Hours of Work (Commerce and Offices) Convention, 1930 (No. 30) - Spain (Ratification: 1932)

Observation (CEACR) - adopted 2024, published 113rd ILC session (2025)

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 1 (hours of work in industry), 14 (weekly rest in industry), 30 (hours of work in commerce and offices), 106 (weekly rest in commerce and offices), 132 (holidays with pay), and 153 (hours of work and rest periods in road transport) in a single comment.

The Committee notes the joint observations of the Spanish Confederation of Employers’ Organizations (CEOE) and the Spanish Confederation of Small and Medium-Sized Enterprises (CEPYME), and the observations of the Trade Union Confederation of Workers’ Commissions (CCOO), on Conventions Nos 1, 14, 30, 106, 132 and 153, sent with the Government’s report, and also the Government’s reply to these observations on Conventions Nos 1, 14, 30, 106 and 132.

Hours of work

Article 2 of Convention No. 1 and Article 3 of Convention No. 30. Limits on normal daily and weekly hours of work. With regard to daily and weekly limits on normal hours of work, the Committee notes the CCOO’s indication in its observations that: (i) section 34(1) of Royal Legislative Decree 2/2015 of 23 October 2015, adopting the consolidated text of the Workers’ Statute (hereinafter the Workers’ Statute), defines the maximum duration of ordinary working time as 40 hours per week, in terms of averaging over a whole year, but does not establish the maximum number of hours of work which can be performed by a worker in an actual week; (ii) the only limits on working time are the rest period of at least 12 hours between working days (section 34(3) of the Workers’ Statute) and the minimum weekly rest period of one and a half uninterrupted days which can be cumulated over periods of up to 14 days (section 37(1) of the Workers’ Statute); and (iii) section 34(3) of the Workers’ Statute prescribes a daily maximum of nine hours of work which can be modified through a collective agreement or, failing that, by an agreement between the enterprise and the workers’ representatives, provided that the minimum 12-hour rest period between working days is observed.

The Committee notes the Government’s indication, in reply to the CCOO’s observations, that under section 34 of the Workers’ Statute, the weekly limit exists but is averaged over a period of a year and so it can be exceeded in individual weeks and made up for subsequently under the terms of a collective agreement or, failing that, an agreement between the enterprise and the workers’ representatives, provided that the minimum daily and weekly rest periods (regardless of any overtime worked) are respected. In this regard, the Committee observes that: (i) the 40-hour weekly limit established in section 34(1) of the Workers’ Statute represents only an average of hours during an annual reference period and is not an absolute limit on hours worked in an actual week; (ii) the nine-hour limit on normal daily working time established in section 34(3) of the Workers’ Statute can be changed through a collective agreement or by an agreement between the enterprise and the workers’ representatives; and (iii) the absolute limit of 12 hours of work per day established in section 34(3) of the Workers’ Statute is not a limit on normal working hours but on total hours (including overtime). The Committee recalls that the Conventions set out a double limit (8 hours per day and 48 hours per week) on normal hours of work, and that this limit is cumulative and not alternative (2018 General Survey on working-time instruments, paragraph 176). The Committee also recalls that this absolute limit should not be confused with the averaging of daily and weekly working hours, which is authorized only in certain exceptional cases. The Committee requests the Government to take the necessary steps to ensure in both law and practice that normal hours worked in an actual day or week do not exceed 8 hours per day or 48 hours per week, in accordance with these Articles of the Conventions.

Articles 2(c), 4 and 5 of Convention No. 1 and Articles 4 and 6 of Convention No. 30. Variable distribution of normal daily and weekly hours of work. Further to its previous comments, the Committee notes the Government’s indication in its report that while the two major limits on working time established in the national legislation are observed (namely, 40 hours per week averaged over the year and a 12-hour minimum rest period between two working days – section 34(1) and (3) of the Workers’ Statute), the parties are free to determine the distribution of working hours throughout the year, by means of a collective agreement or an agreement between the enterprise and the workers’ representatives. The Committee notes the CCOO’s indication in its observations that: (i) section 34(2) of the Workers’ Statute does not stipulate that the forms in which working hours are distributed shall be applied only in exceptional cases; (ii) section 41(1) of the Workers’ Statute allows the employer to make unilateral changes, among other conditions of work, to working time, schedules, distribution of working time and rules regarding shift work, if there are proven economic, technical, organizational or production-related grounds; (iii) the Workers’ Statute does not establish precisely what constitutes these grounds. The Committee recalls that in general terms the Conventions only authorize the averaging of working hours over a reference period of one week and on condition that the daily limits of nine or ten hours are not exceeded (Article 2(b) of Convention No. 1 and Article 4 of Convention No. 30); and that in all other cases where the averaging of working hours over periods of more than one week is allowed on an exceptional basis, the circumstances must be clearly specified, as follows:

