Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Spain (Ratification: 1967)

The Committee notes the observations of the Trade Union Confederation of Workers’ Commissions (CCOO) and the observations of the Spanish Confederation of Employers Organizations (CEOE) transmitted with the Government’s report. The Committee also notes the Government’s reply.

Article 1(1)(a) of the Convention. Discrimination based on race, colour, religion and national extraction. The Committee notes the Government’s indication in its report, in response to the Committee’s request for information regarding the evolution of discrimination in employment and occupation based on race, colour, religion and national extraction, that: (1) the Council for the Elimination of Racial and Ethnic Discrimination has concluded its 2020 Study of the perception of discrimination, which finds employment to be one of the areas in which there is the most discrimination on grounds of racial or ethnic origin, with the non-Mediterranean African population group the most affected, followed by persons of African descent and those from the Maghreb; (2) according to the study, the most common discriminatory situations concern the assignment of worse timetables and harder tasks, lower wages for the same work, refusal to issue an employment contract and the obligation to perform tasks not covered by the contract; and (3) according to the “Approach to the African and Afro-descendent population in Spain: Identity and access to rights”, a study conducted in 2021, 24 per cent of persons surveyed work in low-skilled employment, 44 per cent in mid-level skilled employment, irrespective of their training level, while 95 per cent consider that they have at present less chance of acceding to positions of responsibility, and 94 per cent of finding a job. The Committee also notes that the Government emphasizes, with respect to the collection of statistics, that data on belonging to a group based on race, ethnicity, sex, religion or other circumstances, are protected under Spanish law and are therefore not reflected in the statistics. However, the Government indicates that the General Directorate for Equality of Treatment and Racial and Ethnic Diversity (DGITYDER) is in dialogue with various actors concerned regarding the suitability of collecting data on ethnic origin where the objective is to eliminate racial discrimination.

The Committee welcomes the reactivation since 2018 of the Council for the Elimination of Racial and Ethnic Discrimination. In this regard, the Government indicates that the Council’s care service for victims of racial or ethnic discrimination continues to provide support in specific cases of discrimination (65 cases in respect of employment in 2019), as well as undertaking information and awareness-raising activities and that, in view of the low level of complaints, measures will be taken to promote and give visibility to the service, for example by filing legal action and, in certain cases, representing victims. The Committee also notes the Government’s reference to the II Strategic Plan for Citizenship and Integration (PECI) 2011–14 and that the CEOE, in its observations, considers it primordial to progress in formulating a new plan. Regarding the assistance measures taken for migrant workers, including migrant domestic workers, the Committee refers to its earlier comments made in relation to the application of the Migrant Workers’ Convention (Revised), 1949 (No. 97).

With regard to the measures adopted in respect of the Gypsy population, the Committee also notes that the Government refers to the 2018 Progress Report on the National Strategy for the social inclusion of the Gypsy population 2012–20, according to which approximately 32.2 million euros has been invested in action and measures aimed at the Gypsy population, the largest proportion of which (39.04 per cent) is in the field of employment, and principally for the improvement of access to employment and the reduction precarious work. Nevertheless, the Committee notes the Government’s indication of the need to intervene more effectively, given that the 2019 Comparative study on the situation of the Gypsy community carried out by Fundación Secretariado Gitano (Roma Foundation) shows that while the Gypsy population’s participation rate in paid work fulfilled the objectives of the Strategy, the objectives for the employment and unemployment rates were not met, and the rate of temporary employment remained at 68 per cent. In this regard, the Committee also notes, from the Government’s web page, that a final evaluation of the 2012–20 strategy was begun in December 2020, and that the next national strategy is being prepared for 2021–30, in line with the guidelines issued under the European Union Roma strategic framework for equality, inclusion and participation 2020–30. The Committee notes the measures taken and the cross-cutting and substantive efforts made by the Government. The Committee trusts that the Government will continue its efforts to the extent possible to promote equality in employment and occupation effectively of the Gypsy population, taking account of the evaluations and results of previous measures. The Committee requests the Government to provide information on: (i) progress made in the adoption of the National Strategy for the Social Inclusion of the Gypsy Population 2021–30; (ii) the results of the II Strategic Plan for Citizenship and Integration (PECI) 2011–14 and and follow-up measures; (iii) the action taken by the Council for the Elimination of Racial and Ethnic Discrimination; and (iv) the evolution of discrimination in employment and occupation based on race, colour, religion and national extraction, including the possible integration of related data in national statistics.

General observation of 2018. In respect of the issues raised above, and more generally, the Committee wishes to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction, adopted in 2018.

