employment posts for 2018 were approved, with notices issued for selection procedures for 353 new inspector and sub-inspector posts, the finalization of which was planned for July 2019; (v) all support staff employed prior to the effective entry into operation of the ITSS have been incorporated into the latter, in both central and outlying services; and (vi) in 2018, a total of €229,221.29 were spent on ITSS furnishings and fittings, and €251,642.42 were spent on building modernization work.

The Committee also notes the UGT’s assertion that it is essential that budget allocations are approved to finance the activities of the labour inspectorate. In this regard, the Government states that through the Management Plan the ITSS was assigned its own, differentiated budget for the first time under the General State Budgets Bill for 2019. This budget involves a 24.4 per cent increase in comparison with the ITSS budget for 2018, rising from €126.46 million to €157.36 million.

Furthermore, the Committee notes the Government’s indication that, as recorded by the ITSS annual report, in 2018 a total of 266,718 inspections gave rise to 1,020,063 actions, with 91,325 infringements of the social legislation detected (including 2,455 requests made to the administration), with proposed penalties amounting to €307,566,196.48. Lastly, the Committee notes that, in response to its request to provide information on the setting up of the National Anti-Fraud Office, the Government states that, under section 13.1 of its Statutes (Royal Decree No. 192/2018 of 6 April 2018), this office is one of the component bodies of the ITSS central structure and is responsible for promoting and coordinating the implementation of measures to combat undeclared work, irregular employment, social security fraud, and also the coordination and integration of such measures with inspection activities as a whole. The Government also indicates that the functioning of this office is regulated by sections 15–17 of the ITSS Statutes and that its staff currently comprises 11 inspectors and six sub-inspectors. While noting this progress, the Committee requests the Government to continue providing information on changes in the numbers of officials who form part of the Labour and Social Security Inspectorate (ITSS), and also on the material resources assigned for its functioning.

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 that, in reply to its request to indicate the number of inspectors and the proportion of time that these devote to mediation activities, the Government states in its report that: (i) no specific number of inspectors assigned to mediation duties has been established; (ii) Act No. 23/2015 of 21 July establishing the ITSS provides that it is incompatible for the same person to simultaneously performing arbitration and inspection duties in relation to establishments under his/her control and supervision; and (iii) the number of interventions related to mediation in collective disputes or strikes was 106 in 2016, 98 in 2017 and 146 in 2018, representing between 0.07 and 0.10 per cent of total actions relating to labour relations, which means that mediation tasks in disputes and strikes accounts for a very low proportion of annual activity as a whole.

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 comment, the Committee noted the setting up, through Act No. 23/2015, of the ITSS, an autonomous entity having its own legal personality, and asked the Government to send information on the adoption of its statutes as provided for by law. The Committee notes the Government’s indication that Royal Decree No. 192/2018 of 6 April approved the statutes of the entity, thereby making it operational.

The Committee also notes the UGT’s claim that the functions of the tripartite General Council provided for in section 11 of Royal Decree No. 192/2018 must include awareness of regional action plans and programmes. The Committee also notes that the CCOO underlines the need for the most representative trade unions to participate in the formulation of the Management Plan for Decent Work. In this regard, the Committee further notes that the IOE and the CEOE indicate in their joint observations that it is important to foster cooperation between the social partners at the level of both the State and the Autonomous Communities in the formulation of action plans and inspection campaigns. In this regard, the Committee notes the Government’s reply that Act No. 23/2015 has reinforced the institutional participation of the social partners in the labour inspection system, establishing a specific participation body called the General Council. The Government adds that Royal Decree No. 192/2018 describes the General Council’s functions of providing information, conducting hearings and holding consultations, and also the rules governing its functioning and composition. In particular, section 11 of the Royal Decree establishes that the General Council shall have other functions, that of informing the Executive Board of any proposals made regarding, inter alia, ITSS general action plans and programmes, and also the necessary measures and strategies for their implementation. The Committee requests the Government to provide information on the functioning in practice of the ITSS General Council, including examples of the manner in which it ensures cooperation between labour inspection officials, on the one hand, and employers and workers and their organizations, on the other.

