Unemployment Provision Convention, 1934 (No. 44) - Spain (Ratification: 1971)

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the observations of the Trade Union Confederation of Workers’ Commissions (CCOO), received on 31 August 2016, and the Government’s reply thereupon.

Article 1 of the Convention. Maintenance of a scheme of protection against unemployment. The Committee notes the information provided by the Government in reply to its previous request concerning coordination between employment policy and unemployment benefits.

Articles 9 and 10. Social collaboration works. The Committee notes that, in accordance with section 272.2 of the General Law on Social Security of 2015, jobseekers may be required to participate in social collaboration works (trabajos de colaboracion social) organized by public administrations and non-profit entities. Section 272.2 further specifies the criteria which must be met for work to be considered as social collaboration works: (a) be of social utility and beneficial to the community; (b) be of a temporary duration; (c) match the physical and professional skills of the unemployed person; and (d) be carried out within proximity to the habitual residence of the unemployed person. In accordance with article 25(4)(b) of the consolidated text of the Law on Infringements and Penalties in the Social Order of 2000, refusal to participate in social collaboration works is considered as a serious offence which may lead to the suspension of unemployment benefits, as set out in section 271 of the General Law on Social Security. With respect to the requirement of social collaboration works to be of social utility and beneficial to the community, the Committee notes that, according to the CCOO these include any work which is carried out for public administrations and may include work of any profession, specialization and trade. The CCOO further indicates that in practice, despite their temporary duration, social collaboration works can last for several years. The Committee notes the Government’s reply, indicating that the performance of these works does not imply an employment relationship between the unemployed person and the entity providing the works. The Committee further notes that, according to the Government, social collaboration works aim to facilitate the reintegration of unemployed persons by performing work in the public interest and maintaining their physical and occupational skills. In addition, unemployed persons who participate in social collaboration works maintain their right to unemployment benefit and receive, in addition, a payment corresponding to the difference between the unemployment benefit and the calculation base for the same work and, in any case, the interprofessional minimum salary is guaranteed. The Government also indicates that, in accordance with article 39 of the Royal Decree 1445/1982 of 22 June, public administrations which provide social collaboration works have to supply documentation on, among others, their social utility, expected duration, and location. Furthermore, the Committee notes the 2019 report on the application of the European Code of Social Security and its Protocol (Code) by Spain in which the Government indicates that “the current legislation does not specify the reasons why individuals receiving unemployment benefits may refuse to participate in the work of social collaboration”. The Government further indicates that the competent public employment services, “on a case-by-case basis, analyse in each individual case whether the justified cause alleged by the worker relieving him of the imposition of a penalty is present”. Noting the above, the Committee recalls that the purpose of unemployment provision, under the Convention, is to ensure income security to persons who have lost their job, or part of it, providing them with a payment related to contributions paid in respect of previous employment (Article 1 of the Convention). This payment, or unemployment benefit or allowance, should enable those persons to look for and freely choose suitable employment (Article 10 of the Convention), and to participate in training and skills development programmes (in accordance with Article 8 of the Convention) that enable them to increase their employability on the labour market, at least during a prescribed period. In this regard, the Committee refers to its comments on the application of the Code, in which it considers that conditioning the payment of unemployment benefit to the performance of social collaboration works, at least during the initial 13-week period of benefit payment protected by the Code, is not in conformity with Part IV of the Code. The Committee requests the Government to provide information on the number of cases where unemployment benefit was suspended as a result of a refusal by the unemployed person to participate in social collaboration works, and more specifically where such suspension occurred during the initial period of unemployment of 13 weeks. The Committee also requests the Government to provide additional information on what may constitute a “justified cause” of refusal to take part in social collaboration works, without suspension of unemployment benefit and the number of cases where such benefits were maintained due to a “justified cause”.

