Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19) - Spain (Ratification: 1929)

The Committee notes the Government’s report and the observations of the General Union of Workers (UGT). It also notes the Government’s replies to these observations, received on 31 October 2016.

Protection of workers who are not legally resident. The UGT refers to section 36(5) of the Basic Act on the rights and freedoms of foreign nationals in Spain and their social integration (LOEXIS), under the terms of which the situation of a foreign worker without a residence or work permit, without prejudice to the responsibilities of the employer, does not invalidate the employment contract with respect to the rights of the foreign worker, nor is it an obstacle to obtaining the benefits deriving from the provisions of international instruments for the protection of workers, and other benefits to which they may be entitled, on condition that they are compatible with the situation of the worker. Accordingly, even if they continue to be unlawfully resident, they would be covered by the exception set out in section 57(5)(d) of the LOEXIS in cases in which they are entitled to a benefit for permanent incapacity for work as a result of an employment accident or occupational disease which occurred in Spain. In this respect, the UGT raises the question of what would happen in situations which only give rise to temporary incapacity or permanent injury that does not result in invalidity. In such cases, there is no guarantee that the penalty of expulsion will not be applied. As may be understood, their legal situation would be uncertain and there would be no guarantee of the regularization of the injured worker, nor of the provision of the necessary rehabilitation benefits in Spain.

In its reply, the Government refers to sections 36(5) of the LOEXIS and section 42(2) of Royal Decree No. 84/1996, of 26 January, approving the General Regulations on the registration of enterprises and the coverage, periods in and out of employment, and changes in workers’ data, in which explicit reference is made to foreign workers from countries which have ratified Convention No. 19, who are engaged in work without being legally resident in Spain, and are without a work permit or documents exempting them from the requirement to obtain such a permit, who shall be considered to be covered by the Spanish social security system and the corresponding scheme for the sole effects of protection against employment injury. It adds that the application of the social security legislation cannot result in exemptions from the legislation on the status of foreign nationals.

The Committee notes that the Government’s reply does not clarify the situation of “legal uncertainty” referred to by the UGT in relation to the application of the penalty of expulsion to foreign workers who are not lawfully resident in the country in the event of employment injury resulting in temporary incapacity or permanent injury that does not amount to invalidity, which would require the granting of rehabilitation and other benefits in Spain.