• where persons are employed in shifts, working time may exceed 8 hours in a day and 48 hours in a week provided that the average number of hours over a period of three weeks or less does not exceed 8 per day and 48 per week (Article 2(c) of Convention No. 1);
• the daily and weekly limits on working time may also be exceeded in work which, by reason of its nature, is required to be carried on continuously by a succession of shifts, on condition that the average working hours do not exceed 56 in the week (Article 4 of Convention No. 1);
• in exceptional cases where it is recognized that the limits of 8 hours per day and 48 hours per week cannot be applied, agreements between workers’ and employers’ organizations can fix a longer limit on daily working hours provided that the average weekly working time, calculated for the number of weeks specified by these agreements, does not exceed 48 hours per week (Article 5 of Convention No. 1) and daily working time does not exceed 10 hours in any day (Article 6 of Convention No. 30).

The Committee therefore requests the Government to take the necessary steps to bring its law and practice into conformity with these Articles of the Conventions.

Articles 3 and 6(1) of Convention No. 1 and Article 7(1) and (2) of Convention No. 30. Exceptions to normal hours of work.Circumstances. Further to its previous comments, the Committee notes the Government’s indication that, under the general regulations, overtime work is voluntary, unless otherwise established in a collective agreement or an employment contract (section 35(4) of the Workers’ Statute). The Committee notes the CCOO’s indication in its observations that the voluntary performance of overtime and the compulsory working of hours agreed upon via a collective agreement or individual employment contract go beyond the scenarios established by the Conventions. In this regard, the Committee observes that section 35 of the Workers’ Statute regulating overtime does not include a precise list of the circumstances in which overtime is permitted. The Committee recalls that the temporary exceptions to normal hours of work are permitted in the Conventions in very limited cases and in specific circumstances. The Committee requests the Government to take the necessary steps to bring its law and practice into conformity with these provisions of the Conventions.

Article 6(2) of Convention No. 1 and Article 7(3) of Convention No. 30. Limits on the number of additional hours. Further to its previous comments, the Committee notes the Government’s indication that the amount of overtime may not exceed 80 hours per year (section 35(2) of the Workers’ Statute). The Committee also notes the CCOO’s indication in its observations that the limit of 80 overtime hours per year does not cover hours compensated for through rest in the four months after the work has been done or hours worked to prevent accidents or repair damage resulting from accidents or other types of damage. In this regard, the Committee recalls the fundamental importance of prescribing clear statutory limits for additional hours of work and of keeping the number of additional hours allowed within reasonable limits that take into account both the health and well-being of workers, and the employers’ productivity needs (2018 General Survey on working-time instruments, paragraphs 151 and 179). The Committee requests the Government to take the necessary steps to bring its law and practice into conformity with these Articles of the Conventions.

Article 6(2) of Convention No. 1 and Article 7(4) of Convention No. 30. Compensation for additional hours of work. Further to its previous comments, the Committee notes the Government’s indication that the legislation proposes two alternatives to be established by collective agreement or employment contract: (i) compensating for overtime worked by means of equivalent periods of rest; in the absence of an agreement, it shall be understood that overtime worked must be compensated for by rest within the four months following the period of overtime; or (ii) remunerating overtime up to an amount to be fixed by collective agreement or employment contract, which in any case shall not be less than the remuneration for normal working hours (section 35(1) of the Workers’ Statute). The Committee notes the CCOO’s indication in its observations that section 35(2) of the Workers’ Statute, which provides that remuneration for overtime shall under no circumstances be less than that for normal working hours, violates the provisions of the Convention since it does not prescribe at least 25 per cent more than normal pay rates. In this regard, the Committee recalls the need to provide, in all circumstances, for the payment of overtime at no less than 125 per cent of the ordinary wage rate, irrespective of any compensatory rest granted (2018 General Survey on working-time instruments, paragraph 158). The Committee requests the Government to take the necessary steps to ensure that in both law and practice the payment of overtime hours is guaranteed at no less than 125 per cent of the ordinary wage rate, irrespective of any compensatory rest granted, in accordance with Article 6(2) of Convention No. 1 and Article 7(4) of Convention No. 30.

Application in practice.The Committee requests the Government to provide examples (collective agreements, enterprise agreements, statistics, etc.) of the manner in which it is ensured in practice that the provisions of the Conventions are respected regarding the limits on normal hours of work of 8 hours per day and 48 hours per week in a given week, averaging of hours of work, and overtime hours, in the sectors covered by the Conventions.

Weekly rest

Follow-up to the recommendations of the Tripartite Committee (representation under article 24 of the ILO Constitution)

The Committee notes that in November 2016 the Governing Body approved the report of the Tripartite Committee set up to examine the representation made in 2014 by the Independent Judicial Forum professional association (document GB.328/INS/17/9).

