Dock Work Convention, 1973 (No. 137) - Spain (Ratification: 1975)

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

The Committee notes the observations of the Trade Union Confederation of Workers’ Commissions (CCOO) and the General Union of Workers (UGT), included in the Government’s report.

Articles 2, 3 and 5 of the Convention. National policy to encourage the provision of permanent or regular employment for dockworkers. Registered dockworkers. Cooperation between the social partners. The Committee notes the information provided by the Government on the regime applicable to dockworkers in accordance with, among other legal instruments, the consolidated text of the State Ports and Merchant Marine Act, adopted by Royal Legislative Decree No. 2/2011 of 5 September (TRLPEMM) and the Decision of the General Directorate of Employment of 17 January 2014, which provides for the registration and publication of the Fourth Agreement for the regulation of labour relations in the dock work sector. The Government indicates that, in accordance with section 151(1) of the TRLPEMM and section 6.3.1 of the Fourth Agreement, dockworkers are bound by indefinite contracts to limited liability dockworker management enterprises (SAGEPs) established in ports of general interest. The Government adds that SAGEPs keep a register of dockworkers who have a priority of engagement by port enterprises, as established in section 142 et seq. of the TRLPEMM. The Committee observes, however, that significant changes were introduced to the above regime with the adoption of Royal Legislative Decree No. 8/2017 of 12 May, which amends the regime governing workers engaged in the provision of cargo handling services in ports, in accordance with the ruling by the Court of Justice of the European Union (CJEU) of December 2014 in Case C 576/13. The CJEU ruling held that the Kingdom of Spain was not in compliance with the freedom of establishment, as it made it mandatory for enterprises from other member States wishing to conduct cargo handling activities in Spanish ports of general interest to register and have a share in the capital of a SAGEP, and to hire, as a priority, workers provided by the SAGEP, a minimum number of whom must be hired on a permanent basis. In this regard, the Committee observes that, in accordance with the explanation of the reasons for the above-mentioned Royal Legislative Decree, the new regime establishes the principle of the freedom to recruit in cargo handling services in ports. In this regard, in accordance with the Royal Legislative Decree, operators are not required to have a share in any enterprise providing dockworkers and may hire such dockworkers freely, on the condition that they meet a series of requirements for the training of these workers. The Royal Legislative Decree also provides for the establishment of port employment centres (PECs) which will manage the regular employment of dockworkers in cargo handling services in ports, and their training and temporary assignment to enterprises with a licence to provide cargo handling services in ports or the authorization to engage in commercial port services. The PECs will operate as temporary work agencies (TWAs) specific to the sector, with the legal requirement that such enterprises obtain authorization from the labour administration. Cargo handling enterprises will not be required to participate in the centres established, or to hire as a priority the workers that they provide. The Committee also notes that, in their observations, the workers’ organizations report that the new dock work regime is not in conformity with the requirements of the Convention. With regard to the establishment of measures to ensure the permanent or regular employment of dockworkers, the UGT maintains that the new regime removes the requirement for SAGEPs to hire workers permanently. It questions whether the new recruitment carried out by these enterprises or by PECs will make use of indefinite contracts, as they will be regulated by the TWAs. Furthermore, during the period of transformation of the SAGEPs, which is planned to last three years, there will be a progressive relaxing of the requirement for cargo handling enterprises to hire workers from SAGEPs, before the requirement is removed after four years, when cargo handling enterprises will be able to freely recruit skilled dockworkers, whether through SAGEPs, PECs or TWAs, which will affect the current regular provision of services by dockworkers. The UGT indicates that this amendment has met with great opposition from trade unions representing dockworkers, not only in the media, but also through strikes, with the aim of preserving the current employment conditions. The UGT indicates that, in this context, an agreement was concluded with employers in the sector, which amended the Fourth Framework Agreement for the Dock Work Sector, with a view to including a clause referring to the subrogation of SAGEP workers in cargo handling enterprises based on their participation in SAGEPs. Ultimately, the UGT complains that, as a result of the adoption of the new regime, the employment security of dockworkers and their basic income will be affected, particularly in the case of new workers, due to the conditions of recruitment under the regime governing TWAs. With regard to the maintenance of a register of dockworkers, the UGT and the CCOO assert that, despite the claims put forward by workers’ organizations, the new regulations do not establish any requirement in this regard. The Committee requests the Government to provide detailed and updated information on the manner in which the new regime ensures permanent or regular employment for dockworkers (Article 2(1)). It also requests the Government to indicate the minimum periods of employment and minimum income assured for casual dockworkers as a result of the implementation of the new regime and collective bargaining (Article 2(2)). The Committee also requests the Government to provide information on the procedures of the new dock work regime which govern the establishment and maintenance of registers for all categories of dockworkers, and on the manner in which priority of engagement is ensured for registered dockworkers for dock work, and on the manner in which dockworkers are required to be available for work (Article 3). Lastly, the Committee requests the Government to provide detailed information on the issues raised by the social partners, and on the results of the dialogue process, including any changes in the manner in which dock work is organized in the country (Article 5).

