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

Individual Case (CAS) - Discussion: 2001, Publication: 89th ILC session (2001)

A Government representative said that the incident that gave rise to the observations of the Committee of Experts had occurred in El Ejido, in the province of Almeria in Andalusia. It had been an isolated and deplorable occurrence, and did not reflect racist or xenophobic movements. He observed that the information used by the Committee of Experts, extracted from a report by the European Commission against Racism and Intolerance and a report by the United Nations Commission for the Elimination of Racial Discrimination were taken out of context, and gave a misleading idea of their real content. Indeed, in comparison with other countries, Spain was one of those with the least number of such movements, which had traditionally been totally alien to Spanish society. He indicated that his Government was preparing the report requested by the Committee of Experts for that year and it would be submitted to the Office in due course. As for the events in El Ejido, he mentioned that the implementation of the Agreement signed on 12 February 2000 had begun as soon as the Standing Committee formed for the purpose had considered that all urgent measures had been completed. The Standing Committee was replaced by the Board for Integration of Immigrants, in order to follow up with action in the medium and long term. He referred to the situation in El Ejido concerning the regularization of irregular status of the province of Almeria. On the housing question he reported that an agreement had been concluded between the Ministry of Development and the government of Andalusia, resulting in a decree for assistance to promote housing construction to accommodate temporary workers, both national and foreign, partly subsidized by the State. With respect to the judicial proceedings relating to the events in El Ejido, he provided detailed information on proceedings in progress. The information reflected the robust action by local authorities to arrest aggressors, whether nationals or foreigners.

Among the specific actions taken as a result of the events in question, it was worth mentioning that 400 immigrant workers had been registered for work in the strawberry harvest and that of other fruits. Pilot schemes were also being set up for contracting workers in their country of origin in collaboration with the Governments of Morocco, Colombia and Ecuador. Under those pilot schemes 170 foreign workers took part in the harvest that year with an undertaking to return them to the country of origin and with travel and lodging expenses paid by the companies. He also highlighted that the Andalusia health service had issued 15,000 cards in the last year guaranteeing the right to medical care for all immigrants in the province of Almeria, in application of the Organic Law No. 4, 2000 as amended by Organic Law No. 8, 2000. Also in connection with the events in El Ejido, he reported that the Labour and Social Security Inspectorate had launched an action plan, at the beginning of 2000, aimed at seasonal agricultural workers. The basic objectives of the plan were: to check on work status with special attention to cases of discrimination; to combat illegal trafficking in labour; to promote the principle of fair competition and prevent offending companies gaining advantage to the detriment of those that obeyed the law; and to check on the labour, work and social security conditions of foreign workers, whether or not in possession of a work permit. The speaker indicated that offences were punished by heavy fines and he gave detailed information on the results of those actions.

As for general immigration policy, he maintained that until recently Spain had been a country with little immigration and that, on the contrary, its administrative and legislative systems were geared to deal with significant levels of emigration. He emphasized that in a very brief space of time, his country had had to adjust to a significant level of immigration for which it was not prepared. Among the measures taken in that context, he mentioned: firstly the creation of the Government Department for Foreigners and Immigration, in May 2000. The department was responsible for formulating government policy on immigration and integration of foreign residents; secondly, the creation in April 2001, of the Supreme Council on Immigration Policy with the mission of ensuring proper coordination of actions by the central Government, the autonomous regions and local authorities. The Council was to establish the basis of a global policy for the integration of immigrants into society and work; thirdly, the reform of the Permanent Immigration Monitoring Agency, in April 2001, a body whose function was to analyse and study immigration in Spain and publish the information obtained; fourthly, the reorganization of the Forum for the Social Integration of Immigrants, a tripartite body made up of representatives of government, immigrant associations, and social organizations including workers and employers' organizations. It was a consultative, information and advisory body on all immigration policies. Those bodies had developed a general policy on foreigners and immigration. In that connection, in April 2001, the Government adopted the Global Programme for the Regulation and Coordination of Aliens and Immigration. The programme was based on the idea that immigration was a desirable phenomenon for Spain within the framework of the European Union. Its objectives were: integration of foreign residents and their families; regulation of migratory flows to ensure coexistence and integration of immigrants and nationals; and maintenance of the system of protection of refugees and displaced persons. The specific measures taken under that programme included: (a) regulation of arrival of immigrants from their countries of origin through bilateral agreements signed with Romania, Poland, Ukraine, Colombia, Cuba and Morocco; (b) application of the Integrated Programme of Action for the Development of the Mediterranean Region, through technical assistance to immigrants' countries of origin; (c) implementation of medical care, education and family reunion measures, as a way of achieving the full integration of immigrants into Spanish society; (d) adoption of a policy for incorporation of immigrants in the labour market, through vocational training interviews and activities; and (e) establishment of mechanisms to combat exploitation of workers, through controls over working conditions, wages and social security, by the Labour and Social Security Inspection Service. The Global Programme included provision for information campaigns to publicize the consequences and negative effects of illegal immigration. Also envisaged was the creation of specialist units to combat immigration networks and forging of documents as well as improved arrangements to combat racism and xenophobia. The Global Programme envisaged joint action by the central Government, governments of the autonomous regions and local governments, for which collaboration agreements had been concluded for joint financing of those activities. He mentioned procedures for regularizing the position of illegal immigrants. In that connection, he said that, as a result of the various processes already implemented and planned for the future, over 200,000 workers whose status was illegal would be regularized in less than a year.

