Unemployment Indemnity (Shipwreck) Convention, 1920 (No. 8) - Spain (Ratification: 1924)

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes that Spain has ratified the Maritime Labour Convention, 2006 (MLC, 2006). The entry into force of the MLC, 2006, will result in the automatic denunciation of, among others, the present Convention. Pending the entry into force of the MLC, 2006, however, the Committee will continue to examine the conformity of national legislation with the requirements of this Convention. The Committee recalls, in this respect, that most of the provisions of Convention No. 8 have been incorporated in Regulation 2.6, Standard A2.6 and Guideline B2.6 of the MLC, 2006, and therefore compliance with Convention No. 8 would facilitate the implementation of the corresponding requirements of the MLC, 2006.

Articles 2 and 3 of the Convention. Unemployment indemnity in case of shipwreck. The Committee notes the Government’s renewed reference to section 59 of the Worker’s Charter and the indemnity to be granted in the event of termination of contract in a case of force majeure, such as shipwreck. In that regard, the Committee wishes to point out once more that such indemnity being limited to 20 days for each year of service is not consistent with the requirements of the Convention. Moreover, it appears that unemployment insurance benefits for seafarers in case of shipwreck are subject to the payment of contributions for a minimum qualifying period, under section 210 of Royal Legislative Decree No. 1/1994 of 20 June 1994. In addition, the Committee understands that recently enacted legislation, including Act No. 14/2009 of 11 November 2009 on temporary programme for unemployment protection and Act No. 32/2010 of 5 August 2010 on specific protective scheme for the self-employed in the event of termination of activity, also subjects unemployment benefits to a minimum qualifying period. The Committee wishes to recall that the Convention requires that the unemployment indemnity due to the seafarer in every case of the loss or foundering of the vessel be paid for the days during which the seafarer remains in fact unemployed, for a period of at least two months. The Committee accordingly requests the Government to take all necessary action in order to bring the national legislation into line with the Convention. Finally, further to its previous comment and in the absence of information addressing this point, the Committee again requests the Government to indicate the manner in which the application of the Convention is ensured in practice in the case of foreign seafarers employed on vessels registered on the Special Register of the Canaries in accordance with Act No. 27/1992 of 24 November 1992.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

Article 2 of the Convention. In its previous comments, noting that the Government was referring to unemployment insurance benefits to give effect to the Convention, the Committee found it necessary to recall that the indemnity envisaged in Article 2 of the Convention in compensation for unemployment resulting from the loss or foundering of the vessel is not subject to any qualifying period and corresponds to the level of wages payable under the contract. In its last report, while referring once again to the existence of unemployment insurance benefits, entitlement to which is subject to the condition of the payment of contributions for a minimum of 12 months during the last six years, the Government indicates that, irrespective of these benefits, the legislation provides for an indemnity for workers who are unable to perform their work as a result of a case of force majeure, such as shipwreck. Indeed, section 51 of the Workers’ Charter authorizes the termination of the contract of employment in case of force majeure and provides for the payment of indemnities based on the seniority of the worker and equivalent to 20 days’ wages for each year of service in the enterprise; where the worker concerned has served for less than one year, the indemnity is calculated pro rata in relation to the period worked.

The Committee notes this information. It understands that, in practice, the loss or foundering of a vessel does not necessarily result in the termination of the employment of the seafarers employed on the vessel. In cases in which an enterprise envisages terminating the employment of the seafarers employed on board a vessel that has been lost or foundered, it may have recourse to the above provisions of the Workers’ Charter respecting force majeure and will have to pay the indemnity envisaged in these provisions. However, the Committee notes that the indemnity payable in such circumstances is insufficient in relation to that required by the Convention (a minimum of two months’ wages at the same rate as the wages payable under the contract) since, although there is no qualifying period, no minimum duration is guaranteed, contrary to the requirements of Article 2 of the Convention. Furthermore, as entitlement to unemployment insurance benefits is subject to conditions relating to the minimum period of contributions, the accumulation of such benefits with the indemnity envisaged in the event of the termination of the contract of employment in cases of force majeure is not such as to secure in each case the minimum required by the Convention. It therefore requests the Government to re-examine the matter and to indicate in its next report the measures adopted or envisaged to bring the national legislation fully into conformity with the Convention.

Furthermore, the Committee notes that Annex 15 to Act No. 27/1992 respecting ports and the merchant navy establishes a special maritime register based in the Canary Islands. Clause 7 of this annex provides that the labour and social security conditions of foreign workers employed on vessels listed in this register shall be governed by the law freely designated by the parties, on condition that it is in conformity with ILO standards or, in the absence of any such indication, with Spanish law. The Committee would be grateful if the Government would provide information on the manner in which the application of the Convention is secured in practice in the case of foreign seafarers employed on vessels listed on this special register.

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

The Committee notes the information submitted by the Government in its last report that in case of shipwreck seamen receive the unemployment indemnity provided for by the General Social Security Act, subject to the conditions contained in section III of the Act, which include the completion of a 360-day period of contribution prior to the period of unemployment. It further notes that the Government no longer refers to the provisions of section 97(c) of the Ordinance on conditions of employment in merchant shipping of 20 May 1969, by virtue of which, in the case of loss or foundering of a vessel, the indemnity due to seamen is payable for the entire period of their unemployment, subject to a maximum of two months' wages.

The Committee recalls that the indemnity provided for under Article 2 of the Convention in cases of unemployment resulting from loss or foundering of the vessel is not subject to a qualifying period and corresponds to the level of wages established in the contract. This being the requirement of Article 2, the Committee hopes that the Government will specify in its next report whether the provisions of section 97(c) of the Ordinance on conditions of employment in merchant shipping are applicable independently of the general unemployment compensation system.