Observation (CEACR) - adoptée 2014, publiée 104ème session CIT (2015)

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

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

At its 321st Session (June 2014), the Governing Body entrusted the Committee of Experts with following up the questions raised in the report of the tripartite committee which examined the representation made by the Trade Union Confederation of Workers’ Committees (CCOO) and the General Union of Workers (UGT) alleging non-observance by Spain of Convention No. 158 (document GB.321/INS/9/4, of 13 June 2014). In paragraph 226 of its report, the tripartite committee noted the importance attached to international labour standards in Spain as shown, in particular, by the ratification of numerous international labour Conventions (of which 84 are currently in force). The tripartite committee also recalled the tripartite discussion held in the Conference in June 2013 concerning the Employment Policy Convention, 1964 (No. 122), in which it was noted that, since the beginning of the economic recession in 2008, and in light of the difficulty of overcoming the debt crisis in the Eurozone, there have been serious challenges in the application of some Conventions. The tripartite committee also recalled that the Committee on Freedom of Association, in its consideration of Case No. 2947, took due note of the need to respond urgently to an extremely serious and complex economic crisis and to address the serious unemployment situation (the highest in the European Union). Like the Conference Committee and the Committee on Freedom of Association, the tripartite committee emphasized the importance of ensuring that the rules governing important aspects of labour relations are supported by the social partners. The Committee refers to the observation that it is making this year on Convention No. 122 and, like the tripartite committee, invites the Government to increase its efforts to reinforce social dialogue and, in consultation with the social partners, to find solutions to the economic difficulties that are in accordance with Convention No. 158.

Exclusions. Establishment of a one-year period of probation under the “entrepreneur-support” employment contract (paragraphs 227–247 of the report). The tripartite committee observed that Article 2(2) of the Convention provides that some categories of workers may be excluded from all or some of its provisions, but considered that the widespread use of such exclusions would be contrary to the purpose of the Convention, which is to provide a balance between the interests of employers and those of workers by promoting social dialogue as a means of achieving this balance. The tripartite committee considered that no direct link between the facilitation of dismissals and job creation had been demonstrated. The tripartite committee also observed that, according to the two confederations, the “entrepreneur-support” contract (provided for in section 4 of Act No. 3/2012 of 6 July) was established without social dialogue. The tripartite committee was of the view that it did not have sufficient basis to consider that the extension to one year of the exclusion from the scope of the Convention could be considered reasonable, especially as this extension was not the result of social dialogue and was introduced generally in this type of employment contract. The Committee therefore invites the Government to provide information on the evolution of the “open-ended entrepreneur-support contract” and the related issue of social dialogue, in light of the information available, to examine the possibility of adopting measures, in consultation with the social partners, to ensure that this type of contract is not terminated at the initiative of the employer as an abusive means of avoiding the protection afforded by the Convention.

Articles 1, 8(1) and 9(1) and (3). New regulations respecting economic, technical, organizational or production-related reasons for dismissal (paragraphs 248–266 of the report). The tripartite committee observed that the new wording of section 51(1) of the Workers’ Charter and the practice of the courts still allowed judges to consider not only the validity of the reasons for dismissal, but also the circumstances of the dismissals, and to determine whether the dismissals were really for the reasons put forward by the employer. The Committee invites the Government to provide information on the manner in which the new regulations respecting economic, technical, organizational or production-related reasons for dismissal have been applied in practice, including statistics on the number of appeals made, the outcome of those appeals and the number of terminations for economic or similar reasons.

Article 10. Abolition of salarios de tramitación in cases where the employer opts for termination of the employment contract further to a judicial ruling of unfair dismissal (paragraphs 267–280 of the report). The tripartite committee noted that section 56(1) of the Workers’ Charter, as amended by the 2012 labour reform, reduces, in cases of unlawful dismissal compensation, in place of reinstatement, to 33 days’ wages for each year of service, or on a pro-rata basis for each month of service for periods of less than one year, not exceeding 24 monthly payments. The tripartite committee, however, found that Spanish Courts are still empowered to order the payment of adequate compensation or such other relief as may be deemed appropriate where it is concluded that termination of the employment relationship is unjustified. The Committee requests the Government to provide information on the type of compensation awarded in cases where the courts have ruled that termination of the employment relationship was unjustified.

Article 6. Changes in the regulations on absenteeism because of duly certified illness or accident: dismissal for absenteeism (paragraphs 281–296 of the report). The tripartite committee noted that the amendments to the wording of section 52(d) of the Workers’ Charter made by Act No. 3/2012 require that the total number of absences from work during the previous 12 months must amount to 5 per cent of working days. Furthermore, the new wording introduces the concept that absences due to temporary incapacity, such as absence resulting from medical treatment for cancer or serious illness, cannot be counted for this purpose. The Committee invites the Government to provide information on the manner in which absences resulting from temporary incapacity, particularly as a result of medical treatment for cancer or serious illness, are calculated.

[The Government is asked to reply in detail to the present comments in 2015.]