Article 7(2) and (3) of Convention No. 81 and Article 9(3) of Convention No. 129. Adequate training for inspectors. The Committee notes the Government’s indication, in reply to its previous request regarding the implementation of both initial and further training in the prevention of occupational risks, that initial training in occupational risk prevention has continued to be given as part of the selection procedure for labour and social security inspectors, and has been reinforced since 2017 through the implementation of the selection procedure for occupational safety and health (OSH) sub-inspectors, followed by a period of mentoring in some provincial inspectorates that have specialist OSH units. The Government also indicates that further training courses have been given on occupational risk prevention in various subjects and sectors, such as the Maritime Labour Convention, 2006 (MLC, 2006), OSH conditions in the construction sector and agriculture, and risk prevention.

Articles 9, 10, 13 and 17 of Convention No. 81 and Articles 11, 14, 18 and 22 of Convention No. 129. Inspection staff numbers and monitoring of safety conditions in workplaces. In its previous comment, the Committee asked the Government to take steps to ensure that its OSH strategy achieves an adequate balance between prevention and the provision of advice, on the one hand, and the imposition of penalties, on the other. The Committee also asked the Government to provide information on the recruitment of OSH sub-inspectors and the impact thereof on inspection activities relating to occupational risk prevention.

The Committee notes the Government’s statement that in 2017 a total of 113,336 compliance notices were issued, 17,046 infringements were recorded and penalties amounting to €46,705,535.25 were imposed; in 2018, a total of 114,779 compliance notices were issued, 20,290 infringements were recorded and penalties amounting to €51,279,286.58 were imposed. The Government also indicates that the work of the ITSS in occupational risk prevention has been reinforced through measures such as increasing the number of inspectors and establishing the new corps of OSH sub-inspectors. In particular, the Government states that 32 officials were incorporated into active service in June 2018 and 53 have already completed their selection process and period of mentoring, and are awaiting assignment to different destinations to commence active service in provincial inspectorates. The Government also indicates that, given the short period of time that has elapsed since the incorporation into active service of the first trained group of OSH sub-inspectors, it would be premature to undertake an assessment of the effect of this on the degree of compliance with occupational risk prevention regulations and the industrial accident rate. While noting this progress, the Committee requests the Government, once it is in a position to assess the impact that the incorporation into active service of labour sub-inspectors has on the degree of compliance with occupational risk prevention regulations and the industrial accident rate, to provide information in this regard.

Article 12(1)(c)(ii) of Convention No. 81. In its previous comment, the Committee noted that Act No. 23/2015 extended the powers of employment and social security sub-inspectors (SESS) to include those provided for in the Convention, in particular those authorizing them to copy documents, and asked the Government to consider the possibility of SESS being able to examine the related legal issues arising under that Act in accordance with Basic Act No. 1/1982 of 5 May establishing civil protection of the right to honour, personal and family privacy, and personal reputation (LOPCDH). The Committee notes the Government’s indication that section 14.4 of Act No. 23/2015 provides that, pursuant to the service orders received for the performance of their duties, labour sub-inspectors, who will have the status of enforcement officers, are authorized to proceed in the manner established in section 13(1)–(4) (duties of inspectors). The Government also indicates that section 15.4 of Act No. 23/2015 provides guarantees to the officials of the system, including labour sub-inspectors, in stipulating that, for the purposes established by section 8(1) of LOPCDH, actions taken by the ITSS for the fulfilment of its duties shall on no account be considered as unlawful interference.

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 comment, the Committee asked the Government to provide information on the measures taken to ensure performance of the inspection function with regard to hours of work in agriculture. The Committee also asked the Government to provide information on the measures taken or envisaged to ensure compliance with the legislation regarding conditions of work in labour cooperatives and dependent workers defined as “self-employed” as a means of evading legal obligations regarding conditions of work.

