Demande directe (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention (n° 97) sur les travailleurs migrants (révisée), 1949 - Espagne (Ratification: 1967)

The Committee notes the observations made by the Trade Union Confederation of Workers’ Commissions (CCOO), the General Union of Workers (UGT) and the Spanish Confederation of Employers' Organizations (CEOE) communicated with the Government’s report. The Committee notes the Government’s responses to these observations.

Article 1(a) of the Convention. Information on national policies, laws and regulations. The Committee observes that, in its report, the Government refers to the adoption of laws and regulations concerning residence and work permits of migrant workers, such as: (1) Royal Decree-Law 11/2018, of 31 August, which refers to the European Union (EU) Directive 2016/801, and concerns, inter alia, the procedures for specific residence, mobility and work permits for third-country nationals carrying out research work in the country, international students who completed their studies in the country and wish to stay to seek employment opportunities, as well as foreign students wishing to participate in internship programs; (2) Order TMS/331/2019 concerning the requirements for the authorisation to electronically present files for residence permits covered by the international mobility regime; (3) Resolution of 8 April 2019 of the State Migration Secretariat concerning agreements on residence and work permits for third-country foreign nationals working in Spanish fishing boats that work, without an international fishing agreement, outside the Exclusive Economic Zone of Spain or outside the Mediterranean Sea. The Committee also notes that, in their observations, CCOO indicates that Royal Decree-Law 7/2018, of 27 July, on universal access to the National Health System, restores access to public health services to migrant workers in an irregular situation, and CEOE highlights measures adopted in 2020 to expedite the process of validating foreign certificates, especially in the health sector, which allowed validating more than 1800 certificates. The Committee further notes that the Government also refers to numerous legislative amendments that, albeit not focused on migrant workers specifically, may also be relevant to them, which include those relating to equality and non-discrimination, equal remuneration between men and women, as well as urgent measures for ensuring social protection and combating precarious work.

In addition, the Committee observes that the Government highlights that Labour Inspection services have continued to monitor and enforce labour legislation regarding migrant workers, and that the Strategic Plan for Labour Inspection and Social Security 2018–2020, includes specific measures to improve the protection of labour rights of migrant workers residing in Spain. The Government also explains that a Strategic Plan on Equal Opportunities 2018-2021 is currently being prepared. It adds that the Decent Work Strategy 2018–2019–2020 includes a number of specific measures to promote migrant workers’ employment in non-discriminatory conditions. The Committee requests the Government to continue providing information on the application in practice of any measures adopted in relation to the Convention, and in particular on measures adopted under the Decent Work Strategy 2018-2019-2020 and the results achieved. It also requests the Government to provide information on any advancements regarding the adoption of the Strategic Plan on Equal Opportunities, and particularly on whether it will include specific measures for migrant workers, including women migrant workers. The Committee requests again the Government to provide updated information on the activities of the Forum for the Social Integration of Immigrants.

Article 1(c). Information on general agreements and special rules. The Committee notes CCOO’s observations mentioning a bilateral migration agreement signed with Honduras on 28 May 2021 which, according to the Government’s reply, has not entered into force and, thus, has not been published yet. The Committee also takes note that the Government refers, in its report, to the Young Generation as Change Agents (YGCA) programme, which is dedicated to promoting migration of Moroccan graduates who studied at least a 1 year Master’s degree in Spain in the academic year 2019-2020. It notes that 98 students have benefited from this programme and that 23 of their projects (10 of which belong to female students) are being implemented in Morocco. The Committee requests the Government to provide information on the date when the bilateral migration agreement with Honduras will enter into force, and to provide a copy of the same. It also requests the Government to continue providing information on the general agreements and special rules adopted regarding migration for work.

