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Individual Case (CAS) - Discussion: 1994, Publication: 81st ILC session (1994)

A Government representative recalled that the Convention had been ratified by Spain in 1985. This Convention had been ratified to date by only 20 countries. This fact led one to consider it as one of those more recent instruments providing for valid but very complex and detailed protection which did not always correspond to existing national schemes providing for the same protection in a different manner, and this might constitute an obstacle to ratification. Studies made in Spain with a view to ratifying this Convention had revealed at the time that Spanish legislation ensured protection of workers in the case of termination of employment that corresponded to and sometimes exceeded that provided for by the Convention. This legislation was criticized by Employers who considered it too rigid and requested a reduction of the procedures required by such a system. There might have been some doubts regarding minor points which could have been dispelled by means of a stricter interpretation of the Convention. The Committee of Experts had not made any significant comments until two Spanish trade unions, basing themselves on a literal reading of the Convention, made comments that disregarded the fact that, on the whole, the protection provided for by Spanish legislation was in conformity with and sometimes even better than that provided by the Convention. As a result of the comments of the trade unions, the Committee made its observation on two points; the first concerning Article 2, paragraph 3 and the second with regard to Article 7 of the Convention.

With regard to Article 2, paragraph 3, the question of the use by enterprises of temporary contracts and their consequences on the stability of employment relations had preoccupied Spanish trade unions as well as the Administration to some extent. This question concerned employment policy and should have been examined in the context of the application of the Employment Policy Convention, 1964 (No. 122), to verify if the laws in this area adequately address the objective of the fight against unemployment. Respect of this objective was in practice ensured by the control made by the Workers' representatives, the trade unions and by the labour inspectorate. It was in this sense that section 15(4) of the Workers' Charter required employers to notify the legal representatives of workers about fixed-term contracts. The Ministerial Order, No. 2/1991 of 17 January 1991, which was the result of an agreement between the Government and the trade unions, gave workers' representatives the right of access to information with respect to the engagement of workers in order that they had the necessary information to reveal any abuses in recruitment. This Ministerial Order provides for organized consultations with the most representative organizations of employers and workers with a view to creating programmes of action of labour inspection so as to improve recruitment. It was by virtue of this Decree that in 1991 the results of labour inspection activities for 1990 and 1991 and the objectives for 1992 were presented to the social partners. The employers' and workers' organizations had provided their suggestions which were taken account of in the elaboration of the plans for labour inspection for 1992 and 1993. Similarly, the suggestions of the Trade Union Federation of Workers' Commissions (CC.OO) had been integrated into the plans for 1994. Details of the results of inspection activities were at the disposal of this Committee if they were so required. This information should nonetheless be supplemented by describing the guarantees provided to prevent the abuse of the use of temporary contracts. A temporary contract should meet certain objective requirements. It should be in writing and, in the event that it did not meet such requirements, it would legally be considered a contract of unlimited duration. Temporary contracts meant to encourage recruitment and aimed at employment promotion were strictly regulated in Spain. Without going into detail about the rules applicable to them and the statistics on the results achieved which were all provided to the Committee of Experts, it should be stated that Act No. 22/1992 of 30 July 1992 encouraged by means of subsidies the conversion of temporary contracts into contracts of unlimited duration, which addressed the concern of the trade unions about the excessive use of temporary recruitment. To sum up, the legal and information framework provided to control and inspect this question was as developed as possible to prevent abuse of temporary contracts and ensure the objective of Article 2, paragraph 3, of the Convention. All the other related issues raised concerned, in his view, employment policy and Convention No. 122.

The second point of the observation that should be addressed was mainly a legal question. The requirements of Article 7 of the Convention were the only ones that had posed a slight problem at the time of ratification. This Article had three legal requirements. In the first place the termination of the employment contract should relate to the worker's conduct or performance. In this regard the legal services of the Ministry of Labour and in general legal doctrine and jurisprudence considered such termination to be final only after all the claims against this worker were dealt with as a whole. Considering that the trade unions and the Committee of Experts took a literal reading of Article 7, it should be stated that the Spanish text of this Article of the Convention ("No debera darse por terminada la relacion de trabajo ...") was intended to cover a firm and final termination of employment relations which, in Spanish law, does not result from the simple dispatch of a letter of termination. The second legal requirement of Article 7 consisted of giving workers the right to defend themselves against the allegations before their employment is terminated. Spanish legislation did provide for this but in accordance with procedures destined to have practical impact. This law notably provided for an administrative conciliation procedure before an independent conciliator outside the enterprise. This procedure which was outside other available legal remedies is intended to arrive at an agreement, if possible, including eventually the amount of compensation which would avoid litigation. This was a requirement in all cases to obtain unemployment benefit, and went beyond the requirements of Article 7 by providing protection to the worker even when the employment relationship had not been terminated definitively. These conciliation procedures were not only strict in a legal sense, but were also humane and permitted the verification by the tribunals of the reasons given for termination. The third point dealt with the possibility given to the employer to consider the timeliness and suitability of providing a hearing to the worker. Article 55, paragraph 1, of the Workers' Charter provided for new procedures to be established by collective negotiations. The speaker said he could cite numerous examples of collective agreements that provide for this aspect of the question of termination. The question of termination of employment was very sensitive and traditionally controversial among employers and workers in Spain. In preparing draft laws and during negotiations with the social partners, the labour administration service endeavoured to take account of the demands of both parties.

The Employers' members first noted that the Committee of Experts had stopped referring to Article 11 of the Convention which indicated that the problems relating to it had been resolved. This left the two questions on which the Government representative had provided detailed explanations. The first question referred to whether an excessive use of temporary employment constituted a violation of the Convention. The internal logic of the Convention consisted, on the one hand, of the possibility of excluding from its scope temporary contracts, and on the other hand of requiring safeguards to be provided to prevent recourse being had to such contracts to avoid the protection resulting from this Convention. It was evidently difficult to determine how many such temporary contracts would constitute a violation of the Convention. All it required was that there be no abuse in the use of such contracts in order to avoid the protection provided against the termination of employment. This preoccupation was understandable but difficult to assess and elaborate on. The frequent use of temporary contracts seemed necessary in view of the changes noted in national economies in Europe. The Committee of Experts itself had not provided for specific levels beyond which the use of such contracts would constitute an abuse. In their view the legal context and requirements concerning the use of such contracts as the Government representative had described should be "adequate safeguards" required by the Convention. They wished to express criticism regarding the observation of the Committee of Experts when it referred to Convention No. 122 in order to interpret provisions of Convention No. 158. It was surprising that in order to interpret a technical and legally complicated instrument such as Convention No. 158, that a typically promotional instrument such as Convention No. 122 was used. This presented the risk of creating confusion. It would be inappropriate to prohibit or limit temporary contracts of employment on the basis of the provisions of Convention No. 122, as these types of contracts had a role to play in the context of an employment policy aimed at fighting unemployment. It would therefore be useful for the Committee of Experts to re-examine this question in light of the explanations furnished by the Government representative. The second remark they wished to make concerned Article 7 of the Convention which required that a possibility be given to the worker to make a defence against the allegations made before the termination of employment. The Committee of Experts had indicated that Spanish law permitted recourse to the competent courts against the termination of employment only after a decision had been taken regarding such termination. This was considered by the Committee to be contrary to the Convention. The detailed explanations given by the Government representative appeared to show in reality that the employment relationship was not terminated when the letter of termination was received. The subtle legal analysis that he provided should, as usual, be communicated to the Committee of Experts. To this effect the Government of Spain should submit in writing the oral information it provided to this meeting to enable the Committee of Experts to re-examine the question which could then be seen by this Committee if necessary.