The Committee notes the Government’s indication that: (i) the ITSS ordinarily carries out controls on hours of work, rest periods and overtime, in accordance with the duties assigned under section 12 of Act No. 23/2015, which are performed both in response to complaints and on a pre-planned basis and are usually performed through inspections in workplaces without prior notice; and (ii) section 10 of Royal Decree-Law No. 8/2019 of 8 March concerning urgent measures for ensuring social protection and combating precarious hours of work reforms the amended text of the Workers’ Statute in order to regulate the recording of hours of work in order to ensure compliance with limits on such hours, to create a framework of legal certainty for both workers and enterprises and to enable controls by the ITSS.

The Committee notes the Government’s indication that the Management Plan for Decent Work contains measures aimed at tackling the issue of “fake self-employed” workers – including cases that may arise in cooperatives –, including the implementation of specific inspection campaigns. The Government also indicates that Royal Decree-Law No. 28/2018 of 28 December establishes a new type of serious offence, with a corresponding penalty for the conduct concerned established in the Act on infringements and penalties relating to social regulations. The Committee requests the Government to provide statistical information (number of infringements, penalties) illustrating the results of monitoring the implementation of the Management Plan and enforcing the legal measures referred to above concerning hours of work in agriculture and conditions of work in agricultural cooperatives.

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

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.

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

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.

Legislation. The Committee notes the enactment of new Act 23/2015 of 21 July 2015 regulating the labour inspection and the social security system, which repeals and replaces Act 42/1997 of 14 November 1997 regulating labour inspection and social security.

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the ILO Constitution)

The Committee notes that in June 2014 the Governing Body approved the report of the tripartite committee set up to examine the representation alleging non-observance by Spain of Convention No. 81, made under article 24 of the ILO Constitution by the National Federation of Associations of Employment and Social Security Sub-inspectors (FESESS) (GB.321/INS/9/2). The Governing Body entrusted the Committee with following up on the issues raised in the report.

Articles 3(1)(a) and (b), 10, 16 and 21(f) and (g) of Convention No. 81; Articles 6(1)(a) and (b), 14, 21 and 27(f) and (g) of Convention No. 129. Number of labour inspectors who perform duties according to the terms of the Convention. Statistics included in the annual report. The Committee notes that the Labour and Social Security Inspectorate (ITSS) comprises the Higher Corps of Labour and Social Security Inspectors and the Corps of Employment and Social Security Sub-inspectors (SESS) and that, according to the ITSS report for 2015, the total number of inspectors for 2008, 2012 and 2015 was 836, 970 and 948, respectively, with the respective number of sub-inspectors for the same years being 910, 919 and 838.

The Committee notes the allegations of the FESESS contained in the tripartite committee’s report relating to the inadequate number of labour and social security inspectors to guarantee by themselves the effective performance of labour inspection functions, and also notes the tripartite committee’s request that the Committee should follow up on the effect given to its conclusions.

The tripartite committee indicated that, since there was insufficient information on the effectiveness of the labour inspection system, it was not in a position to make an informed assessment, and asked the Government to provide the Committee with the necessary information to follow up on the matter (such as information on the number of inspections, the number of infringements and the number of industrial accidents and cases of occupational diseases). The tripartite committee also stated that, in view of the increase in inspection activities in the area of undeclared work in Spain, the Government should take the appropriate steps to assign sufficient resources to the performance of traditional duties, for example the enforcement of legal provisions relating to occupational safety and health.

The Committee notes that Act 23/2015 provides for the establishment of a National Anti-Fraud Office as a specialized body of the ITSS, and also notes the observations of the UGT and CCOO claiming that this function is already performed by the ITSS and that there is no need for a new office in relation to this matter. The UGT also alleges that the increase in action against irregular employment and social security fraud is a source of concern since there has been no change in the number of inspectors. The CCOO observes that inspection activity in terms of the enforcement of the legal provisions relating to areas such as conditions of work or occupational risk prevention is limited and only accounts for about 26 per cent of inspection activities at a time when industrial accidents are known to be increasing. The CCOO therefore considers that irrespective of activities to detect irregular employment, which are certainly relevant, these other matters which have been relegated to a secondary level by the inspectorate need to be raised to the same level of importance.

