Working Conditions (Hotels and Restaurants) Convention, 1991 (No. 172) - Spain (Ratification: 1993)

Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations made by the Trade Union Confederation of Workers’ Commissions (CCOO) and by the Spanish Confederation of Employers’ Organizations (CEOE), included in the Government’s report, and the Government’s replies to them. In particular, the Committee notes the observation of the CCOO indicating an impasse in sectoral collective bargaining. The CCOO indicates that agreements covering more than 800,000 workers in the sector are blocked and progress has been impossible in the negotiation of 39 sectoral collective agreements out of a total of 53 existing agreements (at the national, regional and provincial levels). The Committee requests the Government to provide its comments on this matter.

Article 4 of the Convention. Hours of work. The Committee notes the information provided by the Government concerning the measures taken relating to hours of work during the period covered by its report. The Government refers to Royal Decree-Law 6/2019, which guarantees the exercise of the “right to request adjustments to the duration and distribution of the working day, in terms of the planning of hours of work and the manner of performance, including the performance of work on a remote basis, in order to exercise the right to a work-life balance” (section 34(8) of the Workers’ Statute). Royal Decree-Law 6/2019 also adds to section 12(4) of the Charter the guarantee of the absence of gender discrimination with regard to part-time contracts. It also introduces changes to section 37 of the Statute regarding leave of absence in order to ensure equal rights for men and women with respect to births, adoptions and foster care with a view to adoption or family placement. The Government also refers to Royal Decree-Law 8/2019, which adds a new paragraph 9 to section 34 of the Workers’ Statute , requiring employers to record daily hours of work. The Government adds that section 7(5) of the consolidated text of the Act on offences and penalties relating to the social order was amended to include any failure to record hours of work in the category of serious labour offences. Lastly, the Government refers to Royal Decree-Law 28/2020, which establishes the right of victims of gender violence or terrorism to perform all or part of their work remotely.

The Committee further notes the statistical information provided by the Government on the activity of the Labour and Social Security Inspectorate with regard to hours of work and overtime between 2017 and 2020, including the number of offences detected and the workers affected by them. The Committee recalls that it previously asked the Government to provide detailed, up-to-date information on the manner in which the most recent amendments to the Workers’ Statute affect workers employed in hotels and restaurants. These amendments relate to the enterprise’s ability, in the absence of an agreement, to distribute 10 per cent of working time unevenly throughout the year, and also relate to changes in the rules governing conditions of work for part-time workers. The Committee observes that the Government has not provided any specific information in this regard, and once again asks the Government to supply the requested information.

Article 6 of the Convention. Remuneration. The Committee notes the information provided by the Government on the changes introduced with regard to remuneration. The Government indicates that the inter-occupational minimum wage was fixed for 2019 and 2020 by Royal Decrees 1462/2018 and 231/2020 and that the last Royal Decree was extended pending approval of the Royal Decree fixing the inter-occupational minimum wage for 2021 in the context of social dialogue. The Government also indicates that, through Decree-Law 6/2019, workers’ right to remuneration corresponding to their work has been explicitly established in section 28 of the Workers’ Statute, with a view to equal pay without gender-based discrimination. This aspect is developed in detail through Royal Decree 902/2020 concerning equal pay for men and women. The Government adds that Royal Decree-Law 19/2020, adopting additional measures relating to agriculture, science, the economy, employment, social security and taxation in order to mitigate the effects of COVID-19, includes a specific rule on administrative silence in wage guarantee proceedings as provided for in section 33 of the Workers’ Statute, with a paragraph 11 added to it. It is stipulated that administrative silence shall have a positive effect on any proceedings which have not been resolved within three months.

The Committee notes the statistical information on the activities of the Labour and Social Security Inspectorate with respect to wages, payslips and severance payments in hotels and restaurants between 2017 and 2020, including the number of offences detected and the workers affected by them. In particular, the Committee notes that the number of violations rose sharply between 2017 (168 violations) compared with 2020 (272 violations), with the number of workers affected by these violations doubling between 2017 (1,437 workers) and 2020 (2,995 workers). At the same time, the Committee notes that the sanctions imposed for these violations rose significantly (from €640,051 in 2017 to €923,211.23 in 2020). It also notes the statistical information on the average wage variation agreed in the hotel sector, in enterprise agreements (1.37 per cent) and in agreements at levels higher than the enterprise (0.58 per cent). The Committee requests the Government to continue to provide detailed updated information, including disaggregated statistics on inspection activities in the hotel and restaurant sector, including the number of inspections conducted, the number and type of violations detected and the outcomes. In addition, the Government is requested to provide information on measures taken or envisaged to address the significant increase in the numbers of violations affecting workers in the sector.