The Workers' members wished to make two remarks regarding the statement made by the Government representative that Convention No. 158 was too detailed and required revision. In the first place it should be stated that Spain had ratified the Convention as it is and it was the duty of this Committee to examine if its legislation and practice were in conformity with the Convention. Secondly, it was not on detail but on the core of the protection provided by the Convention that questions were being raised. The two points raised by the Committee of Experts in its report this year had also been raised in 1992. Since then the Government had undertaken a series of reforms in the areas of recruitment, use of temporary contracts and the right to terminate the employment relationship. In 1992 the Committee of Experts had expressed the hope that the measures taken by the Government would provide better safeguards against the misuse of fixed-term contracts. This was an important question in view of the fact that Spain had a very high number of temporary contracts representing a third of total employment. This could be as a result of many causes, as stated by the Employers' members, but in their view special attention should be paid to the existence of safeguards against the abuse of this type of contract. Despite the explanations and replies provided by the Government in response to the observation of 1992 and despite the statement given by the Government representative that all this information had already been communicated to the Committee of Experts, the experts had once again this year expressed the hope that adequate safeguards would be provided in the near future. With regard to the reference to Convention No. 122 made by the Committee of Experts, they underlined the importance that Committee attached to preventing employment policies from generating precarious contracts that have negative consequences on people and enterprises resulting from the frequent turnover of workers. The Government should rapidly make efforts to decrease to normal levels the number of temporary contracts. The detailed information promised in this respect should be communicated to the Committee of Experts. With regard to Article 7 of the Convention, the Committee of Experts was quite clear in concluding that the legislation was not in conformity with the Convention in that the great majority of workers did not have access to the procedures that would permit them to defend themselves. It was necessary that the Government should take the appropriate measures to give full effect to this Article of the Convention and furnish full details in this respect.

The Workers' member of Spain stated that Convention No. 158 on termination of employment in its Articles 7, 8 and 9 provides for rights and guarantees to workers in case of dismissal. This Convention which is very flexible provides in its Article 2 for various exceptions and possible exclusions to its coverage. The major exception referred to contracts of employment for a specified period of time. However flexible this Convention might be, it did not permit abuse of such temporary contracts avoiding fulfilling the guarantees required by Articles 7, 8 and 9 of the Convention. The law should provide for such abuses and the Spanish Civil Code contained stipulations in this regard. Article 2, paragraph 3, provided for guarantees against abuses of fixed-term contracts. Unemployment in Spain stood at 24 per cent of the population which was double that of the European Community and 35 per cent of the employed held precarious employment. A law that had recently come into force in Spain provided that workers employed in certain circumstances under part-time or fixed-term contracts would not have social security, unemployment and pension benefits. It was therefore reasonable for the Committee of Experts in the second paragraph of its observation to require the Government to continue to inform the ILO of developments in this sphere. The major points related however to Articles 7 and 8. Article 7 provided for an essential right not only for workers but for all citizens. This was the right to be heard before the application of any sanction. This was in his view a fundamental right of any citizen which was provided for in a flexible way in Article 7. Article 8 provided for the right of any citizen to have recourse to labour courts or arbitration tribunals when faced with unjustified termination of the employment relationship. His country implemented Article 8 because the Constitution guaranteed the right of recourse to the courts as fundamental. Article 7 on the contrary was not being applied nor had it ever been guaranteed in the history of Spain. He hoped that it would be applied soon. He recalled that the Committee of Experts clearly distinguished between the right provided for in Articles 7 and 8. He expressed his surprise that a developed European country like Spain would find it difficult to comply with this Convention on a reasonable point that did not affect the national interest, by ensuring to a worker the right to a hearing prior to dismissal by an employer. Compliance with this provision of the Convention was easy and did not require adoption of a text of law. All it required was political will. It was of concern that a Government with the capacity of compliance was not doing so simply because it lacked the political will. He therefore considered that the Government should be urged to take account of this and comply with Article 7 of the Convention.

The Workers' member of Italy stated that, given the importance of the number of temporary contracts in the employment market and because of the unfavourable conditions imposed on workers by such contracts, this constituted an important matter that necessitated safeguarding individual workers' rights. The requirements of Article 7 were essential in establishing a balance between the rights of the parties to the contract.

The Government member of Germany wished to make a general remark before posing two questions concerning Article 2 of the Convention. His general remark concerned the surprising link established by the experts between this Convention and Convention No. 122. Temporary work could, depending on the case, be useful or harmful to employment policy. The question should, therefore, be examined in the context of Convention No. 122 without the need to inject these sort of considerations under Article 2 of Convention No. 158. Temporary contracts that might be criticized for their repercussions on employment could conceivably offer safeguards required by Article 2. The first of the two questions was addressed to the Government representative. It appeared that the parts of the observation of the Committee of Experts relating to Article 2 were based essentially on the comments made by the trade unions and attached to the government report without the Government apparently making use of the possibility to comment on the views of the trade unions. The only indication given by the Government related to preparatory work on a social pact and a wish expressed on this occasion to modify the regulations dealing with fixed-term contracts. The Government representative had, however, presented to this Committee a body of information that should have been submitted to the Committee of Experts. In the absence of the Chairman of the Committee of Experts at this part of the Committee's work, the second question was addressed to the Secretariat. One could read in the same passage of the Committee's observation that the Committee "... would suggest reference in this connection to Paragraph 3 of the Termination of Employment Recommendation, 1982 (No. 166). The Committee asks the Government to keep the ILO informed of the developments in this sphere". He considered it surprising that information was requested on the implementation of a provision of a Recommendation outside article 19 of the Constitution.

The Government representative of Spain stated that the question of temporary contracts related to employment policy and should be dealt with under Convention No. 122. He affirmed that Spain implemented Article 7 of Convention No. 158 as stated in his earlier intervention. He hoped discussion on this subtle legal question would be done away with when all the information provided to the experts had permitted them to make a definitive assessment. With respect to the statement of the Workers' members he wished to state that he never suggested that Convention No. 158 needed to be revised and amended. All he had said was that this Convention was a detailed and technical one with only 20 ratifications to date. He had the impression, perhaps wrongly, that more weight was given to the information provided by the trade unions rather than by governments, as the legislative provisions he referred to, which were proof of implementation of the Convention, had obviously not been taken account. Even though it was true that there were a very large number of fixed-term contracts and very high unemployment in his country, the first priority of his Government was the promotion of employment policy. It was better for people to be employed temporarily rather than unemployed. While it was true that the number of legally authorized temporary contracts had increased with no fraud involved, temporary contracts had been subsidized and converted into contracts of employment for unlimited duration. He further stated that in his country temporary contracts to which the Workers' member of Spain had referred were apprenticeship contracts with some social security protection such as protection against accidents at work. He stressed that Spanish employers were not more demanding than others and if a worker was dismissed for serious reasons it was only after having been given due warning. Furthermore, employers generally respected the various steps that need to be taken before proceedings to terminate an employment relationship. He expressed his surprise, like the Government representative of Germany, at the reference made to Recommendation No. 166. Finally, he reiterated the fact that his Government had furnished all the information requested so that the question could be examined in depth.

The Workers' member of Spain stated that it was completely wrong to assert, as did the Government representative of Spain, that the Committee of Experts followed the directives and opinions of trade unions. In his view the problem was that what had been orally stated by the Government representative and sent in writing many times to the Committee of Experts, according to the Government representative, was not convincing the experts. He asked the Government representatives to cite him the provision of Spanish law that implements Article 7 of the Convention. He urged the Spanish Government to show its good faith once and for all by implementing Article 7 of the Convention. He pointed out that while in practice most Spanish employers respected this requirement of the Convention there were none the less violations as well.

The Workers' member of Uruguay stated that at first sight the Employers' and Governments' questions were bordering on play. Temporary employment was a result of economic policy decisions whether we liked it or not, but resulted in personal, family and social instability which ended up in a social jungle or everyone out for himself. It was not surprising if employers were attempting to manipulate the law but the fact that a government failed to provide a balance was unacceptable. Finally, he expressed the impression he had that the Government was playing the role of employers.

The Committee noted the detailed information and explanation provided by the Government representative as well as the discussion that followed it. It further noted that some discrepancies seemed to continue to exist, both in law and and in practice, in respect of the requirements of two Articles of the Convention. The Committee expressed the hope that the Government would take all the necessary measures to ensure in the near future the full implementation of the Convention both in law and, and of course, in practice. It hoped to note real progress in the next report due from the Government. In this respect it expressed the hope that the detailed information provided by the Government representative would be communicated to the Committee of Experts.

The representative of the Secretary-General wished to indicate that the next General Survey would be devoted to Convention No. 158 and its complementary Recommendation No. 166. This Survey would undoubtedly address the question posed by the Government member of Germany and the Employers' members on the subject of the relations between the two instruments. He added that, with regard to the information coming from governments and organizations of employers and workers, the Committee of Experts had never favoured one or the other as a source and that it was only concerned with the substance of such information.