Article 7(2) of Convention No. 106. Permanent exceptions. Compensatory rest. The Committee notes that the Tripartite Committee in its report requested the Government to ask the General Council of the Judiciary to: (i) inform the social partners about the additional measures adopted to ensure that, in practice, judges in judicial districts with only one court of first instance and preliminary investigation benefit from the weekly rest established under the Convention; and (ii) assess the impact of the new system of substitutions on the right to weekly rest for judges, and to inform the social partners, in order to ensure that in practice they benefit from the equivalent of a minimum of 24 hours of rest for every seven days worked, in accordance with the Convention. The Committee observes that the Government’s report does not contain any relevant information in this respect. The Committee requests the Government to provide the detailed information previously requested by the Tripartite Committee.

Article 2(1) of Convention No. 14 and Article 6(1) of Convention No. 106. Minimum weekly rest period. Further to its previous comments regarding section 37(1) of the Workers’ Statute, the Committee notes the Government’s indication that the aforementioned section prescribes a minimum weekly rest period which exceeds that provided for in the Conventions, namely, one and a half days, and two days for persons under 18 years of age; and (ii) in order to provide the necessary flexibility for both enterprises and workers, the possibility is established for this rest period to be accumulated over a maximum period of 14 days. The Committee also notes the CCOO’s indication in its observations that the above-mentioned section allows the continuous, uninterrupted provision of services for periods longer than seven days as a general principle, regardless of whether or not the conditions for exceptions provided for in the Conventions are met. The Committee observes that section 37(1), which provides that workers shall have the right to minimum weekly rest – which can be accumulated over periods up to 14 days – of one and a half uninterrupted days, establishes a general rule and does not refer to exceptional cases within the meaning of Article 4 of Convention No. 14 and Article 7 of Convention No. 106. The Committee once again requests the Government to take the necessary steps, including amendment of section 37(1) of the Workers’ Statute, to ensure in both law and practice that all workers enjoy minimum rest of 24 consecutive hours for each seven-day period actually worked, as required by these Articles of the Conventions. The Committee also requests the Government to provide examples of the manner in which the above-mentioned section of the Workers’ Statute is applied in practice.

Holidays with pay

Article 8 of Convention No. 132. Division of annual holiday with pay into parts. Minimum period of two uninterrupted weeks. Further to its previous comments, the Committee notes the Government’s indication that: (i) paragraph 9(3) of the Decision of 28 February 2019 of the State Secretariat for the Civil Service establishes that holidays shall be taken in minimum periods of five consecutive working days and (ii) paragraph 9(4) of that Decision stipulates that at least half (11 working days) of the total annual holiday must be taken between 16 June and 15 September, unless the work calendar fixes other periods because of the particular nature of the services provided in the respective sphere. The Committee also notes the CCOO’s indication in its observations that paragraph 9(4) of the above-mentioned Decision does not guarantee that one of the possible divisions of the annual holiday period shall have a minimum duration of two uninterrupted working weeks but merely regulates the dates between which the annual holiday must be taken and not the uninterrupted minimum holiday periods, which are regulated by paragraph 9(3). The Committee once again requests the Government to take the necessary steps to ensure in both law and practice that one of the divisions of holidays for public employees in the General Administration of the State and its public bodies consists of at least two uninterrupted working weeks.

Hours of work and rest periods in road transport

Article 2 of Convention No. 153. Exclusions from the scope of application. The Committee notes the CCOO’s indication in its observations that: (i) some of the exclusions established in section 2 of Royal Decree 640/2007 of 18 May 2007, establishing exceptions to the binding regulations regarding driving time and rest periods and the use of tachographs in road transport, go beyond the possible exceptions provided for in Article 2 of the Convention; (ii) no limits or regulations have been laid down regarding driving time or rest periods for these exceptions, which violates Article 2(2) of the Convention; and (iii) Royal Decree 1082/2014 of 19 December 2014, concerning special cases for the application of regulations relating to driving time and rest periods in road transport on islands whose surface area does not exceed 2,300 km2, which lays down specific regulations, significantly worsens working conditions. The Committee observes that transport relating in particular to the following categories is excluded from the scope of application of Royal Decree 640/2007: (i) provision of services relating to sewage, flood protection and water supplies, among others; (ii) circus equipment and fairground attractions; (iii) mobile exhibitions; (iv) cash or valuables; (v) electric or gas-propelled vehicles; (vi) special construction vehicles; (vii) transport in Ceuta and Melilla or on islands with a surface area less than 250 km2; and (viii) empty runs necessary before or after one of the activities covered by an exception. The Committee also notes that, under section 2 of Royal Decree 1082/2014, in road transport undertaken exclusively on islands with a surface area over 250 km2 and not more than 2,300 km2, the following factors apply: (i) reduced weekly rest periods may be applied for three weeks following one week containing a normal weekly rest period; (ii) a daily rest period can be taken in two or three separate periods, one of which cannot be less than eight uninterrupted hours and none of which can be less than one hour; and (iii) a continuous rest break can be replaced by two or three breaks, interspersed with the driving time or occurring immediately after it. The Committee recalls that only persons who drive vehicles engaged in the types of transport specified in Article 2(1) of the Convention can be excluded from the scope of application of the Convention and that adequate standards concerning driving time and rest periods of excluded drivers must be laid down (Article 2(2)). The Committee requests the Government to take the necessary steps to ensure that adequate standards concerning driving time and rest periods are applied to drivers excluded from the scope of the legislation referred to above, in accordance with Article 2 of the Convention.