The Government indicates in its report that the distribution of inspection activities by subject matter between 2013 and 2015 has not varied significantly by comparison with previous periods. It also explains that the National Anti-Fraud Office seeks to adopt a comprehensive approach to the phenomenon of fraud. According to the Government, fraud not only results in an undue diversion of resources from the social security system, or a non-existent or inadequate contribution to its upkeep, but that it is in most cases also connected to situations of labour exploitation where workers are denied their rights, especially those relating to recognition of their conditions of work. It also states that selection procedures were launched on 13 September 2016 to fill 53 posts for labour and social security inspectors, 50 posts for SESS in the OSH category and 42 for SESS in the employment and social security category.

As regards the information needed to enable an evaluation of the effectiveness of labour inspection and the Committee’s previous request for disaggregated statistical information on industrial accidents and occupational diseases, indicating their respective causes, the Committee notes that the 2015 annual report does not contain any statistics on the number of inspections conducted (given that the recorded number of activities refers to both inspections and other activities) or on the workplaces liable to inspection and the number of workers employed therein. It also notes the Government’s indication that it is taking steps to obtain data on the causes of industrial accidents and occupational diseases. The Committee therefore requests that the Government provide information on the human resources policy followed on identifying the number of inspectors and sub-inspectors needed with a view to adequate coverage of the workplaces liable to inspection (Articles 10 and 16 of Convention No. 81 and Articles 14 and 21 of Convention No. 129) and on any changes in the selection procedures referred to above.

The Committee also requests that the Government supply information on the setting up of the National Anti-Fraud Office (including the number of inspectors assigned to it and their duties) and to send data on all inspection activities for the period covered by the next report, disaggregated by subject, which come within the competence of the ITSS. Lastly, the Committee requests that the Government take the necessary steps to ensure that the abovementioned data are included in the annual inspection statistics.

Article 12(1)(c)(ii) of Convention No. 81. On the basis of the tripartite committee’s report, the Governing Body invited the Government to consider the possibility of granting SESS, in law and in practice, the powers and prerogatives provided for under the Convention where they are needed or useful for the performance of their duties in conformity with the objective of the Convention, as is the case with the duties that they perform in the social security sphere. The Committee noted that Act 42/1997 of 14 November 1997 did not give SESS the power to copy documents or to make extracts from them, as provided for in Article 12(1)(c)(ii) of the Convention in fine. The Committee notes with satisfaction that section 14(4) of the new Act 23/2015 provides that, for the purposes of performing their duties, SESS may proceed in the manner established in section 13(1)–(3), which grants them the powers provided for in Article 12(1)(c)(ii). Referring to the conclusions of the tripartite committee, the Committee considers that, since the Government has decided to expand the prerogatives of SESS to include those provided for in Convention No. 81, particularly those empowering them to copy documents (Article 12(1)(c)(ii)), it should also consider examining the related legal issues that arise in the context of the Basic Act on labour and social security inspection (Act 23/2015), in conjunction with the Basic Act on civil protection of the right to honour, personal and family privacy, and personal reputation (LOPCDH). The Committee requests that the Government communicate any progress made in this respect.

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

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

The Committee notes the Government’s report dated 5 September 2013. It also notes the observations made by the Trade Union Confederation of Workers’ Commissions (CC.OO.), which were received at the Office on 30 August 2013, and the Government’s reply to them, which was received on 26 November 2013.

The Committee refers to its comments concerning the Labour Inspection Convention, 1947 (No. 81), in so far as they also relate to the application of the present Convention. The Committee also draws the Government’s attention to the issues described below.