Article 6. Safety, health, welfare and vocational training. The Committee notes the Government’s indication that, under the previous regime, section 153 of the TRLPEMM established the qualifications required to be included in registers of dockworkers. In this regard, the Government refers, among other regulatory instruments, to Order FOM/2297/2012 of 23 October 2012, which determines the vocational training qualifications required for the provision of cargo handling services in ports, and the Decision of the State Ports of 11 April 2011, which publishes the Governing Council Decision on the minimum content of the psychological and physical aptitude tests to determine the suitability of workers wishing to engage in cargo handling activities. The Government adds that section 152 of the TRLPEMM required SAGEPs to allocate a minimum of 1 per cent of their total payroll to the continuous training of their workers to ensure their professionalism. However, the Committee notes that section 3 of the Royal Legislative Decree amends the previous regulations on the training requirements for dockworkers. Pursuant to section 3, dockworkers are required to obtain the vocational skills certificate provided for in Annex VIII (cargo handling in docks, loading, unloading and trans-shipping services) of Royal Decree No. 988/2013 of 13 December 2013, which establishes nine certificates for vocational skills in maritime work and fishing. However, section 3(2) of the Royal Legislative Decree provides that such certification will not be mandatory for certain workers, such as those who have worked over 100 days in the dock work services of any European Union Member State prior to the entry into force of the Royal Legislative Decree. In this regard, the Committee notes the UGT’s indication that the application of the new training requirements raises an issue for dockworkers with temporary contracts who entered the service with the qualifications required by the previous regulations, but have not accumulated 100 days of work. The UGT indicates that such workers may be excluded as dockworkers, despite having the qualifications required under the previous regime, until they obtain the necessary vocational certification. With regard to safety, health and welfare measures, the Government indicates that Act No. 31/1995 of 8 November 1995 on the prevention of occupational hazards and its implementing provisions are applicable. The UGT adds that the new regulations on training may lead to safety problems, as they provide for the possibility of approving the certification required under the Royal Legislative Decree with the days worked in any Member State of the European Union, but do not provide that these days should be restricted to dock work, or refer to the conditions or training. The Committee requests the Government to provide detailed information on the issues raised by the social partners with regard to the application of the new provisions on the training of dockworkers.

Application of the Convention in practice. The Government indicates that, on 31 March 2017, 6,165 dockworkers had been registered, of whom 1,487 were registered in the Port of Algeciras, 1,455 in Valencia and 1,030 in Barcelona. The Committee requests the Government to provide a general assessment of the manner in which the Convention is applied in the country, including, for example, extracts from reports and data on the number of dockworkers and on the variations in their numbers over time.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes with interest the Government's report and the detailed information supplied in response to its previous observation.

Article 2, paragraph 2, of the Convention. Further to its previous comments in which it asked the Government to indicate whether workers on the Special Register of Dock Workers are entitled to minimum periods of employment or minimum income, "in a manner and to an extent depending on the economic and social situation of the country and port concerned", the Committee notes that article 9, paragraph 3, of the Agreement on the regulation of labour relations in the port sector of 18 October 1994 provides for a minimum income to be set in regional collective agreements.

The Committee also notes the information to the effect that dockers recruited for casual work by stevedoring companies are subject to the conditions of employment provided for in the Statute of workers which apply to all sectors of activity.