Articles 5, 6 and 7. Limits on driving time. The Committee notes the CCOO’s indication in its observations that the national legislation: (i) allows up to four and a half hours of continuous driving instead of the four hours established by the Convention; (ii) provides for up to ten hours of daily driving time rather than the nine hours prescribed in Article 6 of the Convention, without any connection with an exceptional situation or a situation of force majeure; (iii) prescribes a break for working days of more than six hours, while the Convention establishes the right to a break after five consecutive hours of work; and (iv) does not provide for any reduction in driving time when carried out under particularly difficult conditions. In this regard, and with reference to its previous comments, the Committee observes that Royal Decree 1561/1995 of 21 September 1995, concerning special working hours, establishes maximum continuous driving time of four and a half hours and a daily driving time limit of nine hours, which can be extended to ten hours twice a week (section 11). The Committee also observes that this Decree does not lay down a 48-hour weekly limit apart from average working hours, and does not stipulate that driving time must be reduced in particularly difficult conditions. The Committee further observes that section 10bis(4) provides that working days of more than six hours must contain a break, but does not state that a break has to be taken after five continuous hours of work. The Committee recalls that: (i) the maximum continuous driving time is four hours and this can only be exceeded by a maximum of one hour on account of particular national conditions, in accordance with Article 5(1) and (2) of the Convention; (ii) the maximum total driving time, including overtime, must not exceed either nine hours per day or 48 hours per week (Article 6(1)). The maximum driving time may be calculated as an average over a number of days or weeks to be determined by the competent authority or body (Article 6(2)); (iii) the maximum total driving time must be reduced in the case of transport activities carried out in particularly difficult conditions (Article 6(3)); and (iv) drivers shall be entitled to a break after five continuous hours of work (Article 7). The Committee requests the Government to take the necessary steps to bring its law and practice into conformity with Articles 5, 6 and 7 of the Convention.

Article 11. Inspection and penalties. Application in practice. The Committee notes the statistical data provided by the Government on the results of the activity of the Labour and Social Security Inspectorate (ITSS) with respect to working time, including overtime hours, in the road transport sector for the 2018–22 period, in relation to: (i) operations conducted; (ii) violations recorded and penalties imposed; (iii) compliance orders; and (iv) mediation and consultation. The Committee requests the Government to continue providing statistical information on the results of the activity of the ITSS with respect to working time in the road transport sector.

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

Articles 6 and 7 of the Convention. Averaging of hours of work. Overtime. The Committee notes the comments of the General Union of Workers (UGT), which were received on 4 September 2013 and transmitted to the Government on 23 September 2013. It also notes the communication of the Trade Union Confederation of Workers’ Commissions (CC.OO.) dated 30 August 2013 which was transmitted to the Government on 16 September 2013. The UGT indicates that hours of work in the commerce sector are essentially regulated through collective agreements providing for the averaging of working hours over a period of one year subject to a 40-hour weekly limit. The UGT points out that, whereas normal hours of work are eight per day, following the crisis and new legislation on working time, the ten-hour working day tends to become general practice. Finally, the UGT indicates that, notwithstanding the normal 12-hour period of daily rest, Royal Decree No. 2001/1983 provides for the possibility of reducing daily rest to only eight hours in the sectors of commerce, catering and transport, thus seriously worsening the working conditions in these sectors. For its part, the CC.OO. refers to section 34(2) of the Workers’ Statute, as amended by Act No. 3/2012, according to which, in the absence of a collective or enterprise agreement allowing the uneven distribution of working hours throughout the year, an enterprise may still apply the averaging to 10 per cent of the working hours. The CC.OO. indicates that this possibility, together with the employers’ discretionary power to unilaterally modify working conditions (section 41(1) of the Workers’ Statute) and the modification of working-time arrangements in the commerce sector pursuant to Royal Decree No. 20/2012, has a significant impact on workers in the commerce sector and may give rise to practices that are inconsistent with the provisions of the Convention. The Committee notes, in this respect, the Government’s response to the comments of the UGT in which it indicates that section 2 of Royal Decree No. 1561/1995 requires any reduction in daily or weekly rest to be compensated with alternative rest of the same duration, which may be accumulated and taken together with annual holiday. The Committee asks the Government once more to take the appropriate steps to ensure that the national legislation only allows the limits determined by the Convention in relation to daily and weekly hours of work to be exceeded occasionally, in the context of the averaging of working time, in the circumstances envisaged by the Convention. The Committee also requests the Government to refer to the comments made under Articles 5 and 6 of the Hours of Work (Industry) Convention, 1919 (No. 1).

