Cas individuel (CAS) - Discussion : 1995, Publication : 82ème session CIT (1995)

Convention (n° 122) sur la politique de l'emploi, 1964 - Espagne (Ratification: 1970)

A Government representative of Spain made the following statement:

This year the Committee decided to discuss part of the Spanish situation and Convention No. 122 on Employment Policy in Spain. The general topic is important at present, the discussion in plenary is about this very subject and it is also very important to us. However, I cannot fail to mention with respect to this Committee and the Committee of Experts' report, the first paragraph of the observation in which the Committee again thanks the Government for having provided very specific and documented replies to most of the points that were raised in its previous observation and also thanks the Government for the fact that it has engaged in a well-founded dialogue with supervisory bodies concerning the application of the Convention. The situation in Spain is quite well known here in this House and is particularly important for this discussion to consider the report which covers nearly 100 pages of information and is quite recent. It dates from only a few months ago and covers all of the changes that have taken place in Spain to date. There have not been any major changes in legislation. The Committee of Experts has already studied all of the legislative texts and these have been well covered in the observation. What is worth stressing, however, in terms of the measures that have been taken is that in the first few months of 1995 there has been a positive trend and an improvement in the employment-unemployment ratios. According to the last report that was provided to me here in Geneva, which dates from May 1995, in 1994 the number of registered placements in the National Employment Institute was 5,939,207 people which is a new historic high, 22 per cent higher than the figure of the previous year. The data for the first quarter of 1995 confirmed the positive trend in job placement that took place with 1,897,535 placements, 44.6 per cent higher than in the same period of the previous year. In this trend towards placement the new measures that were introduced through the reforms have undoubtedly had considerable impact. Another important variable that also had a positive impact in 1994 was the unemployment in the national employment agencies since 1994. In March of this year unemployment has been reduced by 214,146 people, which is a 7.6 per cent reduction. The current unemployment rate is 16.4 per cent, which is well below, as you can see, the 24 per cent, slightly above 24 per cent, of the previous period.

Another important point to stress is that the reduction applies above all to young people in March of 1995. There were 117,446 fewer people under 25 years of age who are unemployed than in the same month of 1994. This positive trend in terms of employment, as registered by the National Employment Institute, is corroborated by the data coming in from the social security affiliates. During 1994 the social security affiliations went up by 200,600, whereas in 1993 it had fallen to 530,000. The corresponding data from March 1995 shows an increase of 2.4 per cent (291,600), compared to the previous year's statistics for social security. This is just some of the statistics that show the general trend of employment in Spain, which complements the information contained in the report up to March of 1995, and one hopes that this positive trend will continue as a reflection of an incipient but clear economic recovery. We should not forget that in economics the results can determine the effectiveness of the measures. Still, there has been criticism from the Committee of Experts of some of these same measures. Let me say that the employment policy, as a primary objective of our general economic policy in Spain, is carried out in a coordinated fashion, as indicated by the Experts and the Convention itself.

The Minister of Finance, in particular, together with the Minister of Labour and Ministries of Social Affairs, Industry and Economics are working together, which means that the specific measures taken in terms of labour relations unemployment are discussed not just in a single Ministry, such as the Labour Ministry, but rather and here I am quoting Convention No. 122 come from the determination and regular review of the employment policy as an integral part of an economic and social policy which is well coordinated in order to achieve, as the first Article of the Convention says, the objectives set out in Article 1.

The second point is that such measures have managed to achieve a certain balance between the position of Spanish employers and that of trade unions. This reflects the provisions of Article 3 of Convention No. 122. In the Committee of Experts' report, the observation mentions a position taken by a Spanish trade union, which as everyone knows, therefore, is opposed to the measures that have been taken, but it also must be known that the Spanish employers have said that the measures are insufficient. The purpose of the measures is to improve employment, even when clearly there is disagreement on both sides. This means that the changes that have been produced, which are already familiar to the Committee of Experts, are part of this whole balance which has to be achieved, with some difficulty at times, between the twin goals of employment and economic development. The measures taken, however, are not just taken by the Government and the Ministry of Labour, but rather are the result of the attempted and desirable coordination of all shades of opinion achieved through dialogue, and in the end, achieving broad support in the entire spectrum of views.

Following these general considerations, it is necessary to consider the specific social measures that have been adopted. The details and the statistics can be found in the reports, which are only a few months old.

1. In a free market economy, employment feels the effect of the expansion or shrinkage of enterprises which seek an appropriate balance between current income and future prospects. As we have said and is well known, at this point in our economic development, achieving this balance is rather difficult.

