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

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

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.