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Labour Inspection Convention, 1947 (No. 81) - Spain (Ratification: 1960)

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Individual Case (CAS) - Discussion: 1992, Publication: 79th ILC session (1992)

A Government representative pointed out that the observation of the Committee of Experts was based on the comments made by two Spanish unions but that the corresponding Government report had been handed in to them in compliance with the standards of tripartism figuring in the IL0 Constitution and Convention No. 144. The necessity of increasing the actual staff available to the labour inspectorate - in relation to Articles 1, 3 (paragraph 1) and 16 of the Convention - was one of the aspects upon which the present team in the labour inspectorate had concentrated attention upon; the simplification procedures; full distribution of information with respect to what were the essential characteristics of the work accomplished by inspection; conclusion in October 1991 of an agreement with the Savings Bank Organisation to provide long-term and low-interest credit in order to facilitate the preparation of examination procedures to enable staff to join the labour inspectorate. According to statistics put at the Committee's disposal, these measures permitted in 1992 to hold examinations for 75 new posts in the senior grade of labour inspectors and social security and for 40 new posts in the grade of labour controllers. There was also a corresponding increase of material resources and of ancillary staff necessary to fulfil the objectives of labour inspection. With regard to "workplaces which were not inspected to ensure the effective application of the relevant legal provisions" (Article 16 of the Convention), it was appropriate to point out the provisions of section 12 of Act No. 39 of 21 July 1962 on the Organisation of Labour Inspection and of section 10 of Decree No. 2122 of 23 July 1971 which approved the regulation of labour inspection establishing the determining circumstances for the priority and frequency of visits to the workplace. There were also statistics on the number and nature of the activities undertaken by the labour inspectorate as well as on the steep increase in the number of workplaces inspected and the total number of activities carried out (more than 12 per cent in 1991 in comparison with 1990). With regard to the actual cooperation between employers' and workers' representatives and those of the labour inspectorate, the Circular of September 1988 issued by the General Inspectorate of Labour should be referred to. It provided that the inspector had to collect information as per section 30.2 of Act No. 32 of 1962 and of section 22(i) of Decree No. 2122 of 1971. It also provided that during inspection visits representatives of workers and of the company should be present and that meetings should be convened with such persons when the circumstances required. Cooperation with the labour inspectorate was going to be reinforced by a draft regulation of a procedure for penalties which was provided by Act No. 8 of 7 April 1988 on violations and penalties with regard to welfare matters particularly when the procedures of the labour inspectorate were related to the rights of representation, the protection of freedom of association or the compliance with labour standards on occupational safety and health. Moreover, workers' representatives received copies of the reports of the labour inspectorate. Since January 1991 cooperation between the labour inspectorate and employers' and workers' representatives were required on the matter of recruitment of workers and this cooperation between the labour inspectorate and employers' and workers' representatives were required on the matter of recruitment of workers and this cooperation had to be extended to prevent work hazards under section 39 of a draft Bill, a copy of which had also been transmitted to this Committee. As for the measures adopted by the labour inspectorate to ensure the implementation of the clauses of collective agreements, information on this matter had been transmitted in the Government's reports on the implementation of the Convention. Certain judicial decisions confirmed the competence of labour inspectors to implement the normative clauses of collective agreements. Generally speaking, the labour inspectorate had fixed its activities towards specific objectives and had planned its work in order to reinforce control over companies. As to the point made by the Committee of Experts in its observation on labour controllers, it would be appropriate to supplement the information communicated in the Government's report on the implementation of the Convention by adding that section 27 of Act No. 31 on Budgetary Resources for 1992 had amended section 52 of Act No. 8 of 1988. It contained a new paragraph which provided for the presumption of veracity with regard to the statements of violations made by labour controllers when they concerned facts which had been duly proved. Thus the problem which had arisen due to certain legal decisions which had contested the validity of the procedures carried out by labour controllers had been resolved.

The Workers' members thanked the Government representative for the fairly detailed information supplied in response to the requests of the Committee of Experts, whose observation reflected the comments made by the workers' organisations concerning insufficient means available to the labour inspection and the lack of collaboration with the workers' organisations. The decrease of financial means made available to the labour inspection seemed to be related to the budgetary restraints inspired by the necessity, strongly felt in Spain, of aligning the European economic policies. It however might have negative social consequences. When the inspection was supplied with excessively limited means, the practical application of labour standards was less controlled, to the detriment of workers and also of employers who respected these standards, as the visits on-the-spot of enterprises constituted the most effective form of supervision. The cooperation between the labour inspection and the workers' organisations should be developed. In spite of the declaration of the Government representative, there seemed to be problems in this regard. As the Committee of Experts indicated in paragraph 57 of its general report and also emphasised in this Committee, such cooperation, not costly for the State, was likely to improve the application of the Convention. It was therefore important to request the Government to respond as precisely as possible to the requests of the Committee of Experts, which should be easier since the statement of the Government representative already included a certain number of elements which should be found in its next report.

The Employers' members also thanked the Government representative for the detailed reply. In a large measure, the observation of the Committee of Experts summarised the criticisms made by the workers' organisations concerning the structure and function of the labour inspection, said to be under-equipped and provided with insufficiently qualified personnel. It was for example indicated that the labour inspectors would not be able to determine whether the clauses of collective agreement were of a "normative" or "obligational" nature. It concerned a problem on which it was difficult for the present Committee to pronounce itself, and neither did the Committee of Experts take a position in this regard. The Committee of Experts limited itself to enumerate the problems on which detailed reply of the Government was requested. The Government representative had supplied a full reply. Nevertheless, it concerned a type of case where a written reply was necessary. It would not be possible to make a fundamental appreciation on the basis of a simple oral statement. Only a written report submitted for the examination by the Committee of Experts according to the normal procedure would permit it to determine which problems had been resolved and which remained. For the moment, it might be questioned whether it was useful to treat in the Conference Committee cases for which the Committee of Experts had not been in a position to formulate its opinion.

The Workers' member of Spain emphasised that in this case it was not the activity of labour inspectors which had to be questioned but the Government's attitude to the labour inspectorate. Labour inspectors worked very well and it would only be necessary to give them more resources. In addition, they were too few in number, which hampered the effective implementation of the Convention. If Convention No. 81 was not fully applied, all international labour Conventions risked remaining a dead letter. The application of the Convention should be examined under three headings: hiring; control of compliance with collective agreements; and activities of labour inspection as regards health and safety at work. As regards the hiring of workers, a distinction was made in Spanish labour inspection between "inspectors" and "controllers". The latter dealt exclusively with work centres employing fewer than 25 workers and only for subsidised contracts. Taking into account the multiplication of the types of precarious contracts, in practice it was the majority of work centres with fewer than 25 workers, where such contracts were the most frequent, which were not inspected, by inspectors or controllers. Because of the high levels of unemployment in Spain, i.e. about 15 per cent of the working population, the labour inspectorate had to intervene in order to prevent employers from unduly resorting to temporary contracts. Rather than raising the resources of labour inspection, the Government chose instead to reduce unemployment benefits by 40 per cent, which led to the half-day strike on 28 May 1992. Spanish labour law doctrine distinguished between "normative" provisions in collective agreements and those which are "obligatory". According to this doctrine, the labour inspectorate should abstain from controlling the application of obligatory clauses. Therefore, the labour inspectorate ceased filling its conciliatory functions, which led to an increase in the number of strikes and to a situation where Recommendation No. 92 of 1951 on voluntary conciliation and arbitration was not complied with. The Government also presented a draft law restricting the right to strike rather than promoting with the same dispatch a new legislation on health at work. The multiplication of visits by the labour inspectorate was an essential means to prevent violations and accidents in the field of health and safety at work, but of course the Government seemed to be mainly preoccupied by its economic commitments under the Maastricht Treaty signed on 7 February 1992, even though that would mean limiting the resources of labour inspection. Two issues remained: the exact distribution of work between labour inspectors and controllers, and measures which would be taken to ensure that the labour inspectorate may control the implementation the collective agreements.

A Workers' member of Greece emphasised the importance of the implementation of this Convention. The Government's attitude was well known: for reasons of image, they voted for the adoption of Conventions, then they enacted legislation which was compatible with these Conventions. However, the situation was different when these acts had to be applied. The European trade unions heard quite often the excuse of insufficient financial means; it was reflected today by the pretext of economic convergence provided for by the Maastricht Treaty of 7 February 1992. And yet, it would be preferable to combat tax evasion rather than asking sacrifices from workers, in order to put public finances in order. Countries had nothing to benefit from neglecting their labour inspection services since it was well known that violation of labour laws had a cost for the community as a whole.

The Government representative stated that he had taken due note of the discussion. As regards the intervention of Workers' members, it should be noted that there were no links between the project on European economic convergence and the labour inspection budget, which indeed had been raised, as was the number of inspectors. All the data available showed that visits by labour inspectors increased both in number and in quality, which helped improve collaboration between employers' and workers' representatives. Concerning the Employers' members' intervention, a written reply to the issues raised by the Committee of Experts' observation was more appropriate. The statement of the Workers' member of Spain went beyond the questions relating to the application of the Convention. There could always be a feeling of insufficiency, even if in reality personnel and material resources for labour inspection had been increased. The points made on the recruitment of workers were more related to employment policy, and those made on the nature of clauses in collective agreements involved an academic debate which had no bearing on the practical activities of labour inspection. One could not but share the opinion expressed on the vital role played by inspectors' visits to workplaces. In reply to the questions raised, it had to be pointed out that, in general terms, the procedures followed by labour inspectors and controllers were the same and their validity was recognised for both categories of officials. Except for one observation raised in certain judicial decisions, labour inspection could fully monitor the application of the contents of collective bargaining agreement and a circular had been adopted on this subject. If the solidarity expressed by the Workers' member of Greece was well understood, he shared that speaker's opinion that labour inspection did not have adequate resources. Each year the ILO received a copy of the annual report of the central labour inspection authority in conformity with the Convention, and the comments made did not concern questions of substance relating to labour inspection activities.

The Workers' member of Spain recalled the distribution of tasks between labour inspectors and labour controllers and stated that while this was not clearly laid out by law, it was the subject of internal labour inspection circulars.

The Committee took note of the information provided by the Government representative according to which the Government had taken measures to improve the position of the labour inspectorate with a view to increasing its resources and strengthening its powers. Although it welcomed the detailed information which had been supplied, it considered that it was not in a position to discuss it in substance without an assessment by the Committee of Experts. It consequently hoped that the Government would transmit, as it had said it was ready to do, a report to the ILO containing all the particulars necessary for the Committee of Experts to weigh that information and make a full assessment of the situation. It hoped that it would be able to come to the conclusion that the situation was in full conformity with the requirements of the Convention at one of its next sessions.