The Employer members noted that the Government representative had provided a lot of detailed information. This was a very special case and the Committee of Experts had made specific comments which were based on a communication transmitted by the Democratic Confederation of Labour (CDT). This communication related to the events which had occurred in February 2000 in the town of El Ejido (province of Almeria, autonomous region of Andalusia) 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 had taken place without any intervention from the local authorities, who were passive witnesses of this drama for 24 hours. The CDT also described the general working and living conditions of these migrant workers who were employed in the agricultural sector, more especially in greenhouses where, for example, the temperature reached 50oC and the use of pesticides caused workers to suffer from lung and skin diseases. Nevertheless, a few days after these events had occurred, an agreement had been reached between the various protagonists, namely the central Government, autonomous government of Andalusia and employers' and workers' organizations. This agreement related to issues concerning compensation, the carrying out of an in-depth investigation into the events, the establishment of immigrant reception offices in the various town halls in the province as well as the development of intercultural programmes to encourage better integration of immigrants. The Employer members noted that the Government had communicated its reply to the CDT's comments. It had pointed out that legal action had been taken and in particular 82 persons had been arrested in the hours following the onset of the riots. As for the living and working conditions of migrant workers, the Government had indicated that all farm workers had the same rights as Spanish workers. While working conditions in greenhouses were particularly arduous, all workers were subjected to the same working conditions. With regard to the report of the European Commission against Racism and Intolerance (ECRI) prepared in 1998, indicating signs of rising racism in Spain against certain groups of immigrants from the developing world especially those from the Maghreb, and the report of the United Nations Committee on the Elimination of Racial Discrimination, the Government had not denied the existence of a certain racism in Spanish society. The Employer members noted the adoption of Act No. 4 of 11 January 2000 on the rights and freedoms of foreigners in Spain and their social integration the main purpose of which was to guarantee equality of treatment between nationals and foreigners who were lawfully present on Spanish territory, with the view to better social integration of this category of the population. In this regard, the Employer members welcomed the question raised by the Committee of Experts regarding the implementation of this law and measures envisaged by the Government to inform the public through the media on respect for human rights. A periodic assessment of the impact of the measures taken or envisaged was important since it was an indicator of the effective application of the Convention. Regarding 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, the statistics needed to be seen in the context of other statistical data such as data on violations against nationals. There might be a general increase in violations in the whole society. Referring to the agreement signed on 12 February 2000 between migrant workers who were victims of brutality, the central and autonomous governments and the workers' and employers' organizations, the Employer members noted the rapid reaction to the events which had occurred. Although the financing of the implementation of the agreement was difficult and expensive, the Employer members agreed with the Committee of Experts that experience had shown that the social exclusion of part of the working population was always costly in the medium and long term. Moreover, the issue had to be seen in the context of the overall situation in the country. Spain had changed in a short period of time from a country of emigrants to a country of immigrants. This was due to its economic success achieved within the framework of its membership in the European Union. Indeed, measures of administrative and legal nature had to be taken in order to prevent repetition of such events. Finally, the working conditions in Spain for foreign workers from EU countries were the same as those for nationals. As for foreign workers coming from other countries, the Government had referred to bilateral agreements between the Spanish authorities and the authorities of States who were not EU Members. In conclusion, a report containing all available information should be transmitted to the International Labour Office for further examination by the Committee of Experts. This Committee might then examine this case again, if necessary.

The Worker members underlined that the complex nature of this case had given rise to many observations by the Committee of Experts concerning Convention No. 97 but also the Social Security (Minimum Standards) Convention, 1952 (No. 102), the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Minimum Wage Fixing Convention, 1970 (No. 131), and the Occupational Safety and Health Convention, 1981 (No. 155). The complexity of this question revealed also the central character of decent work for the dignity, the conditions of work and the life of workers as underlined by the Director-General in the Report which he had presented this year to the Conference. The issue of migrant workers had multiple aspects which reflected the inseparable nature of the Conventions on the conditions of work and living of workers beyond the, sometimes arbitrary, distinction made between fundamental and other Conventions. Following a communication by the Democratic Confederation of Labour (CDT) of Morocco concerning the events of February 2000 in the area of El Ejido in southern Spain, the Committee of Experts was informed of the situation of migrant workers and their families. These workers mostly employed in the agricultural sector, more especially in plantations in greenhouses, worked under extremely difficult and harmful conditions for wages lower than the daily minimum living wage. They were excluded from medical or social coverage and were accommodated in makeshift shelters. According to the Committee of Experts, the treatment inflicted upon these workers violated the provisions of Articles 3 and 6 of the Convention. The aforementioned events led to the conclusion on 12 February 2000 of an agreement between the workers and the employers' and workers' organizations aimed at finding a solution to the situation of these workers. Various engagements had therefore been undertaken. In response to the communication of the CDT, the Government had noted that neither legislation in the area of employment and conditions of work nor collective agreements contained any discriminatory provisions. Moreover, any breach of this legislation could be denounced to the labour inspection service. The Worker members referred to the observations of the Committee of Experts on the application of various provisions of the Convention following the information provided by CDT and the Government. They recalled, with respect to the application of Article 3, the importance of the combat against the discriminatory treatment suffered by migrant workers in Spain as well as many other countries in Europe and the world where many incidents of racism and xenophobia took place. With reference to the comments of the Committee of Experts, they underlined the importance of the information on measures taken by the Government in order to combat the propagation of stereotypes on foreigners and periodic assessments of the impact of these measures. Regarding the application of Article 6 of the Convention, the Committee of Experts thought that the situation denounced by the CDT concerned mostly the effective implementation of the legislative provisions rather than the existence of discriminatory provisions. The Worker members thought in this respect, like the Committee of Experts, that the Government should be requested to provide detailed information concerning the supervision of the practical application of legislation, especially the provisions relative to remuneration and social security of foreign workers in conditions of equality with national workers. With respect to the issue of accommodation, the Worker members also stated that they were concerned about the submission of a programme for the construction or rehabilitation of housing for foreigners to financial conditions, given the structural nature of the problem. It was important that the Government, on the one hand, indicated the measures that it had taken in order to qualify acts of racial discrimination as such and, on the other hand, provided information on the judicial follow-up including the penalties actually imposed on persons recognized as guilty of these offences. The rise of racism and xenophobia in the world, especially with regard to migrant workers was very worrying and this case was an illustration of innumerable other cases in the world, and especially in Europe. The supervision of the implementation of the relevant standards in this respect was essential. Governments too often confined themselves to the adoption of legislative measures without caring to know whether in practice the migrant populations were protected against acts of racism, xenophobia and intolerance. Even if it were true, as the Government claimed, that social and labour legislation did not make distinctions based on nationality, one should be preoccupied by the fact that a considerable part of migrant workers were found in sectors where the worst conditions of labour prevailed. It would be useful to have a study on the synergies linking various international labour standards in the present case of the five Conventions mentioned above. The Worker members asked that the Government be urged to fully implement the engagements undertaken under the agreement of 12 February 2000 including the provision of compensation for damages and losses, the regularization of illegal immigrants and the judicial proceedings brought against the perpetrators of these acts against migrant workers. The Government should also take all necessary measures to ensure that the requirements of the Convention be respected in law as well as in practice. Finally, the Government should be invited to demonstrate and bring up to date its commitment and its political will to eliminate all forms of discrimination against migrant workers by ratifying Convention No. 143 which contained complementary provisions to those of Convention No. 97. The ratification of Convention No. 143 had moreover been recommended by the Governing Body in the framework of its decisions relative to the policy regarding the revision of standards.