Article 6. The Committee notes that article 11 of the above-mentioned Agreement of 18 October 1994 provides that the National Agreement on Continuous Training of 16 December 1992 applies. It also notes that article 12 provides for the establishment of a joint committee on safety and health. The Committee notes the information concerning the establishment of a tripartite committee for training and the application to dockers of the Act of 8 November 1995 on the prevention of risks at work, and asks the Government to indicate the practical effect given to the provisions of above-mentioned articles 11 and 12.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

Article 2, paragraph 2, of the Convention. 1. With reference to its earlier comments in which the Committee noted the observations of the Canary Islands Nationalist Autonomous Confederation (CANC), endorsed by the National Federation of Dockworkers, concerning the situation of workers enrolled in the Special Register of Dockworkers of Las Palmas, the Committee notes the information, including statistics, concerning the developments of the situation in the port of Las Palmas. The Government indicates that the situation in the above-mentioned port has not been developing in a favourable way and that, in the foreseeable future, the employment level is not likely to increase. As regards the possibility of guaranteeing workers enrolled on the Special Register "minimum periods of employment or a minimum income in a manner and to an extent depending on the economic and social situation of the country and port concerned", as required by this provision of the Convention, the Committee observes that no information has been supplied by the Government on this point. It therefore trusts that the Government will provide the information requested on this point, in its next report.

2. With reference to the observations of the Inter-Union Centre of Galicia (CIG) concerning the situation of non-registered workers engaged on a casual basis by private stevedoring companies in the Galician ports of La Coruña and Vigo, which were noted in its previous comments, the Committee notes the Government's general statement to the effect that the provisions of the Convention concerning the minimum periods of employment or minimum income to be assured for dockworkers, are complied with. It would be grateful if, in its next report, the Government would describe in more detail the conditions of employment of dockworkers recruited on a casual basis by private stevedoring companies, indicating, in particular, the minimum periods of employment or minimum income assured to this category of workers and the manner in which they are assured, in accordance with this Article.

Article 6. The Committee asks the Government to continue to supply information on measures taken to ensure that appropriate safety, health, welfare and vocational training provisions apply to dockworkers, as required by the report form under this Article.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

1. In its earlier comments the Committee noted the observations of the Canary Islands Nationalist Autonomous Confederation (CANC), endorsed by the National Federation of Dockworkers, concerning the situation of workers enrolled in the Special Register of Dockworkers of La Luz and Las Palmas. It also noted the detailed explanations of the Government concerning the Special Register of the National Employment Institute (INEM). The Committee asked the Government to indicate whether, in the light of developments in the situation in the port of Las Palmas, it will be possible to guarantee to workers enrolled on the Special Register "minimum periods of employment or a minimum income, in a manner and to an extent depending on the economic and social situation of the country and port concerned", as required by Article 2, paragraph 2, of the Convention. The Committee observes that no new information has been supplied by the Government on this point. It therefore reiterates its hope that the Government will not fail to provide the information requested in its next report.

2. The Committee notes the observations of the Inter-Union Center of Galicia (CIG) concerning the situation of non-registered workers engaged on a casual basis by private stevedoring companies in the Galician ports of La Coruña and Vigo. The CIG states that wages and other conditions of work of this category of dockworkers are inferior to those of registered dockworkers employed by a state company.

3. The Government indicates in its reply to these observations that, during the period of restructuring, the Port Work Organization (OTP) continues to perform supervisory functions in regard to the implementation of the relevant national provisions, in accordance with section 15 of the Labour Ordinance of 1974, and reports to the competent authorities any defaults or shortcomings in their implementation. It also makes reference to the Resolution of the General Directorate of Labour of 27 November 1980 on the performance of dockwork operations by private enterprises in the port of Vigo, according to which presumed contraventions are to be reported to the Labour Board of the Port of Vigo and to the Labour Delegation of the Council ("Xunta") of Galicia. The Government indicates, with reference to the Provincial Directorate of Pontevedra, that any information on presumed contraventions is communicated to the competent administrative bodies. It also supplies information on measures taken and contemplated with a view to ensuring that appropriate safety, health and vocational training provisions apply to dockworkers. As regards the situation in the port of La Coruña, the Government states that private stevedoring companies do not operate there.

