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

Migration for Employment Convention (Revised), 1949 (No. 97) - Spain (Ratification: 1967)

1.  The Committee notes the communication from the Democratic Confederation of Labour (CDT) of Morocco dated 29 February 2000 alleging violation of the following Conventions: Migration for Employment Convention (Revised), 1949 (No. 97); Social Security (Minimum Standards) Convention, 1952 (No. 102); Discrimination (Employment and Occupation) Convention, 1958 (No. 111); Minimum Wage Fixing Convention, 1970 (No. 131); and Occupational Safety and Health Convention, 1981 (No. 155). The Government has transmitted to the Office its reply to this communication as well as its report on the application of the present Convention. The Committee will limit its examination in this comment to the allegations regarding application of Convention No. 97 and refers to its comments on application of the other abovementioned Conventions.

2.  The CDT communication concerns the events which occurred in February 2000 in the town of El Ejido (province of Almeria, autonomous region of Andalucia) during which the Moroccan workers of the town, along with the members of their families, were violently set upon, attacked and assaulted (houses set ablaze, shops pillaged, mosques destroyed) by the inhabitants of the town. According to the CDT, these events took place in the presence of the forces of law and order and the local authorities who were the silent, passive witnesses of this drama for 24 hours. It recalls that similar events occurred in summer 1999 at Terrassa (Catalonia) and that the attackers were never prosecuted and expresses the fear that, in this case also, the attackers will not be prosecuted. The CDT also draws attention to the living and working conditions of Moroccan workers in this town. Most of the migrant workers are employed in the agricultural sector, more especially in greenhouses where the temperature reaches 50 degrees Celsius and the use of pesticides causes workers to suffer from lung and skin diseases; their wages are lower than those paid to nationals and do not guarantee the minimum daily living wage; they are generally not insured or even declared and therefore have no medical or social cover; and finally, they are accommodated in ghettos, or makeshift cardboard carton or plastic shelters which are not resistant to rain or sun. The CDT affirms that the working conditions described above constitute discrimination and treatment which contravenes Articles 3 and 6 of the Convention.

3.  According to the CDT, after the events which occurred at El Ejido, the Moroccan workers went on strike which led to the conclusion of an agreement on 12 February 2000 under which the various protagonists - central Government, autonomous government of Andalucia and employers’ and workers’ organizations, undertook: (a) to rehouse and compensate the immigrants who had suffered damage and loss during the incidents; (b) to establish a social housing construction programme; (c) to regularize the situation of those without papers, in the framework of the coming regularization process; (d) to carry out an in-depth investigation of the events; (e) to set up immigrant reception offices in the various town halls in the province; (f) to publicize with their affiliates the need to comply with the agricultural Convention and to establish a liaison committee between the representatives of migrant workers who signed the agreement and the trade union organizations which have signed the abovementioned agricultural Convention; (g) to develop inter-cultural programmes to encourage better integration of immigrants; and (h) to establish a permanent commission composed of signatories of the agreement that will meet at least twice a month.

4.  The Committee notes that the Trade Union Confederation of Workers’ Committees (CC.OO.) in its comment on the application of the present Convention, appended to the Government’s report, considers that the events at El Ejido show clearly the difference in treatment suffered by foreign workers and invites the Committee of Experts to follow closely the effective application of the provisions of the Convention.

5.  In its reply dated 22 September 2000, the Government states that, contrary to the allegations made by the CDT, the forces of law and order tried from the outset to maintain the peace and to prevent confrontations between the members of the different communities, in a very tense atmosphere, and that 82 persons were arrested in the hours following the onset of the riots. It affirms that the Moroccans in El Ejido, like all the other foreign workers, have the same rights as Spanish workers in regard to employment since it is the same labour law, social security law and even the same collective agreements which are applied to them. The Government recalls that, in addition, there is a bilateral agreement between the Spanish and the Moroccan authorities (dated 8 November 1979) which reaffirms, inter alia, the principle of equality of treatment between the nationals of the two countries. The Government recognizes that working conditions in the greenhouses and exposure to pesticides make this work particularly arduous but states, first, that Spanish workers and all foreign workers are subject to the same working conditions and, secondly, that all foreign workers and Spanish workers are equally protected by the pertinent legislation on occupational safety and health and that failure to use personal protection equipment can be denounced to the labour inspection service of the province or to the labour court.

