Observation (CEACR) - adoptée 2015, publiée 105ème session CIT (2016)

Convention (n° 158) sur le licenciement, 1982 - Espagne (Ratification: 1985)

Autre commentaire sur C158

Observation

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

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

At its 321st Session (June 2014), the Governing Body entrusted the Committee of Experts with following up the questions raised in the report of the tripartite committee which examined the representation made by the CCOO and the UGT alleging non-observance by Spain of Convention No. 158 (GB.321/INS/9/4). In the same way as the tripartite committee (paragraph 226 of the report), the Committee of Experts requested the Government to increase its efforts to reinforce social dialogue and, in consultation with the social partners, to find solutions to the economic difficulties that are in conformity with the Convention. The CCOO states that the Government has not organized meetings with the social partners to listen to and take into consideration the proposals made by trade unions concerning the Convention and concerning the need to make substantive amendments to the current legislation respecting termination of employment. The Committee once again requests the Government to take measures to reinforce social dialogue and, in consultation with the social partners, to find solutions to the economic difficulties that are in conformity with the Convention.

Exclusions. Establishment of a one-year period of probation under the “entrepreneur-support” employment contract (paragraphs 227–247 of the report). The Government indicates in its report that in practice the “entrepreneur support” employment contract (CAE) has shown characteristics similar to indefinite contracts (that is, without limit of time), rather than temporary contracts. The rate of retention in employment over time of persons covered by CAE contracts is much closer to that of other indefinite contracts. The Government adds that the CAE contracts do not systematically end just before one year is completed.

The CCOO indicates that employment instability has increased among those who have concluded employment contracts without limit of time since the 2012 labour reform. Mobility within recently created permanent jobs has grown by 23 per cent since the labour reform of March 2012. The CCOO adds that certain labour tribunals have found that the rules governing the probationary period of one year set out in CAE contracts are in violation of the European Social Charter, as they do not provide for either the right to notice or to compensation during the one-year probationary period.

The UGT emphasizes that CAE contracts were introduced without social dialogue and warns that they do not appear to be a transitional measure, as they could be in force for over ten years when it is considered that the unemployment rate (24.5 per cent in 2014) will not fall below 15 per cent for many years. According to the UGT, the CAE contracts are a structural measure. CAE contracts have become generalized through all types of activity which, in the view of the UGT, has a substantial effect on the freedom of collective bargaining, as the application of CAE contracts cannot be limited through collective agreements. The UGT also indicates that the Government has not adopted any measures to prevent CAE contracts from being terminated at the initiative of an employer in order to avoid in an abusive manner the protection provided for in the Convention, as requested by the tripartite committee (paragraph 247 of the report).

The Committee notes the Government’s indication in its reply that the High Court of Castilla and León, Valladolid (Labour Chamber, First Section) has found in two rulings dated 25 March 2015 and 22 April 2015 that there is no violation of the European Social Charter. The Government emphasizes that CAE contracts are used only by enterprises which need to have recourse to them to examine the viability of the job. According to the Government, CAE contracts are of a transitional nature, and are limited in time until the unemployment rate falls below 15 per cent. The Committee requests the Government to continue providing information on developments in relation to CAE contracts and on the issue of social dialogue. Please also indicate the measures adopted, in consultation with the social partners, to prevent CAE contracts from being terminated by employers in order to avoid in an abusive manner the protection provided for in the Convention.

Articles 1, 8(1) and 9(1) and (3). New regulations on economic, technical, organizational or production-related reasons for dismissal (paragraphs 248–266 of the report). The Government provides a detailed list and analysis of the rulings of the Labour Chambers of the High Courts issued between January 2013 and September 2014 relating to collective dismissals. In 2013, out of a total of 155 cases relating to collective dismissals, in something over half of the cases (80), the ruling found the decisions by the employer to be in accordance with the law; in 54 cases, the decisions by employers were found to be in breach of the law; and in the remaining 21 cases, the employers’ decisions were set aside. During the first three quarters of 2014, there was a substantial decrease in the number of cases. The Supreme Court only upheld 31 of the 58 appeals concerning collective dismissals. Of the 18 dismissals that were set aside, in which the right of the dismissed workers to reinstatement was upheld (without the option for the employer to pay compensation):

– five cases involved a fraudulent breach of the law;
– five cases involved substantive procedural flaws relating to the consultation period;
– four cases found that the associations of enterprises had not been correctly constituted;
– two cases involved violations of the fundamental right to strike or freedom of association; and
– two cases involved a lack of the necessary documentation for effective negotiation during the consultation period.

The CEOE and the IOE indicate that, following the labour reform of 2012, there has been greater involvement of the courts in industrial relations, especially with regard to collective dismissals, as a result of which the decisions set aside by the courts for mere formal flaws and court rulings on whether or not dismissals are lawful are leading to a serious crisis concerning the legal security of enterprise decisions. In reply, the Government refers to the information that the enterprise is required to provide workers’ representatives in cases of collective dismissal. The Government emphasizes the ruling by the Supreme Court (of 27 May 2013, Case No. 78/2013), in which it found that the employers failure to provide the necessary documentation necessarily resulted in the collective dismissal decision being set aside, because the failure was not in accordance with the required objective, namely adequate negotiation between the enterprise and the workers. The Committee requests the Government to continue providing information on the manner in which regulations respecting economic, technical, organizational or production-related reasons for dismissal are applied in practice, including updated statistics on the number of appeals made and their outcome, and the number of terminations for economic or similar reasons.

Article 10. Abolition of compensation wages in cases where the employer opts for the termination of employment despite a court ruling of unfair dismissal (paragraphs 267–280 of the report). With reference to the compensation granted by the courts in cases of unfair dismissal, the Government indicates that when the courts find that a dismissal is unlawful, the employer is required by the ruling to opt, within five days of notification of the ruling, between the reinstatement of the worker or the payment of compensation equivalent to 33 days’ wages for each year of service, with a pro rata amount per month for periods of under one year, up to a maximum of 24 monthly payments. Opting for compensation results in the termination of the employment contract, as from the date of the effective end of work. If the employer opts for reinstatement, the worker is entitled to compensation wages for the elapsed period. The wages are equivalent to an amount equal to the sum of the wages that the worker did not receive from the date of dismissal until the notification of the ruling finding the dismissal to be unlawful, or until the worker has found another job. The Committee requests the Government to continue providing information on the nature of the compensation awarded, including examples of court rulings in cases where termination of employment is found to be unjustified.

Article 6. Amendment of the regulations on absence from work due to duly certified illness or accident; dismissal for absenteeism (paragraphs 281–296 of the report). The Government refers to a ruling by the High Court of Andalucía, Malaga, of 22 May 2014, referring to the method for the calculation of the period for which justified absences and intermittent absences have to be taken into account for the purposes of the termination of the contract on grounds of absenteeism. The Committee requests the Government to continue providing information on the manner in which absences resulting from temporary incapacity, particularly as a result of medical treatment for cancer or other serious illness, are calculated in practice.

The Committee is raising other matters in a request addressed directly to the Government.