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on labour inspection, the Committee considers it appropriate to examine Conventions Nos 81 (labour inspection) and 129 (labour inspection in agriculture) together.
The Committee takes note of the Government’s reports and the supplementary information provided in light of the decision adopted by the Governing Body at its 338th Session (June 2020). It also notes the observations on Convention No. 81 made by the General Union of Workers (UGT), sent with the Government’s report, and by the Trade Union Confederation of Workers’ Commissions (CCOO), received on 9 August 2019. The Committee also notes the observations on Conventions Nos 81 and 129 made by the International Organisation of Employers (IOE) together with the Spanish Confederation of Employers’ Organizations (CEOE), received on 16 September 2019. The Committee also notes the Government’s replies to all these observations. In addition, the Committee notes the observations of the UGT and the CEOE submitted in 2020 together with the supplementary information provided by the Government, as well as the Government’s reply to these observations.
Measures adopted in the context of the COVID-19 pandemic. The Committee appreciates the Government’s efforts to provide information on the measures adopted in the context of the COVID-19 pandemic. In particular, the Committee notes the adoption of Royal Decree No. 463/2020 of 14 March, declaring a state of emergency and the adoption of exceptional measures to prevent the spread of the virus and protect the health of workers and the population, including: (i) streamlining of inspection visits; (ii) preventive and protective measures depending on risks at the workplace (including the establishment of a health crisis management unit); and (iii) reorganization of the resources of the Labour and Social Security Inspectorate (ITSS) so as to allocate all available means to the health emergency in the world of work, with priority given to activities related to the pandemic in provincial inspectorates.
In this regard, the Committee notes the observation of the UGT that the ITSS must receive the necessary means and resources to deliver additional work resulting from the temporary mandate that it received to supervise compliance by employers with their obligations related to public health in the context of the pandemic. It also considers that ITSS staff should have the power to stop the activities of enterprises that do not comply with the requirements related to the prevention of the spread of the virus.
The UGT also indicates that in the current context, the ITSS should intensify its activities in the agricultural sector, notably regarding contractual fraud, accommodation of casual workers and supervision of occupational safety and health measures. Finally, the UGT indicates that the General Council (the body that enables social partners’ participation in the labour inspection system) has not been meeting over the last year nor exercising its functions.
Furthermore, the Committee notes that the CEOE indicates that it is essential to intensify the assistance and information role of the ITSS for SMEs and microenterprises as they are heavily impacted by the pandemic, and to widely disseminate the ITSS instructions and criteria so as to facilitate the correct application of standards.
The Committee notes that, in reply to the UGT observations, the Government indicates that Royal Legislative Decree No. 21/2020 of 9 June, on urgent measures to prevent and contain the health crisis and coordinate the response, has temporarily enabled the undertaking of interventions in the area of public health not only by ITSS inspectors, but also assistant OSH inspectors  and, if need be, qualified technicians in  Autonomous Communities.
Regarding the UGT’s observations on the agricultural sector, the Government indicates that the number of ITSS activities planned for 2020 has increased by 21 per cent compared with 2019 and that these activities addressed all aspects of the labour relation, including living and working conditions as well as safety and health.
Regarding the General Council, the Government indicates that the current situation due to the pandemic has prevented the normal functioning of this body and that it would resume its work, in the same way as the Executive Board, the functions of which are interrelated, once the reorganization of the latter is finalized.
Finally, the Committee notes that in reply to the CEOE’s observations the Government indicates that the ITSS performs its assistance and information role in the course of inspection activities, with a view to facilitating better compliance by enterprises, and that the ITSS publishes the technical criteria adopted when it receives questions of interpretation relating to certain issues in the performance of its functions. The Committee expresses the hope that the UGT’s concerns and the priorities mentioned by the CEOE will be examined by the General Council when resuming its functions. It requests the Government to provide information in this regard.
Articles 3(1)(a) and (b), 10, 16 and 21(f) and (g) of Convention No. 81 and Articles 6(1)(a) and (b), 14, 21 and 27(f) and (g) of Convention No. 129. Number of labour inspectors who perform duties according to the terms of the Convention. Statistics included in the annual report. In its previous comment, the Committee asked the Government to provide information on the human resources policy followed for identifying the number of inspectors and sub-inspectors needed to ensure adequate coverage of workplaces liable to inspection and on any changes in selection procedures. The Committee notes the Government’s statements in its report that: (i) human resources needs in public administrations, with budget allocations, which cannot be covered by existing staff numbers are indicated in document entitled “Public employment posts”, which is approved annually by the governing bodies of public administrations in accordance with the criteria set forth in the General State Budgets Act, including the staff replacement rate established in that Act; (ii) under section 5 of Act No. 23/2015 of 21 July establishing the Labour and Social Security Inspectorate (ITSS), entry into the various corps comprising the ITSS occurs in accordance with the regulations for entry into the public service; and (iii) announcements of positions for each corps of the ITSS must contain the number of posts authorized by the Council of Ministers in the Royal Decree approving the public employment posts of the General Administration of the State and those proposed by Autonomous Communities that have received transfers of inspectors and sub-inspectors.
The Committee also notes the UGT’s indications in its observations that the number of officials belonging to the ITSS is insufficient given the objectives and extensive scope of their supervision and control duties and there is no mention of the number of support officials belonging to the ITSS or of the material resources to ensure its functioning. In this regard, the Committee notes the Government’s indication that: (i) between 2016 and 2018, inspection staff numbers increased from 944 inspectors and 854 sub-inspectors in 2016 to 999 inspectors and 922 sub-inspectors in 2018; in addition, in 2016 and 2017, a total of 119 inspector posts and 152 sub-inspector posts were filled; (ii) the report on the implementation of the Management Plan 2018-2019-2020, submitted to the Council of Ministers of 9 August 2019, indicates that it is planned to incorporate at least 833 new inspectors and sub-inspectors into the ITSS during the implementation period, which would signify a 23 per cent increase in staff numbers over the next five years; (iii) since the approval of the Management Plan in July 2018, a total of 33 new inspectors have already been incorporated into the ITSS and 154 new inspectors and sub-inspectors were due to be appointed as career civil servants in July 2019 (47 inspectors, 54 social security sub-inspectors and 53 occupational safety and health (OSH) sub-inspectors); (iv) by Royal Decree No. 955/2018 of 27 July, the public employment posts for 2018 were approved, with notices issued for selection procedures for 353 new inspector and sub-inspector posts, the finalization of which was planned for July 2019; (v) all support staff employed prior to the effective entry into operation of the ITSS have been incorporated into the latter, in both central and outlying services; and (vi) in 2018, a total of €229,221.29 were spent on ITSS furnishings and fittings, and €251,642.42 were spent on building modernization work.
The Committee also notes the UGT’s assertion that it is essential that budget allocations are approved to finance the activities of the labour inspectorate. In this regard, the Government states that through the Management Plan the ITSS was assigned its own, differentiated budget for the first time under the General State Budgets Bill for 2019. This budget involves a 24.4 per cent increase in comparison with the ITSS budget for 2018, rising from €126.46 million to €157.36 million.
Furthermore, the Committee notes the Government’s indication that, as recorded by the ITSS annual report, in 2018 a total of 266,718 inspections gave rise to 1,020,063 actions, with 91,325 infringements of the social legislation detected (including 2,455 requests made to the administration), with proposed penalties amounting to €307,566,196.48. Lastly, the Committee notes that, in response to its request to provide information on the setting up of the National Anti-Fraud Office, the Government states that, under section 13.1 of its Statutes (Royal Decree No. 192/2018 of 6 April 2018), this office is one of the component bodies of the ITSS central structure and is responsible for promoting and coordinating the implementation of measures to combat undeclared work, irregular employment, social security fraud, and also the coordination and integration of such measures with inspection activities as a whole. The Government also indicates that the functioning of this office is regulated by sections 15–17 of the ITSS Statutes and that its staff currently comprises 11 inspectors and six sub-inspectors. While noting this progress, the Committee requests the Government to continue providing information on changes in the numbers of officials who form part of the Labour and Social Security Inspectorate (ITSS), and also on the material resources assigned for its functioning.
Article 3(2) of Convention No. 81 and Article 6(3) of Convention No. 129. Additional duties of labour inspectors. Mediation and conciliation. The Committee notes that, in reply to its request to indicate the number of inspectors and the proportion of time that these devote to mediation activities, the Government states in its report that: (i) no specific number of inspectors assigned to mediation duties has been established; (ii) Act No. 23/2015 of 21 July establishing the ITSS provides that it is incompatible for the same person to simultaneously performing arbitration and inspection duties in relation to establishments under his/her control and supervision; and (iii) the number of interventions related to mediation in collective disputes or strikes was 106 in 2016, 98 in 2017 and 146 in 2018, representing between 0.07 and 0.10 per cent of total actions relating to labour relations, which means that mediation tasks in disputes and strikes accounts for a very low proportion of annual activity as a whole.
Articles 4 and 5(b) of Convention No. 81 and Articles 7(1) and 13 of Convention No. 129. Supervision and control of the labour inspection system by a central authority. Collaboration with employers and workers. In its previous comment, the Committee noted the setting up, through Act No. 23/2015, of the ITSS, an autonomous entity having its own legal personality, and asked the Government to send information on the adoption of its statutes as provided for by law. The Committee notes the Government’s indication that Royal Decree No. 192/2018 of 6 April approved the statutes of the entity, thereby making it operational.
The Committee also notes the UGT’s claim that the functions of the tripartite General Council provided for in section 11 of Royal Decree No. 192/2018 must include awareness of regional action plans and programmes. The Committee also notes that the CCOO underlines the need for the most representative trade unions to participate in the formulation of the Management Plan for Decent Work. In this regard, the Committee further notes that the IOE and the CEOE indicate in their joint observations that it is important to foster cooperation between the social partners at the level of both the State and the Autonomous Communities in the formulation of action plans and inspection campaigns. In this regard, the Committee notes the Government’s reply that Act No. 23/2015 has reinforced the institutional participation of the social partners in the labour inspection system, establishing a specific participation body called the General Council. The Government adds that Royal Decree No. 192/2018 describes the General Council’s functions of providing information, conducting hearings and holding consultations, and also the rules governing its functioning and composition. In particular, section 11 of the Royal Decree establishes that the General Council shall have other functions, that of informing the Executive Board of any proposals made regarding, inter alia, ITSS general action plans and programmes, and also the necessary measures and strategies for their implementation. The Committee requests the Government to provide information on the functioning in practice of the ITSS General Council, including examples of the manner in which it ensures cooperation between labour inspection officials, on the one hand, and employers and workers and their organizations, on the other.
Article 7(2) and (3) of Convention No. 81 and Article 9(3) of Convention No. 129. Adequate training for inspectors. The Committee notes the Government’s indication, in reply to its previous request regarding the implementation of both initial and further training in the prevention of occupational risks, that initial training in occupational risk prevention has continued to be given as part of the selection procedure for labour and social security inspectors, and has been reinforced since 2017 through the implementation of the selection procedure for occupational safety and health (OSH) sub-inspectors, followed by a period of mentoring in some provincial inspectorates that have specialist OSH units. The Government also indicates that further training courses have been given on occupational risk prevention in various subjects and sectors, such as the Maritime Labour Convention, 2006 (MLC, 2006), OSH conditions in the construction sector and agriculture, and risk prevention.
Articles 9, 10, 13 and 17 of Convention No. 81 and Articles 11, 14, 18 and 22 of Convention No. 129. Inspection staff numbers and monitoring of safety conditions in workplaces. In its previous comment, the Committee asked the Government to take steps to ensure that its OSH strategy achieves an adequate balance between prevention and the provision of advice, on the one hand, and the imposition of penalties, on the other. The Committee also asked the Government to provide information on the recruitment of OSH sub-inspectors and the impact thereof on inspection activities relating to occupational risk prevention.
The Committee notes the Government’s statement that in 2017 a total of 113,336 compliance notices were issued, 17,046 infringements were recorded and penalties amounting to €46,705,535.25 were imposed; in 2018, a total of 114,779 compliance notices were issued, 20,290 infringements were recorded and penalties amounting to €51,279,286.58 were imposed. The Government also indicates that the work of the ITSS in occupational risk prevention has been reinforced through measures such as increasing the number of inspectors and establishing the new corps of OSH sub-inspectors. In particular, the Government states that 32 officials were incorporated into active service in June 2018 and 53 have already completed their selection process and period of mentoring, and are awaiting assignment to different destinations to commence active service in provincial inspectorates. The Government also indicates that, given the short period of time that has elapsed since the incorporation into active service of the first trained group of OSH sub-inspectors, it would be premature to undertake an assessment of the effect of this on the degree of compliance with occupational risk prevention regulations and the industrial accident rate. While noting this progress, the Committee requests the Government, once it is in a position to assess the impact that the incorporation into active service of labour sub-inspectors has on the degree of compliance with occupational risk prevention regulations and the industrial accident rate, to provide information in this regard.
Article 12(1)(c)(ii) of Convention No. 81. In its previous comment, the Committee noted that Act No. 23/2015 extended the powers of employment and social security sub-inspectors (SESS) to include those provided for in the Convention, in particular those authorizing them to copy documents, and asked the Government to consider the possibility of SESS being able to examine the related legal issues arising under that Act in accordance with Basic Act No. 1/1982 of 5 May establishing civil protection of the right to honour, personal and family privacy, and personal reputation (LOPCDH). The Committee notes the Government’s indication that section 14.4 of Act No. 23/2015 provides that, pursuant to the service orders received for the performance of their duties, labour sub-inspectors, who will have the status of enforcement officers, are authorized to proceed in the manner established in section 13(1)–(4) (duties of inspectors). The Government also indicates that section 15.4 of Act No. 23/2015 provides guarantees to the officials of the system, including labour sub-inspectors, in stipulating that, for the purposes established by section 8(1) of LOPCDH, actions taken by the ITSS for the fulfilment of its duties shall on no account be considered as unlawful interference.