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

Article 1 of the Convention. Maintenance of a scheme of protection against unemployment. The Committee notes that, between 2007 and 2011, the number of persons in receipt of contributory and non-contributory unemployment benefits rose from 2 million to about 4.5 million, and the coverage of the unemployment benefit scheme rose from 71.4 to 78.4 per cent of persons seeking employment. With a view to softening the effects of the economic crisis affecting the country, the unemployment protection scheme has been subject to a significant number of modifications which bear witness to the diversity of the approaches tried by the Government with a view to improving the labour market in Spain. This diversity is illustrated by Act No. 35/2010 of 17 September 2010 adopting urgent measures to reform the labour market, the objectives of which include ensuring closer links between employment policy and unemployment benefits; redefining, for the purposes of unemployment benefit, the concepts of total and partial unemployment; including workers under training contracts for the purposes of contributions and the receipt of unemployment benefit; and increasing from 120 to 180 days the maximum period for which entitlement to unemployment benefit is re-established in the event of the suspension of the employment relationship as a result of a social plan. The other measures indicated by the Government include the following elements: the extension of unemployment protection to hitherto excluded categories of workers (members of cooperatives, self-employed workers, persons engaged in certain public and trade union positions); increased flexibility in the conditions of eligibility for unemployment benefit (both contributory benefits and social assistance allowances); the creation of new extraordinary unemployment cash benefits provided, subject to a means test, to persons who have exhausted their entitlement to other contributory or non contributory benefits; the creation of new benefits in relation with active labour market policies (active integration annuities paid to unemployment persons in need who are experiencing serious difficulties in finding employment), and with vocational recycling programmes; extension of the period for which benefits are provided; increase in the level of certain unemployment benefits; and an increase in the level and flexibility of the conditions for the granting of a lump sum to young unemployed persons instead of unemployment benefit when they opt to register as self-employed workers.

The Committee notes that the measures adopted by the Government are based on the need for the implementation of integrated and coherent policies, intended to promote simultaneously the two objectives of full employment and the extension of social security coverage. In view of the experience acquired by the Government in the management of the unemployment protection scheme in the context of the economic and social crisis and increased flexibility of the labour market, the Committee would be grateful if it would include in future reports general indications, under Part V of the report form on the Convention, in relation to the positive effects and practical difficulties encountered in ensuring effective coordination between employment policy and unemployment benefits, with an indication of the measures deemed effective in extending the coverage of unemployment benefit to flexible forms of employment. In so doing, the Government is invited to refer to the observations made by the Committee on these issues in its General Survey of 2011 on the social security instruments, Part IV, Chapter 2, “The need for effective coordination between social security and employment policy” (see in particular paragraphs 517–519).

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

Article 2 of the Convention. Application of the Convention to training contracts. With reference to its previous comments, the Committee notes with satisfaction the adoption of Act No. 35/2010 adopting urgent measures to reform the labour market which, among other effects, amended the Workers’ Charter with a view to extending protection against unemployment to persons engaged in training, in accordance with Article 2 of the Convention. According to the information provided by the Government, this measure has resulted in a substantial improvement in the legal rules governing training contracts with a view to promoting employment and making this type of contract more attractive for both enterprises and workers.

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

The Committee takes notes of the detailed information sent by the Government in its report and wishes to draw the Government’s attention to the following points.

Article 2, paragraph 2, of the Convention. Exclusion of certain workers from the scope of the unemployment insurance scheme. With reference to the Committee’s previous comments on the exclusion from the unemployment insurance scheme of workers employed under training contracts, the Government confirms that section 11.2(a) of the Workers’ Act establishes 21 years as the maximum age for the conclusion of such contracts. The Government also indicates that the social dialogue process for a reform of the labour market led in May 2006 to an agreement which has implications for the manner in which training contracts are regulated. The agreement provides, for example, that the maximum age is to be increased to 24 years in the case of apprentices trained under school–workshop programmes and in vocational training courses (alumnos-trabajadores a los programas de escuelas-taller y casas de oficios) and that it will be abolished for apprentices engaged under employment workshop programmes (alumnos-trabajadores a los programas de talleres de empleo) and for persons with disabilities. The Committee takes due note of this information. It points out that although the Convention allows the exclusion from unemployment benefit of young workers under a prescribed age (Article 2, paragraph 2(f)), the age must not be too high. The Convention also allows the exclusion of exceptional classes of workers in whose cases there are special features which make it unnecessary or impracticable to apply to them the unemployment protection scheme (Article 2, paragraph 2(j)). However, States that resort to the exceptions allowed by the abovementioned provisions are required in their subsequent report to provide information on the reasons for excluding the workers in question and to indicate whether these circumstances still exist and continue to warrant, for example, the existence of different age limits on the basis of type of return to work assistance programme. The agreement concluded in the course of the social dialogue process to reform the labour market, the effect of which is to increase or abolish the upper age limit for concluding training contracts for certain categories of workers, could tend to establish the existence of circumstances warranting such measures. The Committee nonetheless notes that the Government’s report contains no relevant extracts of the final report on the work done in the context of the social dialogue process that led to the agreement of May 2006 with the social partners, or the statistical information requested previously, broken down by age, on the number of young persons engaged on the basis of training contracts and the average duration of these contracts. It will be grateful if the Government would provide all the requisite information in its next report.