Article 8 of the Convention. Application of the Convention. Collective agreements concluded in the sector. The Committee notes the Government’s indications regarding the collective agreements concluded in the sector between 2017 and 2020. The Government refers to the collective agreements at the national and regional levels in the hotel and catering sectors, and provides tables of agreements at the provincial level or higher, and enterprise agreements in activities corresponding to lodging services and food and beverage services. With regard to the National Agreement for the hotel sector (ALEH), the Committee notes the Directorate-General of Labour Resolution of 11 November 2020, registering and publishing the agreements amending and extending ALEH V, with publication in Official Journal No. 307 of 23 November 2020. Under this Resolution, the ALEH Negotiating Board agreed to extend the validity of ALEH V until 31 December 2021 and to include in the text in force agreements reached under the ongoing revision and negotiation procedure, agreed between the representative parties of the state hotel sector.

The Committee requests the Government to continue providing detailed, up-to-date information on the application of the Convention in practice, including sectoral and enterprise collective agreements, extracts from inspection reports, court decisions and data on the number of workers covered by the measures that give effect to the Convention, disaggregated by sex and age, as well as the number and nature of violations reported. Noting the Government’s reference to Royal Decree-Law 28/2020 in the context of improving work-life balance, the Committee requests the Government to provide information on the manner in which work-life balance is ensured for workers in the hotel and restaurant sector, including disaggregated statistical data on the number of such workers making use of Royal Decree-Law 28/2020.

Hotel housekeepers. In its previous comments, the Committee asked the Government to provide information on the application in practice of the Convention with respect to hotel housekeepers, and to provide information in reply to the allegations regarding cases of the sale and purchase of employment as hotel housekeepers. The Committee notes the Government’s indication that in August 2018 the Committee on the Quality of Employment in the Hotel Sector agreed to the setting up of a working group for the preparation at state level of a “Practical guide for occupational risk assessment in the hotel sector”, addressing the ergonomic and psycho-social risks to which workers in the sector are considered to be particularly exposed, with all such risks set against the necessary gender perspective. In September 2019, the National Occupational Safety and Health Institute produced the “Guide for the management and assessment of ergonomic and psycho-social risks in the hotel sector”. The Committee once again requests the Government to provide detailed, up-to-date information on the application of the Convention in practice with respect to hotel housekeepers. In the absence of a response by the Government to its request regarding the allegations of cases of the sale and purchase of employment as hotel housekeepers, the Committee repeats its request. The Committee further requests the Government to provide information on the impact of the COVID-19 crisis on the conditions of work of hotel housekeepers, including their wages and social benefits, and the measures taken to mitigate this impact.

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the observations of the Trade Union Confederation of Workers’ Commissions (CCOO) and the General Union of Workers (UGT), received on 2 and 7 August 2018, respectively. The Committee also notes the observations of the Spanish Confederation of Employers’ Organizations (CEOE), included in the Government’s report. The Committee also notes the Government’s replies to these observations.