Article 2. Equality of opportunity for men and women. Equality plans and measures. Legislative developments. The Committee notes with satisfaction that in response to its request to continue adopting proactive measures, in collaboration with the social partners, with a view to increasing the number of enterprises which adopt equality plans, the Government reports the adoption of Royal Decree-Law No. 6/2019 of 1 March on urgent measures to ensure equality of opportunity and treatment for women and men in employment and occupation, amending section 45.2 of Basic Act 3/2007 of 22 March on effective equality for women and men, and making it obligatory for enterprises of more than 50 workers to adopt an equality plan (an obligation previously applicable to enterprises of more than 250 workers), and also requiring the preparation of the plan following prior negotiated analysis and its entry in the registry of equality plans in enterprises. The Government adds that the application of this obligation is gradual and allows enterprises different timeframes according to the size of the payroll. The Committee notes the implementation of these obligations through Royal Decree No. 901/2020 of 13 October regulating equality plans and their registration, and amending Royal Decree No. 713/2010 of 28 May on the registration and deposit of collective labour agreements, which addresses: (1) the procedure for negotiating equality plans, including the establishment of the negotiating commission and the negotiating procedure; (2) the content of the prior negotiated analysis covering selection and recruitment, occupational classification, training, career development, terms and conditions of employment (including a pay audit), co-responsibility in the exercise of personal, family and work life rights, under-representation of women, remuneration and the prevention of sexual and gender-based harassment; (3) the minimum content of the equality plan (qualitative and quantitative objectives, specific means and resources, implementation programme) and the plan’s statistical sheet; and (4) the period of validity, follow-up, evaluation and revision of the plan. In this regard, the Committee notes the CEOE’s observation that an appeal against section 5 of Royal Decree No. 901/2020 has been lodged with the Supreme Court, on the grounds that it imposes undue restrictions on the legal rights of those entitled to negotiate equality plans.

The Committee also notes that the Institute for Women (IMS) has strengthened its free counselling service to assist in the design, execution and implementation of equality plans, offers subsidies for the elaboration and implementation of plans by enterprises that are not obliged to adopt them (that is, since 2019, enterprises with between 30 to 49 workers) and has published information material on the elaboration and registration of equality plans. The Committee also observes that Royal Decree-Law No. 6/2019 amends the Royal Legislative Decree 5/2000, of 4 August approving the consolidated text of the Act on social offences and penalties to include a definition of a serious offender in case of failure by enterprises to comply with their obligations in respect of equality plans and measures. The Government also refers to Act No. 11/2018 of 28 December amending the Commercial Code, the consolidated text of the Corporate Enterprises Act, approved by Royal Legislative Decree No. 1/2010 of 2 July, and Act No. 22/2015 of 20 July, on the auditing of accounts in respect of non-financial information and diversity, which provides that: (1) the enterprise’s non-financial information shall include the measures adopted to promote the principle of equality of opportunity and treatment between women and men, non-discrimination and inclusion of persons with disabilities and universal accessibility; and (2) that the annual corporate governance report shall describe the diversity policy applied in the executive board, at management level and in the specialized commissions established.

The Committee further notes the information provided by the Government on the “Equality in the Enterprise” label, which was awarded to 57 more entities between June 2017 and May 2021, and on the various activities organized by the network of enterprises that have received the label in exchanging and sharing good practices. The Government also emphasizes the adoption in December 2020 of the III Plan for Gender Equality in the General State Administration (AGE) and in its associated or dependent public bodies, which sets out six types of cross-cutting measures: instrumental measures for organizational transformation; awareness-raising, training and skills acquisition; terms and conditions of employment and career development; responsibility-sharing and personal, family and work life reconciliation; prevention of violence against women; intersectionality and special protection situations.

The Committee requests the Government to provide information on the implementation of Royal Decree-Law No. 6/2019 and Act No. 11/2018, including: (i) the number and most common contents of registered equality plans, as well as the number of violations observed and penalties imposed; (ii) the result of the appeal lodged with the Supreme Court against section 5 of Royal Decree No. 901/2020; and (iii) the equality and diversity measures reported in enterprises. The Committee also requests the Government to provide information on the measures adopted under the III Plan for Gender Equality in the General State Administration (AGE) and in associated or dependent public bodies.

In respect of provisions on equal remuneration and personal, family and work life reconciliation, the Committee refers to its comments on the application of the Equal Remuneration Convention, 1951 (No. 100), and on the Workers with Family Responsibilities Convention, 1981 (No. 156).

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