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Article 7 of the Convention. Procedure prior to or at the time of termination. In reply to the observations made in 2015 by the Trade Union Confederation of Workers’ Commissions (CCOO), sent together with the Government’s report, which are concerned with exceptions to the guarantee of a hearing prior to disciplinary dismissals, the Government indicates that the issue was raised 20 years ago by the CCOO and the General Union of Workers (UGT) and was resolved at that time. The Government adds that the legislation establishes a set of measures designed to provide workers with an opportunity to defend themselves, such as the requirement to give written notice of the dismissal to the worker concerned, indicating the grounds for the dismissal and the date on which it will take effect (section 55(1) of the Workers’ Statute), and attempted conciliation or mediation, as the case may be, prior to the initiation of judicial proceedings vis-à-vis the corresponding administrative service or body responsible for those functions (section 63 of Act No. 36/2011 of 10 October 2011 concerning labour jurisdiction). In its observations of 2016, the UGT considers that there is no real system of mediation for avoiding a dispute at the time of termination of employment and ensuring the protection of the worker prior to the dispute, and even less so in bankruptcy proceedings. The Committee recalls that the application of Article 7 of the Convention was addressed during the 1990s by the ILO regular supervisory mechanisms. In its General Survey of 1995 on protection against unjustified dismissal, paragraph 150, the Committee indicates that “… the opportunity for a worker to defend himself must be given before the employment is terminated. Even if the worker is entitled to procedures after the termination of employment, and even if the termination is not considered as final until the appeals procedures are exhausted, it is necessary for the application of Article 7 that the worker be given an opportunity to defend himself ‘before his employment is considered to have been terminated’”. The Committee requests the Government to provide information on the manner in which effect is given to this provision of the Convention.
Application of the Convention in practice. The Committee notes the observations made by the International Organisation of Employers (IOE) regarding the general application of the Convention. The Committee also notes the information supplied by the Government regarding the functions of the labour and social security inspectorate in the event of collective dismissals on economic, technical, organizational or production-related grounds. It also notes the results of the actions of the labour inspectorate with regard to collective dismissals in 2015. The Committee requests the Government to continue providing information on the application of the Convention in practice.

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes the observations from the General Union of Workers (UGT), received on 22 August 2016, from the Trade Union Confederation of Workers’ Commissions (CCOO), received on 31 August 2016, and from the International Organisation of Employers (IOE), received on 1 September 2016. It also notes the joint observations from the Spanish Confederation of Employers’ Organizations (CEOE) and the IOE, also received on 1 September 2016, and the Government’s reply, received on 26 October 2016. Furthermore, it notes the adoption of Royal Legislative Decree 2/2015 of 24 March 2015 adopting the amended text of the Workers’ Statute.

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the ILO Constitution)

In its report, the tripartite committee set up to examine the representation made under article 24 of the ILO Constitution by the CCOO and the UGT found that it lacked sufficient basis to consider that the extension to one year of the exclusion from the scope of the Convention might be considered reasonable, especially as this extension was not the result of social dialogue and was introduced in this type of employment contract which was of a general nature. The tripartite committee consequently invited the Government to provide information on the evolution of the “entrepreneur-support contract” and, in light of the information available, to examine the possibility of adopting measures, in consultation with the social partners, to ensure that this contractual arrangement is not terminated at the initiative of the employer in order to avoid in an abusive manner the protection provided for in the Convention.
The UGT and the CCOO state that the Government has not followed up on the recommendation of the tripartite committee to increase its efforts to strengthen social dialogue and, in consultation with the social partners, to seek solutions to economic problems that are consistent with the Convention (paragraph 226 of GB.321/INS/9/4). The CCOO adds that not only has the Government failed to arrange meetings with the social partners to hear and take into consideration their proposals regarding labour legislation, especially the regulatory framework governing dismissals, but it has also continued to adopt legislation without any real consultation of the trade unions. By way of example, the CCOO refers to the case of Royal Legislative Decree 2/2015 of 24 March 2015, in respect of which the statutory minimum period of seven working days was applied to consultations with the trade unions and employers’ organizations, a period that the Economic and Social Council, in its opinion dated 28 July 2015, considered insufficient “for ensuring adequate consultations on a legal standard of this nature and importance”. In reply to the observations of the CCOO on consultations in the context of the Royal Legislative Decree, the Government considers that the time allocated to the trade unions and employers’ organizations to make observations on the draft legislation was sufficient, since the adopted legislation entailed amendments limited to formulating a single text regularizing, clarifying and harmonizing the consolidated texts, in accordance with article 82.5 of the Spanish Constitution.
Exclusions. Establishment of a one-year trial (probationary) period under the “entrepreneur-support contract”. Further to the tripartite committee’s invitation to provide information on developments concerning the “open-ended entrepreneur-support contract” (CAE), the Government states that an analysis of recruitment, using data available up to January 2016, shows that, after a period of 13 months under contract, 49.1 per cent of workers on CAE contracts were still employed (59.2 per cent of the total number of workers holding contracts with discounts were still employed, compared with 43.1 per cent of those holding contracts without such discounts), compared with 62 per cent of persons holding standard open-ended contracts (contracts of indefinite duration). The UGT indicates that the destruction of jobs, which was already significant before the labour reform because of the economic and financial crisis, has accelerated drastically. It observes that, according to the statistics supplied by the Government, CAE contracts with discounts for employers (but not CAE contracts without discounts for employers) display patterns similar to those of standard open-ended contracts. The UGT and CCOO observe that the number of CAE contracts without employer discounts terminated on or before 13 months exceeds that of open-ended contracts between 13 and 18.9 percentage points. The UGT expresses its concern at the increase in CAE contracts, which in 2016 accounted for 38 per cent of open-ended contracts. The CCOO indicates that, since December 2013, it has been possible to conclude part-time “open-ended entrepreneur-support contracts” (Royal Decree-Law 16/2013 of 20 December 2013), but no disaggregated data are available that show what proportion of the increase in CAEs in 2014 and 2015 corresponds to part-time contracts. The CCOO also considers that the increase in job rotation for open-ended employment is resulting in growing precariousness for open-ended contracts and that the 2012 labour reform is adding to the instability of open-ended employment during the recovery period. On the other hand, the CEOE and IOE consider that the one-year trial period does not violate the provisions of the Convention. They refer to ruling No. 8/2015 of 22 January 2015 handed down by the Constitutional Court (constitutional challenge No. 5610-2012), in which the various grounds submitted to challenge the trial period were dismissed, since the trial period meets the requirement of proportionality and constitutes a necessary and appropriate measure. In its reply to the observations of the CCOO and UGT, the Government indicates that, as regards recruitment analysed with information updated to September 2016, it can be seen that, after 13 months on contract, 47.2 per cent of persons holding CAE contracts are still employed (of these, 59 per cent are contracts with employer discounts, while 41.2 per cent are contracts without employer discounts), compared with 64.3 per cent of persons holding standard open-ended contracts and 8 per cent of persons holding temporary contracts. The Committee requests the Government to continue providing information on developments relating to CAE contracts, particularly part-time CAE contracts and CAE contracts without discounts for employers, disaggregated by sex where possible. This Committee recalls that it is for each country to determine the reasonableness of a probationary period under Article 2(2)(b) of the Convention depending on the nature of, and qualifications required for the job. The Committee considers, like the tripartite committee, that an important factor in determining the reasonableness of a probationary period is whether it is the result of social dialogue. The Committee requests the Government to indicate whether in the light of available information it has examined the possibility of adopting measures, in consultation with the social partners to prevent CAE contracts being terminated at the initiative of the employer with the aim of avoiding the protection afforded by the Convention.
Articles 1, 8(1), 9(1) and (3). New regulations concerning economic, technical, organizational or production-related reasons for dismissal. The Government indicates that in 2015 the Supreme Court handed down 40 rulings relating to collective dismissals; the dismissals were declared lawful in 22 cases, unlawful in five, and null and void in 13. The CCOO indicates that, by comparison with the previous year, the number of files dealing with the regulation of employment (EREs) – relating to the termination of employment, lay-offs or reductions in hours – communicated between January and December 2015 fell by 46 per cent, while the number of persons affected decreased by 37 per cent. A total of 24.4 per cent of people affected by EREs had their contracts terminated (collective dismissals), amounting to 24,572 individuals, most of them belonging to the services sector (66 per cent) and industry (26 per cent). The CCOO refers to the Supreme Court ruling of 20 October 2015 (Case No. 172/2014), which deals with judicial review of the grounds for collective and objective dismissal, and also with whether those grounds are reasonable and proportionate. The CEOE and IOE, on the other hand, consider that the amendments introduced by the 2012 labour reform regarding collective dismissal do not violate the provisions of the Convention. They reiterate their observations of 2015 regarding the greater involvement of the courts in labour relations, especially with regard to collective dismissals. They mention the proposals put forward by the employers’ organizations to reduce the duality of the labour market and give greater legal certainty to employers’ decisions, with respect to the bonus of eight days’ compensation by the Wage Guarantee Fund (FOGASA) in cases of contracts terminated on objective grounds and collective dismissals. The Government indicates in its reply that the judicial rulings referred to by the CCOO are concerned with aspects of the labour legislation which were amended by the 2012 labour reform. In its reply to the joint observations of the CEOE and IOE concerning collective dismissals, the Government explains that the basis for administrative and judicial review is to be found in the Convention itself (Articles 4, 8, 9(3) and 14(1)). Moreover, the Government considers that the proposals put forward by the employers’ organizations regarding the review of collective dismissals in the administrative or judicial spheres are aimed at reducing or abolishing controls by the competent authorities. As regards the observations regarding the greater involvement of the courts in labour relations, an issue also raised in 2015, the Government refers to the reply made at the time. The Committee requests the Government to continue providing information on the manner in which the regulations concerning the economic, technical, organizational or production-related reasons for dismissal are applied in practice, including up-to-date statistics on the number of appeals made, the outcome of those appeals and the number of cases of termination for economic or similar reasons.
Article 6. Changes in the regulations on absence from work because of duly certified illness or accident. Dismissal for absenteeism. The Committee notes the rulings of the higher courts referred to by the Government dealing with the calculation of absences from work due to temporary incapacity. The Government recalled that absences due to medical treatment for cancer or any other serious illness are explicitly included in the category of those excluded from the calculation of absences. The Committee also notes the rulings handed down by the High Court of Madrid and the Supreme Court, referred to by the CCOO, dealing with objective dismissal for absenteeism (before and after the 2012 labour reform) and dismissal in situations of temporary incapacity, respectively. The CEOE and IOE consider that the labour reform provided a response to the serious problem of absenteeism, especially sick leave for common illnesses of short duration. They recall that the annual cost of absenteeism to employers in Spain is €7,250 million, of which over €6,500 million corresponds to incapacity for work due to common contingencies (direct contributions from enterprises). The Committee requests the Government to continue providing information on the manner in which absences due to temporary incapacity are calculated.
Article 10. Abolition of compensation wages in cases where the employer opts for termination of employment despite a court ruling of unfair dismissal. The Committee notes the information provided by the Government on the fifth transitional provision of Act No. 3/2012 of 6 July 2012 establishing urgent measures for reform of the labour market, relating to the calculation of compensation for unfair dismissal with respect to contracts formalized before and after 12 February 2012, equivalent to 45 and 33 days’ wages, respectively, for each completed year of service, with a pro rata amount per month for periods of less than a year in both cases, up to a maximum of 720 days’ wages. If, in calculating the compensation for the period before 12 February 2012, the number of days exceeds 720, the latter figure will be regarded as the maximum applicable to the amount of compensation, up to a maximum of 42 monthly payments. The CEOE and IOE consider that the abolition of compensation wages, together with the reduction of compensation to 33 days’ wages, has helped to reduce the costs of dismissal and is conducive to overcoming labour market duality and competitive disadvantages. The Committee requests the Government to continue providing information on the number and nature of compensation granted, including examples of court decisions that found that the termination of employment was unjustified.
The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Article 7. Procedure prior to or at the time of termination. In its observations included in the Government’s report, the Trade Union Confederation of Workers’ Committees (CCOO) indicates that section 56 of the Workers’ Charter only guarantees hearings prior to disciplinary dismissals for workers’ representatives. In the case of a worker who is a member of a trade union and whose membership is recognized by the employer, the same provision establishes mandatory prior hearings for trade union delegates. The CCOO maintains that, while collective bargaining may establish the guarantee of a hearing for workers prior to dismissal, the legislation does not guarantee that the workers will be heard prior to the decision to dismiss them. The Committee requests the Government to provide its comments in this respect.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes the observations of the Trade Union Confederation of Workers’ Commissions (CCOO), included in the Government’s report. The Committee also notes the observations of the General Union of Workers (UGT) and of the International Organisation of Employers (IOE) and the Spanish Confederation of Employers’ Organizations (CEOE), received on 1 September 2015. The Committee further notes the Government’s reply to the earlier observations, received on 11 November 2015.