Articles 6(1)(a), 21 and 24 of the Convention. Enforcement functions of labour inspectors in agriculture. The Committee notes that the CC.OO. alleges that non-compliance with regard to the declaration of actual daily hours of work for the purposes of social security contributions, which implies major fraud in relation to Spanish social security, reflects the fact that the labour inspectorate does not carry out any verification of actual working hours and declared working hours, thereby failing to comply with Article 6 of the Convention.

The Committee notes that the Government, for its part, indicates that, in accordance with section 13.1 of Act No. 42/1997 regulating labour inspection and social security, the Labour and Social Security Inspectorate acts of its own accord, as a result of an order from a higher authority, further to a substantiated request from other bodies, of its own initiative, or in response to a complaint. The Government is aware of the importance of the agricultural sector, and this is reflected in the existence of a specific national campaign relating to agricultural activities, which forms part of the planned annual work of the inspectorate. This campaign comprises a series of specific actions but does not prevent inspectors or assistant inspectors from carrying out inspection work in other areas. Moreover, and taking account of the particular features of agricultural work, specific campaigns are conducted by territory. The Government supplies statistical information relating to the results of campaign NE006 during 2011 and 2012 (number of service orders fulfilled and number of service orders involving irregularities; number of violations, amounts deriving from violations; number of workers affected; number of settlement files; number of workers affected and of situations of discovered employment).

The Committee requests the Government to include specific information in its next report on inspections conducted in agriculture during the period covered by the report, violations detected (indicating the relevant legal provisions), including in relation to actual working hours and declared working hours, and penalties imposed. The Committee would also be grateful if the Government would specify the practical measures taken to ensure the effectiveness of inspection in agricultural undertakings in accordance with Article 21 of the Convention, and the frequency of inspections in the sector.

In addition, the Committee would be grateful if the Government would supply detailed information on any campaign implemented with a view to promoting or securing the enforcement of the legal provisions relating to conditions of work and the protection of workers, indicating its duration, coverage and impact with respect to the objectives of the Convention.

Article 9(3). Training of labour inspectors for the performance of duties in agriculture. The Committee notes the Government’s indication that, in addition to the theoretical content of the initial training programme, the course for labour and social security inspectors corresponding to the competition approved in 2011 included, for example, a case study on occupational risks in agriculture and forestry, connected with the acquisition of knowledge relating to legislation, occupational risks, work equipment, protective equipment and safe procedures in the sector. With regard to further training, the Government declares that a specific course was held on risks in agriculture and livestock farming, and there was discussion of matters such as the main characteristics of conditions of work and risk factors, agricultural machinery, pesticides and fertilizers, agricultural tractors, risks in livestock farming and abattoirs, and biological risks in agriculture and livestock farming. The Committee requests the Government to provide information on the impact of these training activities, particularly in the area of further training, on the working methods of inspectors in the performance of their duties and in relation to occupational risks in agriculture. The Committee would also be grateful if the Government would provide information on initial and further training activities held in relation to the performance of inspection duties in agriculture, indicating the type of training (seminar, course, workshop), subjects covered, duration, and the number of inspection staff taking part.

Article 27(f) and (g). The Committee requests the Government to take steps to ensure that future annual inspection reports contain, as far as possible, disaggregated statistical information on occupational accidents in agriculture and their causes and on cases of occupational disease and their causes.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the Government’s report in response to its previous comments.

It notes that a representation under article 24 of the Constitution of the International Labour Organization was presented to the Governing Body by the Federation of Associations of Deputy Inspectors of Employment and Social Security (FESESS) (Document GB.312/INS/16/5). In the course of its 312th Session (November 2011), the Governing Body decided that the representation was receivable, and appointed a tripartite committee to examine it.

In accordance with its usual practice, the Committee decided to postpone its examination of the application of this Convention pending the decision of the Governing Body in respect of the representation. The Committee will therefore examine the information supplied by the Government in its report relating to the period 2009–11 in the light of the decisions adopted in due course by the Governing Body in the framework of said representation.

