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

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

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.