The Worker member of Spain said that the events in El Ejido were no accident, but the result of a series of circumstances and policies which culminated in that intolerable expression of xenophobia and which could be summarized under four headings: (a) a huge expansion in the hidden economy in the countryside, absolutely intolerable working conditions and inadequate inspection by the employment authority; (b) abusive practices by some unscrupulous employers and agents; (c) a social model which regarded immigration solely as cheap labour to contribute to economic development and a nuisance the next day; (d) the absence of a proper immigration policy which, among other things, would provide genuine possibilities for integration and social participation by the immigrant population and at the same time educate the general public in the value of coexistence and respect for immigrants. While there was, of course, no discrimination in law against immigrant workers, in practice such discrimination did exist. Firstly, because in the sector which was the subject of the representation by the CDT (work by seasonal workers in certain geographical areas), immigrant workers were in the majority and there was fierce wage competition, a deterioration in working conditions and employment of workers without payment of social security contributions. Secondly, there was also discrimination by some employers in the sector who as far as possible avoided workers of Moroccan nationality because they regarded them as better organized and aware of their labour rights because they had lived longer in Spain. Finally, the absence of essential social services, such as minimum levels of housing, was well known. He added that, likewise, the Agreement on Migration for Employment in the agricultural sector was blatantly disregarded by many employers in certain geographical areas in the country. The agreement provided that employers must announce offers of employment three months before the commencement of seasonal work, so that it could be checked that the working conditions complied with those laid down in law. Instead, many employers resorted to the abundant immigrant labour, generally irregular, in order to get round the labour legislation. With regard to the application of the agreement to which the Committee referred, he indicated that it was not observed, especially the requirements relating to housing. He also indicated, for information to the Committee, that the Spanish General Workers' Union (UGT) had submitted a complaint against the Spanish Government to the Committee on Freedom of Association in that Act No. 8/2000 of 23 December, the Aliens Act, prevented the exercise of the freedom of association, the right to belong to a trade union and the right to strike by illegal foreign workers, and did not comply with the provisions of the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143). As well as denying those rights, the main purpose of the Act was to control flows of immigrants to specific sectors, such as agriculture, domestic service and construction, and not to integrate them in society and work. The fundamental problem lay in the lack, in his country, of an employment policy in relation to immigration. He said that it was scandalous that any democratic political party should allow people like the Mayor of El Ejido within its ranks. Spain was a country tolerant of different cultures but that did not mean that the El Ejido incident should not be denounced. Apart from the explanations presented, the Spanish Government knew about and was aware of the real employment conditions of the migrant workers and the events in question. It would be enough, in those circumstances, to require that the Government should fulfil its obligations to ensure respect for the rights of the migrant workers, that the agreement of 12 February 2000 should be honoured in full, that inspection mechanisms should be negotiated and strengthened and that the public authorities should act to safeguard labour rights and integration as required by the Convention under consideration.

The Worker member of Morocco emphasized that the events of the previous year had been very serious in view of the dramatic situation of migrant workers in the country. Migrant workers had been attacked, their property destroyed and a mosque burned down, all under the eyes of the security forces, who had done nothing to help. Nor was El Ejido an isolated incident, since an event of the same type had occurred in Catalonia in 1999. The migrants concerned in El Ejido worked under difficult circumstances, in very high temperatures and were subject to occupational diseases due to the use of pesticides. They were also afflicted by low wages, the absence of health and safety measures and social security, and a shortage of housing. Following the incident, an agreement had been signed between the workers' representatives, with the support and solidarity of Spanish trade unions, and the local authorities to resolve the reasons for the tensions, particularly through an improvement in their administrative situation, measures to provide them with proper housing and to improve their working conditions. Although the incident had occurred one-and-a-half years ago, the underlying reasons which had given rise to it still persisted. Moreover, the authorities had not applied the conditions of the agreement, which had been designed to build a climate of confidence and tolerance. He therefore called for the provisions of the agreement, as well as those of the bilateral agreement between Spain and Morocco on migrant workers, to be respected. It was very important to end the suffering of the workers, or similar events might occur again. He also hoped that the ILO would follow up the case and appealed to the Spanish authorities to resolve the difficulties of migrant workers so as to create a climate of tolerance and coexistence.

The Worker member of France stated that the Worker spokesperson had described in detail the lot of the migrant workers in Spain, as well as the ins and outs and outcome of the serious events arising from the February 2000 uprising in El Ejido, in the Almeria province. These events had caused considerable emotion and concern in Morocco, Spain, Europe and even throughout the world. It appeared that the authorities had not only been unable to prevent these events from occurring, but also unable to stop the sudden violent and xenophobic uprising from the start; according to the information provided by the trade union organizations, the local authorities were guilty of being too lax. This sudden violent uprising was denounced by the Spanish and Moroccan confederation of trade unions as a serious violation of Conventions Nos. 97 and 111 and the speaker supported them. He recalled that the migrant workers had enabled landowners to make their fortune in this desert province. They worked in extremely difficult conditions and were often treated in a subhuman manner and often suffered incredible brutality which remained unpunished to this day in a great number of cases. It was regrettable that, despite the promises made, the Government and local authorities had not seriously undertaken to offer the migrant workers and subjects of such violence, suitable housing and appropriate protection. He fully supported the request made by the trade unions and invited the Government to observe the agreement of 12 February 2000 which acknowledged these facts and provided solutions which, to this day, had still not been fully implemented due to a lack of political will. Migrant workers had rights and the Government had the obligation of enforcing such rights and of fighting against all manner of racist or xenophobic expression of ideas, propaganda and demonstrations, in the context of job precariousness and outside the scope of labour legislation, without which attempts could be made to murder exploited workers who were discriminated against on the grounds of their national origin. If, as the Government representative claimed, these facts were in principle foreign to Spanish society and culture, these events had nevertheless occurred at a specific time and place. That was why he invited the Government to worry more about the occurrence of such events which constituted a symptom of a development which should be examined carefully in order to avoid a repetition or extension thereof. Having listened to the Government representative's statement rejecting the statements of the Workers and the comments of the Committee of Experts, and providing reassurances that everything had been resolved for the better, he expressed the fear that the Government representative had underestimated the seriousness of the events which had occurred in El Ejido. That was not, in any event, the opinion of the parties concerned and the same causes could result in the occurrence of the same events again. In order to comply with the Convention, the Government should examine more closely the effective working conditions, the housing and living conditions of workers in general, but of migrant workers in particular, and also ensure that all victims were entitled to full compensation as well as a substantial improvement in their material and legal condition. He expressed the hope that the practical and legal measures announced would fulfil these objectives and reiterated the need to remain vigilant against all forms of xenophobic activity and to fight firmly against it - in his opinion, only effective equal treatment between national and foreign workers would encourage the integration of migrant workers into Spanish society. The new legislation and measures to regularize these workers, as well as the detailed report on migration policy and effective measures taken towards its implementation, should be the subject of a detailed study by the Committee of Experts next year, particularly as such questions dealt with the subject of fundamental human rights.