4. The Committee would be grateful if the Government would provide in its next report information on the conditions of employment of dockworkers recruited on a casual basis by private stevedoring companies, indicating in particular whether minimum periods of employment or minimum income are assured to this category of workers, as required by Article 2, paragraph 2. Please also supply the text of the Resolution of 27 November 1980 referred to above. The Committee hopes that the Government will continue to supply information on measures taken to ensure that appropriate safety, health, welfare and vocational training provisions apply to dockworkers, as required by the report form under Article 6.

[The Government is asked to report in detail for the period ending 30 June 1993.]

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

1. In its observation of 1990, the Committee addressed the comments of the Canary Islands Nationalist Autonomous Confederation (CANC) and the Governmnent's reply concerning the situation of workers enrolled in the Special Register of Dockworkers of the Port of La Luz and Las Palmas. The Committee asked the Government to indicate, in the light of the arguments presented, whether an unemployment benefit is granted immediately to all dockworkers to whom it has not been possible to assign work (Article 2, paragraph 2, of the Convention). It also asked the Government to indicate the manner in which it ascertains that the above-mentioned group of dockworkers is covered by appropriate safety, health, welfare and vocational training provisions (Article 6).

2. The Committee thanks the Government for the detailed information provided in its various communications.

In a report received in June 1990, the Government does not admit that the persons concerned engage in regular dock work and that most of their annual income comes from this work. The Government explains that the Special Register of the National Employment Institute (INEM) makes it possible to identify a group of persons who wish to work in the port and demonstrate that they have some idea of the work to be performed. The INEM Special Register also enables the unemployment benefits provided by the INEM to be processed. According to the Government, dockworkers either work permanently in the enterprises or intermittently but regularly in state companies established for such intermittent but regular work.

3. In a communication to the Office (duly transmitted to the Government), in July 1990, the National Federation of Dockworkers endorsed the comments on the Special Register of Las Palmas, drawing attention to what, in its opinion, is a contradictory and unfair situation, i.e. that on the one hand, workers are under the obligation to be present at daily calls while, on the other, they are not guaranteed remuneration or a minimum number of shifts. Like the workers registered as belonging to the state company or private enterprises who are guaranteed a minimum wage even for days on which there is no work for them, workers enrolled in a special register must be available daily and are under obligation to be present at the daily calls, but receive no remuneration for attending calls and being permanently available.

The Government submitted its observations on this matter in October 1990. These observations are also included in a detailed report on the application of the Convention, received in January 1991. According to the Government, the consolidation of the legal provisions governing this matter has, in practice, generally been well received by the employers' and workers' organisations, except in a few specific cases where disagreement arising from a surplus of personnel has been registered by the dockworkers' organisation. The Government reiterates that only workers who have a permanent employment relationship with a state company or a docking enterprise are covered by the Convention. The workers enrolled on the INEM Special Register do not have the requisite "occupational status" and "experience" to be qualified as dockworkers. By being on an INEM Special Register, they have priority access to the state company when the latter's staff is increased. It adds that not all ports have INEM Special Registers. Machinery is planned for the periodical review of the "operational staff".

4. The Convention provides that new methods of cargo handling may require systematic revision of the structure of employment in ports and that the employers' and workers' organisations concerned shall be consulted on the matter (see Article 1, paragraph 2, of the Convention and Part II of the Dock Work Recommendation, 1973 (No. 145) - contained in the annex to the report form for the Convention). The Committee notes that the workers enrolled on the Special Register are under the obligation to be present at each and every call. Accordingly, the Committee has given due consideration to the arguments presented by the dockworkers affected by the restructuring measures. The Government, for its part, also refers to the possibility of conducting a review of personnel available for dock work. The Committee therefore trusts that, in its future reports, the Government will be able to indicate whether, in the light of developments in the situation in the port of Las Palmas, it will be possible to guarantee to workers enrolled on the Special Register "minimum periods of employment or a minimum income, in a manner and to an extent depending on the economic and social situation of the country and port concerned" - as required by Article 2, paragraph 2, of the Convention. In addition, the Committee trusts that the Government will continue to provide detailed reports which include information on other results achieved by the measures planned to attenuate the adverse effect on dockworkers of any reduction in the numbers in registers, both in ports of general interest and in ports administered by the autonomous communities. The Government might find it useful to refer to the provisions of paragraphs 17 to 19 of Recommendation No. 145.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

1. The Committee refers to its observation and to its direct request of 1989, and hopes that the Government will provide the information requested in the latter, particularly with regard to the available data concerning the number of dockworkers in the registers established and maintained in accordance with Article 3 of the Convention and on any variation in their numbers since the dissolution of the autonomous body, the Dock Work Organisation (point V of the report form).