Part V of the report form. The Committee previously expressed its concern at the large number of unemployed with no protection and asks the Government to continue to provide detailed information on the number of beneficiaries of unemployment benefit in relation to the total number of the registered unemployed, and on any new measures taken in this respect. In the absence of any information in the Government’s last report, the Committee can only hope that such information will be sent shortly. The Committee further notes that according to the Government’s report, the number of judicial decisions on disputes concerning the payment of unemployment benefit dropped significantly between 2002 and 2005, and would be grateful if the Government would provide information on the possible reasons for this.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the detailed information provided by the Government in its report as well as the comments made by the General Union of Workers (UGT).

1. In its comments, the UGT notes that less than 50 per cent of workers who are involuntarily unemployed receive unemployment benefit. It stresses the need to reform the unemployment protection system increasing the flexibility of conditions for provision of benefits and increasing the number of beneficiaries. In addition, the trade union considers that the surplus yielded from unemployment contributions should not be used to finance non-contributory social assistance benefits, employment promotion policies or to grant subsidies to employers - which should be financed from the state budget - but to increase the number of unemployed persons acceding to contributory unemployment benefit and also the scope of such benefit.

In its report, the Government recalls the reasons for the modifications made to the unemployment compensation system in 1992 and 1994. It states that the number of unemployed persons entitled to unemployment benefits should stabilize around 50 per cent. Furthermore, the action plan for employment approved by the Council of Ministers is focused, in conformity with European Union directives in this respect, on active employment policies and reinsertion policies rather than passive policies or unemployment protection policies, but nonetheless without lowering the level of protection against unemployment already attained.

The Committee takes note of all this information. It recalls that, notwithstanding the modifications made to the unemployment compensation regime in 1992 and 1994 (stricter conditions governing entitlement to benefits and length of benefits), the legislation continues to give effect to the provisions of the Convention with the exception of the point developed in paragraph 2 below. The Committee is nonetheless concerned by the large number of unemployed persons without protection. Under the circumstances, it requests the Government to continue to supply detailed information on the number of persons entitled to unemployment benefits as compared to the total number of registered unemployed. It also requests the Government to supply information on any new measures adopted in this respect.

2. Article 2, paragraph 2, of the Convention. With reference to the Committee's earlier comments on the exclusion from the unemployment protection regime of workers under contracts of apprenticeship, the Government states that this type of contract has been replaced by a training contract, the modalities of which had been subject to negotiation and agreement by the social partners (Chapter I of Act No. 63/97 of 26 December 1997 on urgent measures to improve the labour market and promote permanent employment). These contracts are for young persons without skills or with few skills and answer to the need to encourage employment of young persons, a category particularly affected by unemployment, by reducing the cost of such employment. While the Committee is aware of the considerations which have led to the exclusion of persons holding training contracts from the unemployment protection system, it nonetheless recalls that, while the Convention allows exclusion from unemployment benefits of young workers under a prescribed age (Article 2, paragraph 2(f)), it is clear from the preparatory work on the Convention that the term "young" was added to this provision to ensure that the prescribed age was not excessively high. In this connection, the Committee notes with interest the Government's indication, on page 8 of its report, that the age at which workers may take advantage of these contracts has been reduced from 24 to 19 years. However it observes from Act No. 63/97 cited above, that the new drafting of section 11 of the Workers' Statute Act opens such contracts to young persons aged between 16 and 21 years. Under these circumstances, the Committee requests the Government to provide clarification on this point in its next report. It also requests the Government to submit statistical information, disaggregated by age, on the number of young persons employed under these contracts and on the average length of the contracts.

