Observation (CEACR) - adoptée 1990, publiée 77ème session CIT (1990)

Convention (n° 158) sur le licenciement, 1982 - Espagne (Ratification: 1985)

1. The Committee takes note of the Government's report and of the further observations submitted by the Trade Union Confederation of Workers' Commissions (CC.OO.) in September 1989 and of the Government's reply to them. The Committee also notes the Government's replies to certain matters raised in a previous direct request. The Committee is addressing a further direct request to the Government concerning a number of outstanding issues.

2. Article 2, paragraphs 2 and 3, of the Convention. In its communication, the CC.OO. affirms that there are too many successive extensions of temporary contracts and that, furthermore, there are no legal safeguards against successive and unlimited renewals of fixed-term temporary contracts. The Committee requested information as to the extent of the recourse to fixed-term contracts, the situation of the workers concerned upon expiry of such contracts and the renewal of fixed-term contracts. The Government has provided statistical tables on the recourse to temporary contracts which show the high and growing number of short-term in-plant contracts and training contracts concluded since 1984. It affirms that more than one-third of short-term in-plant contracts and training contracts are converted into permanent contracts at the end of the initial period of validity, rather than being extended for the maximum period. It states that rules are to be adopted in the future which will help to stabilise the integration of young people into the labour market by means of a large subsidy for converting short-term in-plant contracts and training contracts, among other temporary contracts, into contracts of indefinite duration. The Government indicates that the initial period of validity plus the period of extension or of successive extensions of temporary contracts must not exceed three years. The Committee takes note of the foregoing and trusts that the Government will provide information on the measures envisaged, and on any new judicial decisions, to provide adequate safeguards against recourse to contracts of employment for a specified period of time the aim of which is to avoid the protection resulting from the Convention. It would be grateful if the Government would state what happens to the workers concerned upon expiry of the successive extensions of their fixed-term contract. In this connection, the attention of the Government is invited to the comments of the Committee on the application of the Employment Policy Convention, 1964 (No. 122), and Paragraph 3 of the Termination of Employment Recommendation, 1982 (No. 166).

3. Article 7. In its previous comments, the Committee pointed out that the worker should have the chance to defend himself against the allegations made before his employment is considered to have been terminated (underlining added). In its communication of September 1989, the CC.OO. stressed that legislation and practice in Spain do not guarantee full compliance with Article 7 with regard to providing the worker with the opportunity to defend himself against the allegations made prior to the termination (CC.OO.'s underlining). The Government, for its part, suggests that employment is terminated only upon a decision of the competent judicial body. This does not appear to be borne out by sections 54 and 55 of the Workers' Charter.

The Committee refers to the preparatory work on the Convention, and particularly on Article 7, where the Office, solely with a view to providing greater flexibility, agreed to delete from this provision the words "before he is afforded a hearing by the employer". The word "hearing" in the English version was considered to imply a quasi-judicial procedure. The Office felt that this reference could well be deleted without affecting the substance of this provision, according to which a worker should not have his or her employment terminated for reasons of conduct or performance before being given an opportunity to defend himself or herself against the allegations made (see: International Labour Conference, Report V(2), Termination of employment at the initiative of the employer, 68th Session, 1982, page 27).

The Committee again refers to section 55 of the Workers' Charter which allows dismissal (for disciplinary reasons) if the alleged breach of discipline is stated in the employer's written notification. The worker is apparently, contrary to the requirement of Article 7, not afforded the opportunity to defend himself against the allegations made before receiving the written notification of dismissal. The Committee would therefore be grateful if the Government would state when the employment is considered to be terminated, in the national legislation and in practice, and to specify the procedure available to a worker to defend himself against the allegations prior to the termination, as required by this Article of the Convention. Please provide a copy of the texts which ensure that full effect is given to this important provision of the Convention. [The Government is asked to report in detail for the period ending 30 June 1991.]