2. Transparency of the labour market is required in order to promote initial employment. Therefore, employment agencies and temporary-work agencies have been authorized, and these, together with the National Employment Institute, work together to try and reduce the bureaucracy involved in contacts between workers and enterprises. Regulations governing both are limited in relation to the pertinent legislation, and up to now it is not known whether these restrictions might not impede the free establishment in the Spanish market of such agencies. We have to achieve a balance. On the one hand, we have broken the monopoly of the National Employment Institute in order to reduce bureaucracy, but on the other hand, there has been considerable supervision exercised over the new agencies. We do not know yet whether we have achieved the necessary balance, given the characteristics of Spanish society. All of this is open to the readjustment that will come in time. What we cannot do is criticize in principle the measures adopted because this is an experiment which has proved successful in most free market countries. These agencies, which are now operating, tend to stress temporary employment and are sometimes criticized therefore as creating precarious employment. The contracts that may come from these agencies are the same as those which enterprises can sign directly with workers. Therefore, these agencies are neither restricting nor expanding the measures governing labour under Spanish law. All they do really is to increase transparency in the labour market, and they are governed by labour legislation.

3. Contracting, as a legal instrument, has undergone some changes which reflect the considerable care that has been taken in trying to seek the balance between the interests of workers and employers, the balance which has been referred to repeatedly.

(a) Only classic temporary contracts remain specific working hours or fixed-term contracts, indeterminate contracts, contracts for new employment and the temporary contracts. We have indeed tried to respond to the concerns of the workers and to the situation in the market and this led indeed to temporary employment. The measure that was taken is now having an impact on employment policies in enterprises but we have tried to mitigate any negative impact.

(b) On the other hand, we have changed, though not to the extent that would be wished by the trade unions, the apprenticeship contracts - these are strictly traditional under Spanish legislation. There is nothing new in this area. In the changes that have been made we have tried to reaffirm the characteristics of the contract, that is apprenticeship, with lower minimum wages but without in any way prejudicing the bargaining that might take place in the enterprise and in the sector, and providing minimum social security guarantees. And this, everyone knows. There is a study under way now trying to modernize our social security system. Because of the youth of these workers, the social security benefits that they receive have to do with accidents and diseases in the workplace and general medical assistance, disability benefits, pregnancy benefits and protection of wage levels. They are not given any protection for loss of employment or for temporary disability.

(c) In terms of contracts, let us also stress the positive measures that have been adopted as part of our employment policy in order to promote stable and permanent contracting but, given the existence of the temporary contracts for promoting employment, all of the other temporary contracts, which are those which are generally found under all labour legislation, are given financial incentives to be turned into permanent contracts. This is not a question of seeking balance between employers and workers, but rather is a public measure that tries to benefit both sides in order to create stability in employment and the cost of this is paid by the entire society. Temporary contracts as a means of promoting employment are at present reduced or limited to the most disadvantaged groups of workers, that is people with disabilities, those over 45 years of age and long-term unemployed whose contracts are also promoted by incentives involving social security.

(d) Provision of contracts and stability in employment is closely linked to vocational training. In this area there are no serious differences between workers and employers. However there are limits that result from the economic possibilities of the system. The three stages of training, that is basic, occupational and for promotion, which we call ongoing training, have undergone major changes in order to improve them further. With respect to the first two types of training, there has been a unitary approach to both subsystems. We have set up a national institute for professional qualifications which is the basis of providing diplomas from the Ministry of Education and Science and professional certificates that come from the Labour and Social Security Ministry. We have specified the powers of each of the two ministries involved and this shows a tremendous amount of coordination that is involved in trying to attain the objective of full employment. With respect to the third type of training, that is ongoing training, there are no real changes. Rather, we have created this on the basis of the 1993 Law on Ongoing Training and what we want to do is to finance measures and programmes for ongoing training in enterprises, otherwise as through apprenticeships. This indeed was a matter that had been criticized by the trade unions and had been a matter of concern to the employers as well. So we have paid attention to the content of the apprenticeship contracts and the training programmes which take place in the enterprises of a foundation which has been set up, which is directed by workers' and employers' organizations, which administers the public funds that are assigned for this purpose on the basis of training programmes developed by the enterprises, which then apply for funding. Here, we can talk about a lack of resources but this as well depends on the general economic situation and the report that we have recently sent contains full specific detailed information on all of these measures in the area of vocational training.

(e) We refer to regular activity in the enterprises and in this area of labour relations we have paid particular attention to finding a balance between the positions of workers and employers. The former felt that there were insufficient changes, whereas the other side felt that there had been considerable deregulation in labour legislation; and I refer to this because this was also mentioned in one of the observations of the Committee of Experts.