Article 2. Return. The Committee takes note of the Government’s indication that the Return to Spain Plan was approved in 2019 with the objective to promote the return of Spanish citizens living abroad, including a pilot phase undertaken between June 2019 and June 2020 that provided services of employment placement and mentoring, resolution of administrative enquiries and psychological counselling to a total of 200 emigrants. The Government also indicates that the programme is currently being reframed due to the health, social and economic consequences of the Covid-19 pandemic. The Committee also notes CCOO’s observations that the results of the Return to Spain Plan are very modest and that, in reframing return programmes, other aspects should be considered, such as: (1) opening it up to a broader audience (beyond qualified workers, youth or persons born in Spain), (2) providing labour counselling through public employment services rather than private employment agencies, (3) providing measures tostrengthen the efficiency and specialization of public employment services, and (4) ensuring good coordination among different public administrations. The Committee requests the Government to provide information on the reframing and further implementation of the Return to Spain Plan 2019, and to continue providing information on any other measures related to the return of Spanish migrant workers.

Article 3. Measures against misleading propaganda. The Committee notes that, regarding this point, the Government again provides detailed information on enforcement activities carried out by labour inspectorates. The Committee also notes that, throughout its report, the Government refers to measures aimed at information and sensitization, including: (1) the promotion of a better understanding of migrant workers about their social rights and corresponding enforcement mechanisms, included in the Strategic Plan for Labour Inspection and Social Security 2018–2020; (2) sensitization measures on the importance of complying with equality and labour legislation, included in the Decent Work Strategy 2018–2019–2020; (3) the availability of information factsheets on the immigration website of the Ministry on Inclusion, Social Security and Migrations; and (4) data on the number of workers benefiting from the provision of orientation and employment information services. The Committee recalls the relevance of Article 3 of the Convention for the protection of workers from misleading information stemming from intermediaries who may have an interest in encouraging migration in any form to take place, regardless of the consequences for the workers involved. Given migrants’ vulnerability to this form of abuse, the Committee requests the Government to provide detailed information on the specific measures taken to prevent misleading propaganda and to penalize conduct that is misleading and harmful to migrants for employment, in addition to the enforcement activities carried out by labour inspectors and other information and awareness-raising activities.

Article 6(1)(a)(iii). Equal treatment in respect of accommodation. The Committee takes note of the Government’s indication that there is no differential treatment between migrant workers that are long-term residents and other migrant workers when applying section 13 of the Basic Act No. 4/2000 of 11 January, concerning rights and freedoms of foreign citizens in Spain and their social integration. The Government further highlights that foreign temporary residents, foreign long-term residents and Spanish citizens can benefit from the State housing plan 2018–21. The Government also indicates that the implementation of the plan corresponds to autonomous communities.

The Committee also notes that, in reply to its previous comments requesting information on measures to guarantee migrants in Alicante, Almería and Murcia no less favourable treatment than that given to Spanish citizens, the Government indicates that no studies have been undertaken from a human rights perspective regarding settlements of seasonal workers in agriculture, but that draft “Recommendations on settlements” are being prepared by the Council for the Elimination of Racial and Ethnic Discrimination. In its observations, CEOE confirms employers’ organizations active participation in the elaboration of such recommendations. In this regard, the Committee also takes note of the adoption of Royal Decree-law 5/2020, which enhances the scope of action of Labour Inspection to the accommodation and places of rest that are outside of the place of work or the place where work is performed. But the Committee also notes with concern that the United Nations Special Rapporteur on extreme poverty and human rights highlighted, in its Report of 2020 on his visit to Spain, that migrant workers in Huelva are living in migrant settlements in inhuman conditions and that, according to civil society, around 2300 and 2500 people live in such conditions during the strawberry season (A/HRC/44/40/Add.2, of 21 April 2020, paragraph 74). The Committee notes the statistical information provided by the Government on the number of employment contracts with migrant workers during 2017-2020, which is disaggregated by Autonomous Community and indicates that, in 2020, there were 595,975 contracts in Andalucía, 407,984 in Murcia and 381,148 in Comunidad Valenciana. The Committee requests the Government to provide further information on the application of the State housing plan 2018-21 to migrant workers, including measures adopted at the level of autonomous communities, and more specifically data on the number of migrant workers who benefited from the plan. The Committee also requests the Government to provide information on:

• (i) measures taken to guarantee that migrant workers living in settlements receive no less favourable treatment than that given to Spanish citizens;
• (ii) the advancement on the elaboration and implementation of the “Recommendations on settlements”; and
• (iii) the number and nature of the violations detected by the labour inspection services and any judicial or administrative decisions regarding equality of treatment of migrant workers regarding accommodation, as well as the sanctions imposed, and the remedies granted.

