Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Hours of Work (Industry) Convention, 1919 (No. 1) - Spain (Ratification: 1929)

Article 5 of the Convention. Averaging of hours of work. The Committee previously noted that the Workers’ Statute establishes no overall limit to weekly hours of work and allows exceeding the nine-hour daily limit through collective or enterprise agreements. In its latest report, the Government indicates that, in 2011, only 18 per cent of the workforce was concerned by a system of annualized hours of work while the remaining 82 per cent were subject to the normal nine-hour working day and 40-hour working week established under the Workers’ Statute. The Government points out that, under section 34(2) of the Workers’ Statute as amended by Act No. 3/2012, the uneven distribution of hours of work over a period of one year requires the conclusion of a collective agreement and, only in absence of such an agreement, an employer may apply a system of annualized hours to 10 per cent of working time to promote flexibility. The Government adds that such distribution has to conform in any case to the minimum daily and weekly rest periods and be notified to the worker at least five days before the new working time arrangement becomes effective. The Committee notes, in this respect, the new comments of the General Union of Workers (UGT) dated 4 September 2013, according to which in practice the only effective limit to the duration of working hours is the minimum 12-hour period of daily rest. The Committee further notes the Government’s reply to these comments, in which it states that, in addition to the benefits previously identified, such as ensuring internal flexibility for companies while respecting national regulations concerning weekly rest hours and collective agreements, section 34(8) of the Workers’ Statute entitles workers to adjust the duration and distribution of daily work hours to effectively balance work and family. The Committee is bound to recall that the Convention allows the uneven distribution of hours of work over a period longer than a week (averaging) only in exceptional cases where it is recognized that the normal hours of work cannot be applied, and therefore offering the possibility of introducing annualized systems of working time in such general terms as those set out in the Workers’ Statute goes beyond the letter and the spirit of the relevant provisions of the Convention. The Committee hopes that the Government will take appropriate action to bring the national legislation into full conformity with the Convention in these matters.

Article 6. Limits to overtime hours. Overtime pay. The Committee previously observed that section 35(4) of the Workers’ Statute permits the performance of overtime hours under much broader conditions than those prescribed by the Convention, i.e. cases of accident, urgent repair work, force majeure, and exceptional pressure of work. The Committee further noted that section 35(2) of the Workers’ Statute provides for an annual limit of 80 overtime hours but leaves open the possibility of exceeding that limit under certain circumstances without fixing an overtime cap. Moreover, the Committee noted that section 35(1) of the Workers’ Statute provides that additional hours may be compensated in the form of either extra pay or equivalent periods of rest, and recalled that under Article 6 of the Convention an overtime premium of at least 25 per cent must be paid in all cases. In this connection, the Committee notes the comments of the UGT according to which the current legislation on overtime that no longer provides for overtime pay, in practice, facilitates employers’ requests for additional hours of work. According to the UGT, overtime is very frequent in sectors such as hotel and catering, as well as in private security enterprises, and the media have regularly drawn attention to problems of non payment of overtime work and the effects of excessive overtime on the workers’ safety and health. The Committee further notes the Government’s response to the comments of the UGT, in which it indicates that the Labour and Social Security Inspectorate is charged with monitoring compliance with the working hours and rest periods as well as its effects on the security and health of workers. While noting the Government’s statistical information regarding compliance with overtime regulations and pay, the Committee hopes that the Government will take the necessary measures to ensure that the provisions of the Convention regarding overtime are fully implemented both in law and in practice.