But let me give you a basic overview:

1. We have gone to collective bargaining for certain elements of enterprises that move from one place to another with protection for workers' rights, some of which are protected under law reducing public intervention which tended to limit the flexibility for an enterprise which, given the difficult economic situation, is essential.

2. We have also entrusted to collective bargaining certain aspects of wages and working hours but we have protected the basic aspects and the fundamental limitations increasing regulation in other areas of public protection for workers, for example, in relation to night work.

3. In terms of suspension of contracts, and an end to worker employment relationships, there have been major differences of opinion here between workers and employers. The three ways in which a contract can be ended - general or individual, because of the general economic situation, or dismissal for disciplinary reasons - have been fully regulated by the administrative authorities. Therefore, any change that was not based on major concepts was mentioned by the workers, whereas the employers felt that really nothing very important had changed. We have tried to give more power to the two parties but have safeguarded the ultimate ability of the authorities to mediate were that necessary whilst still reducing bureaucracy. It is necessary, for example, in a critical economic situation to be specific about the economic situation of the enterprise but we have tried to ensure that individual situations would not interfere with general collective results. Any dismissal for disciplinary reasons has to be carefully specified and we have always protected the basic rights of the workers. This is a broad concept which means that throughout this disciplinary procedure the Constitution provides us with considerable protection for workers on the basis of standards and possibilities for appeal by workers.

There has been some reference to deregulation but rather than deregulation we would call it reassignment of responsibilities and an attempt to adapt our regulations to the current economic situation of Spain and the need for employment and economic development.

The Employers' members thanked the Government for the information it had provided. This case had been discussed in 1988 and indirectly last year during the discussion of Convention No. 158. A distinction was drawn between Convention No. 122, which was a promotional Convention, and Convention No. 158, which regulated the conditions for termination of employment. The Employers' members questioned the relevance of connecting Convention No. 158 with Convention No. 122 when they had different objectives, merely leading to confusion.

Convention No. 122 did not set forth any precise actions for governments to take. Instead it set forth objectives for employment promotion and left room for differences in application due to varying circumstances in individual countries. Given that there was a close link with other economic and social policies, it was hard to assess the degree of the Government's accomplishments concerning the Convention. Employment promotion was a dynamic and ongoing process, particularly given the current global nature of the marketplace. Unemployment at one point had reached 22 per cent in Spain, which was quite high, but appeared to be decreasing, indicating some success in the Government's policies. This high unemployment was due in part to labour market rigidities concerning contracts, which appeared to have been relaxed, as the Government representative had mentioned in his statement. Concerning temporary contracts, these were necessary in light of the high unemployment rate, and played a role in providing employment and training opportunities to workers otherwise excluded from the labour market. The other strategies mentioned by the Government representative were a complementary part of a comprehensive approach to employment promotion. Lastly, they stressed that vocational training also played an important role, particularly in light of widespread structural adjustments.

The Workers' members indicated that they had proposed to include Spain in the list of individual cases for discussion for various reasons: to promote dialogue concerning this Convention; to call attention to the disturbing evolution of the situation of employment; to make the Government aware of the need for coherence between the general economic policy and the execution of the objective of full employment; to discuss the relationship between the functioning of the labour market and the measures adopted concerning regulation of labour and employment (concrete measures concerning labour contracts to promote employment and the conclusion of contracts of indeterminate duration); and to underline the importance of consultation with employers' and workers' organizations on all aspects of economic policy concerning employment. The Committee of Experts had underlined that the employment situation had deteriorated in the last few years. Despite certain improvements concerning flexibility which had been adopted, unemployment had reached 22.7 per cent. The number of temporary contracts amounted to a third of all contracts, which was the highest level in all of the European communities. This was an exorbitant number. Likewise, the statistics relating to the efforts of enterprise investment in the training of workers (0.6 per cent of payroll) was not encouraging. This was a preoccupation because the systems of stability in employment had a positive impact on the training and qualification of workers and reinforced enterprises' capacity for internal adaptability. In its report, the Government indicated that it was promoting employment through contracts of indeterminate duration inconsistent with the views of the present Committee. None the less, the Workers' members indicated that they wished to see more convincing results from the policy announced by the Government representative, and requested that the ILO be kept informed of the evolution in the number of contracts of indeterminate length.