Specific issues relating to labour inspection in agriculture

Articles 6(1)(a), 21 and 24 of Convention No. 129. Enforcement duties of labour inspectors in agriculture. In its previous comment, the Committee asked the Government to provide information on the measures taken to ensure performance of the inspection function with regard to hours of work in agriculture. The Committee also asked the Government to provide information on the measures taken or envisaged to ensure compliance with the legislation regarding conditions of work in labour cooperatives and dependent workers defined as “self-employed” as a means of evading legal obligations regarding conditions of work.
The Committee notes the Government’s indication that: (i) the ITSS ordinarily carries out controls on hours of work, rest periods and overtime, in accordance with the duties assigned under section 12 of Act No. 23/2015, which are performed both in response to complaints and on a pre-planned basis and are usually performed through inspections in workplaces without prior notice; and (ii) section 10 of Royal Decree-Law No. 8/2019 of 8 March concerning urgent measures for ensuring social protection and combating precarious hours of work reforms the amended text of the Workers’ Statute in order to regulate the recording of hours of work in order to ensure compliance with limits on such hours, to create a framework of legal certainty for both workers and enterprises and to enable controls by the ITSS.
The Committee notes the Government’s indication that the Management Plan for Decent Work contains measures aimed at tackling the issue of “fake self-employed” workers – including cases that may arise in cooperatives –, including the implementation of specific inspection campaigns. The Government also indicates that Royal Decree-Law No. 28/2018 of 28 December establishes a new type of serious offence, with a corresponding penalty for the conduct concerned established in the Act on infringements and penalties relating to social regulations. The Committee requests the Government to provide statistical information (number of infringements, penalties) illustrating the results of monitoring the implementation of the Management Plan and enforcing the legal measures referred to above concerning hours of work in agriculture and conditions of work in agricultural cooperatives.

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

In order to provide a comprehensive view of the issues relating to the application of the ratified governance Conventions on labour inspection, the Committee considers it appropriate to examine Convention No. 81 and Convention No. 129 in a single comment.
The Committee notes the observations from the General Union of Workers (UGT) and the Trade Union Confederation of Workers’ Commissions (CCOO), received on 22 August 2016 and 31 August 2016, respectively, and also the Government’s reply.
Article 3(1)(a) and (c) of Convention No. 81 and Article 6(1)(a) and (c) of Convention No. 129. Contribution of the labour inspectorate to improving labour law. The Committee notes the information sent by the Government in reply to its previous request concerning the follow-up action taken by the Directorate-General for Labour Inspection and Social Security (DGITSS) in relation to the gaps and defects in the law detected by the Labour and Social Security Inspectorate (ITSS).
Articles 3(1)(a) and (b) and 2 of Convention No. 81 and Articles 6(1)(a) and (b) and 3 of Convention No. 129. Duties of labour inspectors relating to controls on migrant workers. In its previous comment, the Committee asked for information on inspections concerned with controls on migrant workers and the irregular economy, and on the manner in which the labour inspectorate ensures that employers’ obligations towards migrant workers in an irregular situation are fulfilled. The Committee notes that Basic Act No. 4/2000, which regulates the rights and freedoms of migrants in Spain and their social integration, recognizes the rights of migrant workers in an irregular situation, and also recognizes that the latter are entitled to exercise such rights before the relevant judicial bodies and to have access to justice free of charge under the same conditions as Spanish nationals. The Committee also notes that penalties for administrative infringements are not imposed by the ITSS but by the Government Commissioner or Assistant Commissioner or, if applicable, by the administrative authority determined by the Autonomous Community concerned. It also notes the proportion of inspections devoted to controls on migrant workers, namely 4.18, 2.8 and 1.75 per cent for 2013, 2014 and 2015, respectively.
Moreover, section 36 of Basic Act No. 4/2000 provides that the lack of a residence/work permit does not invalidate the employment contract with regard to the migrant worker’s rights, nor is it an obstacle to obtaining benefits deriving from contingencies envisaged by international agreements for worker protection or any other relevant benefits. Section 42.2 of Royal Decree No. 84/1996 of 26 January 1996 adopting the General Regulations concerning the registration of enterprises and social security affiliation, entries, departures and data changes for workers, considers migrant workers from countries that have ratified the Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19), who provide their services without residing legally in Spain and without a work permit, to be included in the Spanish social security system and affiliated to the corresponding scheme, for the sole purpose of protection with respect to the contingencies of industrial accidents and occupational diseases. The Committee recalls that 121 countries have ratified the abovementioned Convention. The Committee notes this information.
Article 3(2) of Convention No. 81 and Article 6(3) of Convention No. 129. Additional duties of labour inspectors. Mediation and conciliation. The Committee notes the UGT’s statement that Act No. 23/2015 reinforces the mediation function of the ITSS and could have negative repercussions on the resources available for inspection duties. The Government states that the mediation function of the labour inspectorate accounts for a very small part of its activities as a whole and that Act No. 23/2015 maintains the same scenarios for mediation action (strikes or other disputes where mediation is accepted by the parties) as previous Act No. 42/1997. However, the Committee recalls that, in conformity with Article 3(2) of Convention No. 81 and Article 6(3) of Convention No. 129, any additional duties that are not aimed at securing enforcement of the legal provisions relating to conditions of work and the protection of workers should be assigned to labour inspectors only in so far as they do not interfere with their primary duties and do not in any way affect the authority and impartiality necessary to inspectors in their relations with employers and workers. The Committee requests the Government to indicate the number of inspectors and the proportion of their time that is devoted to mediation activities.
Articles 4 and 5(b) of Convention No. 81 and Articles 7(1) and 13 of Convention No. 129. Supervision and control of the labour inspection system by a central authority. Collaboration with employers and workers. In its previous comments, the Committee noted that the General Administration of the State had transferred the labour inspection function and services to the Autonomous Community of the Basque Country and the Autonomous Community of Catalonia. The Committee notes the cooperation agreements – available online – which the Ministry of Labour signed with the Autonomous Community of the Basque Country and the Autonomous Community of Catalonia for the purpose of transferring competencies on the basis of the principle of a single and comprehensive structure for the inspection system.
The Committee also notes with interest that Act No. 23/2015 establishes the state labour inspection and social security body as an autonomous entity with its own legal personality and a central and regional structure. The central structure includes an executive council, which has a joint structure comprising members of the General Administration of the State and of each of the Autonomous Communities. The Committee also notes that the CCOO welcomes the content of this Act, even though it points out that it will be necessary to wait to assess whether the model functions effectively with the participation of the trade unions and employers’ organizations. The UGT observes that by September 2016 the statutes envisaged in the Act, which provide for the institutional participation of the social partners, had still not been adopted and considers that until now the form of such participation has been inadequate. The Government indicates in its reply that, pending the adoption of the statutes, the participation of the trade unions continues through the ITSS Tripartite Advisory Board and that during the period covered by the submitted report both the Advisory Board and its standing committee have met at intervals. The Committee requests the Government to provide information on the adoption of the abovementioned statutes and to send a copy of them, once they have been adopted.
Article 7(2) and (3) of Convention No. 81 and Article 9(3) of Convention No. 129. Adequate training for inspectors. In its previous comment, the Committee noted a reduction in the number of courses owing to budget cuts for vocational training. The Government indicates that the budget has increased by 10 per cent for 2016. It also indicates that the creation of an online platform in 2013 has enabled a 76 per cent increase in training activities by comparison with the previous year. In addition, courses on occupational risk prevention and labour relations increased from 16 in 2012 to 42 in 2014 and 86 in 2015. However, the Committee notes the observation of the CCOO that the courses on occupational risk prevention and labour relations are still insufficient.
With regard to agriculture, the Committee asked the Government in its previous comments for information on the training activities that had been carried out. The Committee notes that, according to the ITSS annual report, initial training for labour inspectors in 2013 totalled 480 hours; according to the Government’s report, the course included 12 hours on agriculture, eight hours on social security and four hours on risks in agriculture. With regard to further training, a centralized course on social security in agriculture was held in 2013, 2014 and 2015. Another course was provided online in 2015 and 2016 on the prevention of occupational risks in relation to agricultural and forestry machinery and plant protection products. The Committee requests the Government to continue its efforts to develop both initial and further training in the area of occupational risk prevention.
Articles 9, 10, 13 and 17 of Convention No. 81 and Articles 11, 14, 18 and 22 of Convention No 129. Strength of the inspectorate and supervision of safety conditions in workplaces. Balance between prevention and the imposition of penalties. In its previous comments, the Committee asked the Government for information on any measures envisaged or adopted to increase the number of risk prevention technicians and reduce the risk factors of accidents. The Committee notes the concern expressed by the CCOO regarding the accident rate, which is related to a low number of infringement reports and a reduction in the number of inspectors, which decreased from 1,857 in 2010 to 1,842 in 2014. The Committee also notes the drop in the industrial accident rate referred to in ITSS annual reports over the last five years. The Government points out that the number of infringements officially recorded in the area of occupational risk prevention rose by 10 per cent in 2015 by comparison with 2013 and 2014, and that actions undertaken in this sphere should be the subject of an overall assessment. The Committee notes with interest that an occupational safety and health (OSH) strategy for 2015–20 has been adopted, with a special focus on prevention, and that Act No. 23/2015 establishes a new category of OSH sub-inspectors within the Corps of Labour Sub-inspectors with specific duties in this area whose content will be established by regulations. The Government indicates that the creation of 50 posts in 2016 for the aforementioned category of sub-inspectors has been approved. Recognizing the major efforts made in the area of prevention, the Committee requests the Government to take the necessary steps to ensure that its occupational health (OSH) strategy achieves an appropriate balance between prevention and advice, on the one hand, and the imposition of penalties, on the other. The Committee also requests the Government to send a copy of the abovementioned regulations and to send information on the recruitment of OSH sub-inspectors and the impact thereof on inspection activities relating to occupational risk prevention, with particular reference to the industrial accident rate.

