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

Spain

Labour Inspection Convention, 1947 (No. 81) (Ratification: 1960)
Labour Inspection (Agriculture) Convention, 1969 (No. 129) (Ratification: 1971)

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.