6.  In regard to application of the agreement signed on 12 February 2000 between the workers concerned and the workers’ and employers’ organizations of the province of Almeria, it indicates that at its meeting of 10 April 2000 the permanent commission established by that agreement recognized that in general the agreement was being implemented even though some points were pending, and decided to dissolve itself and to charge the office for social integration of immigration in the province of Almeria to follow these matters closely. The Government then details the measures taken to apply this agreement in regard to rehousing the workers whose homes were destroyed (42 living units have been installed with a capacity to accommodate 300 people), the construction of new homes or the rehabilitation of decent housing for migrant workers, compensation for material loss (100 million pesetas released and 232 applications handled to date), the regularization of most of the migrant workers in an illegal situation (Moroccan or other), the effective application of the collective agreement for agricultural workers, the role of the labour inspection service and the judicial inquiry into the event that took place at El Ejido. The Government concludes by emphasizing that the necessary urgent measures have been undertaken and that the financing of medium- or long-term measures such as those concerning housing or family reunification of migrant workers, is under examination.

7.  Articles 3 and 6 of the Convention.  According to the CDT, the Spanish authorities have failed in their duty by not combating misleading propaganda relating to emigration and immigration, particularly by allowing the mayor of El Ejido to make xenophobic declarations and false information to be spread in regard to foreigners. It also records a rise in xenophobia, racism and intolerance. The Committee recalls that, under the terms of Article 3, any State for which the Convention is in force undertakes to take all appropriate steps against misleading propaganda relating to emigration and immigration. Article 6, on the one hand, preaches non-discrimination in respect of nationality and race, inter alia, and, on the other hand, prohibits inequality of treatment between migrant workers who are legally on the territory of the State and national workers which could result from the legislation and practice of the administrative authorities in four chief spheres: living and working conditions, social security, employment taxes and access to legal proceedings.

8.  The Committee wishes first to emphasize that although the campaign against misleading propaganda applies chiefly to the protection of workers against any recruitment based on false representation of the real situation, it must also relate to nationals themselves and thus to the campaign against the propagation of stereotypes about foreigners (see paragraph 217 of its 1999 General Survey on migrant workers).

According to the report of the European Commission against Racism and Intolerance (ECRI) prepared in 1998, in Spain there are signs of rising racism against certain groups of immigrants from the third world, especially those from the Maghreb (which is the largest group of non-European immigrants and is increasing rapidly), which results in acts of violence of a racist nature and hence North Africans are the victims of discrimination on the labour market. The Committee notes that in its report to the United Nations Committee on the Elimination of Racial Discrimination (CERD/C/338/Add.6, paragraphs 6-9) the Government does not deny the existence of a certain racism in Spanish society. It explains that there are two main hotbeds of racism and xenophobia: the organized skinhead movement which exists in the large towns and workers’ claims in the social problems context. In the latter case, the Government is facing more spontaneous demonstrations which take on a racist colouring in that the issue of the situation of migrants is almost always involved. The problems raised are most often linked more or less directly to employment.

9.  In this regard, the Committee notes that Act No. 7/985 on the rights and freedoms of foreigners in Spain has been repealed and replaced by Act No. 4/2000 (of 11 January 2000) on the rights and freedoms of foreigners in Spain and their social integration of which the main purpose is to guarantee equality of treatment between nationals and foreigners who are lawfully present on Spanish territory, with a view to better social integration of this category of the population. The Committee notes, however, that the implementing decree for this Act has not yet been enacted and that discussions are currently in progress within the Government on the need to amend the Act; it would therefore be grateful if the Government would keep it informed on any legislation revision in this regard. It notes, also, the many initiatives taken by the Government to inform the public through the media (television, video clips, brochures); by the inclusion of courses on respect for human rights and diversity in school curricula; on education in tolerance and solidarity in teacher training; on human rights in police training courses; by support for the initiatives of non-governmental organizations and various associations, etc. It would be grateful if the Government would indicate whether it conducts periodic assessment of the impact of these measures which would permit it to adapt its policy during the implementation process to make it more effective. In any event, it requests the Government to continue to keep it informed on measures taken to combat the propagation of stereotypes on foreigners, and on the results obtained.