Specific issues relating to labour inspection in agriculture

Articles 6(1)(a), 21 and 24 of Convention No. 129. Enforcement duties of labour inspectors in agriculture. In its previous comments, the Committee asked the Government for information on inspections conducted in agriculture, infringements detected and fines imposed. In particular, further to the observation made by the CCOO, it asked for information on infringements reported regarding the differences between actual working hours and those declared to the social security authorities. The Committee also asked the Government to describe the steps taken to ensure the effectiveness of controls and the frequency of inspections. The Government indicates that the number of inspections in agriculture was 10,075 for 2013, 11,527 for 2014 and 9,846 for 2015. It also states that it is unable to provide specific data relating to the difference between actual and declared working hours since these form part of the calculations relating to differences in social security contributions and cannot be disaggregated.
The Committee notes the UGT’s allegation that working hours in agriculture are excessively long and no account is taken of rest periods or overtime. The UGT also states that there is a proliferation of labour cooperatives and/or “fake self-employed” persons as a means of evading legal restrictions regarding conditions of work. In its reply, the Government indicates that such instances of non-compliance may arise from incorrect classification of cooperative members or employed workers in the special scheme for self-employed workers (RETA) and that the ITSS is undertaking inspections in response to requests as well as on the basis of its own planning to control this type of activity. The Committee requests the Government to provide information on the steps taken to ensure performance of the inspection function provided for in Article 6(1)(a) with regard to hours of work. The Committee also requests the Government to provide information on the measures taken or contemplated to secure the enforcement of the legal provisions relating to conditions of work with respect to labour cooperatives or “fake self-employed” persons seeking to evade legal obligations regarding conditions of work.

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

In order to provide a comprehensive view of the issues relating to the application of the ratified governance Conventions on labour inspection, the Committee considers it appropriate to examine Convention No. 81 and Convention No. 129 in a single comment.
The Committee notes the observations from the General Union of Workers (UGT) and the Trade Union Confederation of Workers’ Commissions (CCOO), received on 22 August 2016 and 31 August 2016, respectively, and also the Government’s reply.
Legislation. The Committee notes the enactment of new Act 23/2015 of 21 July 2015 regulating the labour inspection and the social security system, which repeals and replaces Act 42/1997 of 14 November 1997 regulating labour inspection and social security.