The Employer member of Spain indicated his support for the comments by the Employer members because he thought that they served to focus very clearly the issue before them. He stressed that the phenomenon of immigration was relatively new in Spain. He added that foremost among the various reasons for that change were the need to fill certain jobs that could not be filled by nationals (mainly in the agricultural sector) and strong migratory pressure from other countries. Another aspect was that the legal and administrative procedures had not always been equipped to deal with those needs and it had not been uncommon for forecasts to be exceeded by migratory movements that were not easy to channel. It was consequently not surprising that, as in other EU countries, there had been particular concentrations of illegal immigrants as had occurred a year previously in the Andalusian town of El Ejido. He indicated that the social explosion that had occurred in February of the previous year in the El Ejido area and which had led to the unfortunate events described in the report of the Committee of Experts, had as its immediate cause the killing of two Spanish citizens in El Ejido by two Maghreb immigrants. It had occurred in a highly unstable environment, due to the heavy concentration of illegal immigrants. The conflict therefore, as described in the report of the Committee of Experts, was not so much related to work relationships as to the social relations between citizens in the area resulting from a very tense social situation. Many of those individuals were either awaiting regularization, looking for a job or waiting to move to other regions of Spain or other countries of the European Union. It should be emphasized that, from the outset, both the social welfare agencies and the Government itself and especially the employers' organizations in the area, reacted rapidly and effectively to reach an agreement that would help to improve the social climate in the area and integrate the immigrant community. He stressed that the greatest problem was to find a contact point for the immigrant community which hitherto had not been properly organized. As a result of those efforts, and in a very short period of time (less than a week) an agreement was reached on 12 February 2000, primarily thanks to the support of the technical and human resources of the employers' organizations, with almost all the social welfare and trade unions in the area. The agreement consisted of two main parts. The first part was intended for immigrants, not employed by a third party, who had suffered the consequences of the abovementioned social explosion. It urged the Government to fulfil its obligations, namely: rehousing of immigrants who had suffered damage to their homes: compensation for damage and injury suffered; regularization of immigrants without documentation and the immediate application of a series of measures, already in the pipeline, by the regional and national Governments to increase economic growth and social stability in the area. The second part required the social welfare agencies themselves to accept certain commitments, basically on two issues: firstly, promotion and development, in collaboration with the administration, of intercultural programmes to improve the social integration of immigrants and enhance social awareness and understanding of their problems and secondly, measures to ensure equal treatment of immigrants in terms of working conditions and full application of the collective agreement for the sector. Shortly after signing the agreement, the Democratic Federation of Labour of Morocco alleged failure to fulfil the ILO Convention on migrant workers. That representation was followed by the corresponding report of the Spanish Government which included comments by the Comisiones Obreras, the only Spanish trade union organization to provide comments. The government report contained the content of the abovementioned agreement, statistics on the application of the existing legal framework, and measures that were immediately taken to prevent a repetition of such incidents in compliance with the provisions of ILO Convention No. 97. The Committee of Experts, in its report, took note of those initiatives and did not express any criticism of the measures taken by the Spanish Government to comply with the provisions of the Convention, confining itself to seeking further information on specific points, in particular: more specific statistics on national and local authorities, especially in relation to communication, remuneration and social security; copies of judicial decisions concerning the application of the principle of non-discrimination against immigrants; details of measures taken to provide more precise statistics (number of disputes, inquiries, effective sanctions); and information on progress in the programme to finance immigrant housing (measures to facilitate the departure, travel and reception of immigrants). He indicated that the Government had just provided extensive information in a precise, rigorous and pertinent manner well within the deadlines set out in the regulations on the procedure for complaints and representations to the ILO. That information concerned the requirements of Articles 1, 2, 3 and 4 of Convention No. 97, in particular measures adopted to combat misleading propaganda on immigration and emigration to which Article 3 of Convention No. 97 and the report of the Committee of Experts referred. Underlying that request for additional information was the concern of the Committee of Experts that xenophobic behaviour might spread throughout Spanish society. It referred in that respect to a study prepared by the European Commission in 1998 which referred to signs of rising racism against certain groups of immigrants from the developing world. It was important to note that the same report, which was regularly drawn up in respect of all countries of the European Union, referred to Spain as one of the EU countries least affected by racism and intolerance. Finally he said that the conclusion should take into account not only the deplorable events of the previous year, but also the enormous efforts and the ability to respond rapidly as demonstrated by the social welfare agencies and the national and regional Governments to create a climate of social stability based on the integration of the immigration community; the effectiveness of the majority of the initiatives undertaken jointly to fulfil the provisions of Articles 3, 4 and 5 of the Convention in the areas of education, raising awareness, non-discrimination, regulation and housing; the pertinent additional information provided by the Government representative of Spain in response to the questions of the Committee of Experts which answered virtually all the questions asked; and the firm rejection of any intent to derive political gain from the events which took palce last year or any needs or difficulties faced by the immigrant population, as to do otherwise would be contrary to the principles of the Convention.

The Employer member of Canada, speaking in support of the statements made by the Spanish Employer member, the Employer members and the action taken by the Spanish Government, recalled that Canadians knew that immigration and migration generally strengthened a country tremendously, not just culturally, but also in economic terms. However, they also knew that it could lead to many challenges for a country as it endeavoured to incorporate the unique needs of those who had just arrived. In extreme cases, this could lead to conflict of tragic proportions. She said that there was little doubt that the events in El Ejido had been tragic. However, it had taken only one week from the time of the incident to the signing of an agreement between all the stakeholders. In addition to coordinating the negotiations that had led to the signing of the agreement, the Spanish Government had taken measures to address the broader issues which may have contributed to the conflict. It had implemented a programme of sensitivity training for public officials and the population in general. She therefore expressed the belief that a country should be judged, not only on the actions of its citizens and inhabitants, but also by its response in addressing their actions.

The Government representative thanked the Vice-Chairpersons and everyone who had participated in the discussion, in particular, Mr. Bonmati and Mr. Suarez. He took note of the observations made and he indicated that these would be forwarded in a timely manner to the appropriate authorities.

The Employer members, acknowledging the detailed nature of the debate which had covered all the important points, reiterated their request for the Government to provide further information, including information in a written report, on the issues which had been raised and the various questions that had been asked. They also called upon the Government to take all the appropriate measures in national law and practice, in full conformity with the Convention, to ensure that there was no reoccurrence of the event and so that migrant workers in Spain, who played such an important role in the development of the country, could benefit from their full rights.

The Worker members noted that the Government representative, endorsed by the Employer members, had refused in his conclusions that the Committee invite the Government of Spain to ratify the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), supplementing Convention No. 97. They expressed regret that the Committee would not be in a position to participate in the promotion of the ratification of the ILO standards.