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Articles 3 and 4 of the Convention. Daily and weekly hours of work. The Committee notes that, under section 34, paragraph 1(2), of the Workers’ Statute, the maximum number of normal hours of work is 40 actual hours of work a week as an annual average. Under paragraph 2, the irregular distribution of hours of work over the year may be decided upon by collective agreement or, in the absence of a collective agreement, in an agreement concluded between the enterprise and the workers’ representatives, provided that the minimum periods of daily and weekly rest are respected. The Committee further notes that section 34, paragraph 3, establishes the minimum period of daily rest at 12 hours and provides that the number of normal hours of actual work may not exceed nine in the day, unless provided otherwise in a collective agreement or, in the absence of a collective agreement, an agreement concluded between the enterprise and the workers’ representatives. Finally, it notes that, under section 37, paragraph 1, workers are entitled to a weekly rest of at least one and a half days without interruption. However, this rest may be accumulated over periods of 14 days as a maximum.

The Committee also notes the Government’s reply to its previous comments and the observations made in 2003 by the General Union of Workers (UGT). It notes in particular that working time arrangements may not be imposed unilaterally by the employer, but must be a result of agreements concluded through collective bargaining or, in the absence of collective bargaining, between the employer and the workers’ representatives. The Government also refers to the criteria, guidance and recommendations that have to be taken into account in collective bargaining, which are enumerated in the various inter-confederation agreements for collective bargaining (ANC) concluded by the social partners, including the UGT, and in particular the ANC of 2007, which addresses, among other matters, collective bargaining on the management of working time, including the annualization of hours of work. The Government adds that workers’ representatives participate in the process of determining hours of work, particularly in the event of their irregular distribution, which only affects a small percentage of workers. In this respect, it indicates that the annualization of hours of work concerned 17.5 per cent of workers in 2005 and 16.9 per cent in 2006. In conclusion, the Government states that it does not understand the reasons why the UGT made observations on the application of the Convention and considers that the national legislation is in conformity with the requirements of the Convention and is more favourable than the standards set out in the 2003 European Directive on the organization of working time.

However, in the light of the above provisions of the Workers’ Statute, the Committee is bound to observe that the national legislation does not establish an absolute limit on weekly hours of work and that the maximum daily hours of work, set at nine hours, may be exceeded by means of collective agreements or enterprise agreements. Accordingly, taking into account the rules respecting daily rest (12 hours) and weekly rest (one and a half days), daily hours of work could in theory be as many as 12 hours and weekly hours of work could total 66 hours. The Committee therefore shares the analysis made by the UGT, according to which hours of work may exceed 60 in a week. Furthermore, if the possibility of accumulating weekly rest over a period of 14 days is taken into account, an employed person could be required to work a maximum of 84 hours, that is 12 hours for seven consecutive days, and 48 hours the next week (four times 12 hours). In this respect, the Committee notes the UGT’s indications that it is not aware of cases in which workers are engaged under such a schedule, but has knowledge of more common cases involving 63-hour weeks (seven days of nine hours), followed by a 36-hour week (four days of nine hours).

The Committee recalls that under Article 3 of the Convention working hours, with the exceptions provided for in the Convention, may not exceed eight in the day and 48 in the week. Article 4 allows the unequal distribution of weekly hours of work, on condition that hours of work in any day do not exceed ten hours. The Convention only allows the averaging of hours of work so that in certain weeks they exceed the limit of 48 hours in the exceptional cases envisaged in Article 6 of the Convention. The Committee is accordingly bound to observe that section 34 of the Workers’ Statute, which allows the averaging of weekly hours of work without any restriction, is not in conformity with the provisions of the Convention. It trusts that the Government will take the necessary measures rapidly to amend the legislation so that it only allows the limits determined by the Convention in relation to daily and weekly hours of work to be exceeded occasionally, in the context of the averaging of working time, in the circumstances envisaged by the Convention. It requests the Government to provide information on any developments in this respect.

The Committee also notes that under section 34, paragraph 7, of the Workers’ Statute, the Government may, after consulting the most representative organizations of trade unions and employers, increase or limit hours of work and periods of rest in sectors and types of work where the specific characteristics so require. It requests the Government to indicate whether decisions to increase hours of work or reduce rest periods in specific branches of activity or for particular types of work have already been taken on the basis of this provision. If so, the Government is requested to provide all relevant information concerning the exceptions established and the rules applicable to the workers concerned in relation to hours of work.