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

The Committee notes that in June 2014 the Governing Body approved the report of the tripartite committee set up to examine the representation alleging non-observance by Spain of Convention No. 81, made under article 24 of the ILO Constitution by the National Federation of Associations of Employment and Social Security Sub-inspectors (FESESS) (GB.321/INS/9/2). The Governing Body entrusted the Committee with following up on the issues raised in the report.
Articles 3(1)(a) and (b), 10, 16 and 21(f) and (g) of Convention No. 81; Articles 6(1)(a) and (b), 14, 21 and 27(f) and (g) of Convention No. 129. Number of labour inspectors who perform duties according to the terms of the Convention. Statistics included in the annual report. The Committee notes that the Labour and Social Security Inspectorate (ITSS) comprises the Higher Corps of Labour and Social Security Inspectors and the Corps of Employment and Social Security Sub-inspectors (SESS) and that, according to the ITSS report for 2015, the total number of inspectors for 2008, 2012 and 2015 was 836, 970 and 948, respectively, with the respective number of sub-inspectors for the same years being 910, 919 and 838.
The Committee notes the allegations of the FESESS contained in the tripartite committee’s report relating to the inadequate number of labour and social security inspectors to guarantee by themselves the effective performance of labour inspection functions, and also notes the tripartite committee’s request that the Committee should follow up on the effect given to its conclusions.
The tripartite committee indicated that, since there was insufficient information on the effectiveness of the labour inspection system, it was not in a position to make an informed assessment, and asked the Government to provide the Committee with the necessary information to follow up on the matter (such as information on the number of inspections, the number of infringements and the number of industrial accidents and cases of occupational diseases). The tripartite committee also stated that, in view of the increase in inspection activities in the area of undeclared work in Spain, the Government should take the appropriate steps to assign sufficient resources to the performance of traditional duties, for example the enforcement of legal provisions relating to occupational safety and health.
The Committee notes that Act 23/2015 provides for the establishment of a National Anti-Fraud Office as a specialized body of the ITSS, and also notes the observations of the UGT and CCOO claiming that this function is already performed by the ITSS and that there is no need for a new office in relation to this matter. The UGT also alleges that the increase in action against irregular employment and social security fraud is a source of concern since there has been no change in the number of inspectors. The CCOO observes that inspection activity in terms of the enforcement of the legal provisions relating to areas such as conditions of work or occupational risk prevention is limited and only accounts for about 26 per cent of inspection activities at a time when industrial accidents are known to be increasing. The CCOO therefore considers that irrespective of activities to detect irregular employment, which are certainly relevant, these other matters which have been relegated to a secondary level by the inspectorate need to be raised to the same level of importance.
The Government indicates in its report that the distribution of inspection activities by subject matter between 2013 and 2015 has not varied significantly by comparison with previous periods. It also explains that the National Anti-Fraud Office seeks to adopt a comprehensive approach to the phenomenon of fraud. According to the Government, fraud not only results in an undue diversion of resources from the social security system, or a non-existent or inadequate contribution to its upkeep, but that it is in most cases also connected to situations of labour exploitation where workers are denied their rights, especially those relating to recognition of their conditions of work. It also states that selection procedures were launched on 13 September 2016 to fill 53 posts for labour and social security inspectors, 50 posts for SESS in the OSH category and 42 for SESS in the employment and social security category.
As regards the information needed to enable an evaluation of the effectiveness of labour inspection and the Committee’s previous request for disaggregated statistical information on industrial accidents and occupational diseases, indicating their respective causes, the Committee notes that the 2015 annual report does not contain any statistics on the number of inspections conducted (given that the recorded number of activities refers to both inspections and other activities) or on the workplaces liable to inspection and the number of workers employed therein. It also notes the Government’s indication that it is taking steps to obtain data on the causes of industrial accidents and occupational diseases. The Committee therefore requests that the Government provide information on the human resources policy followed on identifying the number of inspectors and sub-inspectors needed with a view to adequate coverage of the workplaces liable to inspection (Articles 10 and 16 of Convention No. 81 and Articles 14 and 21 of Convention No. 129) and on any changes in the selection procedures referred to above.
The Committee also requests that the Government supply information on the setting up of the National Anti-Fraud Office (including the number of inspectors assigned to it and their duties) and to send data on all inspection activities for the period covered by the next report, disaggregated by subject, which come within the competence of the ITSS. Lastly, the Committee requests that the Government take the necessary steps to ensure that the abovementioned data are included in the annual inspection statistics.
Article 12(1)(c)(ii) of Convention No. 81. On the basis of the tripartite committee’s report, the Governing Body invited the Government to consider the possibility of granting SESS, in law and in practice, the powers and prerogatives provided for under the Convention where they are needed or useful for the performance of their duties in conformity with the objective of the Convention, as is the case with the duties that they perform in the social security sphere. The Committee noted that Act 42/1997 of 14 November 1997 did not give SESS the power to copy documents or to make extracts from them, as provided for in Article 12(1)(c)(ii) of the Convention in fine. The Committee notes with satisfaction that section 14(4) of the new Act 23/2015 provides that, for the purposes of performing their duties, SESS may proceed in the manner established in section 13(1)–(3), which grants them the powers provided for in Article 12(1)(c)(ii). Referring to the conclusions of the tripartite committee, the Committee considers that, since the Government has decided to expand the prerogatives of SESS to include those provided for in Convention No. 81, particularly those empowering them to copy documents (Article 12(1)(c)(ii)), it should also consider examining the related legal issues that arise in the context of the Basic Act on labour and social security inspection (Act 23/2015), in conjunction with the Basic Act on civil protection of the right to honour, personal and family privacy, and personal reputation (LOPCDH). The Committee requests that the Government communicate any progress made in this respect.
The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee refers the Government to its observation and draws its attention to the following additional points.
Article 3(1)(c) of the Convention. Labour inspectorate’s contribution to improving labour law. The Committee notes with interest that the annual labour inspection reports contain information on the gaps and defects in the law detected by labour inspectors in the cause of their duties. The Committee would be grateful if the Government would indicate the action taken on this information by the Directorate General of the Labour and Social Security Inspectorate in its capacity as the central authority of the inspection system.
Article 4. Supervision and control of the labour inspection system by a central authority. The Committee notes that Royal Decree No. 895/2011 of 24 June 2011 and Royal Decree No. 206/2010 of 26 February 2010 transfer, respectively, to the Autonomous Community of the Basque Country and the Autonomous Community of Catalonia, competence in their respective jurisdictions for the function of labour inspection and the services of the labour and social security inspectorate (bodies, staff and material resources). The first of these transfers took effect on 1 January 2012 and involved 36 labour and social security inspectors and 14 employment and social security sub-inspectors; the second took effect on 1 March 2010 and involved 89 labour and social security inspectors and 54 employment and social security sub-inspectors. The Committee notes with interest the signing of cooperation agreements with the two abovementioned autonomous communities to ensure cooperation and coordination in the labour inspection system, and the creation of two cooperation bodies for the purpose: a council, in the case of the Autonomous Community of the Basque Country and a consortium, in the case of the Autonomous Community of Catalonia. The Committee would be grateful if the Government would provide copies of the abovementioned cooperation agreements, together with information on the membership and function of the cooperation and coordination bodies mentioned above. It also asks the Government to provide information on how the transfers of the labour inspection function and services to the Autonomous Community of the Basque Country and the Autonomous Community of Catalonia affect the objectives sought by the Convention.
Articles 3(1)(a) and (b), 9, 10 and 13. Strength of the inspectorate and supervision of safety conditions in workplaces. The Committee notes that between 2009 and 2012, the number of occupational risk prevention technicians fell from 266 to 158. The Committee recalls that the Government acknowledged the high occupational accident rate, and that the high incidence of contraventions in 2011 is directly related to safety conditions in workplaces. The Committee requests the Government to provide information on any measures envisaged or adopted to: (a) increase the number of risk prevention technicians; (b) direct the competent inspection services to find out the risk factors responsible for such accidents; and (c) eliminate the risk factors.
Article 7(2) and (3). Adequate training for inspectors. The Government indicates that the Labour and Social Security Inspection School was inaugurated in 2009 and that, as from 2010, a single system was formed for entry to the labour and social security inspectorate. Entry requirements consist of a competition followed by successful completion of a selective course in the abovementioned school. The course, once completed, is supplemented by tutorials, which are differentiated for inspectors and sub-inspectors. The Committee notes that, according to the Government, the drop in the number of courses both at central level and at the level of the autonomous communities is a result of the reduction in the budgetary appropriation for vocational training. The Committee also notes from the information sent by the Government that 205 continuous training courses amounting to a total of 2,845 of five hours, were organized in 2011. Of these, 60 were on social security and employment, were attended by 1,100 students and amounted to 755.5 hours; 51 dealt with administration and procedures, were attended by 814 students and amounted to 676 hours; there were 50 courses on occupational risk prevention and industrial relations with a total duration of 566 hours and the participation of 850 students. According to available provisional information sent by the Government, in 2013 up to the beginning of September a total of 105 continuous training courses were organized with a total duration of 1,281 hours. Particular focus has again been placed on social security and employment courses, of which there have been 64 with a duration of 528 of five hours and 1,095 participants; 16 courses were organized on occupational risk prevention and industrial relations, with a duration of 273.5 hours and the participation of 292 students. The Committee requests the Government to provide information on the measures taken or envisaged to ensure that the training provided for labour inspection staff is adapted to the duties entrusted to the labour inspection system, in the light of the provisions of Article 3(1)(a) and (b) of the Convention. It also asks the Government to provide information on any developments regarding the budgetary appropriation for the training of labour inspection staff both at central level and at the level of the autonomous communities.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Articles 3(1)(a) and (2), and 5(a) of the Convention. Additional duties of labour inspectors. Effective cooperation with other government services. The Committee notes that, according to information sent by the Government, in recent years a major effort has been made to increase the number of vacant positions in order to match the strength of the Labour and Social Security Inspectorate with current needs in the light of the high rate of industrial accidents, the growth of immigration and the “irregular economy” which have made it necessary to plan campaigns, particularly for the prevention of occupational risks and the supervision of foreigners and the irregular economy. The Committee notes that, according to data in the Annual Report of the Inspectorate for Labour and Social Security (ITSS) (2011) available on the website: http://www.empleo.gob.es/itss/ web/que_hacemos/Estadisticas/index.html, the Labour Inspectorate conducted a total of 356,535 visits in that year. Of these, 79,276 (22.24 per cent) concerned the prevention of occupational risks and 29,629 (8.31 per cent) concerned employment and labour relations. The Committee also notes from information in the same report that the greatest number of infringements in 2011 were related to conditions of safety in workplaces (2,199); working time (1,572) and wages, wageslips and wage settlement (1,089). The total number of workers in the enterprises visited in the same period was 451,861, of whom 123,598 work in establishments visited in connection with risk prevention and 194,118 in establishments visited in connection with labour relations. The Committee understands from this information that the activities of the ITSS to supervise foreigners and the irregular economy are on the increase.
The Committee also notes from information in the Annual Report of the ITSS, 2011, and from information in the Government’s report, that the ITSS has signed several cooperation agreements to improve the supervision of social security and the irregular economy and of the work of foreigners with: the General Social Security Treasury (TGSS), the National Social Security Institute (INSS), the Social Institute of the Navy (ISM) and the Public State Employment Service (SPEE), the Ministry of Development, the Ministry of the Interior and the State Agency for Tax Administration (AEAT). Furthermore, on the basis of these agreements several joint action plans have been developed to implement measures against social security fraud and obtain support for implementation, such as the ITSS–TGSS, ITSS–INSS, and ITSS–ISM joint objective plans; the ITSS–SPEE joint action plan; the plan to prevent and remedy tax, labour and social security fraud (PIF) of 5 March 2010, produced by the AEAT, the ITSS and the TGSS. This plan includes not only the measures and actions undertaken jointly by the three bodies, but also those that they undertake individually within their own remit. Furthermore, most of the measures established in the PIF that are specific to the ITSS were incorporated in the ITSS plan for 2011. The Committee also notes that the instruction issued jointly on 15 February 1994 by the subsecretariats of the Ministry of the Interior, Ministry of Labour and Social Security and Ministry of Social Affairs on cooperation between the ITSS and the law enforcement bodies of 15 February 1994, which aims to achieve maximum coordination between these bodies and obtain administrative support for supervision of the grey economy and unlawful immigration, has been taken as a basis for joint action in the sectors, areas and periods with the highest concentration of situations associated with the irregular economy, and particularly the unlawful employment of foreigners. This cooperation extends to instances of offences against freedom and safety at work, and in these cases it includes the Public Prosecutor as well. The Government also indicates that a cooperation agreement was signed on 30 April 2013 by the Ministry of Labour and Social Security and the Ministry of the Interior, the purpose of which is to secure coordination between the inspectorate of labour and social security and the state law enforcement bodies in tackling irregular employment and social security fraud.
The Committee also notes that on 27 April 2012, the Council of Ministers approved a plan to combat irregular employment and social security fraud for the period 2012–13, in order to step up action to deal with certain types of behaviour that cause a reduction in the inputs to the economic resources of the social security system, a deterioration of the rights of workers and unfair competition vis-à-vis enterprises, employers and self-employed workers who meet their obligations. The plan aims to: eradicate unlawful employment; eliminate the fraudulent obtention and enjoyment of unemployment benefits; overcome other fraudulent situations and tackle the improper use of bonuses or the improper reduction of social security contributions for enterprises.
The Committee refers the Government to paragraphs 75–78 of its General Survey of 2006 on labour inspection, and points out that according to Article 3(2) of the Convention, additional duties that do not seek to ensure the enforcement of the legal provisions on working conditions and the protection of workers may be assigned to labour inspectors only in so far as they do not interfere with their primary duties and do not in any way affect the authority and impartiality necessary to inspectors in their relations with employers and workers. In these circumstances, the function of verifying the legality of employment should have as its corollary the reinstatement of the statutory rights of all workers if it is to be compatible with the objective of labour inspection, an objective that can only be met if the workers covered are convinced that the primary task of inspection is to enforce the legal provisions relating to conditions of work and the protection of workers. The Committee requests the Government to indicate what percentage of all inspections carried out is accounted for by visits for the control of foreigners and the irregular economy. It would be grateful if the Government would provide disaggregated information on unlawful employment, specifying the number of cases in which migrant workers were found to be in an unlawful situation vis-à-vis immigration law. It also asks the Government to provide statistics of the number of infringements recorded, indicating the provisions to which they relate, the proceedings initiated and the nature of the penalties imposed.
The Committee would be grateful if the Government would specify how the labour inspectorate ensures compliance with employers’ obligations (such as payment of wages and other benefits for work actually done) towards foreign workers in an irregular situation, including in cases where such workers are subject to deportation or expulsion under immigration law.
The Committee raises other matters in a request addressed directly to the Government.