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee requests the Government to refer to the observation made under the Labour Inspection Convention, 1947 (No. 81), regarding cooperation between the inspection services and the social partners, collaboration of experts and technicians, new labour inspection staff, the labour inspection information system and new penalties applicable to reported infringements.

Article 9(3) of the Convention. Training of labour inspectors performing duties in agriculture. The Committee notes the detailed information supplied by the Government in its report on the initial and further training provided to inspectors in the labour inspection and social security services. It notes that all labour inspectors receive general training, which may include aspects connected with agriculture, and that specific training is given with regard to the occupational hazards identified in a particular sector. However, the Government emphasizes that there is no specific training for labour inspectors responsible for identifying infringements to the legislation in agriculture, but that certain training activities are specifically intended to strengthen the labour inspectorate in relation to agriculture. In this respect the Committee notes the permanent training plan established in 2009, which includes a course entitled “Occupational hazards in agriculture. Confined spaces. Handling of plant health products. Preventive organization”. The Committee requests the Government to supply information on the impact of this training on the working methods of inspectors responsible for enforcing the legislation in agriculture, and also on the number of occupational accidents and diseases in relation to the occupational hazards identified. It also requests the Government to continue to supply information on any programme or initiative aimed at strengthening the capacities of the labour inspection services in relation to agriculture.

Articles 26 and 27. Content of the annual report. The Committee notes the statistics supplied by the Government and also the information contained in the annual report on the work of the inspection services for 2008. It notes a reduction in the number of occupational accidents in agriculture between 2007 and 2008 (32,748 in 2007 compared with 31,656 in 2008). The same applies to occupational diseases caused by chemical agents (20 cases in 2007 compared with 13 in 2008). However, it appears that other occupational diseases are on the increase, particularly those caused by physical agents (134 cases in 2007 compared with 138 in 2008), those caused by biological agents (21 cases in 2007 compared with 36 in 2008), those caused by inhalation of various substances and agents (three cases in 2007 compared with 12 in 2008), skin diseases caused by various substances and agents (four cases in 2007 compared with eight in 2008) and, finally, diseases caused by carcinogenic agents (182 cases in 2007 compared with 218 in 2008). The Committee requests the Government to continue to supply detailed information on occupational accidents and diseases in agriculture and to ensure that these are included in the annual reports of the inspection services, as requested in the previous observation on this subject.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

With reference to its observation, the Committee would be grateful if the Government would provide additional information on the following points.

Article 9, paragraph 3, of the Convention. Training of labour inspectors performing duties in agriculture. The Committee notes with interest that the officials of the labour inspection system participated in 2005 and 2006 in various training courses covering, inter alia, the prevention of occupational risks, social security, information technology and the establishment of the new information technology system of the Labour and Social Security Inspectorate (Integra). It would be grateful if the Government would indicate whether specific training for the performance of inspection duties in agricultural undertakings, taking into account the human, environmental and technical specificities of the activity, is provided to inspection staff, or is envisaged. If so, please provide the relevant information.

Article 15, paragraphs 1(b) and 2. Transport facilities and reimbursement of the professional travel expenses of labour inspectors in agriculture. According to the Government, the labour inspectorate does not generally make vehicles available to labour inspectors, but their transport, accommodation and meal expenses are reimbursed. The Committee would be grateful if the Government would provide further information on the practical arrangements for the reimbursement of these expenses and provide a copy of any legal text or other relevant document.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s detailed report for the period ending on 1 June 2007. It also notes the Government’s replies to the comments of the Trade Union Confederation of Workers’ Commissions (CC.OO.), received by the ILO on 20 September 2005 and forwarded to the Government on 20 October 2005.

The Committee refers to its observation on Convention No. 81 in relation to the views expressed by the CC.OO. concerning the operation of the labour inspectorate, with particular reference to: cooperation between the inspection services and other institutions (Article 12 of the Convention); collaboration with the social partners (Article 13); inspection staff and adaptation of the qualifications of labour inspection personnel (Articles 14 and 9); computer equipment and systems available to inspectors; programming of inspections (Article 21); dissuasive effect of financial penalties (Article 24); and content of annual inspection reports (Article 27).