Labour inspection. The Committee notes the statistical information provided with the Government’s report on the actions undertaken by labour inspection in relation to the application of the Convention, including by providing numbers of violations identified and overall amounts of penalties imposed. The Committee notes the Government indication that a specific campaign has been pursued to ensure that conditions of work of migrant workers are not discriminatory compared to those of national workers. The Committee further notes that pursuant to this campaign 638 inspections were carried out in 2020, leading to the identification of 25 violations that affected 143 workers. The Committee also takes note that the Government refers to sectorial inspection campaigns in the agricultural sector (in particular, two campaigns to control risks related to use of machinery and equipment and other risks, as well as a campaign regarding undeclared work) and in the fishing sector (through SEGUMAR campaign on the inspection of fishing boats regarding occupational safety and health requirements). The Committee requests the Government to continue providing information on the action of the labour inspectorate, disaggregated by economic sectors. The Committee also requests the Government to provide detailed information on thepenalties imposed for the various specific types of violation.

Articles 2 and 7. Employment services. In response to its previous request for information on the number of migrant workers who have benefited from employment services, the Committee notes the vast data information supplied by the Government on the number of migrant workers’ employment contracts (also disaggregated by sector and Autonomous Community), requests for work from migrant workers and unemployed migrants for the period 2017-2020 and disaggregated by sex, Autonomous Community, and citizenship from the European Union (EU) and non-EU countries. The Government also provided data, disaggregated by sex and citizenship from EU and non-EU countries, on the number of migrant workers who benefited from employment services, inter alia: orientation and employment information, orientation for self-employment, training, labour intermediation, and action on transnational mobility. In this regard, the Committee observes that: (1) the number of migrant workers beneficiaries of employment services increased from 628,044 in 2017 to 879,884 in 2019 and 779,001 in 2020, the majority coming from non-EU countries; (2) the number of migrant workers beneficiaries of employment services per year show an approximatively even participation between women and men (indicating, for instance, a participation of 385,770 men and 393,231 women in 2020); (3) for the period 2017-2020, orientation and employment information were the services provided the most. The Committee requests the Government to continue providing information on the number of migrant workers who have benefited from employment services, disaggregated, where possible, by sex, place of origin and sector of activity. It requests the Government once again to indicate procedures for cooperation with the corresponding services of other countries.

Annex I, Article 3. Operations of recruitment, introduction and placement of migrant workers. Private employment agencies. In its previous comments, the Committee noted UGT’s observations indicating that a number of employment agencies specialized in domestic work offered lower starting wages and hours of work more subject to change for workers recruited abroad, and requested the Government to provide information on the application in practice of section 36 of the amended Employment Act, adopted by Royal Legislative Decree No. 3/2015 of 23 October. The Committee notes that the Government refers to section 35 of the same Decree, which provides that public employment services, their collaborating entities and private employment agencies shall avoid direct or indirect discrimination in access to employment (including job offers, selection processes and criteria, training to access a position, and working conditions), and that, when entities managing labour intermediation identify a discriminatory job opening, they shall communicate with the entity having issued it. The Government also makes further reference to the prohibition of discrimination included in sections 3 and 23 of Basic Act No. 4/2000 of 11 January, concerning rights and freedoms of foreign citizens in Spain and their social integration, section 17 of Royal Legislative Decree No. 2/2015 of 23 October, adopting the revised text of the Workers’ Charter, and section 4(3) of Royal Decree 1620/2011 establishing special labour regulations for domestic work. It also indicates that section 16(1)(c) of the Act respecting social offences and penalties (approved by Royal Legislative Decree No. 5/2000 of 4 August) includes discrimination in access to employment as a “very grave” violation. The Committee further notes that the Government provides data on inspections carried out regarding labour intermediation, but that it is not possible to identify the number of migrant workers affected. The Committee also takes note of UGT’s observation that recruitment undertaken by employment agencies with candidates that are outside of the Spanish territory may fall outside of the scope of Royal Legislative Decree No.3/2015, as well as that the application in practice of section 35 presents some difficulties in the domestic work sector. The Committee requests the Government to provide information about measures taken to ensure the full application of Royal Legislative Decree No.3/2015, including any specific measures addressed to migrant workers, as well as on cases of non-compliance detected by the labour inspectorate. The Committee also requests the Government to provide information on whether Royal Legislative Decree No. 3/2015 covers recruitment from candidates that find themselves outside of the Spanish territory.