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

1. The Committee recalls that Act No. 22 of 30 July 1992 respecting urgent measures to promote employment and protect against unemployment and Royal Legislative Decree No. 1/1994 of 20 June approving the consolidated text of the General Social Security Act provide, among other measures, for stricter conditions regarding entitlement to unemployment benefit while amending the rules concerning the duration of the benefits. In this connection, a communication of the General Union of Workers in 1996 stated that many workers were totally deprived of the right to unemployment benefit and others were left with a lower level of social assistance benefit, thereby reducing the protection offered by the scheme. The drop in numbers eligible for benefit meant that by the end of 1995 there were some 2,300,000 unemployed without entitlement to unemployment benefit. According to the data provided by the Government in a report received in September 1996, the total cost of unemployment benefit was in thousand of million pesetas in 1994 2,037.3 and in 1995 (provisional data) 1,680.9.

The Committee notes the indications from the UGT and the statistical data supplied by the Government. Under national legislation, entitlement to a contributory unemployment benefit requires 360 days of contributions over the six years preceding unemployment. Article 6 of the Convention, for its part, provides that the right to receive benefit or an allowance may be made conditional upon the completion of a qualifying period involving the payment of a prescribed number of contributions within a prescribed period preceding the claim to benefit or the commencement of the period of unemployment, leaving national legislation to prescribe the duration of said period. In addition, in Paragraph 6 of the Recommendation on unemployment, 1934 (No. 44), it is stated that the qualifying period permitted by the Convention should not exceed 52 weekly contributions during the preceding 24 months. The duration of benefits varies in Spain between 120 and 720 days, on the basis of the period of contributions, which does not seem contrary to the provisions of Article 11 which lays down that the right to receive benefit or an allowance may be limited in duration to a period which shall not normally be less than 156 working days per year, and shall in no case be less than 78 working days per year.

Nevertheless, the Committee is aware of the serious effects which the legislative provisions adopted in 1992 may have on the categories of workers affected, as stated in the observations of the UGT. Consequently, the Committee hopes that the Government's next report will include information on this matter and also on the efforts made to respond to the concerns such as those raised by the above-mentioned workers' organization.

2. Article 2, paragraph 2(f). In its observation of December 1995, the Committee noted that according to section 3(2)(g) of Act No. 10/1994, social protection of apprentices excludes unemployment benefit. According to the national legislation in force at that time, the contract of apprenticeship could be concluded by persons aged between 16 and 25 years for a period of up to three years. In its report of September 1996, the Government provides statistical information, according to age, of young persons who concluded contracts of apprenticeship and the average duration of such contracts for 1994-95. The Government stresses that not all young workers are excluded from protection but only those workers holding apprenticeship contracts. The Government adds that these workers would probably not have entered the workforce if this type of contract did not exist. The Committee notes the aforesaid information and the fact that the latest legislative reforms (Royal Legislative Decree No. 8/1997, of 16 May, on urgent measures to improve the labour market and promote permanent employment) has introduced a system of training contracts which can be concluded by workers over 16 and under 21 years old who do not benefit from unemployment benefits either. It provides that such contracts are of a maximum duration of two years. The Committee recalls that under Article 2, paragraph 2(f), the Convention allows exceptions in respect of young workers under a prescribed age. As indicated in its previous comments, during preparatory work, the word "young" was added to the Convention in order to guarantee that the prescribed age was not excessively high. The Committee once again expresses the hope that the Government will re-examine the matter of ensuring the best possible application of the Convention in relation to the situation of workers who have concluded a training contract. It requests the Government to include in its next report detailed information on the progress and results achieved in this direction.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