The Committee took note of the statement by the Government representative and the subsequent discussion. Having noted that the Committee of Experts had referred to Conventions Nos. 102, 111, 131, 155 and 97 its analysis was limited to the latter. It noted with concern the gravity of the events described in the observations on the treatment of migrant workers and, in particular, those of Moroccan origin, in the deplorable event which took place in February 2000 in El Ejido. It took note of the subsequent efforts by the Government and workers which led to the conclusion of an agreement to resolve the situation and tackle the situation of migrant workers in the province more comprehensively and, for example, to regularize the position of illegal migrant workers and provide housing assistance for both national and non-national workers. The Committee noted that the Government had indicated that the problem was an isolated one, and urged the Government to promote awareness among the general public and government authorities of the issue of racism, xenophobia and non-discrimination. The Committee urged the Government to put into practice the initiatives that it had announced and to provide detailed information on the implementation of the agreement and any other practical measures to promote the equality of workers of foreign origin and to provide adequate housing for migrant workers and real equality with regard to remuneration and social security. The Committee also requested the Government to submit information on the status and content of legislation on migrant workers, statistics on violence against non-national workers and judgements in legal proceedings against persons responsible for the events in El Ejido. The Committee hoped that the Government would send detailed information in its report for the next session of the Committee of Experts.

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

The Committee notes the observations made by the Trade Union Confederation of Workers’ Commissions (CCOO), the General Union of Workers (UGT) and the Spanish Confederation of Employers' Organizations (CEOE) communicated with the Government’s report. The Committee notes the Government’s responses to these observations.

Article 1(a) of the Convention. Information on national policies, laws and regulations. The Committee observes that, in its report, the Government refers to the adoption of laws and regulations concerning residence and work permits of migrant workers, such as: (1) Royal Decree-Law 11/2018, of 31 August, which refers to the European Union (EU) Directive 2016/801, and concerns, inter alia, the procedures for specific residence, mobility and work permits for third-country nationals carrying out research work in the country, international students who completed their studies in the country and wish to stay to seek employment opportunities, as well as foreign students wishing to participate in internship programs; (2) Order TMS/331/2019 concerning the requirements for the authorisation to electronically present files for residence permits covered by the international mobility regime; (3) Resolution of 8 April 2019 of the State Migration Secretariat concerning agreements on residence and work permits for third-country foreign nationals working in Spanish fishing boats that work, without an international fishing agreement, outside the Exclusive Economic Zone of Spain or outside the Mediterranean Sea. The Committee also notes that, in their observations, CCOO indicates that Royal Decree-Law 7/2018, of 27 July, on universal access to the National Health System, restores access to public health services to migrant workers in an irregular situation, and CEOE highlights measures adopted in 2020 to expedite the process of validating foreign certificates, especially in the health sector, which allowed validating more than 1800 certificates. The Committee further notes that the Government also refers to numerous legislative amendments that, albeit not focused on migrant workers specifically, may also be relevant to them, which include those relating to equality and non-discrimination, equal remuneration between men and women, as well as urgent measures for ensuring social protection and combating precarious work.

In addition, the Committee observes that the Government highlights that Labour Inspection services have continued to monitor and enforce labour legislation regarding migrant workers, and that the Strategic Plan for Labour Inspection and Social Security 2018–2020, includes specific measures to improve the protection of labour rights of migrant workers residing in Spain. The Government also explains that a Strategic Plan on Equal Opportunities 2018-2021 is currently being prepared. It adds that the Decent Work Strategy 2018–2019–2020 includes a number of specific measures to promote migrant workers’ employment in non-discriminatory conditions. The Committee requests the Government to continue providing information on the application in practice of any measures adopted in relation to the Convention, and in particular on measures adopted under the Decent Work Strategy 2018-2019-2020 and the results achieved. It also requests the Government to provide information on any advancements regarding the adoption of the Strategic Plan on Equal Opportunities, and particularly on whether it will include specific measures for migrant workers, including women migrant workers. The Committee requests again the Government to provide updated information on the activities of the Forum for the Social Integration of Immigrants.

Article 1(c). Information on general agreements and special rules. The Committee notes CCOO’s observations mentioning a bilateral migration agreement signed with Honduras on 28 May 2021 which, according to the Government’s reply, has not entered into force and, thus, has not been published yet. The Committee also takes note that the Government refers, in its report, to the Young Generation as Change Agents (YGCA) programme, which is dedicated to promoting migration of Moroccan graduates who studied at least a 1 year Master’s degree in Spain in the academic year 2019-2020. It notes that 98 students have benefited from this programme and that 23 of their projects (10 of which belong to female students) are being implemented in Morocco. The Committee requests the Government to provide information on the date when the bilateral migration agreement with Honduras will enter into force, and to provide a copy of the same. It also requests the Government to continue providing information on the general agreements and special rules adopted regarding migration for work.

Article 2. Return. The Committee takes note of the Government’s indication that the Return to Spain Plan was approved in 2019 with the objective to promote the return of Spanish citizens living abroad, including a pilot phase undertaken between June 2019 and June 2020 that provided services of employment placement and mentoring, resolution of administrative enquiries and psychological counselling to a total of 200 emigrants. The Government also indicates that the programme is currently being reframed due to the health, social and economic consequences of the Covid-19 pandemic. The Committee also notes CCOO’s observations that the results of the Return to Spain Plan are very modest and that, in reframing return programmes, other aspects should be considered, such as: (1) opening it up to a broader audience (beyond qualified workers, youth or persons born in Spain), (2) providing labour counselling through public employment services rather than private employment agencies, (3) providing measures tostrengthen the efficiency and specialization of public employment services, and (4) ensuring good coordination among different public administrations. The Committee requests the Government to provide information on the reframing and further implementation of the Return to Spain Plan 2019, and to continue providing information on any other measures related to the return of Spanish migrant workers.

Article 3. Measures against misleading propaganda. The Committee notes that, regarding this point, the Government again provides detailed information on enforcement activities carried out by labour inspectorates. The Committee also notes that, throughout its report, the Government refers to measures aimed at information and sensitization, including: (1) the promotion of a better understanding of migrant workers about their social rights and corresponding enforcement mechanisms, included in the Strategic Plan for Labour Inspection and Social Security 2018–2020; (2) sensitization measures on the importance of complying with equality and labour legislation, included in the Decent Work Strategy 2018–2019–2020; (3) the availability of information factsheets on the immigration website of the Ministry on Inclusion, Social Security and Migrations; and (4) data on the number of workers benefiting from the provision of orientation and employment information services. The Committee recalls the relevance of Article 3 of the Convention for the protection of workers from misleading information stemming from intermediaries who may have an interest in encouraging migration in any form to take place, regardless of the consequences for the workers involved. Given migrants’ vulnerability to this form of abuse, the Committee requests the Government to provide detailed information on the specific measures taken to prevent misleading propaganda and to penalize conduct that is misleading and harmful to migrants for employment, in addition to the enforcement activities carried out by labour inspectors and other information and awareness-raising activities.