Article 8 of the Convention. Application of the Convention. The Committee notes the detailed information provided by the Government in relation to changes in the regulation of working conditions in the tourism and hospitality sector. The Government refers, among other things, to the adoption of Royal Legislative Decree No. 2/2015 of 23 October, adopting the revised text of the Workers’ Charter, sections 34 to 38 of which regulate working time. In particular, the Committee notes that section 34(2) of the Workers’ Charter provides that “by collective agreement or, in the absence of such an agreement, by agreement between the enterprise and the workers’ representatives, the uneven distribution of working time may be established throughout the year. In the absence of an agreement, the enterprise may distribute 10 per cent of working time unevenly throughout the year.” In this regard, the CCOO maintains that accorded to the enterprise, under the Workers’ Charter to distribute such a high percentage of working hours unilaterally effectively reduces its incentive to conclude an agreement or accord. The Committee also notes the adoption of the Royal Legislative Decree No. 16/2013 of 20 December, which establishes measures to promote stable employment and improve the employability of workers. The Decree introduces amendments to the regulations governing the working conditions of part-time workers, such as the obligation to record their working hours, the prohibition on working additional hours when their contracts are for less than ten hours per week (calculated on an annual basis) and the prohibition on working overtime (except in specific cases covered in section 35(3) of the Workers’ Charter). The CCOO, for its part, points out that while overtime is prohibited, the new legislation provides for the possibility of working voluntary additional hours. The CCOO condemns the reduction of the notice period for additional hours from seven to three days and potentially even less, if agreed by collective agreement, including by agreement with the enterprise. It also points out that the Royal Decree removes the legal obligation to include the distribution of working hours agreed in the contract. The Committee notes, on the other hand, that the CCOO and the UGT refer once again to section 41(1) of the Workers’ Charter, which grants employers unilateral power to modify working conditions substantially for economic, technical, organizational or production-related reasons. They allege that the section in question allows employers to modify unilaterally important aspects of working conditions, such as working time, the remuneration system and wage rates.

With regard to the collective agreements concluded in the sector, the Government announces the signature of the National Agreement for the hotel sector (ALEH V) on 25 March 2015 by the representative employers’ and workers’ organizations in the sector. The Government indicates that ALEH V envisages, inter alia, the conclusion of appropriate subsectoral state agreements linked to it, and the creation of a professional card to promote employability and professionalism in the sector. The Committee also notes the information in the Government’s report relating to the various collective agreements concluded in the hotel and tourism sector at the regional and provincial levels between 2011 and 2017. However, the CCOO regrets the decline in the number of sectoral collective agreements in the hotel and catering sector, since in August 2018 only 69 per cent of workers in the sector were covered by a valid sectoral collective agreement. Among the reasons for this decline, the CCOO and the UGT refer once again to section 84(2) of the Workers’ Charter, which provides that the application of enterprise agreements shall have priority with respect to sectoral collective agreements, especially in relation to wage rates, hours of work and paid annual holiday. The CCOO and the UGT claim that, consequently, working conditions in the sector have deteriorated. They further claim that the outsourcing of activities in the sector through multiservice enterprises, which apply enterprise agreements in order to cut costs, affecting women in particular (mainly hotel housekeepers), has increased. In this regard, the CCOO indicates that since 2015, the courts have rescinded a large number of such agreements in whole or in part as unlawful. In its reply, the Government refers to the “Master Plan for Decent Work 2018–2020”, which includes the implementation of various measures to monitor compliance with the law in areas such as overtime, wages and part-time contracts, and strengthens monitoring of the legality of the agreements concluded in the sector. Lastly, the Committee notes the statistical information provided by the Government on violations observed with regard to hours of work and rest and to wages during the labour inspections carried out between 2013 and 2017 by the Labour and Social Security Inspectorate. In this respect, the CEOE contends that the assistance provided by the labour inspection services on knowledge of standards and its proper application should be strengthened, and the involvement of the social partners in the planning of inspection activity should be promoted, in order to ensure its effectiveness. The Committee requests the Government to continue to provide detailed and updated information on the application of the Convention in practice, including sectoral and enterprise collective agreements, extracts from inspection reports, court decisions and data on the number of workers covered by the measures that give effect to the Convention, disaggregated by sex and age, as well as the number and nature of violations reported. The Committee also requests the Government to send detailed and updated information on the manner in which workers employed in hotels and restaurants are affected by the most recent amendments to the Workers’ Charter, including the number and terms of agreements negotiated as well as provide their copies.

