Demande directe (CEACR) - adoptée 2016, publiée 106ème session CIT (2017)

Convention (n° 29) sur le travail forcé, 1930 - Espagne (Ratification: 1932)
Protocole de 2014 relatif à la convention sur le travail forcé, 1930 - Espagne (Ratification: 2017)

The Committee takes note of the Government’s report, and the observations of the General Union of Workers (UGT) and the Trade Union Confederation of Workers’ Committees (CCOO), received on 22 and 31 August 2016 respectively, and the Government’s reply to these observations, received on 26 October 2016.

Articles 1(1), 2(1) and 25 of the Convention. 1. Trafficking in persons. In previous comments the Committee noted the prevention, coordination and suppression activities taken to combat trafficking in persons and encouraged the Government to pursue its efforts by reinforcing measures to combat trafficking for the purpose of labour exploitation.

Legislative framework. The Committee notes that the Government supplies detailed information on the legislative amendments made to several texts in order to strengthen and adapt the legislative framework for combating human trafficking. It notes in particular:

• -the amendments introduced in section 177bis of the Penal Code criminalizing trafficking in persons, so as to include trafficking in which the victim commits an offence for the benefit of the exploiter, and forced marriage, and to define “situation of need or vulnerability” as a situation in which a person has no real or acceptable alternative but to submit to the abuse;
• -new section 127bis of the Penal Code, which facilitates the confiscation of goods, assets and earnings arising from trafficking in persons, whether or not in a context of organized crime; and the establishment of an office to recover and manage such assets and use them in activities for prevention and assistance to victims;
• -Act 4/2015 establishing offence victim status, which creates offices for assistance to victims which provide them with guidance and information on their rights and the possibility of access to a public compensation system; provision is also made for special protection for the most vulnerable victims, including victims of trafficking.

Strengthening action to combat human trafficking for the purpose of labour exploitation. The Committee notes that, according to the Government, the preparatory work for the Comprehensive Plan to combat human trafficking for the purpose of labour exploitation is under way and that meetings have been organized with the representatives of various ministries and with workers’ and employers’ organizations. The Government refers to the central role played by labour inspection in detecting possible instances of trafficking for the purpose of labour exploitation, particularly in the context of visits that the inspectorate carries out jointly with law enforcement bodies. Special training on trafficking for the purpose of labour exploitation is dispensed to inspection service staff to enable them to identify the elements of this offence and, as necessary, provide the Public Prosecutor with a detailed report of the factual findings and the persons involved. The Government also sends information on the training provided for law enforcements officers (General Police Directorate and Civil Guard). The Committee notes in this connection that the UGT regrets the lack of a specific plan to combat human trafficking for the purpose of labour exploitation, given the large number of victims, identified or presumed, and is seeking a more ambitious policy which includes protection for victims.

Suppression of trafficking. Regarding the application of section 177bis of the Penal Code, the Government mentions more than 30 court decisions handed down between 2011 and 2015 under this provision. It also refers to 15 ongoing legal actions brought for trafficking for the purpose of labour exploitation involving 111 victims (mostly men) and to proceedings under way in 2015 for trafficking for the purpose of sexual exploitation and forced prostitution. The Government points out that the fight against human trafficking is a priority for the General Police Directorate and the Civil Guard, which repeatedly conduct operations at borders, in transport and wherever the presence of victims is suspected. In the case of trafficking for the purpose of labour exploitation, between 2013 and 2015 the police carried out over 700 interventions, as a result of which more than 1,100 persons were arrested and 860 victims set free. Furthermore, as part of the Police Plan against trafficking in persons for the purpose of sexual exploitation, between January 2015 and March 2016, 258 police operations were conducted, leading to 805 arrests in instances involving 16,000 presumed victims.

The Committee takes note of all this information and encourages the Government to continue to take the necessary steps to further heighten awareness and step up training for labour inspectorate, law enforcement and legal personnel to acquaint them with the new tools the law provides to allow better identification of instances of trafficking in persons for the purposes of sexual exploitation and labour exploitation, thereby ensuring the protection of victims and the punishment of offenders. It requests the Government to continue to provide information on legal proceedings brought under section 177bis of the Penal Code, the nature of the penalties imposed, the number of victims granted a recovery period and the number who received compensation. Lastly, the Committee requests the Government to provide information on the evaluation to be conducted of the policy implemented to combat human trafficking and on the obstacles encountered, particularly as regards trafficking for the purpose of labour exploitation.