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the Constitution of the ILO)

At its 321st Session (June 2014), the Governing Body entrusted the Committee of Experts with following up the questions raised in the report of the tripartite committee which examined the representation made by the CCOO and the UGT alleging non-observance by Spain of Convention No. 158 (GB.321/INS/9/4). In the same way as the tripartite committee (paragraph 226 of the report), the Committee of Experts requested the Government to increase its efforts to reinforce social dialogue and, in consultation with the social partners, to find solutions to the economic difficulties that are in conformity with the Convention. The CCOO states that the Government has not organized meetings with the social partners to listen to and take into consideration the proposals made by trade unions concerning the Convention and concerning the need to make substantive amendments to the current legislation respecting termination of employment. The Committee once again requests the Government to take measures to reinforce social dialogue and, in consultation with the social partners, to find solutions to the economic difficulties that are in conformity with the Convention.
Exclusions. Establishment of a one-year period of probation under the “entrepreneur-support” employment contract (paragraphs 227–247 of the report). The Government indicates in its report that in practice the “entrepreneur support” employment contract (CAE) has shown characteristics similar to indefinite contracts (that is, without limit of time), rather than temporary contracts. The rate of retention in employment over time of persons covered by CAE contracts is much closer to that of other indefinite contracts. The Government adds that the CAE contracts do not systematically end just before one year is completed.
The CCOO indicates that employment instability has increased among those who have concluded employment contracts without limit of time since the 2012 labour reform. Mobility within recently created permanent jobs has grown by 23 per cent since the labour reform of March 2012. The CCOO adds that certain labour tribunals have found that the rules governing the probationary period of one year set out in CAE contracts are in violation of the European Social Charter, as they do not provide for either the right to notice or to compensation during the one-year probationary period.
The UGT emphasizes that CAE contracts were introduced without social dialogue and warns that they do not appear to be a transitional measure, as they could be in force for over ten years when it is considered that the unemployment rate (24.5 per cent in 2014) will not fall below 15 per cent for many years. According to the UGT, the CAE contracts are a structural measure. CAE contracts have become generalized through all types of activity which, in the view of the UGT, has a substantial effect on the freedom of collective bargaining, as the application of CAE contracts cannot be limited through collective agreements. The UGT also indicates that the Government has not adopted any measures to prevent CAE contracts from being terminated at the initiative of an employer in order to avoid in an abusive manner the protection provided for in the Convention, as requested by the tripartite committee (paragraph 247 of the report).
The Committee notes the Government’s indication in its reply that the High Court of Castilla and León, Valladolid (Labour Chamber, First Section) has found in two rulings dated 25 March 2015 and 22 April 2015 that there is no violation of the European Social Charter. The Government emphasizes that CAE contracts are used only by enterprises which need to have recourse to them to examine the viability of the job. According to the Government, CAE contracts are of a transitional nature, and are limited in time until the unemployment rate falls below 15 per cent. The Committee requests the Government to continue providing information on developments in relation to CAE contracts and on the issue of social dialogue. Please also indicate the measures adopted, in consultation with the social partners, to prevent CAE contracts from being terminated by employers in order to avoid in an abusive manner the protection provided for in the Convention.
Articles 1, 8(1) and 9(1) and (3). New regulations on economic, technical, organizational or production-related reasons for dismissal (paragraphs 248–266 of the report). The Government provides a detailed list and analysis of the rulings of the Labour Chambers of the High Courts issued between January 2013 and September 2014 relating to collective dismissals. In 2013, out of a total of 155 cases relating to collective dismissals, in something over half of the cases (80), the ruling found the decisions by the employer to be in accordance with the law; in 54 cases, the decisions by employers were found to be in breach of the law; and in the remaining 21 cases, the employers’ decisions were set aside. During the first three quarters of 2014, there was a substantial decrease in the number of cases. The Supreme Court only upheld 31 of the 58 appeals concerning collective dismissals. Of the 18 dismissals that were set aside, in which the right of the dismissed workers to reinstatement was upheld (without the option for the employer to pay compensation):
  • – five cases involved a fraudulent breach of the law;
  • – five cases involved substantive procedural flaws relating to the consultation period;
  • – four cases found that the associations of enterprises had not been correctly constituted;
  • – two cases involved violations of the fundamental right to strike or freedom of association; and
  • – two cases involved a lack of the necessary documentation for effective negotiation during the consultation period.
The CEOE and the IOE indicate that, following the labour reform of 2012, there has been greater involvement of the courts in industrial relations, especially with regard to collective dismissals, as a result of which the decisions set aside by the courts for mere formal flaws and court rulings on whether or not dismissals are lawful are leading to a serious crisis concerning the legal security of enterprise decisions. In reply, the Government refers to the information that the enterprise is required to provide workers’ representatives in cases of collective dismissal. The Government emphasizes the ruling by the Supreme Court (of 27 May 2013, Case No. 78/2013), in which it found that the employers failure to provide the necessary documentation necessarily resulted in the collective dismissal decision being set aside, because the failure was not in accordance with the required objective, namely adequate negotiation between the enterprise and the workers. The Committee requests the Government to continue providing information on the manner in which regulations respecting economic, technical, organizational or production-related reasons for dismissal are applied in practice, including updated statistics on the number of appeals made and their outcome, and the number of terminations for economic or similar reasons.
Article 10. Abolition of compensation wages in cases where the employer opts for the termination of employment despite a court ruling of unfair dismissal (paragraphs 267–280 of the report). With reference to the compensation granted by the courts in cases of unfair dismissal, the Government indicates that when the courts find that a dismissal is unlawful, the employer is required by the ruling to opt, within five days of notification of the ruling, between the reinstatement of the worker or the payment of compensation equivalent to 33 days’ wages for each year of service, with a pro rata amount per month for periods of under one year, up to a maximum of 24 monthly payments. Opting for compensation results in the termination of the employment contract, as from the date of the effective end of work. If the employer opts for reinstatement, the worker is entitled to compensation wages for the elapsed period. The wages are equivalent to an amount equal to the sum of the wages that the worker did not receive from the date of dismissal until the notification of the ruling finding the dismissal to be unlawful, or until the worker has found another job. The Committee requests the Government to continue providing information on the nature of the compensation awarded, including examples of court rulings in cases where termination of employment is found to be unjustified.
Article 6. Amendment of the regulations on absence from work due to duly certified illness or accident; dismissal for absenteeism (paragraphs 281–296 of the report). The Government refers to a ruling by the High Court of Andalucía, Malaga, of 22 May 2014, referring to the method for the calculation of the period for which justified absences and intermittent absences have to be taken into account for the purposes of the termination of the contract on grounds of absenteeism. The Committee requests the Government to continue providing information on the manner in which absences resulting from temporary incapacity, particularly as a result of medical treatment for cancer or other serious illness, are calculated in practice.
The Committee is raising other matters in a request addressed directly to the Government.