Hotel housekeepers. The Committee notes that the Government indicates that hotel housekeepers are one of the groups most affected by new, decentralized forms of work which often lead to significant wage reductions. In this context, the Committee notes the meeting convened by the Employment and Social Security Committee on 19 April 2018 to explain the employment situation of hotel housekeepers in Spain. Representatives of various workers’ organizations in the sector appeared before the Senate to provide information on and present proposals for the improvement of their working conditions. The Committee notes that, according to the report of the aforementioned Senate session, hotel housekeepers (also called hotel cleaners or “Kellys”) are workers, mostly women immigrants, who clean hotel rooms and common areas of hotels. During the session, it was emphasized that these workers have seen their working conditions deteriorate, due to the growth of outsourcing in the sector through multiservice companies, and the increase in temporary recruitment by temporary employment agencies. During the meeting, the difficulty of hotel housekeepers in organizing themselves in trade unions, losses of more than 40 per cent of wages, losses of established social benefits and sectoral agreements and increased workloads over shorter shifts were highlighted. The Committee also notes that on 30 August 2018, the round table on quality employment in the hotel sector, in which the social partners participated, approved the recognition of occupational diseases related to the work performed by hotel housekeepers. Lastly, the Committee notes that the UGT reports cases of the sale and purchase of employment by purported training companies that offer access to employment as hotel housekeepers in exchange for a fee. The Committee requests the Government to provide detailed and updated information on the application in practice of the Convention relating to hotel housekeepers. It also requests the Government to provide information in reply to the allegations regarding cases of the sale and purchase of employment as hotel housekeepers (Article 7).

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Article 8 of the Convention. Application of the Convention. The Committee notes the adoption of the resolution of 20 September 2010 by the General Directorate of Labour to approve National Agreement IV for the hotel sector (ALEH), which extends the validity of the previous agreement up to 31 December 2014. It notes that this Agreement contains two new chapters, one on effective equality for women and men, and the other on the prevention of risks at work and occupational health and safety. The Committee also notes the most recent amendments made by Royal Legislative Decree No. 1/1995 issuing the Workers’ Charter, including Act No. 3/2012 of 6 July 2012 on urgent measures to reform the labour market. The Committee notes in particular that under section 84(2) of the Workers’ Charter, enterprise agreements are henceforth given priority in their application in relation, among other matters, to wage rates, hours of work and paid annual leave, over sectoral collective agreements, whether the latter are applicable at the national level, or in an autonomous community, or are more restricted in scope.

In this regard, the Committee notes the comments of the General Union of Workers (UGT), received on 4 September 2013 and forwarded to the Government on 23 September 2013. The UGT indicates in the first place that the slight fall in unemployment in the country in the second quarter of 2013 is largely attributable to the reduction of unemployment in the hotel and agricultural sectors, which are both sectors with significant seasonal labour market variations. However, the UGT indicates that Act No. 3/2012 has had serious consequences in the hotel sector, which is already a precarious sector. With the absolute primacy that the Workers’ Charter affords to enterprise agreements, several enterprises, with a view to reducing costs, have adopted severe measures which have resulted in dismissals and the deterioration of conditions of work. The UGT adds that, together with recent labour reforms, occupational categories have been abolished to the detriment of occupational groups which have not yet been determined. For this reason, the chapter of the ALEH respecting occupational classification was only in force up to 31 December 2010 and the signatories have agreed to extend negotiations on this point. The Committee also notes the comments of the Trade Union Confederation of Workers’ Commissions (CC.OO) received on 30 August 2013 and forwarded to the Government on 16 September 2013. In comparison with sections 6 and 7 of Royal Decree No. 1561/1995 on special working hours schemes, which allows the granting of weekly rest in the hotel sector to be modified by collective agreement or agreement with workers’ representatives, the CC.OO indicates that section 41(1) of the Workers’ Charter, as amended by Act No. 3/2012, grants employers unilateral power to substantially modify working conditions for economic, technical, organizational or production-related reasons.

The Committee notes that, in reply to the comments of the UGT and the CC.OO, the Government refers to section 82(3) of the Workers’ Charter, under the terms of which, for economic, technical, organizational or production-related reasons, the parties to a collective agreement may decide to set aside certain clauses respecting conditions of work, and indicates that employers cannot therefore unilaterally modify conditions of work. The Government adds that the purpose of the most recent legislative amendments is to enable the adaptation of conditions of work to the specific circumstances of each enterprise, without the intention of reducing judicial control, which has not been eliminated. With regard to the ALEH, the Government indicates that the reform introduced by Act No. 3/2012 has the fundamental characteristic of the abolition of occupational categories with a view to promoting functional mobility. The Committee requests the Government to continue providing general information on the application of the Convention in practice and to specify the manner in which workers in hotels and restaurants are affected by the most recent amendments to the Workers’ Charter.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the resolution issued on 14 April 2005 by the General Directorate of Labour to approve National Agreement III for the hotel sector (ALEH), extending the earlier agreement until 31 December 2009. It notes that the agreement contains a new chapter dealing specifically with training contracts. It further notes that like its predecessor, the new agreement envisages the possibility of incorporating new elements negotiated between the parties and that as a result of this negotiation, specific agreements continue to be signed concerning the trial period in the work contract and retirement bonuses. The Committee takes note of the list of the many collective agreements signed both at the autonomous community level and the provincial level.