Article 6(1)(a)(iii). Equal treatment in respect of accommodation. The Committee takes note of the Government’s indication that there is no differential treatment between migrant workers that are long-term residents and other migrant workers when applying section 13 of the Basic Act No. 4/2000 of 11 January, concerning rights and freedoms of foreign citizens in Spain and their social integration. The Government further highlights that foreign temporary residents, foreign long-term residents and Spanish citizens can benefit from the State housing plan 2018–21. The Government also indicates that the implementation of the plan corresponds to autonomous communities.

The Committee also notes that, in reply to its previous comments requesting information on measures to guarantee migrants in Alicante, Almería and Murcia no less favourable treatment than that given to Spanish citizens, the Government indicates that no studies have been undertaken from a human rights perspective regarding settlements of seasonal workers in agriculture, but that draft “Recommendations on settlements” are being prepared by the Council for the Elimination of Racial and Ethnic Discrimination. In its observations, CEOE confirms employers’ organizations active participation in the elaboration of such recommendations. In this regard, the Committee also takes note of the adoption of Royal Decree-law 5/2020, which enhances the scope of action of Labour Inspection to the accommodation and places of rest that are outside of the place of work or the place where work is performed. But the Committee also notes with concern that the United Nations Special Rapporteur on extreme poverty and human rights highlighted, in its Report of 2020 on his visit to Spain, that migrant workers in Huelva are living in migrant settlements in inhuman conditions and that, according to civil society, around 2300 and 2500 people live in such conditions during the strawberry season (A/HRC/44/40/Add.2, of 21 April 2020, paragraph 74). The Committee notes the statistical information provided by the Government on the number of employment contracts with migrant workers during 2017-2020, which is disaggregated by Autonomous Community and indicates that, in 2020, there were 595,975 contracts in Andalucía, 407,984 in Murcia and 381,148 in Comunidad Valenciana. The Committee requests the Government to provide further information on the application of the State housing plan 2018-21 to migrant workers, including measures adopted at the level of autonomous communities, and more specifically data on the number of migrant workers who benefited from the plan. The Committee also requests the Government to provide information on:

• (i) measures taken to guarantee that migrant workers living in settlements receive no less favourable treatment than that given to Spanish citizens;
• (ii) the advancement on the elaboration and implementation of the “Recommendations on settlements”; and
• (iii) the number and nature of the violations detected by the labour inspection services and any judicial or administrative decisions regarding equality of treatment of migrant workers regarding accommodation, as well as the sanctions imposed, and the remedies granted.

Labour inspection. The Committee notes the statistical information provided with the Government’s report on the actions undertaken by labour inspection in relation to the application of the Convention, including by providing numbers of violations identified and overall amounts of penalties imposed. The Committee notes the Government indication that a specific campaign has been pursued to ensure that conditions of work of migrant workers are not discriminatory compared to those of national workers. The Committee further notes that pursuant to this campaign 638 inspections were carried out in 2020, leading to the identification of 25 violations that affected 143 workers. The Committee also takes note that the Government refers to sectorial inspection campaigns in the agricultural sector (in particular, two campaigns to control risks related to use of machinery and equipment and other risks, as well as a campaign regarding undeclared work) and in the fishing sector (through SEGUMAR campaign on the inspection of fishing boats regarding occupational safety and health requirements). The Committee requests the Government to continue providing information on the action of the labour inspectorate, disaggregated by economic sectors. The Committee also requests the Government to provide detailed information on thepenalties imposed for the various specific types of violation.

Articles 2 and 7. Employment services. In response to its previous request for information on the number of migrant workers who have benefited from employment services, the Committee notes the vast data information supplied by the Government on the number of migrant workers’ employment contracts (also disaggregated by sector and Autonomous Community), requests for work from migrant workers and unemployed migrants for the period 2017-2020 and disaggregated by sex, Autonomous Community, and citizenship from the European Union (EU) and non-EU countries. The Government also provided data, disaggregated by sex and citizenship from EU and non-EU countries, on the number of migrant workers who benefited from employment services, inter alia: orientation and employment information, orientation for self-employment, training, labour intermediation, and action on transnational mobility. In this regard, the Committee observes that: (1) the number of migrant workers beneficiaries of employment services increased from 628,044 in 2017 to 879,884 in 2019 and 779,001 in 2020, the majority coming from non-EU countries; (2) the number of migrant workers beneficiaries of employment services per year show an approximatively even participation between women and men (indicating, for instance, a participation of 385,770 men and 393,231 women in 2020); (3) for the period 2017-2020, orientation and employment information were the services provided the most. The Committee requests the Government to continue providing information on the number of migrant workers who have benefited from employment services, disaggregated, where possible, by sex, place of origin and sector of activity. It requests the Government once again to indicate procedures for cooperation with the corresponding services of other countries.

Annex I, Article 3. Operations of recruitment, introduction and placement of migrant workers. Private employment agencies. In its previous comments, the Committee noted UGT’s observations indicating that a number of employment agencies specialized in domestic work offered lower starting wages and hours of work more subject to change for workers recruited abroad, and requested the Government to provide information on the application in practice of section 36 of the amended Employment Act, adopted by Royal Legislative Decree No. 3/2015 of 23 October. The Committee notes that the Government refers to section 35 of the same Decree, which provides that public employment services, their collaborating entities and private employment agencies shall avoid direct or indirect discrimination in access to employment (including job offers, selection processes and criteria, training to access a position, and working conditions), and that, when entities managing labour intermediation identify a discriminatory job opening, they shall communicate with the entity having issued it. The Government also makes further reference to the prohibition of discrimination included in sections 3 and 23 of Basic Act No. 4/2000 of 11 January, concerning rights and freedoms of foreign citizens in Spain and their social integration, section 17 of Royal Legislative Decree No. 2/2015 of 23 October, adopting the revised text of the Workers’ Charter, and section 4(3) of Royal Decree 1620/2011 establishing special labour regulations for domestic work. It also indicates that section 16(1)(c) of the Act respecting social offences and penalties (approved by Royal Legislative Decree No. 5/2000 of 4 August) includes discrimination in access to employment as a “very grave” violation. The Committee further notes that the Government provides data on inspections carried out regarding labour intermediation, but that it is not possible to identify the number of migrant workers affected. The Committee also takes note of UGT’s observation that recruitment undertaken by employment agencies with candidates that are outside of the Spanish territory may fall outside of the scope of Royal Legislative Decree No.3/2015, as well as that the application in practice of section 35 presents some difficulties in the domestic work sector. The Committee requests the Government to provide information about measures taken to ensure the full application of Royal Legislative Decree No.3/2015, including any specific measures addressed to migrant workers, as well as on cases of non-compliance detected by the labour inspectorate. The Committee also requests the Government to provide information on whether Royal Legislative Decree No. 3/2015 covers recruitment from candidates that find themselves outside of the Spanish territory.