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the Constitution of the ILO)

At its 321st Session (June 2014), the Governing Body entrusted the Committee of Experts with following up the questions raised in the report of the tripartite committee which examined the representation made by the Trade Union Confederation of Workers’ Committees (CCOO) and the General Union of Workers (UGT) alleging non-observance by Spain of Convention No. 158 (document GB.321/INS/9/4, of 13 June 2014). In paragraph 226 of its report, the tripartite committee noted the importance attached to international labour standards in Spain as shown, in particular, by the ratification of numerous international labour Conventions (of which 84 are currently in force). The tripartite committee also recalled the tripartite discussion held in the Conference in June 2013 concerning the Employment Policy Convention, 1964 (No. 122), in which it was noted that, since the beginning of the economic recession in 2008, and in light of the difficulty of overcoming the debt crisis in the Eurozone, there have been serious challenges in the application of some Conventions. The tripartite committee also recalled that the Committee on Freedom of Association, in its consideration of Case No. 2947, took due note of the need to respond urgently to an extremely serious and complex economic crisis and to address the serious unemployment situation (the highest in the European Union). Like the Conference Committee and the Committee on Freedom of Association, the tripartite committee emphasized the importance of ensuring that the rules governing important aspects of labour relations are supported by the social partners. The Committee refers to the observation that it is making this year on Convention No. 122 and, like the tripartite committee, invites the Government to increase its efforts to reinforce social dialogue and, in consultation with the social partners, to find solutions to the economic difficulties that are in accordance with Convention No. 158.
Exclusions. Establishment of a one-year period of probation under the “entrepreneur-support” employment contract (paragraphs 227–247 of the report). The tripartite committee observed that Article 2(2) of the Convention provides that some categories of workers may be excluded from all or some of its provisions, but considered that the widespread use of such exclusions would be contrary to the purpose of the Convention, which is to provide a balance between the interests of employers and those of workers by promoting social dialogue as a means of achieving this balance. The tripartite committee considered that no direct link between the facilitation of dismissals and job creation had been demonstrated. The tripartite committee also observed that, according to the two confederations, the “entrepreneur-support” contract (provided for in section 4 of Act No. 3/2012 of 6 July) was established without social dialogue. The tripartite committee was of the view that it did not have sufficient basis to consider that the extension to one year of the exclusion from the scope of the Convention could be considered reasonable, especially as this extension was not the result of social dialogue and was introduced generally in this type of employment contract. The Committee therefore invites the Government to provide information on the evolution of the “open-ended entrepreneur-support contract” and the related issue of social dialogue, in light of the information available, to examine the possibility of adopting measures, in consultation with the social partners, to ensure that this type of contract is not terminated at the initiative of the employer as an abusive means of avoiding the protection afforded by the Convention.
Articles 1, 8(1) and 9(1) and (3). New regulations respecting economic, technical, organizational or production-related reasons for dismissal (paragraphs 248–266 of the report). The tripartite committee observed that the new wording of section 51(1) of the Workers’ Charter and the practice of the courts still allowed judges to consider not only the validity of the reasons for dismissal, but also the circumstances of the dismissals, and to determine whether the dismissals were really for the reasons put forward by the employer. The Committee invites the Government to provide information on the manner in which the new regulations respecting economic, technical, organizational or production-related reasons for dismissal have been applied in practice, including statistics on the number of appeals made, the outcome of those appeals and the number of terminations for economic or similar reasons.
Article 10. Abolition of salarios de tramitación in cases where the employer opts for termination of the employment contract further to a judicial ruling of unfair dismissal (paragraphs 267–280 of the report). The tripartite committee noted that section 56(1) of the Workers’ Charter, as amended by the 2012 labour reform, reduces, in cases of unlawful dismissal compensation, in place of reinstatement, to 33 days’ wages for each year of service, or on a pro-rata basis for each month of service for periods of less than one year, not exceeding 24 monthly payments. The tripartite committee, however, found that Spanish Courts are still empowered to order the payment of adequate compensation or such other relief as may be deemed appropriate where it is concluded that termination of the employment relationship is unjustified. The Committee requests the Government to provide information on the type of compensation awarded in cases where the courts have ruled that termination of the employment relationship was unjustified.
Article 6. Changes in the regulations on absenteeism because of duly certified illness or accident: dismissal for absenteeism (paragraphs 281–296 of the report). The tripartite committee noted that the amendments to the wording of section 52(d) of the Workers’ Charter made by Act No. 3/2012 require that the total number of absences from work during the previous 12 months must amount to 5 per cent of working days. Furthermore, the new wording introduces the concept that absences due to temporary incapacity, such as absence resulting from medical treatment for cancer or serious illness, cannot be counted for this purpose. The Committee invites the Government to provide information on the manner in which absences resulting from temporary incapacity, particularly as a result of medical treatment for cancer or serious illness, are calculated.
[The Government is asked to reply in detail to the present comments in 2015.]

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

In relation with the observation formulated in 2011, the Committee notes the remarks submitted by the Trade Union Confederation of Workers’ Committees (CC.OO.) and the trade union confederation General Union of Workers (UGT) in August 2012 on the application of the Convention. It further notes the Government’s response to these remarks in September and November 2012. The Committee notes that, at its 316th Session (November 2012), the Governing Body declared receivable a representation alleging non-observance by Spain of Convention No. 158, which the trade union confederations submitted under article 24 of the ILO Constitution. The Committee will therefore continue its examination under article 22 of the ILO Constitution when the proceedings before the Governing Body are closed.