The Committee further notes that, in accordance with section 34, paragraph 8, of the Workers’ Statute, all workers are entitled to adapt the duration and distribution of their working time so as to enable them to reconcile their personal, family and professional life in accordance with the terms established through collective bargaining or in the agreement concluded with their employer. The Committee requests the Government to provide any available information concerning the implementation of this provision.

The Committee further notes that, in reply to its previous comment concerning the possibility for the employer to undertake substantial modifications of conditions of work under section 41, paragraph 1, of the Workers’ Statute, the Government indicates that such modifications have to be in compliance with the applicable regulations, including those respecting hours of work. It notes that case law has determined what is to be understood by “substantial modification of conditions of work”. Accordingly, the High Court of Madrid considered that a measure consisting of the suppression of a flexi-time schedule came under section 41 of the Workers’ Statute. However, an increase of 25 hours in annual hours of work, representing less than ten minutes a day, did not constitute a substantial modification of conditions of work. The Government adds that, in general, substantial modifications of conditions of work relate to changes in the regular distribution of hours of work over the year, but do not include modifications involving a reduction of working time accompanied by a reduction of wages, nor an increase in working time, nor the irregular distribution of hours of work over the year. The Committee notes the fact that the modifications covered by section 41 of the Workers’ Statute have to conform to the applicable legal provisions and it requests the Government to provide copies of the court decisions referred to in its report and of any other relevant decision or official report prepared on this subject.

Article 7, paragraph 2. Cases in which additional hours may be performed. The Committee notes the indications contained in the Government’s report that collective agreements or employment contracts may envisage the performance of additional hours in various cases. These normally consist of work performed in response to production needs. However, the Committee notes that the Government does not reply in its report to its previous comment on this point. It observes that section 35, paragraph 4, of the Workers’ Statute is confined to providing that the performance of additional hours must be voluntary, unless it is envisaged in a collective agreement or an employment contract. In this respect, the Committee recalls that Article 7, paragraph 2, of the Convention contains a limitative enumeration of the cases in which the performance of additional hours is authorized in the context of temporary exceptions. The Committee hopes that the Government will take measures rapidly to amend the Workers’ Statute so as to allow the performance of additional hours only in the cases envisaged by the Convention.

Article 7, paragraph 3. Limitation of the number of additional hours. The Committee notes that, under section 35, paragraph 2, of the Workers’ Statute, the number of additional hours cannot exceed 80 in a year. It also notes that, according to the case law of the High Court of the Basque Country, this limit may not be exceeded either by means of collective bargaining or in the employment contract. However, under the terms of section 35, paragraph 2, additional hours which give rise to compensatory rest during the four months following their performance, and those performed to prevent or make good exceptional and urgent damage, are not taken into account in this context. The Committee recalls that Article 7, paragraph 3, of the Convention requires the determination of the number of additional hours of work which may be allowed in the day and in the year, in respect of temporary exceptions, save as regards cases of accident, force majeure, or urgent work to machinery or plant. The Committee notes that the collective agreement for driving schools limits the number of additional hours to two hours a day, 15 hours a month and 80 hours a year. It, however, draws the Government’s attention to the fact that the Convention requires daily and annual limits to be determined in all branches of activity and that this matter cannot be left to the discretion of collective bargaining. The Committee requests the Government to take the necessary measures to determine also a daily limit to the number of additional hours authorized and to apply the daily and annual limits to additional hours which give rise to compensatory rest during the four months following their performance. The Committee also requests the Government to provide a copy of the ruling by the High Court of the Basque Country to which it refers in its report.

Article 7, paragraph 4. Remuneration of additional hours. The Committee notes that section 35, paragraph 1, of the Workers’ Statute provides that additional hours have to be paid at a rate determined by collective agreement or, in the absence of a collective agreement, by the individual employment contract, but which may not be lower than the rate applicable for normal hours of work, or may be compensated in the form of equivalent periods of paid rest. It notes the indications in the Government’s report that the law shows a clear preference for the compensation of additional hours in the form of periods of paid rest of equivalent duration. The Committee also notes that the collective agreement applicable in the perfume and allied industries provides for the compensation of each additional hour by 1.25 hours of rest or, if that is not possible, by pay corresponding to 1.5 times the wage rate for normal hours. The collective agreement for the large-scale distribution sector provides that compulsory additional hours are to be paid at a rate increased by 50 per cent or compensated by an equivalent period of rest, at the worker’s choice. Similar provisions are also found in the collective agreement for travel agencies and that for financial credit institutions. The Committee however draws the Government’s attention to the fact that, in accordance with Article 7, paragraph 4, of the Convention, the increased rate of pay of at least 25 per cent more for overtime, except in the case of accidents, force majeure or urgent work to machinery or plant, has to be of general application and cannot therefore be left to the discretion of collective bargaining. Furthermore, compensation for additional hours in the form of paid leave, but without an increased wage rate, does not give effect to this provision of the Convention. The Committee hopes that the Government will take measures rapidly to bring its legislation into conformity with the Convention on this point. It also requests the Government to provide copies of the collective agreements referred to in its report.