Annex II, Article 3. Operations of recruitment, introduction and placement of migrant workers. Regarding the collective management of recruitment in countries of origin (GECCO), the Committee takes note of the data supplied by the Government on the number of workers selected to work in the agricultural sector. The Committee observes that, according to such data, in 2020 there were 15,027 workers recruited (14,754 of which were women), that 14,629 workers came from African countries, and that 14,552 worked in Andalucía. The Government also provides information on the regulatory framework on collective management of recruitment in countries of origin between 2017 and 2020. The Committee takes note, in particular, of the fact that Order ISM/1289/2020, of 28 December, regulating collective management of recruitment in countries of origin for 2021, includes essential sectors beyond the agriculture sector, and also guarantees reinforced health and safety measures. The Committee also notes that such Order foresees employers’ obligation to provide adequate accommodation that meets requirements established by legislation.

The Committee further notes that, in its observations, CCOO raises its concern on the low salaries for these recruitment schemes in the agricultural sector, as well as on the feminization of strawberry picking jobs and the fact that recruiting pregnant women is treated as a “health issue”. The Committee notes that, in this regard, the Government explains that salaries in agricultural sectors are determined by the particularities of the sector, but that recent negotiations aim to establish fair salaries and that general minimum salary rates were increased in the country. It also indicates that the greater presence of women in strawberry picking is due to the fact that, in origin countries, agriculture is mainly carried out by women, who have broader experience in this field. The Government also indicates that hiring pregnant workers requires different transportation and accommodation arrangements and that, sometimes, hard physical working conditions have an impact on the productivity of such workers. In this regard, the Committee observes that the Decent Work Strategy 2018–2019–2020 includes, among its measures, an increased action by Labour Inspection to supervise conditions of work of migrant workers, particularly women in the agricultural sector. UGT also points out that migrant workers repeatedly recruited through GECCO schemes every year receive a service contract while, if they lived in Spain, they would have access to an open-ended intermittent contract (in Spanish, “contrato fijo-discontínuo”, which refers to a type of permanent contract whereby work is carried out intermittently and in dates that are not repeated) allowing access to other benefits. The Government clarifies that migrant workers’ access to open-ended intermittent contracts would not be possible where workers start and end their work on the same date every year. The Government also highlights obstacles encountered in the application of GECCO schemes, which include difficulties in controlling workers’ return to countries of origin, obtaining complete and correct information about candidates, and optimizing profiles selected, as well as difficulties to provide information and sensitization and to counter discrediting campaigns. The Committee requests the Government to provide information on the measures taken to apply Order ISM/1289/2020, and particularly regarding the reinforcement of occupational health and safety measures, as well as on any other measures taken to ensure that GECCO is undertaken in line with the provisions of Annex II of the Convention. The Committee further requests the Government to continue providing information on the number of foreign workers selected through GECCO, indicating their sex, place of origin and economic sector.

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

The Committee notes the observations of the Trade Union Confederation of Workers’ Commissions (CCOO), the General Union of Workers (UGT) and the Spanish Confederation of Employers’ Organizations (CEOE), communicated with the Government’s report. The Committee notes the corresponding responses of the Government.

Article 6(1)(a) and (b) of the Convention. Equal treatment regarding conditions of work and social security. The Committee takes due note that, in its report, the Government indicates that, under section 5(4) of Royal Decree No. 1620/2011 of 14 November establishing special labour regulations for domestic work, employers have the obligation to inform workers of essential elements of the contract and main conditions of work, where the contract lasts more than 4 weeks (including information on salary, payments in cash, duration and distribution of working hours, remuneration and compensation systems, and the regime of overnight stays where applicable). In addition, the Government also refers to section 2(2) of Royal Decree No. 1659/1998 of 24 July to apply section 8(5) of the Workers’ Statute dealing with information for workers on the main elements of the employment contract, which lists the information that a labour contract should contain. Also, regarding information, the Committee takes note of CCOO’s observation that the Ministry on Inclusion, Social Security and Migration’s website contains no specific guidance for domestic workers, as well as of the Government’s reply indicating that the general information provided is applicable to domestic workers correspondingly.

Regarding effective and accessible complaints mechanisms for domestic workers, the Government indicates that the Labour Inspection is able to access private homes within the limits of the right to inviolability of the home (and, hence, requiring the owner’s consent or a judicial authorization). The Committee notes with interest the Government’s indication that a specific inspection campaign on domestic work was launched in 2021, which addresses informal economy by prioritizing complaints presented and includes technical assistance and sensitization on the regularization of salaries that are below minimum salary rates (and of corresponding contributions to social security schemes). The Committee also observes that the Government indicates it has taken measures to make claim forms available in different languages. The Committee takes due note that the Government also provides data on the inspections carried out in the domestic work sector for the period 2017–20, showing that: (1) the Service on Social Security and Foreigners did 1,072, 952, 956 and 669 inspections in 2017, 2018, 2019 and 2020 respectively, all of them concerning undeclared work; (2) in 2020, 161 inspections carried out by the Service of Labour Relations and 28 inspections carried out by the Occupational Safety and Health Service were originated in workers’ complaints. The Committee notes, however, that such data does not indicate to what extent such claims were presented by migrant domestic workers. The Committee further notes UGT’s observations that measures foreseen to monitor the implementation of Royal Decree 1620/2011, such as an impact evaluation and the creation of a group of experts, have not been undertaken.

The Committee expects that, in applying section 2(2) of Royal Decree No. 1659/1998 and section 5(4) of Royal Decree No. 1620/2011, the Government will continue to take measures so that the relevant information is provided to migrant domestic workers in a manner and language that they understand, and take other necessary and appropriate measures to monitor the implementation of Royal Decree No. 1620/2011 as soon as possible. The Committee also asks the Government:

• (i) to provide information on the implementation of the 2021 labour inspection action campaign on domestic work and the results achieved, and
• (ii) to continue providing statistical information on complaints filed before the Labour Inspection, courts or any other competent authority, in particular those filed by migrant domestic workers, as well as the inspections conducted and sanctions imposed.

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

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes the observations of the Trade Union Confederation of Workers’ Commissions (CCOO), received on 11 August 2017, and the General Union of Workers (UGT), received on 17 August 2017, both of which were also forwarded by the Government, and the corresponding replies of the Government.