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

The Committee notes the Government’s report for the period ending June 2011, in which emphasis is placed on the provisions respecting termination of the employment relationship adopted through Act No. 43/2006 of 29 December to improve growth and employment; Framework Act No. 3/2007 of 22 March on Effective Equality for Women and Men; and Act No. 35/2010 of 17 September adopting urgent labour market reform measures.
Reasons for dismissal. The Committee notes with interest that the provisions of the Framework Act on Effective Equality for Women and Men have reinforced the grounds that do not constitute justified reasons for the termination of the employment relationship (Article 5 of the Convention). Reasons included relate to the protection of workers during maternity leave, an absence related to pregnancy and adoption, and also in the case of workers who are victims of harassment in respect of the exercise of their work-related rights.
The Committee notes, in particular, that dismissal as a disciplinary measure is imposed for harassment against the employer or persons who work in the enterprise on grounds of racial or ethnic origin, religion or convictions, disability, age or sexual orientation, as well as sexual harassment or harassment on grounds of sex (section 54.2 of the new version of the Workers’ Charter).
The Committee invites the Government to indicate in its next report any decisions by courts of law giving effect to these changes introduced by the Framework Act of 2007 on Effective Equality for Women and Men.
Justification of dismissal. Reforms of termination benefits. The Government indicates in its report that Act No. 35 of 2010 adopting urgent labour market reform measures changed the wording of the reasons for dismissal on economic, technical or production-related grounds, as a result of certain shortcomings in the operation of the termination procedures set out in sections 51 and 52(c) of the Workers’ Charter. These shortcomings had given rise to a shift from the termination of indefinite contracts for economical or production-related reasons towards more cases of wrongful dismissal for disciplinary reasons. The Committee notes the detailed wording of the justified reasons required for dismissal on economic, technical, organizational or production-related grounds set out in section 54(1) of the Workers’ Charter. The Committee observes that this is intended to reinforce the giving of reasons for the termination of employment contracts. The Committee invites the Government to provide with its next report the main decisions by courts of law giving effect to the reasons justifying the termination of the employment relationship based on the operational requirements of the enterprise (Article 4). The Government adds that Act No. 35 of 2010 contains other amendments to the Workers’ Charter and the Labour Procedures Act specifically related to notice periods and the calculation of termination benefits. The Committee understands that the principal purpose of these measures is to maintain and create employment. The Committee invites the Government to include in its report an evaluation of the impact of the reduction in the level of termination benefits by the legislative reforms of 2010 and 2011 in terms of maintaining and creating employment. In this respect, the Committee invites the Government to include with its report updated information on the intervention of the labour authorities in cases of collective dismissal, the outcome of appeals against unjustified termination, the average time taken for an appeal to be decided and the role played by mediation and arbitration in resolving issues related to the Convention (Part V of the report form).
[The Government is asked to reply in detail to the present comments in 2013.]

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

1. The Committee notes the detailed information in the Government’s report for the period ending 1 June 2006. It notes with interest that the legislation has been amended to make termination on grounds of gender or family responsibilities non-valid reasons for termination (Article 5 of the Convention), and to regulate severance pay and other forms of income protection (Article 12). The Government also indicates that the legislation on the transfer of enterprises has been aligned with the European Union’s Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses, or parts of undertakings or businesses. The Committee notes with interest Decision No. 5/2003 of 20 January 2003 by the Constitutional Court which makes a direct reference to Article 5(c), and asks the Government to continue to provide information on the practical effect given to the Convention (Parts IV and V of the report form).

2. The Government states in its report that although Royal Decree No. 782/2001 on the employment relationships of prisoners appears to be incompatible with the Convention, it notes an exclusion provided for in Article 2, paragraph 5, of the Convention. The Committee points out to the Government that the categories of workers that may be excluded pursuant to Article 2, paragraph 5, must be identified as prescribed by paragraphs 5 and 6, and listed by the member State ratifying the Convention, in its first report following ratification, and that the reasons for the exclusion must be given. The Committee notes that the category of workers covered by Royal Decree No. 782/2001 was not notified as excluded in the Government’s first report. It asks the Government to report on the nature of the employment relationships of prisoners.

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

The Committee notes the Government's report for the period ending 30 June 1999 which outlines the amendments introduced to incorporate Directive 94/45/CE on the European Works Council into national legislation, in particular with regard to the major changes in production, programme, organization, structure or technology when contemplating termination of employment and with regard to the right of workers in enterprises and Community-scale groups of undertakings to be informed or consulted. The Committee trusts that the Government will continue to provide information in its forthcoming reports on the manner in which the provisions of the Convention are applied, as well as information of a practical nature as requested in Part V of the report form.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the detailed and documented explanations supplied by the Government in answer to all the comments of the General Union of Workers (UGT) and particularly on the points raised in its previous observation.

Article 2, paragraphs 2 and 3, of the Convention. In the view of the UGT, the large proportion of temporary contracts of employment has the effect of depriving approximately one-third of the workers of the protection provided for by the Convention. However, in reply the Government recalls that it has not availed itself of the possibility provided by paragraph 2 of excluding temporary workers from the scope of the Convention; accordingly, they have the same guarantees as other workers. Furthermore, the Government considers that a distinction must be made between the issues of temporary employment and the guarantees to be provided under paragraph 3. As it indicated in its previous observation, the Committee will continue its examination of the issue of precarious forms of employment and the measures taken to remedy it in the framework of its examination of the application of Convention No. 122.

Article 7. The Government considers that the administrative conciliation procedure conducted before dismissal takes effect, in the presence of witnesses and outside the enterprise, affords workers a better means of defending themselves than would a mere formal interview conducted in the enterprise prior to dismissal. While noting this explanation, the Committee recalls that the guarantee laid down by this Article of the Convention must be provided to all workers in the event of dismissal for reasons related to his conduct or performance. It asks the Government to indicate in its next report whether this guarantee is indeed available to all workers and how it is ensured in practice.

Articles 13 and 14. The Committee notes that with the amendments to section 51 of the Workers' Charter, the national legislation has limited the applicability of Article 13, paragraph 1, and Article 14, paragraph 1, as envisaged under Article 13, paragraph 2, and Article 14, paragraph 2, respectively. The Committee recalls that the Convention allows the applicability of provisions as to informing workers' representatives and the competent authority and also consulting workers' representatives when contemplating economic, technological, structural or similar terminations to be limited to cases where specified numbers or percentages of workers are involved. It will continue to follow developments in this matter.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the comprehensive and detailed information provided by the Government in reply to its earlier comments, which shows the importance that the Government attaches to the continuation of a well-founded dialogue with the supervisory bodies concerning the application of the Convention. It also notes the Government's reply to the observations made in January 1995 by the Trade Union Federation of Workers' Commissions (CC.OO.) jointly with the General Union of Workers (UGT) in connection with the procedure initiated before the Ombudsman ("Defensor del Pueblo") alleging that certain provisions of Act No. 11/94 on the reform of the Workers' Charter do not comply with the National Constitution. The Committee further notes the new observations made by CC.OO. and the UGT in May and July 1995 respectively, which contain allegations concerning the non-compliance of the national legislation (the new texts of the Workers' Charter and the Labour Procedure Act) with certain provisions of the Convention, as well as the Government's reply to the observations by the CC.OO. It asks the Government to refer, in its next report, to the latest observations of the UGT, transmitted to the Government in August 1995, and to make such comments as might be judged appropriate, in order to enable the Committee to examine them in substance at its next session.

Article 2, paragraphs 2 and 3. Both the CC.OO. and the UGT in their latest observations reiterated their concern about the vast increase in the number of temporary contracts of employment in the country, which represent approximately one-third of total employment, and about the lack of guarantees of stability in employment for temporary workers. With reference to the statement made by the Government's representative at the Conference Committee in June 1994, the Government describes in its reply various possibilities of control exercised by the workers' representatives under provisions of section 15(4) of the Workers' Charter and Act No. 2/1991 and the activities of the labour inspection in this area. It also refers to provisions of Act No. 22/1992 which encourages by means of subsidies the conversion of temporary contracts into contracts of unlimited duration. The Government considers the national legislative framework and information system to be sufficiently developed in order to prevent misuse of temporary contracts.

The employment policy issues of this matter are dealt with by the Committee in its comments under Convention No. 122. The Committee refers in this connection to its observation of 1995, in which it noted the Government's commitment to promoting employment through contracts without limit of time, even though the measures implemented for this purpose do not appear on their own to have prevented the continuation of the worrying rise in unemployment and the decline in employment security.

