Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106) - Spain (Ratification: 1971)

The Committee notes the Government’s reply to its previous comment. It also notes a communication from the General Confederation of Workers (UGT). This communication has been forwarded to the Government, which has not yet replied.

Article 6, paragraph 1, of the Convention. Minimum period of weekly rest. Section 37(1) of the Workers’ Charter provides that workers shall be entitled to an uninterrupted period of rest of at least one-and-a-half days in the week, which may be accumulated over a period not exceeding 14 days.

In its communication, the UGT contends that the new Spanish labour law introduces a period of work extended over two weeks which creates serious risks for the health and safety of workers in certain branches of activity and may affect the quality of the work performed. In commerce and activities related to office work, as well as in certain services sectors, such as hospitals and hotels, work is performed practically without a break and with compensatory days of rest being granted when it suits the enterprise. The UGT concludes that the possibility of accumulating weekly rest over a period of 14 days is contrary to the provisions of the Convention.

In its report, the Government indicates that the application of section 37(1) of the Workers’ Charter can indeed have the consequence that the granting of one day of rest a week, as prescribed by the Convention, is not guaranteed. However, if over a period of two weeks no rest has been granted during the first week, the rest period during the second week will be three days. This provision is intended both to take into account the need to protect workers in relation to occupational safety and health and to ensure the flexibility to allow production processes to achieve maximum efficiency. It is in conformity with European Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organization of working time, which authorizes States to establish a reference period not exceeding 14 days for the purposes of the weekly rest period. In its previous comments, the Committee emphasized that, by allowing such an accumulation of weekly rest as a general rule and in all circumstances, section  37(1) of the Workers’ Charter is not in conformity with Article 6, paragraph 1, of the Convention, which requires the granting of an uninterrupted weekly rest period comprising not less than 24 hours in the course of each period of seven days. Although the above Directive authorizes recourse to reference periods of 14 days, this is not the case of the present Convention. The Committee once again requests the Government to take the necessary measures to amend this provision so as to ensure that it is in conformity with the Convention.

Article 7. Special schemes. Commerce and hotels. Section 6 of Royal Decree No. 1561/1995, of 21 September 1995, provides that in the commerce and hotels sectors a collective agreement or, if no such agreement exists, an agreement between the enterprise and the workers’ representatives, may provide for the accumulation of half-day periods over a period of up to four weeks or the division of the rest period, with the half day being granted on another day of the week. In its report, the Government refers to a certain number of collective agreements applicable in the commerce sector. For example, the collective agreement for department stores, published by Resolution of 23 July 2001, provides that one day of weekly rest may be compensated by another day of rest during the course of the week, on a rota basis; furthermore, an agreement between the enterprise and the workers may provide that the remaining half-day of the weekly rest period may be accumulated over a maximum period of four weeks. In its report, the Government considers that the collective agreements to which it refers are in general terms, in conformity with Article 6, paragraph 1, of the Convention and, in so far as they are not, they are covered by Article 7 of the Convention. However, the special schemes introduced under this latter provision have to comply with a number of conditions, including the requirement that the persons covered by such special schemes shall be entitled, in respect of each period of seven days, to a rest period of a total duration of at least 24 hours. The existence of a collective agreement such as the one referred to by the Government cannot undermine this rule. Accordingly, while it is possible, in the context of special schemes, to divide the weekly rest period during the week, the Convention does not allow the accumulation of rest days in the manner established in the national legislation. The Committee requests the Government to take appropriate measures to ensure that all persons to whom such special schemes apply are entitled, in respect of each period of seven days, to a rest period of a total duration of at least 24 hours.

Substantial modification of conditions of work. Section 41(1) of the Workers’ Charter allows an employer to make substantial modifications to conditions of work, including those relating to hours of work, where there exist established reasons for so doing, whether they are of an economic or technical nature, or related to organization or production. The Government is requested to provide detailed information on the circumstances in which employers are authorized to modify conditions of work in this manner. Furthermore, the Government indicates in its report that an employer who modifies in a substantial manner the conditions of work shall do so within the context of the applicable regulations, including those on the weekly rest period. With regard to compensatory rest periods, the Government refers in its report under Convention No. 14 to section 2 of Royal Decree No. 1561/95, under which the reductions in the weekly rest period provided for by this text have to give rise to compensation. Nevertheless, this provision does not apply to the substantial modifications of conditions of work imposed under section 41(1) of the Workers’ Charter. The Committee therefore requests the Government to provide information on the compensatory rest periods granted in these circumstances.