Concerning social regulations (coverage for social security, the right to work, training, etc.,) the Workers' members insisted that the Government guarantee to workers with temporary or part-time contracts a protection which was equal to that enjoyed by workers who had contracts without limit of time. The Government should also guarantee that the number of temporary contracts be limited and controlled in order to avoid abuses, and that measures for promotion of employment, such as contracts to facilitate entry into the workforce and apprenticeships, did not stray from their objective.

The Workers' members also indicated that the report submitted to the Committee of Experts did not contain the information requested concerning the manner in which the measures adopted in the principal areas of economic policy contributed to the pursuit of the objective of full employment. The Committee of Experts had always insisted that the economic, financial and monetary policies all be linked to the objective of full employment. This was very important. Other policies also should be developed with the objective of the pursuit of full employment. The Workers' members asked the Government to send detailed information in this respect. Lastly, they underlined that, by virtue of Article 3 of the Convention, the Government should genuinely consult the workers' and employers' organizations concerning the employment policy and its relationship to the economic policy.

The Workers' member of Spain joined in the statements of the Workers' members. He indicated that this case was brought before the Committee in 1988 and subsequently in 1990, 1991, and 1993. On these occasions the Government representative had claimed that the policies were on the right track, that positive aspects of the employment policy existed, and that many temporary contracts with beneficial results had been created. The unions, on the other hand, had denounced the 16 per cent unemployment level of 1988 (which reached 23 per cent in 1995); the danger of the general use of temporary contracts; the precarious situation for more workers as they replaced those with permanent contracts, etc. For its part, the present Committee had requested that information be provided and that measures be taken, and had insisted that the Government develop its employment policy in cooperation with the social partners. However, the Government responded by promulgating a decree in 1992, without negotiating with the unions, from which it had preferred to distance itself in the last few years. The results regarding unemployment all these years showed that the Government had followed the wrong policy. Convention No. 122 was a promotional Convention in which trends, directions and, above all, results were important. In this respect, the statistics given earlier on unemployment (23 per cent) should be considered in relation to the number of workers with precarious employment (35 per cent). These percentages should be compared with the average in the European Union (between 8 and 11 per cent unemployment) in order to arrive at the conclusion that something grave had occurred and that the employment policy did not comply with the Convention. Concerning the statistic alluded to by the Government representative that 5 million positions had been created in 1994, it must be pointed out both that "position" meant temporary contracts of short duration, in many cases as short as one or two months; and that the active labour force in Spain was 12 million, of which 5 million were contracts of short duration. The problem of massive numbers of workers losing contracts of determinate length also existed. Furthermore, the Government representative stated that the law governing the use of temporary contracts to promote employment had been derogated; but this was not correct. In 1994, six months after this "derogation" the law was reinstated. To achieve full employment, it was important to develop an effective policy which took into account social and economic factors. He insisted that the Government take account of this in the near future.

Lastly, he stated that the speech concerning employment which the Spanish Minister of Labour gave in the plenary of the Conference was perfect and could be the basis for negotiating a plan for effective employment in Spain. Since he did not believe that this was an electoral speech, he could not fail to observe that the speech did not coincide with what the present Government representative had just said.

The Employers' member from Sweden noted that there were opposing views on the legal obligations imposed by Convention No. 122. Although there was consensus that the goal of the Convention was the promotion of full and productive employment, opinions differed everywhere sharply as to the policies and measures which were best suited to achieve this goal in the long run. Therefore it was impossible to make incontestable legal assessments on the requirements following from Convention No. 122.

The Committee of Experts rightly considered it necessary to look at the entirety of all the policies that touched upon employment promotion in order to make an assessment (including finance, taxation, investment, trade, prices, incomes, wages, training, labour market and social policies). Full and reliable information on each country including all the factors which might influence employment in the long run would also be necessary. The Committee of Experts had asked for a little more information here and a little less there. Even if the Committee received and was able to digest all the information needed, the speaker still doubted that the Committee would be able to draw any valid conclusions concerning the financial and other policies which a country was legally required to pursue, according to the Convention. Aware of these problems, the Committee had limited itself to certain isolated comments and pointers on labour market measures in Spain. This case demonstrated the need to review ILO standards, including the abolition of Convention No. 122, against which the Employers' group voted unanimously when it was adopted in 1964. In the meantime, the Committee was obliged to make comments, but should restrict itself to as few as possible.

The Committee noted the extensive statement of the Government representative. Having carefully taken into account the various aspects of the statement, the Committee called upon the Government to implement its policy so as to promote full, freely chosen, and productive employment as envisaged in Convention No. 122, maintaining consultations with the employers and workers on the matter from time to time. The Committee also called for a further full report on the consequences of their policies including in terms of developments in the employment situation.