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

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

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.