As regards this Convention, the Committee expresses the hope, with reference to paragraph 56 of its General Survey "Protection against Unjustified Dismissal" (ILC, 85th Session, 1995), that the Government will continue to develop a tripartite dialogue and encourage the participation by the social partners in the follow-up of employment contracting with a view to provide and implement adequate safeguards against recourse to temporary contracts of employment, the aim of which is to avoid the protection resulting from the Convention. It would be grateful if the Government would supply, in its next report, information on the impact produced on this matter by Acts Nos. 2/1991 and 22/1992. Please continue to provide information on the judicial decisions concerning the protection of workers who hold temporary contracts of employment, as well as on the intervention of the labour inspection in matters involving fraud and abuses in fixed-term contracting.

Article 7. With reference to its earlier comments, the Committee notes the detailed description of the procedures concerning disciplinary dismissals and appeal against such dismissals under sections 55 and 56 of the Workers' Charter, as amended, and sections 103 to 113 of the Labour Procedure Act, as amended, given in the Government's report. The Government places special emphasis on the conciliation procedures provided for in section 63 of the Labour Procedure Act, as well as on the provision of section 55, paragraph 1, of the Workers' Charter, concerning the possibility of establishment of other formal requirements for dismissal, besides those expressly provided for in this section, by way of collective agreements. The Committee would be grateful if the Government would describe in more detail such additional formal requirements included in the collective agreements referred to in the report and supply the relevant texts.

The Government is of the opinion that, contrary to the views expressed by the CC.OO. and the UGT, which have been confirmed in their latest observations made under this Article, the procedures referred to above provide sufficient possibilities to a worker to defend himself against unjustified dismissal, given that, in the legal doctrine and jurisprudence, the dismissal is not considered to be final when the worker has received a notice of dismissal.

While noting this information, the Committee refers to paragraphs 148 and 150 of its General Survey "Protection against Unjustified Dismissal", which state as follows: "Over and above the terms of Article 7 and its meaning, which is to allow workers to be heard by the employer, the purpose of this Article is to ensure that any decision to terminate employment is preceded by dialogue and reflection between the parties" (paragraph 148), and "even if the worker is entitled to procedures after the termination of employment, and even if the termination is not considered as final until the appeals procedures are exhausted, it is necessary for the application of Article 7 that the worker be given an opportunity to defend himself before his employment is considered to have been terminated" (paragraph 150, which contains a reference in the footnote to an observation concerning Spain).

The Committee observes that the above-mentioned provisions of the national legislation are not in complete conformity with this provision of the Convention, inasmuch as the safeguard provided by this Article must be available irrespective of the referral of the matter to the conciliator or to the competent court. With reference to the comments it has been making on the same subject over a number of years and to the conclusions of the Conference Committee of 1994 referred to in its previous observation, the Committee expresses firm hope that the Government will take appropriate measures to ensure in the near future full compliance of the national legislation and practice with the Convention on this point. It asks the Government to provide, in its next report, information on any progress made in this regard.

Point V of the report form. The Committee would be grateful if the Government would supply, in its next report, statistical information concerning termination of employment, which has been indicated as enclosed with the Government's report, but has never been received in the ILO. Please continue to provide information on any other issues relating to the application of the Convention in practice, such as for example statistics on the activities of the bodies of appeal and on the number of terminations for economic or similar reasons.

[The Government is asked to report in detail in 1996.]

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

1. With reference to its earlier comments, the Committee notes the information provided by the Government to the Conference in 1994 and the discussion that took place at the Conference Committee. The Conference Committee noted that some discrepancies seemed to continue to exist, both in law and in practice, in respect of the requirements of Article 2, paragraphs 2 and 3, and Article 7 of the Convention and expressed the hope that the Government will take all necessary measures to ensure in the near future the full implementation of the Convention both in law and in practice. The Committee trusts that the Government will be able to communicate, in its next report, information on the progress achieved in this regard.

2. The Committee notes the new observations made by the Trade Union Federation of Workers' Commissions (CC.OO.) and the General Union of Workers (UGT), transmitted to the ILO by the CC.OO. in January 1995. The CC.OO. informs about the procedure initiated before the Ombudsman ("Defensor del Pueblo") by the two above-mentioned workers' organizations, together with two other labour and human rights organizations, which alleged that certain provisions of Act No. 11/94 on the reform of the Workers' Charter are not in conformity with the Constitution. The CC.OO. and the UGT in their respective observations confirm their view that the national legislation does not conform with the provisions of Article 7 of the Convention. The Committee observes that these observations were sent to the Government, in January 1995, for any comments that it considers appropriate. It therefore asks the Government to supply its comments on these observations with its next report.

[The Government is asked to report in detail by 1 September 1995, at the latest.]

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the information provided by the Government in reply to its earlier comments, including the information on judicial decisions supplied under Article 11 of the Convention. It also notes the new observations made in September 1993 by the Trade Union Federation of Workers' Commissions (CC.00.) and in October 1993 by the General Union of Workers (UGT), annexed to the Government's report.

Article 2, paragraphs 2 and 3. The UGT expresses once again its concern about the vast increase in the number of temporary contracts of employment in the country and about the lack of guarantees of stability in employment for temporary workers. The Union considers it necessary to eliminate fraud in temporary labour contracting and to modify the existing rules which, in their view, make possible unjustified recourse to contracts of employment for a specified period of time. The Government indicates that a global estimate of the impact of Law No. 2 of 1992 has not been made but points out that in the course of preparatory work for the proposed Social Pact there was a will to modify the rules governing fixed-term contracts in the framework of the flexibility and employment policies. The Committee, which refers also to those policies in its comments on Convention No. 122, hopes that adequate safeguards will be provided in the near future against recourse to such contracts of employment, the aim of which is to avoid the protection resulting from the Convention, as required by this Article. It would suggest reference in this connection to Paragraph 3 of the Termination of Employment Recommendation, 1982 (No. 166). The Committee asks the Government to keep the ILO informed of the developments in this sphere. Please continue to provide information on the judicial decisions concerning the protection of workers who hold temporary contracts of employment, as well as on the intervention of the labour inspectors in matters involving fraud and abuses in fixed-term contracting.

Article 7. With reference to its earlier comments concerning the procedure prior to or at the time of termination, the Committee notes that both the CC.OO. and the UGT confirm their views on the points previously raised under this Article. The CC.OO. states that the safeguard provided for in this Article is available in the national legislation only for a member of a works committee or a staff representative (section 68(a) of the Worker's Charter of 1980). The UGT considers it necessary to extend the scope of this provision of the legislation to cover all the workers without any exception. Both organizations express the opinion that the provision of section 3 of Act No. 2/1991 which provides that the worker may request the attendance of an official representative of the workers at the time of signing the receipt for the release presented to him by the employer when serving notice of the termination of a contract of employment, does not meet the requirements of this Article. According to the CC.OO., the purpose of the above-mentioned Act No. 2/1991 is to prevent abuses in temporary labour contracting, and section 3 of the Act does not refer to cases of termination of employment for reasons related to worker's conduct or performance.

The Government reiterates its previous statement concerning the moment when the employent is considered to be terminated according to the national legislation and practice, as well as the procedure available to a worker to defend himself against the allegations made, with reference to sections 54 to 56 and 59(3) of the Worker's Charter and to sections 103 to 113 of the Labour Procedure Act. In regard to the provision of section 3 of Act No. 2/1991, the Government states that this section is applicable in all cases of termination of any type of individual contract of employment, including cases of termination for reasons related to the worker's conduct or performance.

While noting this information, the Committee would like to draw the Government's attention once again to the provision of this Article of the Convention, according to which "the employment of a worker shall not be terminated for reasons related to the worker's conduct or performance before he is provided an opportunity to defend himself against the allegations made". The Committee observes that the above-mentioned provisions of the national legislation are not in conformity with the Convention on this point, inasmuch as the safeguard provided by this Article must be available to all workers irrespective in particular of the referral of the matter to the competent court and of the procedure of signing the receipt for the release presented by the employer when serving notice of the termination of a contract of employment. The Committee hopes that appropriate measures will be taken by the Government in order to give full effect to this Article of the Convention.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

1. The Committee takes note of the Government's observations, transmitted in April 1990, the Government's report for the period ending June 1991 and the observations of the Trade Union Confederation of Workers' Commissions (CC.OO) and of the General Union of Workers (UGT), annexed to the Government's report.

2. Article 2, paragraphs 2 and 3, of the Convention. The Committee takes note of Act No. 2/1991 of 7 January 1991 respecting the right of workers' representatives to information on contracts of employment (Documento de Derecho Social, 1991-Esp1). This is an Act adopted "... as one more step in the policy of improving and increasing employment, the common will to avoid fraud and abuses in labour contracting". The Committee also notes the many judicial decisions transmitted by the Government in connection with the protection of workers who hold temporary contracts of employment. Provision has been made in the draft State General Budgets for 1992 for subsidies for employers who convert a temporary contract of employment into a contract of employment of indefinite duration.