Articles 26 and 27. The Committee notes with satisfaction, in the annual inspection report on all the sectors covered, the separate presentation of information on the activities carried out in agricultural undertakings and their results, and on the number and gravity of occupational accidents and occupational diseases inherent to the branch. Noting with interest that statistics of cases of occupational diseases are also compiled and presented in a table in an annex to the report, it strongly encourages the Government to ensure that this important information is also included in the annual report. The Committee recalls that the progressive achievement of the objectives assigned to the labour inspectorate is largely conditional on the regular preparation of an assessment that is as exhaustive as possible, for each of the sectors covered, of the general conditions of work and specific occupational safety and health conditions.

The Committee is addressing a request directly to the Government on other matters.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report and the replies to its previous comments. It also notes the promulgation of Royal Legislative Decree No. 5/2000 to approve the amended text on offences and sanctions in labour law and Royal Decree No. 1125 of 19 October 2001 amending the regulations on the organization and running of the labour and social security inspectorate.

The Committee notes with interest the figures, provided at its request, on occupational accidents and diseases and their causes, and on the activities of the labour inspectorate in the area of child labour in the agricultural sector (establishments visited, number of visits, infringements recorded, penalties imposed). With reference to its previous observation on the action taken by labour inspectors in the context of a programme targeting young border workers in 1998 and 1999, the Committee again requests the Government to send information on the results of these measures.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

With reference also to its observation, the Committee would be grateful if the Government would provide additional information on the following points.

The Committee notes that the increase in the staff of the labour inspectorate between 1997 and 1998 particularly concerned higher level labour and social security inspectors and it would be grateful if the Government would provide information listing the proportion of women in the overall inspection staff and by categories. With reference to Article 10 of the Convention, under the terms of which special duties may be assigned to women inspectors, the Committee notes that this provision is not applied. It would be grateful if the Government would indicate whether it is envisaged, within the framework of the new Act on the organization of the labour inspectorate, to assign women inspectors to advisory or enforcement functions concerning, in accordance with Article 6, paragraph 2, the application of legal provisions relating to conditions of life of agricultural workers and their families.

The Committee notes the information provided by the Government in reply to its general observation of 1996 respecting the notification and recording of employment accidents and cases of occupational diseases. It notes that the figures provided concerning employment accidents which occurred during the years 1998 and 1999 are disaggregated by the gravity of the resulting injury, without indicating the causes, however, statistics of cases of occupational diseases in the agricultural sector are not provided either in the Government’s report, or in the annual inspection report for 1998, as required by Article 27(g). The Committee emphasizes that, by virtue of  Article 27(f) and (g), statistics of occupational accidents and diseases must also reflect their causes, and it requests the Government to take the necessary measures to ensure that statistics which are as complete as possible on these points are published regularly in annual inspection reports.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s reports for the period ending September 2000. It also notes the adoption of new provisions related to the matters covered by the Convention and particularly Act No. 42 of 14 November 1997, organizing the labour and social security inspectorate, as well as the annual inspection report for 1998 containing information on most of the subjects set out in Article 27.

The Committee notes with interest from the annual inspection report for 1998, which covers all sectors of activity, that the staff of the inspectorate has been substantially strengthened in numbers (around 5 per cent) and in qualifications with a view to improving effectiveness through the implementation of the above Act and that an additional increase in staffing was also envisaged for 1999. The Committee would be grateful if the Government would indicate the impact of this increase in human resources on inspection activities in the agricultural sector.

The Committee notes with interest the information contained in the Government’s report received in 2000 with regard to the 1999 general observation on inspection activities to combat the abuse of child labour. It hopes that the Government will continue to provide particulars on the development of these activities in general, as well as information on the results of the activities carried out under the specific programme for young cross-border workers in 1998-99.

The Committee is addressing a request directly to the Government on certain matters.