See under Convention No. 102, as follows:

Referring to its previous comments, the Committee takes note of the Government's report for Convention No. 102, as well as its reports submitted under Convention No. 24 and Convention No. 44. The Committee also notes the new comments of the General Union of Workers (UGT) on the application of Convention No. 44 and Convention No. 102. These comments, which also have an impact on the application of Convention No. 24, were transmitted to the Government on 21 November 1996. The Committee decided to defer its examination of them until its next session in order to consider the reports and observations together with the Government's first report on the application of the European Code of Social Security, and in light of all supplementary information which the Government may wish to communicate in this regard.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

1. The Committee notes the information provided by the Government in its report. It has also examined the new legislation respecting unemployment which was supplied by the Government, namely Act No. 22 of 30 July 1992 respecting urgent measures to promote employment and protect against unemployment and Royal Legislative Decree 1/1994 of 20 June containing the consolidated text of the General Social Security Act. The Committee notes that this legislation provides, among other measures, for stricter conditions for entitlement to unemployment benefit, while reducing the amount of the benefits. In this connection it further notes the comments on the application of the Convention made by the General Union of Workers (UGT) and the Trade Union Confederation of the Workers' Committees (CC.OO), which are supplied by the Government together with its reply to them. The Committee considers that, despite the legislative changes underlined by the trade unions, the provisions of the Convention continue to be applied, subject to point 2 below.

2. The Committee notes that in its comments the CC.OO referring to section 3, subsection 2(g) of Law 10/1994 of 19 May, concerning urgent measures for the promotion of employment, states that it totally deprives workers who conclude a contract of apprenticeship ("contrato de aprendizaje") of the right to unemployment benefit. Taking into account that this contract, for workers between 16 and 25 years of age, can be concluded for a period of up to three years, the CC.OO points out that a 28 year-old worker who has concluded a contract of apprenticeship could find himself without any unemployment protection. In this connection the Committee further notes that the UGT, in its later comments concerning the application of Convention No. 102 communicated in January 1995, also considers the above provision of the legislation is not in conformity with the international standards.

In reply to the comments of the trade unions, the Government states that the contract of apprenticeship is a special contract aimed at facilitating the entry into the workforce of young persons who lack specific training or working experience and providing them with the necessary theoretical and practical education. It adds that provisions regulating the contracts of apprenticeship establish minimum standards, and that a number of conditions, such as the duration of the contract, the time assigned to theoretical training and the remuneration of an apprentice, may be established through collective agreements with the participation of the trade unions. Finally, as regards Convention No. 44, the Government states that apprentices can be excluded from the scope of its application under Article 2, paragraph 2(f), of the Convention.

The Committee notes that, according to section 3, subsection 2(g), of Law 10/1994, mentioned above, social protection for apprentices shall include only the contingencies of employment injury, health care for disease of non-occupational origin, maternity cash benefit, pensions and wage guarantee fund, thus excluding unemployment benefit. It recalls that Convention No. 44, by virtue of Article 2, paragraph 1, applies to all persons regularly employed for wages or salary, subject to possible exceptions with regard to the categories of persons enumerated in paragraph 2 of this Article. The Committee observes in this respect that apprentices are employed for wages and that the time they actually work in relation to the time spent in theoretical training may comprise up to 85 per cent of their working day (section 3, subsection 2(e) and (f), of Law 10/1994). The Committee recalls that, as regards Article 2, paragraph 2(f), of the Convention which permits the exclusion of "young workers under a prescribed age", it appears from the preparatory work on the Convention that the word "young" was specifically added to this provision in order to ensure that the age prescribed should not be too high. This would apparently not be the case under the Spanish legislation where workers may continue in apprenticeships until the age of 28 years which would be too high to call the workers "young workers". For these reasons, while being fully aware of the need to take measures to promote employment of young persons, the Committee hopes that the Government would reconsider the question with a view to ensuring better application of the Convention on this point.

3. Finally, as regards changes in the definition of "suitable" employment, the Committee notes the detailed explanation given by the Government in its report, as well as the information and judicial decisions supplied in its report on Convention No. 122 in connection with the previous comments made by the UGT and CC.OO on this subject.

