Observation (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

Convention (n° 137) sur le travail dans les ports, 1973 - Espagne (Ratification: 1975)

Autre commentaire sur C137

Observation

Demande directe

1990

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The Committee notes the observations of the Trade Union Confederation of Workers’ Commissions (CCOO) and the General Union of Workers (UGT), included in the Government’s report.

Articles 2, 3 and 5 of the Convention. National policy to encourage the provision of permanent or regular employment for dockworkers. Registered dockworkers. Cooperation between the social partners. The Committee notes the information provided by the Government on the regime applicable to dockworkers in accordance with, among other legal instruments, the consolidated text of the State Ports and Merchant Marine Act, adopted by Royal Legislative Decree No. 2/2011 of 5 September (TRLPEMM) and the Decision of the General Directorate of Employment of 17 January 2014, which provides for the registration and publication of the Fourth Agreement for the regulation of labour relations in the dock work sector. The Government indicates that, in accordance with section 151(1) of the TRLPEMM and section 6.3.1 of the Fourth Agreement, dockworkers are bound by indefinite contracts to limited liability dockworker management enterprises (SAGEPs) established in ports of general interest. The Government adds that SAGEPs keep a register of dockworkers who have a priority of engagement by port enterprises, as established in section 142 et seq. of the TRLPEMM. The Committee observes, however, that significant changes were introduced to the above regime with the adoption of Royal Legislative Decree No. 8/2017 of 12 May, which amends the regime governing workers engaged in the provision of cargo handling services in ports, in accordance with the ruling by the Court of Justice of the European Union (CJEU) of December 2014 in Case C 576/13. The CJEU ruling held that the Kingdom of Spain was not in compliance with the freedom of establishment, as it made it mandatory for enterprises from other member States wishing to conduct cargo handling activities in Spanish ports of general interest to register and have a share in the capital of a SAGEP, and to hire, as a priority, workers provided by the SAGEP, a minimum number of whom must be hired on a permanent basis. In this regard, the Committee observes that, in accordance with the explanation of the reasons for the above-mentioned Royal Legislative Decree, the new regime establishes the principle of the freedom to recruit in cargo handling services in ports. In this regard, in accordance with the Royal Legislative Decree, operators are not required to have a share in any enterprise providing dockworkers and may hire such dockworkers freely, on the condition that they meet a series of requirements for the training of these workers. The Royal Legislative Decree also provides for the establishment of port employment centres (PECs) which will manage the regular employment of dockworkers in cargo handling services in ports, and their training and temporary assignment to enterprises with a licence to provide cargo handling services in ports or the authorization to engage in commercial port services. The PECs will operate as temporary work agencies (TWAs) specific to the sector, with the legal requirement that such enterprises obtain authorization from the labour administration. Cargo handling enterprises will not be required to participate in the centres established, or to hire as a priority the workers that they provide. The Committee also notes that, in their observations, the workers’ organizations report that the new dock work regime is not in conformity with the requirements of the Convention. With regard to the establishment of measures to ensure the permanent or regular employment of dockworkers, the UGT maintains that the new regime removes the requirement for SAGEPs to hire workers permanently. It questions whether the new recruitment carried out by these enterprises or by PECs will make use of indefinite contracts, as they will be regulated by the TWAs. Furthermore, during the period of transformation of the SAGEPs, which is planned to last three years, there will be a progressive relaxing of the requirement for cargo handling enterprises to hire workers from SAGEPs, before the requirement is removed after four years, when cargo handling enterprises will be able to freely recruit skilled dockworkers, whether through SAGEPs, PECs or TWAs, which will affect the current regular provision of services by dockworkers. The UGT indicates that this amendment has met with great opposition from trade unions representing dockworkers, not only in the media, but also through strikes, with the aim of preserving the current employment conditions. The UGT indicates that, in this context, an agreement was concluded with employers in the sector, which amended the Fourth Framework Agreement for the Dock Work Sector, with a view to including a clause referring to the subrogation of SAGEP workers in cargo handling enterprises based on their participation in SAGEPs. Ultimately, the UGT complains that, as a result of the adoption of the new regime, the employment security of dockworkers and their basic income will be affected, particularly in the case of new workers, due to the conditions of recruitment under the regime governing TWAs. With regard to the maintenance of a register of dockworkers, the UGT and the CCOO assert that, despite the claims put forward by workers’ organizations, the new regulations do not establish any requirement in this regard. The Committee requests the Government to provide detailed and updated information on the manner in which the new regime ensures permanent or regular employment for dockworkers (Article 2(1)). It also requests the Government to indicate the minimum periods of employment and minimum income assured for casual dockworkers as a result of the implementation of the new regime and collective bargaining (Article 2(2)). The Committee also requests the Government to provide information on the procedures of the new dock work regime which govern the establishment and maintenance of registers for all categories of dockworkers, and on the manner in which priority of engagement is ensured for registered dockworkers for dock work, and on the manner in which dockworkers are required to be available for work (Article 3). Lastly, the Committee requests the Government to provide detailed information on the issues raised by the social partners, and on the results of the dialogue process, including any changes in the manner in which dock work is organized in the country (Article 5).