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

The Committee notes the Government’s reply to its previous comment. It also notes a communication from the General Confederation of Workers (UGT), reiterating the observations made previously by this organization. The communication has been forwarded to the Government, which has not yet provided a reply.

The UGT, in its previous observations as well as in its most recent communication, indicates that the combination of the various provisions of Legislative Decree No. 1/1995 of 24 March 1995, which consolidates the Workers’ Charter, makes it possible to bring the hours of work in a week up to 60 hours. Under the terms of these provisions, ordinary hours of work may not exceed 40 hours in the week on an annual average, but they may be distributed unevenly over the year within the framework of a collective agreement or where agreement is reached between the enterprise and the representatives of the workers. Furthermore, daily working hours are nine hours at the maximum, unless a collective agreement or an agreement between the enterprise and the representatives of the workers provides for another method of distributing working time. The UGT adds that, in practice, enterprises make use of this flexibility to extend working hours excessively and, in most cases, do not compensate the workers for the hours performed in these circumstances.

The Committee notes that the Government, in its report on this point, emphasizes that the distribution of working time on an annual basis is accompanied by guarantees, as it is necessarily the product of collective bargaining. Furthermore, the distribution of hours of work has to comply with the rules on daily and weekly rest. With regard to the maximum working day, this is in principle nine hours, except where a collective agreement or an agreement between the enterprise and the workers’ representatives sets out a different rule, which nevertheless must comply in any event with the obligation of at least 12 hours rest between two working days. The Government’s report also contains a list of collective agreements applicable to establishments covered by the Convention. All these agreements contain an annual limit on the hours of work, but only some of them also establish a weekly or daily limit, as provided for by the provisions of the Convention examined below.

Article 3 of the Convention. Maximum weekly working hours. Section 34 of the Workers’ Charter provides that hours of work shall be determined by collective agreement or in the employment contract, with maximum weekly hours of work being 40 hours as an annual average (subsection 1). A collective agreement or an agreement between the enterprise and the workers’ representatives may provide for an uneven distribution of working hours over the year, provided that the rules relating to weekly rest and rest periods between two working days are respected (subsection 2). However, Article 3 of the Convention provides that hours of work shall not exceed eight hours in the day and 48 hours in the week. The possibility of distributing working hours over a period longer than a week, as envisaged in Article 6 of the Convention, is limited to exceptional cases in which the limits on normal working hours are recognized as being inapplicable. As a consequence, section 34(2) of the Workers’ Charter does not comply with the conditions set out in this provision of the Convention and is therefore contrary to Article 3. The Committee requests the Government to take the necessary measures to amend the legislation to bring it into conformity with the provisions of the Convention on this point.

Article 4. Maximum hours of work in the day. Under the terms of section 34(3) of the Workers’ Charter, the maximum hours of work in the day are nine hours, unless a collective agreement or an agreement concluded between the enterprise and the workers’ representatives establishes a different distribution of working hours, on the understanding that the compulsory rest period between two working days shall be respected. However, Article 4 of the Convention lays down that where working hours are distributed unevenly in the week, the hours of work in any one day shall not exceed ten hours. The Committee requests the Government to indicate the measures adopted to ensure that the collective agreements or enterprise agreements referred to in section 34(3) comply with this limit.

Substantial modifications in conditions of work. Section 41(1) of the Workers’ Charter authorizes the employer to undertake substantial modifications in conditions of work, including those relating to working hours, where there are established grounds for so doing, whether they are of an economic or technical nature or related to organization or production. The Committee requests the Government to indicate the manner in which compliance with the provisions of the Convention is ensured in the context of this procedure. The Government is also requested to provide information on cases in which employers are authorized to modify conditions of work in this manner.

Article 7, paragraph 2. Additional hours and authorized exceptions. Section 35 of the Workers’ Charter provides that the performance of additional hours must be voluntary, unless provided for in a collective agreement or the employment contract (subsection 4). Their number may not exceed 80 hours in the year, although additional hours which are compensated for by rest periods or those required to prevent or repair damage that is out of the ordinary and requires urgent action are not taken into account (subsections 2 and 3). However, Article 7, paragraph 2, of the Convention makes a limitative enumeration of the cases in which temporary exceptions are allowed. The Committee requests the Government to provide further information on the circumstances in which a collective agreement or a contract of employment may provide for the performance of additional hours.