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

The Committee notes the Government’s report in response to its previous comments.
It notes that a representation under article 24 of the Constitution of the International Labour Organisation was presented to the Governing Body by the Federation of Associations of Deputy Inspectors of Employment and Social Security (FESSES) (Document GB.312/INS/16/5). In the course of its 312th Session (November 2011), the Governing Body decided that the representation was receivable, and appointed a tripartite body to examine it.
In accordance with its usual practice, the Committee decided to postpone its examination of the application of the Convention pending the decision of the Governing Body in respect of the representation. The Commission will therefore examine the information supplied by the Government in its report relating to the period 2009–11 in the light of the decisions adopted in due course by the Governing Body in the framework of the said representation.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Article 5(b) of the Convention. Collaboration between the labour inspection services and the social partners. Further to its previous comment concerning cooperation between the labour inspection services and the social partners, the Committee notes the Government’s indication that this is possible at institutional level by means of the Tripartite Advisory Committee set up within the Labour and Social Security Inspectorate. Moreover, the Committee notes that, in 2009, a working party was formed with the social partners, and this will analyse the statistical data relating to labour inspectorate activities, including action by the inspection services in enterprises which operate in several autonomous communities.

As regards promotion of the labour inspectorate’s duty to provide information, the Committee notes the indication that this duty is performed during inspection visits. Furthermore, the inspection services adopt more general measures, including the distribution of brochures during lectures and information meetings. This type of activity is undertaken as part of specific inspection campaigns. In this regard, the Committee notes the campaigns which took place in 2008, in particular the European campaign on the manual transport of loads and the SEGUMAR campaign concerning the prevention of occupational hazards on board fishing vessels.

Articles 9 and 10. Cooperation of experts and technicians. Numbers and qualifications of labour inspection staff. The Committee notes with interest the establishment of a labour and social security inspection college, which is in the process of being constructed. It notes that this college will be open to the participation of all the autonomous communities and to cooperation with other public or private institutions concerned with training. The Committee also notes the Government’s indication that in 2007 a total of 559 training courses were held for 5,983 persons. In this respect the Committee notes that, for 2008, the numbers of inspection staff increased to 1,746 officials, comprising 836 inspectors and 910 deputy inspectors, as well as 236 technicians. It notes in particular that the new INTEGRA computer application, developed in the context of the “LINCE” project, has been a valuable tool in the training of labour inspectors. The Government also mentions that a study has been conducted on “Training needs of the inspection system and evaluation of appropriate solutions”. The Committee further notes that, in 2008, the focus was placed on quality, not quantity, of training courses, and most of the 447 courses given were devoted to technical rather than computer education.

Article 11(1)(a). Labour inspection information system. As regards the development of the “LINCE” project and the new INTEGRA computer application mentioned above, the Committee notes that this application has constituted the core of the “LINCE” project since its creation in 2007 and encompasses the four subsystems of vital importance for labour inspection and social security, namely: (i) programmes and campaigns; (ii) inspection activities; (iii) follow-up to reports of infringements through administrative and dispute settlement channels; and (iv) evaluation and monitoring. According to the Government, this application, apart from providing IT support for labour inspection activities, constitutes an integrated information management system which enables information to be transmitted, shared and utilized in a coherent manner. Moreover, the Committee notes that two other systems have been developed: (i) the INTEGRA-PERSONAL system, which manages the human resources of the inspection and social security services; and (ii) the INTEGRA-PRODUCTIVIDAD system, which manages the productivity of the inspectorate and support staff. Finally, the Committee notes the creation of a number of databases, namely: (i) the CEPROSS database concerning occupational diseases; (ii) the ADEXTTRA database concerning information on foreign workers; and (iii) the e-SIL database (occupational information system) concerning social security. It notes that, since 2007, all these projects have been subject to constant improvement, inter alia, in order to ensure coherence in methods and quality of implementation of activities in all inspection and social security services, by documenting and disseminating working procedures in a clear and accessible manner, which enables the provision of a knowledge base ensuring the coherence of inspection activities.

Articles 18 and 21. Penalties applicable to infringements. Content of the annual general report. The Committee notes the information supplied by the Government concerning infringements reported with regard to gender equality and discrimination and also with regard to subcontracting in the construction industry. It notes that, between 2007 and 2008, the number of infringements increased considerably (52 and 43 respectively in 2007 compared with 121 and 631 in 2008). The annual labour inspection report for 2008 indicates that 610,774 establishments were inspected, giving rise to 1,047,977 reports and 92,098 notices of infringement of the legislation. The Committee further notes the statistics on penalties imposed in the areas of labour relations (5,955 infringements reported), occupational risk prevention (27,882 infringements, in addition to which there were 5,851 infringements reported during investigations conducted further to industrial accidents), industrial accidents (954,981 in 2007 compared with 828,941 in 2008, namely a decrease of approximately 10 per cent), employment and foreign workers (12,994 infringements) and social security (40,564 infringements). Finally, the Committee notes the statistics for 2009 relating to each autonomous community and also indicating that 69,694 infringements were reported at national level.

As regards the laws and regulations relating to the competencies of the labour inspectorate, the Committee notes the adoption of Royal Decree No. 1109/2007 of 24 August 2007 concerning procedures in force in the construction industry, Act No. 20/2007 of 11 July 2007 regulating the status of self-employed workers, Act No. 38/2007 of 16 November 2007 modifying the powers of the general administration of the State to impose penalties, Act No. 44/2007 of 13 December 2007 including recruitment agencies in the list of enterprises which may be held liable for occupational infringements, and also the Decision of 25 November 2008 of the Directorate-General of Labour Inspection and Social Security, which establishes the basis for authorizing enterprises to use the electronic inspection register. The Committee further notes with interest Instruction No. 1/2007 of 27 February 2007 on the strengthening of relations between the Labour and Social Security Inspectorate and the Public Prosecutor’s Office concerning criminal acts in the sphere of occupational safety and health.

The Committee requests the Government to continue to supply information on the manner in which the Convention is applied, indicating in particular:

(a)   Any measure or initiative aimed at improving cooperation between the labour inspection services and other institutions and the social partners, and also any activity or programme relating to the duty of the labour inspectorate to provide information. The Committee also requests the Government to supply information on the activities of the working party set up in 2009, including any studies or official reports which have been drawn up.

(b)   Any measure or initiative taken with a view to increasing the numbers and improving the qualifications of labour inspectors and also the results achieved. The Committee also requests the Government to keep the Office informed of the progress made regarding the establishment of the labour inspection and social security college and to supply documentation relating to the legal framework of the college and its operation.

(c)   Any further developments relating to the labour inspection information systems – LINCE, INTEGRA-PERSONAL, INTEGRA-PRODUCTIVIDAD, etc. – and their impact on inspection service activities. The Committee also requests the Government to supply a copy of the study on the “Training needs of the inspection system and evaluation of appropriate solutions” and to indicate the measures taken to follow up on its conclusions.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s detailed report for the period ending on 1 June 2007. It notes with interest Royal Decree No. 1299/2006 approving a new schedule of occupational diseases, and also the implementing regulations for the legislation recently adopted to respond to changes made in modes of production: Order TAS/1/2007 concerning the notification of cases of occupational disease and the resolution on the Labour and Social Security Inspectorate of 11 April 2006, amending employers’ records of inspection visits.

The Committee also notes the information supplied in reply to its previous comments and to the comments dated 20 September 2005 from the Trade Union Confederation of Workers’ Commissions (CC.OO.) and sent to the Government by the ILO on 20 October 2005.

The CC.OO. made proposals on ways to strengthen the labour inspectorate with a view to improving its functioning. The proposals are based on: (1) cooperation between its services and other institutions; (2) collaboration of the social partners; (3) the number of inspectors and deputy inspectors; (4) the computer resources and systems available to inspectors; (5) the planning of inspection visits; (6) the deterrence of fines; and (7) the content of annual inspection reports.

1. Article 5(a) of the Convention. Cooperation between the labour inspection services and other institutions. According to the Government, even though Spain is not a federal State, the autonomous communities have their own competence with regard to the application of labour legislation, especially the performance of inspection visits and the implementation of procedures for the enforcement of penalties imposed by the Labour and Social Security Inspectorate. Act No. 42/1997 establishing the structure and functioning of the labour inspectorate established two mechanisms for collaboration between the general administration of the State and the autonomous communities: the Sectoral Conference for Labour Affairs and the territorial committees of the Labour and Social Security Inspectorate. The first of these bodies is a forum for meetings and deliberations in which the Ministry and some autonomous communities are represented. The central inspection authority presents a report once a year to this forum on the work of the labour inspectorate during the previous year. In this context, it takes note of general and territorial programmes setting objectives, proposals for coordination or integration of territorial plans, resources of the system and the distribution thereof, and any other relevant question. Within the Sectoral Conference, a labour committee constitutes a standing entity for communication, collaboration and information between public administrative bodies on issues relating to labour inspection. The other mechanism for collaboration comprises the territorial committees of the Labour and Social Security Inspectorate. These are bilateral cooperation bodies whose objective is to facilitate the performance of inspection duties in each autonomous community. Their composition, powers and rules of operation are established by means of bilateral agreements between the general administration of the State, on the one hand, and each autonomous community, on the other. Under these agreements, rules may be laid down for technical support and expert collaboration, and for programming and follow-up regarding enforcement of the legal provisions adopted by the communities, the monitoring of which, however, comes under the competence of the labour inspectorate.

Since the criteria on which the CC.OO. bases it assessment regarding the inadequacy of such cooperation are not clear to the Government, the latter points out that the plans for annual objectives are as a rule drawn up on the basis of information available in their respective areas of interest by the Labour and Social Security Inspectorate and other public administrative bodies such as the General Social Security Treasury, the Public Employment Service and the National Social Security Institute. The Committee understands that the CC.OO. would like such cooperation to be extended to analysis of the results of labour inspection activities as they should appear in the annual report on its work, including follow-up to reports of contraventions and information on the implementation of decisions issued in cases referred to the courts. The Committee hopes that the Government will invite the CC.OO. to specify the subjects for which it would like to see the inter-institutional cooperation referred to by this Article developed, and in what form, and that it will inform the Office of its position in this respect.

2. Article 5(b). Collaboration between the social partners and the inspection services. The Government states that such collaboration is provided for by section 10 of the Act on the structure and functioning of the labour inspectorate and that a Tripartite Advisory Committee on Labour and Social Security Inspection, established in 2006, is responsible for supplying advice, formulating proposals on strategies for action, priorities and general objectives in the field of labour inspection, inspection campaigns, staff and material resources of the inspection system, procedures for the selection of inspection staff and their training, etc. The Committee notes this information with interest and requests the Government to send, if possible, copies of extracts from any reports on the work of the Tripartite Advisory Committee indicating the examination of the subjects covered by the Convention.

Referring also to the suggestion made by the CC.OO. to promote further the function of providing information to employers and workers, the Committee requests the Government to indicate any measures taken or contemplated in this regard.