Article 6. Safety, health, welfare and vocational training. The Committee notes the Government’s indication that, under the previous regime, section 153 of the TRLPEMM established the qualifications required to be included in registers of dockworkers. In this regard, the Government refers, among other regulatory instruments, to Order FOM/2297/2012 of 23 October 2012, which determines the vocational training qualifications required for the provision of cargo handling services in ports, and the Decision of the State Ports of 11 April 2011, which publishes the Governing Council Decision on the minimum content of the psychological and physical aptitude tests to determine the suitability of workers wishing to engage in cargo handling activities. The Government adds that section 152 of the TRLPEMM required SAGEPs to allocate a minimum of 1 per cent of their total payroll to the continuous training of their workers to ensure their professionalism. However, the Committee notes that section 3 of the Royal Legislative Decree amends the previous regulations on the training requirements for dockworkers. Pursuant to section 3, dockworkers are required to obtain the vocational skills certificate provided for in Annex VIII (cargo handling in docks, loading, unloading and trans-shipping services) of Royal Decree No. 988/2013 of 13 December 2013, which establishes nine certificates for vocational skills in maritime work and fishing. However, section 3(2) of the Royal Legislative Decree provides that such certification will not be mandatory for certain workers, such as those who have worked over 100 days in the dock work services of any European Union Member State prior to the entry into force of the Royal Legislative Decree. In this regard, the Committee notes the UGT’s indication that the application of the new training requirements raises an issue for dockworkers with temporary contracts who entered the service with the qualifications required by the previous regulations, but have not accumulated 100 days of work. The UGT indicates that such workers may be excluded as dockworkers, despite having the qualifications required under the previous regime, until they obtain the necessary vocational certification. With regard to safety, health and welfare measures, the Government indicates that Act No. 31/1995 of 8 November 1995 on the prevention of occupational hazards and its implementing provisions are applicable. The UGT adds that the new regulations on training may lead to safety problems, as they provide for the possibility of approving the certification required under the Royal Legislative Decree with the days worked in any Member State of the European Union, but do not provide that these days should be restricted to dock work, or refer to the conditions or training. The Committee requests the Government to provide detailed information on the issues raised by the social partners with regard to the application of the new provisions on the training of dockworkers.

Application of the Convention in practice. The Government indicates that, on 31 March 2017, 6,165 dockworkers had been registered, of whom 1,487 were registered in the Port of Algeciras, 1,455 in Valencia and 1,030 in Barcelona. The Committee requests the Government to provide a general assessment of the manner in which the Convention is applied in the country, including, for example, extracts from reports and data on the number of dockworkers and on the variations in their numbers over time.