The Workers' Commissions drew attention to the vast increase in the number of temporary contracts of employment in Spain. In practice, they say, it is becoming a habit to use fixed-term contracts in order to evade the protection enjoyed by the holders of contracts of indefinite duration. UGT too refers to the high proportion of temporary workers and draws attention to the problem of successive temporary contracts; it would be desirable, as UGT sees it, to "limit recourse to contracts for a specified period of time to cases in which, owing either to the nature of the work to be effected or to the circumstances under which it is to be effected or to the interests of the worker, the employment relationship cannot be of indeterminate duration" (Paragraph 3(2)(a) of Recommendation No. 166 concerning Termination of Employment, 1982).

The Committee hopes that the action taken to encourage new forms of institutional participation by the social partners in the follow-up of employment contracts will make it possible to give better guarantees against the use of fixed-term contracts whose purpose is to evade the protection prescribed by the Convention. The Committee would be grateful if detailed information on the impact produced in this matter by Act No. 2/1991 could be included in the next report. Please continue giving examples of the main judicial decisions and statistics on the intervention of appeal bodies and on the number and categories of workers affected by the various procedures of fixed-term contracting.

3. Article 7. In its 1990 observation, the Committee referred to section 55 of the Workers' Charter, which allows dismissal (for disciplinary reasons) if the alleged breach of discipline is stated in the employer's written notification. The Committee asked the Government to state when the employment is considered to be terminated, in the national legislation and in practice, and to specify the procedure available to a worker to defend himself against the allegations prior to the termination, as required by this Article of the Convention.

The Workers' Commissions point out that the worker receives notice of dismissal without first having been given any opportunity to defend himself against the charges brought against him. If the labour tribunal declares his dismissal valid, it takes effect on receipt by the worker of the notice of dismissal, and not on delivery of the judicial decision. UGT, for its part, points out that the safeguards provided are available only in case the matter is referred to the competent court to determine whether the employer's decision is legal or not.

The Government states in its report that the employment relationship cannot be considered terminated merely when a record is made that the worker has received a notice of dismissal. The notice of dismissal will be fully valid and produce its full effects as such only if the worker has allowed the period of 20 days following the date of the notice which the law allows for an appeal to elapse (section 103 of the Labour Procedure Act) (Law Legislative Decree No. 521/1990 of 27 April 1990, approving the articled text of the Labour Procedure Act, Boletín Oficial del Estado of 2 May 1990, No. 105, pp. 11800-11822). In the case of dismissal for disciplinary reasons (sections 103 to 113 of the Labour Procedure Act), the court shall declare the employment relationship extinguished only if he holds the dismissal to be valid (section 109). If the court declares the dismissal invalid, it may order reinstatement of the worker or the payment of compensation (section 110). The dismissal is deemed to be proper when the fault alleged in the employer's written notice of dismissal is held proved by the court (section 108, 1).

The Committee refers to its previous comments and points out that the worker must obviously be given an opportunity to defend himself before the employment is terminated for reasons related to the worker's conduct or performance. Section 3 of the above-mentioned Act No. 2/1991 provides that "the worker may request the attendance of an official representative of the workers at the time of signing the receipt for the release" presented to him by the employer when serving notice of the termination of a contract of employment or, where applicable, notice of termination at a future date. The receipt for the release must be signed by the worker "in the presence of an official representative of the workers". The Committee would be grateful if the Government would indicate in its next report whether section 3 of Act No. 2/1991 is applicable also in case of termination of a contract of employment for reasons related to the worker's conduct or performance and how it is applied in a case where a worker has no opportunity to have recourse to an official representative of the workers when the employment relationship is terminated or when the worker does not file an appeal before the competent court and also when he files such an appeal.

Article 11. Please give examples of judicial decisions in cases of "serious and culpable breaches of contract by the worker" (section 54 of the Workers' Statute), taking into account that this Article of the Convention requires a reasonable period of notice or compensation in lieu thereof unless the worker is guilty of "serious misconduct".

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

1. The Committee notes with interest the information provided in reply to its previous comments, relating to the provisions of Article 1; Article 2, paragraphs 1, 4 and 5; Article 9, paragraph 3; Article 13, paragraph 1; and Article 14, paragraph 1, of the Convention. It would be grateful if, in its future reports, the Government would continue to provide information on any further developments concerning these provisions. Please provide the general information called for by point V of the report form, on the manner in which practical effect is given to the Convention.

2. Article 11. Please provide examples, preferably judicial decisions, of cases of "serious and culpable breach of contract by the worker" (section 54 of the Workers' Charter), bearing in mind that the above provision of the Convention requires a reasonable period of notice or compensation in lieu thereof, unless the worker is guilty of "serious misconduct".

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

1. The Committee takes note of the Government's report and of the further observations submitted by the Trade Union Confederation of Workers' Commissions (CC.OO.) in September 1989 and of the Government's reply to them. The Committee also notes the Government's replies to certain matters raised in a previous direct request. The Committee is addressing a further direct request to the Government concerning a number of outstanding issues.

2. Article 2, paragraphs 2 and 3, of the Convention. In its communication, the CC.OO. affirms that there are too many successive extensions of temporary contracts and that, furthermore, there are no legal safeguards against successive and unlimited renewals of fixed-term temporary contracts. The Committee requested information as to the extent of the recourse to fixed-term contracts, the situation of the workers concerned upon expiry of such contracts and the renewal of fixed-term contracts. The Government has provided statistical tables on the recourse to temporary contracts which show the high and growing number of short-term in-plant contracts and training contracts concluded since 1984. It affirms that more than one-third of short-term in-plant contracts and training contracts are converted into permanent contracts at the end of the initial period of validity, rather than being extended for the maximum period. It states that rules are to be adopted in the future which will help to stabilise the integration of young people into the labour market by means of a large subsidy for converting short-term in-plant contracts and training contracts, among other temporary contracts, into contracts of indefinite duration. The Government indicates that the initial period of validity plus the period of extension or of successive extensions of temporary contracts must not exceed three years. The Committee takes note of the foregoing and trusts that the Government will provide information on the measures envisaged, and on any new judicial decisions, to provide adequate safeguards against recourse to contracts of employment for a specified period of time the aim of which is to avoid the protection resulting from the Convention. It would be grateful if the Government would state what happens to the workers concerned upon expiry of the successive extensions of their fixed-term contract. In this connection, the attention of the Government is invited to the comments of the Committee on the application of the Employment Policy Convention, 1964 (No. 122), and Paragraph 3 of the Termination of Employment Recommendation, 1982 (No. 166).

3. Article 7. In its previous comments, the Committee pointed out that the worker should have the chance to defend himself against the allegations made before his employment is considered to have been terminated (underlining added). In its communication of September 1989, the CC.OO. stressed that legislation and practice in Spain do not guarantee full compliance with Article 7 with regard to providing the worker with the opportunity to defend himself against the allegations made prior to the termination (CC.OO.'s underlining). The Government, for its part, suggests that employment is terminated only upon a decision of the competent judicial body. This does not appear to be borne out by sections 54 and 55 of the Workers' Charter.

The Committee refers to the preparatory work on the Convention, and particularly on Article 7, where the Office, solely with a view to providing greater flexibility, agreed to delete from this provision the words "before he is afforded a hearing by the employer". The word "hearing" in the English version was considered to imply a quasi-judicial procedure. The Office felt that this reference could well be deleted without affecting the substance of this provision, according to which a worker should not have his or her employment terminated for reasons of conduct or performance before being given an opportunity to defend himself or herself against the allegations made (see: International Labour Conference, Report V(2), Termination of employment at the initiative of the employer, 68th Session, 1982, page 27).

The Committee again refers to section 55 of the Workers' Charter which allows dismissal (for disciplinary reasons) if the alleged breach of discipline is stated in the employer's written notification. The worker is apparently, contrary to the requirement of Article 7, not afforded the opportunity to defend himself against the allegations made before receiving the written notification of dismissal. The Committee would therefore be grateful if the Government would state when the employment is considered to be terminated, in the national legislation and in practice, and to specify the procedure available to a worker to defend himself against the allegations prior to the termination, as required by this Article of the Convention. Please provide a copy of the texts which ensure that full effect is given to this important provision of the Convention. [The Government is asked to report in detail for the period ending 30 June 1991.]

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