Part V of the report form. Practical application. The Committee notes the statistics sent by the Government on inspections carried out in the period 2007–08 in the catering sector, and the results obtained. It notes in this connection the comments made by the Trade Union Confederation of Workers’ Commissions (CC.OO) to the effect that the catering sector warranted more thorough inspection in view of the large number of workers employed in it. The CC.OO asserts that in 2007, the sector consisted of 170,418 enterprises and 1,104,000 workers per quarter on average, many of whom are immigrant workers. Furthermore, according to a recent study conducted by the European Foundation for the Improvement of Living and Working Conditions, the catering sector in Spain employs 1.2 million persons including 156,196 non-nationals, making it the sector that employs the largest number of migrant workers. The Committee therefore requests the Government to continue to provide general information on the practical effect given to the Convention, including statistics of visits carried out by the labour inspection services and their results, the number of workers in the sector covered by collective agreements, if possible broken down by gender and age, any recent studies on their conditions of work and all other available information on the policy to improve the conditions of work of the workers concerned, with special attention to immigrant workers.

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

The Committee notes the detailed information provided by the Government in its last two reports, in particular the resolution of the General Directorate of Labour of 13 June 2002 approving State Labour Agreement No. II for the Hotel Sector (ALEH), extending the effect of the previous agreement until 31 December 2004. According to the Government, the new agreement leaves open the possibility of including new issues on which the parties may reach effective agreement, while issues not included therein continue to be regulated by provincial collective agreements. In this respect, the Committee notes the list of provincial collective agreements applicable to the hotel sector approved during the period covered by the reports.

The Committee notes the statistical information provided by the Government on the inspections carried out for the period 1997-2002 in the hotels and restaurants sectors and their results. The Committee requests the Government to continue providing, in accordance with Part V of the report form, general information on the application of the Convention in practice, including statistical information on the results of the inspections carried out (violations reported, sanctions imposed, etc.), the percentage of workers in the sector who are covered by collective agreements, recent studies on their working conditions, and any other information relating to the policy to improve the working conditions of the workers concerned.

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

The Committee notes the detailed information provided by the Government in response to its previous comments. It also notes the Government's statement to the effect that the period of application has been finalized for the Royal Decree 2001/1983 of 28 July, repealed by the Royal Decree 1561/1995 of 21 July respecting special days of work, and the Labour Ordinance.

The Committee also notes the Government's statement to the effect that only workers who are engaged in voluntary work which is not remunerated in non-profit-making establishments within the hotel and catering industries are excluded from the application of the Convention (sections 1 and 3(d) of the Act respecting the working conditions of workers).

The Committee requests the Government to continue to provide, in accordance with point V of the report form, general information in respect of the application of the Convention, including statistical data on the number of workers protected by measures which give effect to the Convention and the reports of the inspections services (for example: the number and nature of the violations observed, the sanctions imposed, etc.).

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

The Committee notes the Government's first report and would be grateful if it would supply additional information on the following points.

1. In accordance with section 2 of the Hotels Ordinance (OM of 28 February 1974), and in conformity with the provisions of Article 1 of the Convention, establishments and facilities engaged in "enterprise catering" are excluded from its scope. The Committee requests the Government to provide further information on the possibility of exclusion from the scope of the Convention of non-profit- making establishments which engage in catering activities in view of the fact that, if such an exclusion were not confirmed, workers in such establishments would be included within the scope of the Convention, unless provided to the contrary in an applicable collective agreement.

2. With reference to Articles 4 and 5 of the Convention the Committee requests the Government to provide additional information on the effect given in practice in the sector to provisions respecting working hours, rest periods and working days, as well as on the activities of the labour inspectorate to supervise and apply the above provisions.

3. In view of the "transitional" period through which Spanish labour legislation is currently passing, the Government is requested to keep the Committee informed on the progress made and the measures adopted in law and in practice to achieve the objectives of this Convention.