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

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.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee notes the observations of the Trade Union Confederation of Workers’ Commissions (CC.OO.), received on 8 and 22 August 2014, and of the General Union of Workers (UGT), received on 29 August 2014, relating in particular to Article 9 of the Convention with regard to the uninterrupted part of the annual holiday with pay, as well as the Government’s reply received on 26 November 2014.

Article 8 of the Convention. Division of annual holiday with pay in parts. In its previous comments, the Committee noted that, by virtue of the Resolution of 28 December 2012 of the Public Administration State Secretariat, public employees are entitled to 22 days of annual holiday with pay which may be taken in minimum periods of five consecutive days. The Committee notes that, in its previous report, the Government indicates that at least half of the holiday (that is 11 working days) must be taken during the summer period, namely between 15 June and 15 September, unless the working schedule, in consideration of the particular types of services provided in each sector, specifies other periods. In this regard, in its previous comments the Committee observed that, under Article 8 of the Convention, the division of annual holiday with pay may be authorized by the competent authority in each country, provided that one of the parts consists of at least two uninterrupted working weeks, unless otherwise provided in an agreement applicable to the employer and the worker. The Committee requests the Government to take the necessary measures to bring the above resolution into full conformity with the requirements of this Article of the Convention.

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

Article 8 of the Convention. Division of annual holiday with pay in parts. The Committee notes the Government’s information that, by virtue of the Resolution of 28 December 2012 of the Public Administration State Secretariat, public employees are entitled to 22 days of annual holiday with pay which may be taken in minimum periods of five consecutive days. The Committee observes, in this regard, that under Article 8 of the Convention, the possible division of the annual holiday into parts may be authorized by the competent authority, provided that one of the parts consists of at least two uninterrupted working weeks, unless otherwise provided in an agreement applicable to the employer and the worker. The Committee accordingly requests the Government to take the necessary measures to bring the above referenced Resolution into full conformity with the requirements of this Article of the Convention.

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

The Committee notes the detailed information provided by the Government, and particularly the adoption of Act No. 7/2007 of 12 April issuing the conditions of service of public employees, the resolution of 20 December 2005 of the General Secretariat for the Public Administration respecting periods of incapacity for work and Decree No. 306/2007 of 2 March updating the amounts of financial penalties imposed for violations of the labour legislation.

Article 5 of the Convention. Minimum period of service giving entitlement to annual holidays with pay. The Committee notes the Government’s indication that the national legislation does not establish a minimum period of service, as entitlement to holidays is acquired from the first day of work in accordance with the principle of equality of treatment between workers covered by a fixed-term contract and workers with permanent contracts.

Article 6, paragraph 2. Periods of incapacity for work. The Committee notes the Government’s indication that temporary incapacity caused by illness is considered to be actual work with a view to calculating the length of holidays. It also notes numerous references to court rulings relating to entitlement to holidays with pay, and particularly the ruling of the High Court of Justice of the Basque country of 17 September 2003, which explicitly referred to the provisions of Convention No. 132. The Committee would be grateful if the Government would provide copies of the rulings referred to relating to the application of Article 6, paragraph 2, of the Convention. The Committee also refers to its previous comments relating to the conditions under which, in the private sector, periods of incapacity resulting from illness or accident may not be counted in the minimum period of annual holidays with pay. In the absence of a clear reply on this point, the Committee is bound to reiterate its request and asks the Government to specify the measures adopted or envisaged to establish the conditions under which days of incapacity for work are not counted as part of the minimum annual holidays with pay in the private sector.

Article 14. Adequate inspection. With reference to the earlier comments of the General Confederation of Workers (UGT) relating to the difficulties encountered by precarious workers in ensuring compliance with their entitlement to holidays with pay, the Committee notes the Government’s reply that in this case the problem is not the inadequacy of the provisions of the national legislation, but the violation by employers of laws, regulations or agreements, as a result of which they are liable to sanctions for these violations. The Committee observes in this respect that it is not sufficient, in order to give effect to the provisions of a Convention, to guarantee legislative conformity, but also, and most importantly, to ensure that these provisions are applied effectively in practice. The Committee would therefore be grateful to receive additional information on the extent of the problem raised by the UGT and the measures adopted or envisaged to resolve it. In this respect, the Committee notes the Government’s indication that the activities of the inspection services address “working time” in global terms, as the current computer systems do not allow the disaggregation of data referring exclusively to holidays with pay. The Committee trusts that the Government will make every effort to establish a system for the collection of information on the basis of which a more detailed analysis can be made of the results achieved by the inspection services so as to identify more effectively any problems in the application of the legislation respecting annual holidays with pay.