3. Articles 9 and 10. Collaboration of technical experts and specialists.  Numbers and qualifications of labour inspection staff. The Committee notes with interest the increase in inspection staff between 2002 and 2006, from 739 inspectors and 806 deputy inspectors to 814 inspectors and 854 deputy inspectors. With reference to its previous comments, the Committee also notes with interest that 137 technical officers from the autonomous communities are collaborating with the labour inspectorate in the area of occupational risk prevention and that their numbers are set to rise. However, it notes that the Government does not reply to the comment made by the CC.OO. regarding the need to update the qualifications of inspection staff, given the increasing complexity and diversity of employment relations, the increase in temporary work, the size of the immigrant workforce, illegal employment, and the high frequency of industrial accidents. As regards the CC.OO.’s suggestion to consider extending to deputy inspectors some of the prerogatives assigned solely to inspectors, the Committee notes that, according to the Government, this matter is still under consideration. The Committee requests it to supply information on any new measures taken with a view to enhancing the training of labour inspectors in the abovementioned areas and to supply information on any development regarding any additional prerogatives which might be assigned to deputy inspectors.

4. Article 11, paragraph 1(a). Labour inspection information system. The Committee notes with interest the information supplied by the Government in reply to the comments made by the CC.OO. regarding the need to improve the computer systems of the Labour and Social Security Inspectorate. This information is also given on the latter’s web site and is mainly concerned with the development, since 2004, of the “Lynx” computer project (Proyecto Lince), the purpose of which is to modernize the information systems of the Labour and Social Security Inspectorate, facilitating the work of the staff. Launched in the autonomous community of Aragón, this project is set to be extended to the other 49 labour inspectorates. It is based on a new approach to labour, centralizing information in a portal which is also accessible to other public stakeholders. This system allows the following functions: (1) issue of service orders relating to the planning of inspection visits; (2) collection of information necessary for the performance of visits by inspectors and deputy inspectors; (3) administrative or judicial follow-up to reports of contraventions; and (4) evaluation and exploitation of data. The Committee would be grateful if the Government would supply a regular evaluation in its subsequent reports of the impact of the implementation of the “Lynx” project on the results achieved by the Labour and Social Security Inspectorate and on the development thereof.

5. Article 18. Penalties applicable to contraventions. According to the CC.OO., the system of penalties is not adequate in that it does not take account of the reality of the labour market. All too often, employers prefer paying fines to taking the necessary steps to put a stop to the contraventions concerned. The Confederation therefore suggests that penalties should be increased for the most serious violations, such as those giving rise to occupational risks, recruitment fraud, undeclared work and gender-based discrimination. It adds that the system of sanctions should be extended to areas where no penalties apply at present. The Committee notes with satisfaction in this respect that major legislative amendments have made it possible to bridge the legal gaps which have been identified, and define new contraventions and penalties. Such legislation includes: Royal Decree No. 689 of 10 June 2005 amending the regulations on the structure and functioning of the Labour and Social Security Inspectorate and the general regulations on the procedures for the imposition of penalties for contraventions of a social nature and in relation to the payment of social security contributions; Act No. 32/2006 of 18 October 2006 on subcontracting in the construction industry and incorporating new contraventions in the Act on contraventions of a social nature and their related penalties; Order TAS/3869/2006 of 20 December 2006 establishing the Tripartite Advisory Committee on Labour and Social Security Inspection (see above); Royal Decree No. 306/2007 revising the amounts of fines provided for by Royal Decree No. 5/2000 and Royal Decree No. 597/2007 on the publication of penalties imposed in cases of serious violations of the legislation on the prevention of occupational risks; Act No. 3/2007 on gender equality; Royal Decree No. 5/2006 for improving growth in employment; Act No. 31/2006 on the participation of workers in public limited companies and European cooperatives; and Act No. 40/2006 concerning the status of Spanish citizens abroad. The Committee would be grateful if the Government would ensure that information on the practical implementation of these provisions is included on a regular basis in the annual inspection report.

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

The Committee notes the Government’s report and the useful information sent in reply to its previous request. It also notes the comments sent on 20 September 2005 by the Trade Union Confederation of Workers’ Commissions (CC.OO.), which were forwarded to the Government. The Committee requests the Government to continue providing detailed information on the application of the Convention, and on the following points in particular.

1. Duties and powers of deputy-inspectors of employment and social security. The Committee notes the Government’s explanations responding to the observations made by the General Union of Workers (UGT) in September 2003 concerning the duties and powers of deputy-inspectors of employment and social security. The Committee refers the Government to the CC.OO.’s comments on this subject and requests it to indicate whether, in the period covered by the report, there have been any changes affecting the duties of the above deputy-inspectors, particularly as regards the functions of the labour inspection system set forth in Article 3 of the Convention.

2. Occupational risk prevention. The Committee notes with interest the provisions of Act No. 54/2003, which strengthen the authority of technical occupational risk prevention staff in the autonomous communities by authorizing them to issue orders to remedy defects observed and to report any violations to the labour inspectorate. It requests the Government to continue to provide information on cooperation between the labour inspectorate and the various technical services in the autonomous communities in the area of occupational safety and health (Articles 9 and 13).

3. Annual report of the labour inspectorate. The Committee notes the data on the inspectorate staff sent by the Government. It also notes that the most recent data on the activities of the inspectorate are available on the website of the Ministry of Labour and Social Affairs. The Committee observes, however, that the last annual report sent by the Government under Article 20 of the Convention was for the year 2002. It accordingly requests the Government to ensure that a report on all the subjects listed in Article 21 of the Convention is published annually and sent to the ILO within the prescribed time limits.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s detailed report, the replies to its previous comments and the legislation appended to the report. It notes with interest the annual inspection reports for the years 1999-2001 containing information on child labour inspection activities.

Article 12, paragraph 1(b), of the Convention. With reference to its previous comments, the Committee notes that although labour and social security inspectors may, in practice and in the context of combating the underground economy and unlawful or clandestine employment, visit by day and by night work centres or workplaces not officially declared as such, no such authorization is provided for in sections 7, subsection 1(1), of Royal Decree No. 138/2000 and section 5 of the Labour and Social Security Inspection Act, No. 42/97, which the Government cites and which restricts such visits to workplaces liable to inspection. The Committee hopes that the Government will ensure that a basis in law is established for this practice, by making arrangements for the adoption of a text on the subject and that it will keep the ILO informed of the matter.

Paragraph 1(c)(iii). While noting the general scope of the labour inspectors’ supervisory authority, the Committee would be grateful if the Government would indicate whether effect is given, in law and in practice, to this particular provision of the Convention and, if so, to provide relevant information. If not, the Committee asks the Government to take steps to this end and draws its attention to the comments it made on this matter in its General Survey of 1985 on labour inspection (paragraphs 173-174).

Article 14. The Committee would be grateful if the Government would send a copy of Order TAS 2926/2002 of 19 November 2002, introducing new standard forms for the notification of industrial accidents.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s detailed report and the replies to its previous comments. It also notes with interest Royal Decree No. 138 of 4 February 2000 approving the regulations on the organization and operation of the labour and social security inspectorate, and the table on the distribution of the staff of the inspection services, disaggregated by sex, showing that women account for an overall proportion of 39.44 per cent of inspection officials. The Government is requested to provide additional information on the following points.

1. Labour inspection and child labour. The Committee notes the interest shown by the Government in the value of including in the annual reports data concerning the supervisory activities carried out by the labour inspectorate in the field of child labour. It also indicates its commitment to strengthen these activities and accord them the priority that they deserve.

2. Impact of the new inspection system. With reference to the Government’s request concerning the precise purpose of the information that it requested in its previous comment on this point, the Committee asks the Government to provide details concerning subsequent developments in the supervisory activities of the inspection services, as well as the degree to which the relevant provisions are applied by employers.

3. Principal duties of the labour inspectorate (Article 3, paragraph 1(c) and paragraph 2, of the Convention). With reference to the information provided in a previous report of the Government to the effect that, although the legislation does not explicitly provide that inspectors are entrusted with bringing to the notice of the competent authority defects or abuses not specifically covered by existing legal provisions, this duty was discharged in practice and had resulted in the adoption of relevant provisions, the Committee would be grateful if the Government would indicate, firstly, whether it is envisaged to give a legal basis to the above provision of the Convention and, secondly, if it would provide information on the manner in which it is ensured that duties relating to conciliation, deriving from sections 1(2) and 3 of Royal Decree No. 138/2000, do not interfere with the discharge of the primary duties of labour inspectors and do not prejudice the authority and impartiality which are necessary in their relations with employers and workers.

4. Inspection by day of workplaces liable to inspection. The Committee notes that the powers of inspectors and inspection officials set out in section 7 of Royal Decree No. 138/2000 only apply to workplaces liable to inspection. With reference to paragraph 165 of its 1985 General Survey on labour inspection, it wishes to draw the Government’s attention to the case of workplaces which do not formally and clearly appear to be liable to inspection, but in which workers covered by the labour legislation are engaged. Recalling in this respect that, in accordance with Article 12, paragraph 1(b), of the Convention, labour inspectors must be empowered to enter these premises by day, it requests the Government to provide information on the manner in which it is ensured that workers engaged in these premises are covered by this provision or, if this is not the case, to take measures for this purpose and keep the ILO informed.

5. Supervision of notices required at the workplace. In accordance with Article 12, paragraph 1(c)(iii), labour inspectors should be authorized to require the posting of notices envisaged by legal provisions. The Government is requested to indicate the measures taken to enable inspectors to exercise this power.

6. Annual inspection report. The Committee notes that the most recent annual report transmitted on the work of the inspection services concerns the year 1998. It would be grateful if the Government would take the necessary measures to ensure that future annual reports are published and transmitted to the ILO within the time limits set out in Article 20.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

With reference also to its observation, the Committee requests the Government to provide information on the fields of labour inspection in which there is collaboration between the labour inspection services and employers’ and workers’ organizations (Article 5(b) of the Convention) and on the results of this collaboration in relation to the objectives of the Convention.