10.  According to the CDT, Article 6 is not applied in that the equality of treatment advocated by the Convention in certain of the matters listed in this Article is not applied in practice in regard to remuneration, accommodation and social security (see paragraph 2 above). The Committee notes that the Government refutes these allegations in regard to remuneration and social security, claiming that foreign workers lawfully present are subject to the same legal provisions as Spanish workers, with some exceptions. The Committee considers that the question raised by the CDT in its communication concerns more the effective application of these provisions than the existence of discriminatory standards. It notes the statistics communicated by the Government concerning the number of violations recorded by the inspection service for labour and social security relating to foreign workers between 1994 and 1999 which rose from 1,990 to 2,952 cases. Nevertheless, these statistics are general and do not permit identification of the type of violation most frequently noted. It therefore requests the Government to indicate to what extent the national and local authorities responsible for the application of social legislation supervise application of this legislation to foreign workers - on an equal footing with Spanish workers - especially in regard to remuneration and social security. It would be grateful if the Government would supply a copy of judicial rulings concerning application of the Convention on this matter. Finally, the Committee requests the Government to indicate the measures taken or envisaged to guarantee that the incidents of racial discrimination are effectively described as such and to establish reliable statistics on the number of complaints made for racially motivated offences and similar offences, the inquiries to which they give rise and the penalties actually imposed on persons recognized as guilty.

11.  The agreement signed on 12 February 2000 between the migrant workers who were victims of brutality, the central and autonomous Governments and the workers’ and employers’ organizations show that there is a structural problem of housing migrant workers in this town - in addition to the problem confronting the authorities when they had to rehouse urgently the foreigners whose homes had been destroyed, following the events at El Ejido. It notes in fact that both the central Government and the autonomous government of Andalucia have undertaken to implement a social housing programme for foreign workers and construction of inns for temporary and unmarried migrants. It therefore notes with some concern the statement by the Government to the effect that the construction or rehabilitation of housing for foreigners, resident or temporary, is subject to the authorities concerned finding the necessary funding. The Committee is aware of the fact that in a context of reducing public expenditure, financing of such programmes is difficult because, although the saving thus realized is immediately visible, the social cost in the medium or long term of the failure to construct this housing is more difficult to evaluate. Experience shows, however, that the social exclusion of part of the working population is always costly in the medium and long term. It requests the Government to keep it informed of the progress of this programme.

12.  The Committee notes that a judicial inquiry is in progress on the events which occurred at El Ejido and trusts that the Government will keep it informed of the conclusions reached by the judicial authorities at the conclusion of this procedure. It notes, however, that in its report to the United Nations Committee on the Elimination of Racial Discrimination (CERD/C/338/Add.6, paragraphs 5-10), the Government indicates that in judicial proceedings against the perpetrators of acts of violence against foreigners, the complaints are most often confined to physical violence, illegal detention and material damage and that the racist connotation of such acts is not sufficiently taken into consideration. That would explain the remarkably low number of incidents of discrimination based on race reported, despite the steep increase in acts of violence committed against foreigners noted by the Ombudsman.

13.  The Committee notes that the Government’s report remains silent once again on the measures taken to avoid the recurrence of incidents of the type that led to the disappearance of three Moroccan migrants during a police operation on 18 July 1993 which was conducted to repatriate immigrants with false papers. It therefore reiterates its request for information on the measures taken to facilitate the departure, journey and reception of migrant workers, in accordance with Article 4 of the Convention.

14.  Please refer also to the comments made on Conventions Nos. 102, 111, 131 and 155.

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

[The Government is asked to report in detail in 2001.]