Part V of the report form. The Committee notes the statistical information provided by the Government on the number of violations relating to working time reported during the period 2003–07. The Committee would be grateful if the Government would continue to provide statistics, and particularly extracts from the reports of the inspection services, which enable the Committee to assess the application of the Convention in practice.

Direct Request (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). 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.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the information supplied by the Government with its last report.

Article 5 of the Convention. In reply to the observations made by the General Union of Workers (UGT) in 1994 on the subject of the enjoyment of holidays under temporary contracts, the Government points out that no legal difference is made between workers engaged under temporary contracts and those employed on a regular basis. The Committee notes that Law No. 63/1997 of 26 December 1997 amends the Workers’ Charter on the subject of temporary contracts, approves the regulatory function of collective agreements in general and of the "Interconfederate Agreement on Employment Stability" of 1997 in particular, without however providing for any legal provisions to ensure that workers, whose temporary contracts exceed a period of six months, have the right to paid annual leave. According to the Government, the outcome of collective bargaining on the issue has to be awaited first.

The Committee asks the Government to supply the "Interconfederate Agreement on Employment Stability" of 1997 and any up-to-date subsequent collective agreements on annual holidays with pay for workers (including those under temporary contracts), ensuring that in practice the qualifying period for paid annual leave shall not exceed six months.

Article 6, paragraph 2, of the Convention. The Committee notes that section 38(2) of the Workers’ Charter, as amended in 1995, merely prescribes the minimum annual holidays with pay, leaving the details of the regulation to individual or collective negotiations. The Government indicates that no legislative measures are envisaged because, in its view, they might interfere with the autonomy of the social partners negotiating on the issue of annual holidays with pay.

The Committee recalls that Article 6, paragraph 2, embodies as a general principle that days of incapacity for work resulting from sickness or injury should not be counted as days of the minimum annual holiday with pay. Referring to its previous comments, it also recalls that, while Article 6, paragraph 2, is flexible enough to leave it to the discretion of the competent authority or the appropriate machinery to determine the conditions under which effect would be given to that principle, these conditions should be laid down as clearly as possible. The Committee notes that the court decisions dating from 1995 to 1999, which have been communicated by the Government with its last report, do not show a coherent jurisdiction. Where the application of this provision is not made clearly effective by means of collective agreements, court decisions or any other measures consistent with national practice as may be appropriate under national conditions, clear legislative measures should be taken in accordance with Article 1, with the aim of establishing the conditions under which periods of incapacity for work resulting from sickness or injury may not be counted as part of the minimum annual holiday with pay. The Government is, therefore, requested to supply, with its next report, further information on the measures taken or envisaged to this end.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

In its previous comments, the Committee noted the observations made by the El Radium Textile Technicians' Union and the General Union of Workers (UGT) concerning periods of incapacity for work resulting from sickness or injury as they relate to the application of Article 6, paragraph 2, of the Convention, under the terms of which such periods may not be counted as part of the minimum annual holiday with pay prescribed in Article 3, paragraph 3, of the Convention. In this respect the Committee notes that, although the Convention leaves it to the appropriate machinery to determine the conditions under which such periods of incapacity resulting from sickness or injury may not be counted as part of the minimum annual holiday with pay, such conditions should be laid down as clearly as possible. The Committee notes that, in new observations submitted in October 1994, when referring to workers who are dismissed and those who are recruited under temporary contracts, the UGT states that the former generally only receive financial compensation in place of leave and that the latter, in both the private sector and the public administration, do not benefit from either leave or financial compensation. The Committee notes the information provided by the Government in its report to the effect that section 38(2) of the Workers' Charter, as amended in 1994, gives greater scope to collective agreements to determine the periods of annual leave and that nothing prevents them from taking into consideration periods of leave during which the worker suffers from sickness or injury. The Committee also notes that, in reply to the observations of the UGT, the Government states that the law makes no distinction between established and temporary workers with regard to the granting of leave and that any abuses that may occur arise less out of the regulations respecting leave than those governing temporary contracts and their enforcement. The Committee hopes that the Government will provide information on the measures which have been taken or are envisaged to ensure, in accordance with Article 6, paragraph 2, that periods of incapacity for work resulting from sickness or injury are not counted as part of the minimum annual holiday with pay prescribed in Article 3, paragraph 3. On the subject of precarious contracts, the Committee requests the Government to supply information on the effect given in practice to Article 5, under which the minimum period of service which may be required for entitlement to leave shall not in any event exceed six months.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

Article 6(2) of the Convention. In its previous comment, the Committee noted the observation of the El Radium Textile Technicians' Union and the Government's indications as to conflicting judicial decisions. It concluded that measures should be taken to determine clearly the conditions under which periods of incapacity for work resulting from sickness or injury cannot be counted as part of the minimum annual holiday with pay.