2. Exploitation of vulnerable migrant workers amounting to forced labour. The Committee asked the Government in previous comments to take measures to strengthen protection for migrant workers, who, while not victims of trafficking in persons, are in a situation of vulnerability in which work could be imposed on them in conditions amounting to forced labour. The Committee notes the information provided by the Government on the collaboration between the labour inspectorate and law enforcement bodies under the Plan to combat unlawful employment and social security fraud and the action taken to implement it. It notes in this respect that although the UGT indicates that the Plan’s main objective is not to detect instances of trafficking or labour exploitation but rather to detect social security fraud, the Government considers that the Plan constitutes a measure that contributes to the combat against trafficking in persons for the purposes of labour exploitation. To that end, according to the Government, close cooperation is maintained between the labour inspection services and the security forces, which are the competent authorities for prosecuting these crimes. The UGT also points to a deficiency in the protection of undocumented migrant workers who fall victim to forced labour or labour exploitation: unlike presumed victims of trafficking, they have no entitlement to a temporary residence permit until a final court decision awards them victim status, which means that some of them may be expelled before the conclusion of the proceedings because of their irregular situation. The Committee accordingly asks the Government to continue to raise awareness of the competent authorities and train them to identify instances of labour exploitation amounting to forced labour and, when such situations are observed, to ensure that the presumed victims are adequately protected and in a position to assert their rights. Please provide specific information on reported offences against sections 311(1) and 312(2) of the Penal Code (imposition of working conditions that adversely affect or violate the rights of workers through recourse to deceit or by taking advantage of the worker’s state of necessity), the legal proceedings brought and the penalties imposed.

3. Obligation for persons receiving unemployment benefit to engage in community work. The Committee notes that in its observations, the CCOO expresses the view that the law requiring recipients of unemployment benefit to undertake community work is at odds with the Convention. The CCOO explains that to be entitled to unemployment benefit a person must have contributed for a specified period and in order to keep the entitlement, must: be actively seeking work; participate in employment or training programmes; accept any suitable job offer; agree to do community work. The body managing unemployment benefits may thus require the beneficiaries to engage temporarily in community work. The CCOO also reports that while engaged in such work, unemployed persons are not protected by individual or collective labour provisions, inter alia as regards wages and social security, and are no longer in a position to look for jobs. Lastly, a refusal to carry out such work entails a three-month suspension of payment of the unemployment benefit. According to the CCOO, unemployed persons are no longer able to consent freely to do such work in so far as a refusal means the loss of an economic benefit for themselves and their families. The CCOO further mentions that community work may not be deemed to be “decent or suitable work”, being on the margins of the law.

In its reply, the Government indicates that community work is regulated by Decree No. 1809/1986, as amended. The performance of this work does not imply an employment relationship between the unemployed person and the entity accommodating him or her. It aims to facilitate the reintegration of unemployed persons by performing work in the public interest and maintaining their physical and occupational skills. This work is compulsory where it is not possible to integrate the beneficiary into the labour market through a mechanism which indirectly benefits the worker by maintaining a connection with working life and serving the public interest. It should be noted that, particularly for the long-term unemployed, following their participation in community work, the rate of employability for unemployed people increases. The Government specifies that where legislation is not adequately enforced, administrative and judicial mechanisms are in place to remedy the shortcomings.

The Committee points out that it has already expressed the view that, under schemes where benefits are contingent upon the recipient having worked or contributed to an unemployment insurance scheme for a minimum period, and the length of time during which benefits are paid is linked to the length of time the person concerned worked, the subsequent imposition of an additional requirement to perform work which does not constitute suitable employment may affect the application of the Convention (see General Survey of 2007, on the Eradication of Forced Labour, paragraphs 129–131 and 205). Consequently, the Committee requests the Government to ensure that a refusal to undertake community work does not entail a suspension of entitlement to unemployment benefit, particularly for persons who have just lost their jobs and need a reasonable period in which to look for and freely choose suitable employment. It also requests the Government to provide information on how community work functions in practice, specifying the number of unemployed persons who have been required to engage in community work, the number of those who have refused such work and the grounds invoked, and the number of those who have lost their unemployment benefit because of their refusal.