Annex II, Article 3. Operations of recruitment, introduction and placement of migrant workers. Regarding the collective management of recruitment in countries of origin (GECCO), the Committee takes note of the data supplied by the Government on the number of workers selected to work in the agricultural sector. The Committee observes that, according to such data, in 2020 there were 15,027 workers recruited (14,754 of which were women), that 14,629 workers came from African countries, and that 14,552 worked in Andalucía. The Government also provides information on the regulatory framework on collective management of recruitment in countries of origin between 2017 and 2020. The Committee takes note, in particular, of the fact that Order ISM/1289/2020, of 28 December, regulating collective management of recruitment in countries of origin for 2021, includes essential sectors beyond the agriculture sector, and also guarantees reinforced health and safety measures. The Committee also notes that such Order foresees employers’ obligation to provide adequate accommodation that meets requirements established by legislation.

The Committee further notes that, in its observations, CCOO raises its concern on the low salaries for these recruitment schemes in the agricultural sector, as well as on the feminization of strawberry picking jobs and the fact that recruiting pregnant women is treated as a “health issue”. The Committee notes that, in this regard, the Government explains that salaries in agricultural sectors are determined by the particularities of the sector, but that recent negotiations aim to establish fair salaries and that general minimum salary rates were increased in the country. It also indicates that the greater presence of women in strawberry picking is due to the fact that, in origin countries, agriculture is mainly carried out by women, who have broader experience in this field. The Government also indicates that hiring pregnant workers requires different transportation and accommodation arrangements and that, sometimes, hard physical working conditions have an impact on the productivity of such workers. In this regard, the Committee observes that the Decent Work Strategy 2018–2019–2020 includes, among its measures, an increased action by Labour Inspection to supervise conditions of work of migrant workers, particularly women in the agricultural sector. UGT also points out that migrant workers repeatedly recruited through GECCO schemes every year receive a service contract while, if they lived in Spain, they would have access to an open-ended intermittent contract (in Spanish, “contrato fijo-discontínuo”, which refers to a type of permanent contract whereby work is carried out intermittently and in dates that are not repeated) allowing access to other benefits. The Government clarifies that migrant workers’ access to open-ended intermittent contracts would not be possible where workers start and end their work on the same date every year. The Government also highlights obstacles encountered in the application of GECCO schemes, which include difficulties in controlling workers’ return to countries of origin, obtaining complete and correct information about candidates, and optimizing profiles selected, as well as difficulties to provide information and sensitization and to counter discrediting campaigns. The Committee requests the Government to provide information on the measures taken to apply Order ISM/1289/2020, and particularly regarding the reinforcement of occupational health and safety measures, as well as on any other measures taken to ensure that GECCO is undertaken in line with the provisions of Annex II of the Convention. The Committee further requests the Government to continue providing information on the number of foreign workers selected through GECCO, indicating their sex, place of origin and economic sector.