Article 7, paragraph 3. Maximum number of additional hours. Under this provision of the Convention, the regulations which grant temporary exceptions shall determine the maximum number of additional hours which may be allowed in the day and in the year (except in the cases of accident, force majeure or urgent work). The determination of the maximum number of additional hours solely on an annual basis, as provided for in section 35 of the Workers’ Charter, is therefore insufficient. Furthermore, the failure to take into account additional hours which have given rise to compensation in the form of rest periods could lead to abuses, as their numbers are not subject to any limits. The Committee requests the Government to indicate whether daily limits are also applicable to the performance of additional hours.

Article 7, paragraph 4. Higher rates of pay. Under the terms of section 35(1) of the Workers’ Charter, additional hours are compensated for either in the form of rest or payment. In the latter case, the remuneration is to be determined by collective agreement or in the employment contract, but cannot be lower than that for normal working hours. The Government indicates in its report that many collective agreements applicable to the commercial sector provide for a higher rate of pay for the performance of additional hours. Article 7, paragraph 4, of the Convention requires that the rate of pay for additional hours of work in the context of temporary exceptions shall be at least 25 per cent higher than the regular rate. This requirement has to be met in all cases, whether or not it is provided for in a collective agreement. The Committee therefore requests the Government to indicate the measures adopted to ensure compliance with this obligation in all establishments covered by the Convention.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report for the period ending September 1998. It also notes a communication from the General Union of Workers (UGT) alleging that the provisions of the Workers' Charter, as amended in 1995, and of the Legislative Decree respecting special working hours (No. 1561 of 21 September 1995), are contrary to the Convention. This communication has been transmitted to the Government, which has not yet provided comments thereon.

The Committee wishes to draw the Government's attention to the abuses which may arise out of the strict application of section 34 of the Workers' Charter, and particularly subsections 2 and 3. The Committee notes that normal weekly hours of work are set at 40 hours under the terms of the first subsection, but that daily hours of work must be determined by collective agreements or contracts of employment. It notes that subsection 2 provides for the possibility of having recourse, through collective agreements or enterprise agreements, to an irregular arrangement of daily working hours, calculated on average on an annual basis. These hours of work are only limited by the requirement to grant a rest period of 12 hours between working days, under the terms of subsection 3. In this respect, the Committee wishes to remind the Government that the possibility of distributing hours of work over a period longer than the week, as set out in Article 6 of the Convention, is limited to exceptional cases where the circumstances in which the work has to be carried on make the normal hours of work set out in Article 3 inapplicable. These circumstances may arise in branches of activity which require an uneven distribution of working hours due to the nature of the work, for technical reasons, periodic peaks in the workload or seasonal variations. In these conditions, the Committee considers that, by permitting in a general manner possibilities for exceptions to normal hours of work, section 34, subsection 2, of the Workers' Charter is not in conformity with the provisions of Article 6 of the Convention.

Section 34, subsection 3, of the Workers' Charter establishes the maximum daily hours of work at nine hours, but provides for the possibility of exceptions to be made by collective agreements or enterprise agreements, under the sole condition of compliance with the 12-hour rest period granted between working days. The Committee wishes to draw the Government's attention to the fact that Article 4 of the Convention does indeed envisage the possibility of having recourse to an irregular arrangement of weekly hours of work, but only authorizes an additional two hours on top of the eight hours of work a day. In view of the above, the Committee considers that section 34, subsection 3, of the Workers' Charter is not in conformity with Article 4 of the Convention.

The Committee also notes that section 5, subsection 1, of the Workers' Charter no longer guarantees a higher rate of pay for overtime hours. On this point, it is not in conformity with Article 7, paragraph 4, of the Convention, which provides that the rate of pay in the event of the temporary exceptions envisaged in paragraph 2, has to be increased by at least 25 per cent of the normal wage.

Finally, the Committee wishes to draw the Government's attention to the need to ensure that the normal hours of work and the exceptions envisaged in the Convention are strictly complied with for employees in commerce, who are covered by section 6 of the Legislative Decree respecting special working hours (No. 1561 of 21 September 1995). The Government is requested to indicate the measures taken in this respect.

The Committee trusts that the Government will take the necessary action as soon as possible to bring its legislation into conformity with the provisions of the Convention on the above points and requests it to report the progress achieved in this respect as soon as possible.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the communication from the Workers' Labour Union (USO)-Regional Union of Asturias objecting to the Act of 6 June 1994 on opening hours for trade. It considers that the opening hours established by the Act and the authorization to open on certain Sundays, subject to prior permission from the Government Council, are contrary to the provisions of the Convention; and that the Act is part of a deliberate policy on the part of the Government to encourage large commercial centres to the detriment of small traders who will eventually go out of business as a result. The Committee notes that, in reply, the Government states that the above Act determines only the hours during which establishments may operate and so does not prevent the application of sections 34 et seq. of the Conditions of Employment of Workers setting normal hours of work at 40 per week.

The Committee asks the Government to provide in its next report a copy of Royal Decree No. 1561/95 of 21 September 1995 to which it refers several times in the reply.