[The Government is asked to report in detail in 1996.]

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the Government's report. It also notes the comments on the application of the Convention made by the General Union of Workers (UGT) and the Trade Union Confederation of the Workers' Committees (CC.OO), supplied by the Government together with its reply to the comments. Since this communication was received by the ILO only on 12 January 1995, the Committee has decided to examine it at its next session in November-December this year.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee takes note of the communication from the Trade Union Confederation of Workers' Committees (CC.OO.), dated 14 September 1990. It refers in this connection to its comments under Convention No. 122, as follows:

1. With reference to its previous comments, the Committee is grateful for the very detailed information sent by the Government in its report for the period ending 30 June 1990. The Government indicates that the employment promotion policy implemented during the period covered followed the same course as has been pursued since 1984: the programmes to assist job creation in the private sector and the special employment programmes for the public sector have been maintained. Since 1990, special employment plans for depressed rural areas have been implemented by the Autonomous Communities. Special measures to promote employment include an increase in the jobs on offer in the public sector, tax incentives granting tax reductions for job creation, and assistance to geographical mobility, day-care centres for children and migrant workers. The most recent objectives of the National Plan for Training and Occupational Integration concern the integration of young workers into the labour market and the vocational training of workers with family responsibilities.

2. According to the information supplied, there has been a sustained increase in employment, of approximately 4 per cent in 1989, particularly in the construction and services sectors, but there have been substantial decreases in the rural sector and in the Autonomous Communities of Andalucia and Extremadura (where the unemployment rate is now around 26 per cent). Employment of wage earners increased by 6.2 per cent, particularly involving temporary workers. Their proportion of wage-earning employment has greatly increased from 15.6 per cent in the second quarter of 1987 to 28.2 per cent in the fourth quarter of 1989. The number of persons in permanent jobs has increased by 101,200 and in temporary jobs by 405,400. There are more male than female employees in permanent employment (73.4 per cent in respect of men as opposed to 67.8 per cent in respect of women). Temporary contracts are also more frequent among young workers. However, taking account of the substantial increase in the economically active population - particularly in the case of women entering the labour market - the unemployment rate is particularly high (approximately 20 per cent or more between 1986 and 1988, and around 17 per cent in 1989 and 1990). Long-term unemployment still accounts for approximately 50 per cent of total unemployment, and the unemployment rate is three times higher among young workers than among other categories of workers.

3. In reply to previous comments, the Government provides detailed information on the results of the different recruitment procedures designed to promote employment which make it possible to recruit specific categories of workers which encounter difficulties in entering the labour market (young people, women, older workers, the disabled). The Committee takes note of the document concerning precarious employment, submitted by the Trade Union Confederation of Workers' Committees in September 1990, which points out that instability and fleeting attendance at the place of work not only destroy the basic concepts of democratic society but also lead to a supply of labour of low productivity. The Committee recalls its comments on the application of the Termination of Employment Convention, 1982 (No. 158), in which it requested particulars of the use made of certain types of contracts of employment which might avoid the protection provided for in the above Convention, and would be grateful if the Government in its next report on Convention No. 122 would continue to provide information on the progress achieved in satisfying the needs of all categories of persons that frequently encounter difficulties in finding lasting employment.

4. The Committee notes the agreements reached since January 1990 in the discussions between the Government and the trade unions. The Committee hopes that, in accordance with the provisions of Article 3 of the Convention, consultations with the representatives of the persons concerned will make it possible for the latter's experience and views to be taken fully into account and for their full co-operation to be obtained in formulating and implementing employment policy. It would be grateful if the Government would continue to provide the information required by the report form to show developments in the area of employment policy, including details on the results of employment promotion measures both nationally and in the Autonomous Communities.

Direct Request (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee notes the communication of 16 December 1987 from the Trade Union Confederation of Workers' Commissions and the appended document on the analysis of the labour market in Spain during 1986. The Committee also notes the Government's reply to the above communication. The Committee considers that the information communicated by the above Confederation does not affect the implementation of this Convention.