In a new observation, the General Union of Workers (UGT) points out that in practice there is frequently a problem in determining whether periods of illness or injury are to be counted as annual leave. It states that the juridical problem is worsened by the difficult labour market, in which workers fear employers will not continue their employment contracts if they attempt to claim period of illness or injury occurring during the annual leave period. The UGT calls for a new standard defining the right to enjoy paid holidays not including periods of incapacity due to illness or injury.

The Government in its report emphasises that individual cases in the courts have been decided on their own facts. It concludes that in general periods of illness or injury are not counted as part of paid holidays. However, it considers the case where the whole of an enterprise is on holiday at one time to be an important exception.

The Committee appreciates the degree of flexibility built into Article 6(2), which appears to leave it to appropriate machinery such as collective bargaining to circumscribe the conditions in which periods of incapacity resulting from sickness or injury are not counted as part of the minimum annual holiday with pay. However, it would again stress the need for maximum clarity in the provisions operating. It hopes the Government will continue to supply information.

Direct Request (CEACR) - adopted 1988, published 75th ILC session (1988)

The Committee takes note of the Government's comments on the observations submitted by the the "El Radium" textiles technicians' union concerning the application of Article 6, paragraph 2, of the Convention.

The above union pointed out that for many years the labour courts considered that a worker could take holiday before the end of the year in which it was due if he was unable to take it during the holiday period of the enterprise due to incapacity for work. The union also pointed out that in 1983 the courts have changed their interpretation and now consider that workers who are involuntarily absent during the holiday period or some days before it shall forfeit their holiday.

In its comments, the Government points out that, in accordance with section 96, paragraph 1, of the Constitution, international treaties become part of the country's internal legal system, and for this reason the courts have referred in several judgements to Article 6, paragraph 2, of the Convention. The Government points out that section 117 of the Constitution establishes the independence of the judiciary and that the Government may not therefore intervene in the application and interpretation of provisions in force.

The Government states that there has been no change of interpretation and that a distinction must be drawn between the question of periods of temporary incapacity for work being undertaken into account for entitlement to holidays due and the question of temporary incapacity for work occurring after the holiday period has been fixed. With regard to the first case, jurisprudence has maintained that periods of temporary incapacity for work should be taken into account for the purpose of computing the holidays due. In the second case, although the labour courts have held different positions regarding the application of Article 6, paragraph 2, of the Convention, they have most frequently maintained that if holiday periods have been fixed collectively and they coincide with a period of temporary incapacity for work of one of the workers, the latter is not entitled to take his annual holiday at any other time. The Government states that a more moderate solution was proposed in the Decision of 4 February 1986 to the effect that the opinion of the courts mentioned above should apply only to cases of temporary incapacity for work beginning after the holiday period has started, and that if the period of temporary incapacity for work begins before the start of the holiday period the general principle of forfeiture should be adapted to different cases.

The Government concludes by stating that the different decisions handed down by the Spanish courts cannot be considered as consolidated jurisprudence either way, but that it is a question of free interpretation by the Spanish courts of Article 6, paragraph 2, of the Convention, and that the administration has issued no rules governing such interpretation.

The Committee wishes to point out that the text of Article 6, paragraph 2, of the Convention establishes clearly that "under conditions to be determined by the competent authority or through the appropriate machinery in each country, periods of incapacity for work resulting from sickness or injury may not be counted as part of the minimum annual holiday with pay prescribed in Article 3, paragraph 3, of this Convention".

The Committee therefore considers that the Government should take the necessary measures to determine clearly the conditions under which periods of incapacity for work resulting from sickness or injury may not be counted as part of the annual holiday to which workers are entitled, so that Article 6, paragraph 2, of the Convention may be interpreted and applied in conformity with the spirit and the letter of this provision.