2. Article 4. Please continue to provide information on the results of the measures to attenuate the detrimental effects on dockworkers of a reduction in strength of the registers, both in ports operated in the general interest and in those operated by an autonomous community. The Government may wish to refer the provisions of Paragraphs 17 to 19 of the Dock Work Recommendation, 1973 (No. 145), the text of which is appended to the report form.

3. Point IV of the report form. Please provide the text of the decision of the Third Chamber of the Supreme Court, of 23 September 1985, nullifying Royal Decree No. 2302 of 24 October 1980, and the Order of the Ministry of Labour, Health and Social Security of 16 June 1981.

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

1. The Committee takes note of the communication, dated 5 September 1989, from the Canary Islands Nationalist Autonomous Confederation (CANC), endorsing the questions raised by a group of dockworkers in a previous communication. The communication alleges that the dockworkers enrolled in the Special Register of Dockworkers of the Port of La Luz and Las Palmas are in a situation which is inconsistent with Convention No. 137 in that they are under the obligation to be present at all calls, yet enjoy no rights corresponding to that obligation. The Office transmitted a copy of the communications to the Government which forwarded its observations dated 15 December 1989.

2. Article 3 of the Convention. In their communication, the workers state that they are enrolled in the "Special Register of Dockworkers of the Port of La Luz and Las Palmas" (RETP), which comes under the Ministry of Labour and Social Security. The 286 workers involved belong to the category of casual workers: they are not hired by a state company (special labour relationship), or by a non-state port enterprise (common labour relationship). They are merely entitled to enrol in a special register of dockworkers that exists in every "port operated in the general interest". The situation of this group of dockworkers is regulated by the fifth provision of the RETP operation manual whereby Royal Legislative Decree No. 2 of 23 May 1986 concerning public service cargo handling (vessels) is applied in the ports of La Luz and Las Palmas. The Committee notes that the final part of clause 31 of the operation manual establishes that "all workers registered (in the RETP) must be present at the calls, at which they may be designated "incumbents" or "substitutes". Those designated must present themselves at the assigned workpost at the beginning of each shift. The substitutes must wait at the place thus assigned by the State Company, and remain at the disposal of the latter, for the first half-hour of the shift for which they were designated substitutes."

3. As the workers registered in the RETP point out, they are under an obligation to be present at all calls. This practice may be deemed to be consistent with the provision of paragraph 3 of Article 3, which prescribes that "registered dockworkers shall be required to be available for work in a manner to be determined by national law or practice".

4. The workers registered in the RETP add that, if no work is assigned to them, they receive no remuneration whatsoever. They invoke their right to be assured a minimum income or a minimum number of shifts per month, in keeping with their professional conscientiousness and the fact that they are under permanent obligation to be present at all calls. The Government, for its part, admits that as these workers are unemployed, they are seeking to be hired for dock work on the very occasional days when the number of workers needed exceeds the public service's estimate of its requirement for permanent workers. The economic coverage of their situation on the days when they do not work depends on their individual entitlement to unemployment benefit. However, Article 2, paragraph 2, of the Convention provides that "in any case, dockworkers shall be assured minimum periods of employment or a minimum income, in a manner and to an extent depending on the economic and social situation of the country and port concerned".

5. The Committee refers to its direct request of 1989, in which it asked the Government to state whether unemployment insurance for dockworkers had been regulated in any specific manner and to indicate the scope and nature of the minimum income guaranteed to such workers (Article 2, paragraph 2). In this connection, the Committee would be grateful if the Government would indicate, bearing in mind the arguments submitted by the above-mentioned dockworkers, whether unemployment benefit is granted immediately to all dockworkers to whom it has not been possible to assign work. The Government is also asked to indicate the manner in which it ascertains that the above-mentioned group of dockworkers is covered by appropriate safety, health, welfare and vocational training provisions (Article 6). [The Government is asked to report in detail for the period ending 30 June 1990.]