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

Holidays with Pay Convention (Revised), 1970 (No. 132) - Spain (Ratification: 1972)

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.

Articles 5 and 14 of the Convention. Short-term contracts. The Government indicates in its report that the labour legislation makes no difference between permanent and temporary workers. It adds that Act No. 12/2001 of 9 July 2001 inserted subsection 6 into section 15 of the Workers’ Charter, under which workers engaged under temporary or fixed-term contracts have the same rights as workers whose contracts are without limit of time. These rights have to be recognized in laws and regulations, as well as collective agreements, in a proportional manner based on the working time of the persons concerned. Where a right is established on the basis of seniority, it has to be calculated on the basis of the same criteria for all workers, irrespective of their type of contract. The Committee requests the Government to indicate whether a minimum period of service is required in the legislation or collective agreements for entitlement to holidays with pay and to provide information on the manner in which this rule is applied in the case of workers engaged under short-term contracts.

With regard to the application in practice of the Workers’ Charter, the UGT indicates that precarious workers, who constitute 31 per cent of the population, are not protected in relation to enterprises which engage in blackmail to impose unfavourable conditions, including the denial of their right to holidays with pay. The Committee requests the Government to indicate the measures adopted, including through labour inspection, to secure compliance in practice with the rules on holidays with pay in the case of precarious workers.

Article 6, paragraph 2. Periods of incapacity for work. In its report, the Government indicates that the Secretary of State for the Public Administration adopted a resolution on 10 March 2003 under the terms of which, in the public sector, absences from work for reasons that are independent of the will of the worker, such as sickness or accident, are not counted in annual holidays with pay, but are taken into account in the calculation of the period of service.

With regard to the private sector, the Government reaffirms that the case law confirms the rule established by this provision of the Convention. However, it indicates that, while there is no doubt in this respect where the sickness or the accident occur during the course of the holidays, the same does not apply if it occurs before the holidays. Moreover, where holidays are granted at the same time to all workers at a period during which the enterprise is closed, no account is taken of illness or an accident which might occur to a worker during such holidays, unless a collective agreement provides otherwise.

In the comments that it has been making for several years, the Committee has noted that, while Article 6, paragraph 2, of the Convention leaves it to the discretion of the competent authority or the appropriate machinery to determine the conditions under which days of incapacity resulting from sickness or injury should not be counted as days of the minimum annual holiday with pay, these conditions nevertheless need to be laid out as clearly as possible. With regard to the private sector, the Government itself indicates that there are doubts as to whether days of incapacity occurring before the leave are taken into account or not.

The Committee therefore requests the Government to indicate the measures adopted or envisaged to establish clearly the conditions under which days of incapacity for work are not counted as part of the minimum annual holiday with pay in force in the private sector.