Noting the statistical data provided in the annual inspection report for 1998 on the staff of the labour inspectorate, the Committee would be grateful if the Government would indicate the proportion of women in this staff as a function of their hierarchical rank.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s report for the period ending June 1999, which includes explanations in response to the observations made previously by the General Union of Workers (UGT) concerning the application of the provisions of the Convention. The Committee also notes the detailed information provided in the annual inspection report for 1998. The Committee notes the adoption of Act No. 42 of 1997 to organize the labour and social security inspectorate, under which the labour and social security inspection system is composed of a central authority and, at the regional level, provincial inspection services under the competence of each of the autonomous communities (section 15(2) of the Act). The autonomous communities also participate in the labour inspection system and in ensuring its unity in coordination with the respective public authorities, the Sectoral Conference on Social Affairs and the territorial inspection commissions. The Committee also notes Decree No. 138-2000 approving the rules for the organization and operation of the labour and social security inspectorate. Finally, it notes with interest that, with a view to the effective implementation of the new Act on labour inspection, a substantial increase (around 5 per cent) in high-level inspection personnel was made to strengthen the staff between 1997 and 1998, and that a new increase was envisaged for 1999. The Committee would be grateful if the Government would provide information in its future reports on the impact of the new labour inspection system on the application of the legal provisions under its supervision.

The Committee is addressing a request directly to the Government on certain matters.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes that the observations made in January 1998 by the General Union of Workers (UGT), whose allegations relate to the scope of labour inspection, which is considered too limited; the insufficiency of the human and material resources available to the inspectorate; the need to reform the functions of labour inspectors; the need for a statistical evaluation of the effectiveness of the inspectorate in terms of the legal action commenced and brought to completion and the penalties imposed; and the absence of measures to promote collaboration between the labour inspectorate and employers and workers or their organizations.

Noting that the Government has not provided a reply to the observations of the UGT, the Committee hopes that it will reply to them in its next report and that it will provide full information on the application of the Convention in law and in practice, taking into account developments in labour inspection following the adoption of Act No. 24/1997 respecting labour inspection and social security.

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

The Committee notes the comments of the Union of Workers' Trade Unions (USO) (Regional Union of the Asturies) according to which the labour standards in respect of weekly rest and holidays are not respected in the large commercial centres. The Committee notes the Government's indications that the general management of the Labour Inspectorate and the provincial labour inspection service of the Asturies carry out inspections on the application of the labour standards relating to hours of work and of rest: at the national level, the inspection service carried out 13,111 visits and recorded 1,645 infringements; the regional inspectorate of the Asturies carried out 284 visits and recorded 41 infringements concerning 488 workers. The Committee asks the Government to continue to communicate in its future reports information on inspections in this field.

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

The Committee notes the information supplied by the Government in its report, the observations of the Trade Union Confederation of Workers' Commissions (CC.OO.) and the General Union of Workers (UGT) and the Government's reply to these observations. The Committee recalls that its comments and the discussions held at the Conference Committee in 1992 concerned the strength and means of the labour inspectorate, cooperation between the inspectorate and employers' and workers' organizations, the powers of labour controllers and supervision of the application of collective agreements.

1. With regard to the number of inspectors and workplaces inspected (Articles 3, 10 and 16 of the Convention), the Committee notes the Government's indication that measures have been take to increase the strength and the material resources of the inspectorate. The Committee notes that, according to the 1994 annual inspection report, the strength of the inspectorate increased by 4.85 per cent over 1993 (51 inspectors and 16 controllers). The Government has set priorities for the inspection of workplaces and a considerable increase in the number of visits has been recorded. Under the remuneration system for these employees, the wage is supplemented according to productivity which is measured in terms of the attainment of set objectives, including the number of visits. The Committee notes that particular attention has been paid to the construction, maritime and catering sectors. It notes that, according to the annual report, the priority areas are occupational health and safety and curbing clandestine employment which accounted for almost two-thirds of inspection activity. The Committee asks the Government to continue to provide information on the numbers of inspectors, the priority areas and the visits carried out.

2. As concerns cooperation between labour inspectors and employers' and workers' representatives (Article 5(b)) the Committee notes the Government's indication that this is ensured by the presence of employers' and workers' representatives during inspection visits, by a consultation and information service organized in inspection offices and by a variety of meetings with the representatives.

3. With regard to the application of collective agreements, the Committee notes that, under the Act on offences and sanctions in the social organization, the labour inspectorate is responsible for checking actions or omissions of employers which are in breach not only of the provisions of laws and regulations but also of the labour and health and safety requirements of collective agreements. The Committee notes the Government's indication that a circular has been adopted on this subject. It asks the Government to provide a copy of the circular.

4. With reference to its previous comments in which it noted that, according to the observations made by the CC.OO., no "presumption of certainty and veracity" is established concerning the acts of controllers, which weakens the inspection system, the Committee notes the Government's indication that section 27 of the Finance Act for 1992 (No. 31) has amended section 52 of Act No. 8 of 1988 by adding a paragraph establishing a presumption of authenticity of the records of violations made by controllers where the facts have been duly proved. The Committee asks the Government to indicate any other measures taken or envisaged to give labour controllers the same powers as actual labour inspectors to enforce the provisions of the law.

5. The Committee notes the Government's indication that a national inspection corps represented by the central corps of labour and social security inspectors has been established to maintain the unity of the inspection corps in the country, following the transfer of its powers to the autonomous communities. It also notes the information to the effect that certain attributions of the labour inspectorate now come within the jurisdiction of labour tribunals ("jurisdicción social"), (for example the authority to declare a job toxic, arduous, dangerous). The Committee asks the Government to provide additional information on the reorganization of the labour and social security inspectorate and on the effects of the various reforms.

In addition, the Committee notes that the general labour and social security inspectorate is in the process of preparing a complete reform of the inspection system to replace the present system. The Committee asks the Government to provide information on all developments in this respect. Recalling that Spain has also ratified the Labour Administration Convention, 1978 (No. 150), the Committee hopes that constructive consultations and cooperation will be established in this area between the Government and the employers' and workers' organizations.

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

The Committee notes the detailed information provided by the Government in its report received in the ILO shortly before its session. It notes the observations by the Trade Union Confederation of Workers' Commission (CC.OO.) of 29 May 1995 and by the General Council of Workers (UGT) of 24 July 1995 and the Government's response to these observations contained in its report. The Committee also refers to the previous observations submitted by the CC.OO. and the UGT, the discussion in the Conference Committee in 1992 and the Government report of November 1993.

The Committee notes the labour inspection report for 1994 as well as the recent legislation supplied by the Government. Finally the Committee notes the information provided by the Government that the General Labour and Social Security Inspectorate is preparing a draft Act on Labour and Social Security Inspection which will regulate comprehensively the system of inspection and replace the legislation presently in force.

The Committee will examine at its next session all the information received. It hopes that the Government will provide the text of any new provisions on labour and social security inspection, and in particular the text of the draft Act when enacted.

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

Further to its previous comments, the Committee notes the fresh observations made by the General Union of Workers (UGT) and the Trade Union Confederation of Workers' Commissions (CC.OO.). The UGT comments that the two branches of the labour inspectorate (comprising labour inspectors proper and labour controllers) are insufficiently staffed and lack both the legal authority and the resources to enable compliance with the requirements of Articles 1, 3(1) and 16 of the Convention. Provisions dealing with overtime, for example, are said to be inadequately enforced. The CC.OO. also notes that the inability of labour controllers to enforce relevant provisions directly has weakened the operations of the labour inspectorate as a whole. The CC.OO. states that there is little collaboration between officials of the labour inspectorate and workers' organisations (Article 5(b)), and that because of scarce personnel and material resources workplaces are not inspected frequently enough to ensure the effective application of relevant legal provisions (Article 16). It considers that the inability of labour inspection officials to determine which clauses of collective agreements are in legal doctrine "normative" and which are "obligational" further inhibits enforcement action being taken (Article 27).

The Government has described the involvement of workers' representatives in inspection proceedings under section 15 of Act No. 8/1988. It draws attention to an increase in inspection visits and sanctions proposed in 1989, whilst considering that other forms of control than visits may be equally effective. It stresses the need to ensure that the inspectorate has full evidence of the facts of each case in order to fulfil its functions.

The Committee recalls that the workers' organisations have expressed dissatisfaction at the manner in which the Convention is applied for several years. It notes the explanations given and further requests the Government to provide full information concerning the following matters in particular:

(a) steps taken so that the resources of the labour inspectorate are fully utilised and workplaces are in accordance with the Convention inspected as often and as thoroughly as is necessary to ensure the effective application of all the relevant legal provisions; and so that there is the necessary collaboration between officials of the labour inspectorate and employers' and workers' organisations in their work;

(b) measures taken or envisaged to ensure that the authority of the labour inspectorate to enforce all relevant legal provisions, including those in collective agreements, is fully exercised; and

(c) any measures contemplated to provide labour controllers with the enforcement powers of labour inspectors proper.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes that the Government's report, apparently due to clerical error, contains an incomplete reply to its comments. It hopes that the next report will be sent with full information on the matters raised in its previous direct request, which read as follows:

The Committee notes the comments made by the Trade Union Confederation of Workers' Commissions concerning the application of Articles 5(b), 16 and 27 of the Convention and the detailed observations submitted by the Government in reply to these comments. In view of the fact that it examined the matter at its last session, the Committee requests the Government to refer to its 1989 direct request.

Furthermore, the Trade Union Confederation of Workers' Commissions considers that this inspection system has been greatly weakened by the fact that the work of a major part of the inspection staff, namely labour supervisors, does not enjoy the "assumption of certainty and accuracy", which prevents enterprises that are violating provisions from being sanctioned. In reply, the Government states that this claim is unfounded and, to support its argument, refers among others to two decisions handed down in this connection by the Supreme Tribunal in 1988. While noting this information, the Committee requests the Government to indicate whether the draft regulations respecting the administrative procedure for the imposition of sanctions, provided for in Act No. 8/1988, has been adopted and, if so, to supply a copy of it.

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

The Committee notes the comments made by the Trade Union Confederation of Workers' Commissions concerning the application of Articles 5(b), 16 and 27 of the Convention and the detailed observations submitted by the Government in reply to these comments. In view of the fact that it examined the matter at its last Session, the Committee requests the Government to refer to its 1989 direct request.

Furthermore, the Trade Union Confederation of Workers' Commissions considers that this inspection system has been greatly weakened by the fact that the work of a major part of the inspection staff, namely labour supervisors, does not enjoy the "assumption of certainty and accuracy", which prevents enterprises that are violating provisions from being sanctioned. In reply, the Government states that this claim is unfounded and, to support its argument, refers among others to two decisions handed down in this connection by the Supreme Tribunal in 1988. While noting this information, the Committee requests the Government to indicate whether the draft regulations respecting the administrative procedure for the imposition of sanctions, provided for in Act No. 8/1988, has been adopted and, if so, to supply a copy of it.

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