Article 1(a) of the Convention. Information on national policies, laws and regulations. In its previous comments, the Committee asked the Government to continue providing information on the application in practice of any measures adopted in relation to the Convention and in particular on the impact of the employment crisis on migrant workers. It also asked the Government to provide information on any measures taken to eliminate, in particular, any form of discrimination against migrant women, and on the activities of the Forum for the Social Integration of Immigrants. The Committee notes that the Government refers in its report to the implementation of the “Comprehensive strategy against racism, racial discrimination, xenophobia and related forms of intolerance” (“Comprehensive anti-racism strategy”), which, although not designed for specific population groups, gives special attention to the situation of the migrant population and provides for various measures to combat discrimination in the area of employment, including actions aimed at labour integration, promotion of dialogue with the social partners to develop codes of conduct and good practices in employment, and awareness raising. The Committee also notes the information supplied by the Government on programmes subsidized by the Secretariat-General for Immigration and Emigration (SGIE) during the 2014–17 period, including programmes for the social and labour integration of immigrant families in sparsely populated rural areas, programmes for promoting the work–life balance, and support programmes for occupational diversification. The Government also refers to various measures adopted under the “Act issuing urgent measures for labour market reform” (No. 3 of 6 July 2012), which are intended to help women, including migrant women, to find and keep employment. The Government further mentions general measures planned under the “Strategic equal opportunities plan 2014–16” and the “Comprehensive family support plan 2015–17”. With regard to the activities of the Forum for the Social Integration of Immigrants, the Committee notes the Government’s reference to periodic reports drawn up by the Forum. The Committee takes note in particular of the report on the situation regarding the integration of immigrants and refugees in Spain, approved at the ordinary plenary meeting of 6 April 2017 and available on the website of the Forum, which indicates, among other things, that: (i) the economic activities in which the highest proportion of foreigners were employed were domestic work (53.4 per cent) and agriculture, livestock farming, hunting and related services (41.2 per cent); (ii) the unemployment crisis has had a direct impact on work permits, with domestic work accounting for more permits since 2010 than agriculture and construction; and (iii) the cumbersome process of approval and validation of university qualifications has obstructed and adversely affected the social and labour integration of migrant workers. The Committee also notes that the report contains a number of recommendations, including: establishing active employment policies to enable the entry or re-entry into the labour market of migrant workers and access to jobs that match their qualifications; and, in the case of applicants for international protection, allowing them to work from the time the application for protection is made.

The Committee notes that the UGT, in its observations, indicates that the community of foreign workers, particularly non-European Union (EU) citizens and migrant women, is the one most heavily penalized by unemployment and poverty because of the long period of crisis; however, the Government has not adopted any specific measures for the foreign working population. The UGT indicates that there is no budget for the “Comprehensive anti-racism strategy” and in 2012 the Government suspended the “Support fund for the welcome and integration of immigrants”. The Committee also notes the indication of the CCOO that, inter alia, the SGIE programmes are adversely affected by cuts in public funding. With regard to migrant women, the UGT indicates that one thing omitted from the assessment undertaken by the “Strategic equal opportunities plan 2014–16” was information disaggregated by nationality, and the number of women and their nationalities who have benefited from the adopted measures is unknown. The Committee notes that the Government, in its reply to the observations of the UGT, states that the budget allocation for the “Comprehensive anti-racism strategy” comes from the SGIE budget, which was increased in 2015 and 2016 and was kept at the same level in 2017. The Committee requests the Government to continue providing information on the application in practice of any measures adopted in relation to the Convention and to provide information in particular on any measures taken or contemplated on the basis of relevant recommendations made in the report of the Forum for the Social Integration of Immigrants, and on any measures specifically designed for migrant women.

In its previous comments, the Committee asked the Government to provide information on the collective management of recruitment in countries of origin – relating to foreign workers from outside the EU – and the rules that govern it, and also on the numbers of workers selected in this way each year, disaggregated by sex, place of origin and economic sector. The Committee notes the information provided by the Government on the number of permits issued for the 2011–16 period in relation to the collective management of recruitment in countries of origin, disaggregated by sector (agriculture and services), country of origin and sex. The Committee also notes that the CCOO emphasizes that the figures quoted show the effects of the employment crisis on this category of foreign workers. The Committee requests the Government to continue providing information on the number of foreign workers selected via the collective management of recruitment in countries of origin, indicating their sex, place of origin and economic sector, and any obstacles encountered in the application of this scheme that relate to the application of the Convention.

Article 1(c). Information on general agreements and special rules. In its previous comments, the Committee asked the Government to continue sending information on the general agreements and special rules concerning the regulation and management of migration flows, and also on the application of Order No. PRE/2072/2011 – publishing the agreement of the Council of Ministers relating to the transition period in relation to the free movement of workers from Romania – and its impact on the immigration of Romanian workers. The Committee notes the Government’s statement that since 1 January 2014 Romanian nationals have not needed a permit for work within an employment relationship, since the regulations covering the citizens of EU Member States have applied to them since this date. The Committee requests the Government to continue providing information on the general agreements and special rules adopted.

Article 2. Return. In its previous comments, the Committee noted Act No. 40/2006 of 14 December 2006, Title II of which establishes the comprehensive policy regarding return, with the aim of ensuring access to social benefits and housing and facilitating the social and labour integration of Spanish returnees. The Committee also asked the Government to provide information on the application in practice of Act No. 40/2006, including statistical information on the number of Spanish migrant workers who have benefited from it and on any obstacles to its implementation. The Committee notes that the Government provides information on the measures taken under Title II of the abovementioned Act in the areas of information and social protection. It notes in particular that Spanish migrants are provided with a “Guide for returnees” and various online information sources, as well as a physical office and electronic mailboxes for handling individual consultations, of which 3,000 were processed in 2016. With regard to social protection, the Government refers, inter alia, to: (i) unemployment subsidies, to which Spanish migrants can have access under the amended General Social Security Act (Royal Legislative Decree No. 8/2015 of 30 October 2015), provided that they meet the specified requirements; (ii) needs-based benefits, including old-age welfare pensions, from which 336 persons benefited in 2016; (iii) financial benefits for citizens of Spanish origin who were displaced abroad when they were minors, as a result of the Civil War, and who are returning to the country after spending most of their lives outside it; 88 persons were recipients of such benefits in 2016; and (iv) exceptional aid for returnees (granted in 505 cases in 2016). With regard to the question of obstacles encountered in the implementation of the return policy, the Government indicates that the relevant measures have not been subjected to reduction or cancellation as a result of austerity requirements in public spending. The Committee also notes the observations of the UGT, which state that since 2011 there have been cuts in financial resources earmarked for Spanish citizens abroad. The Committee requests the Government to continue providing information on assistance programmes related to the return of Spanish migrant workers and any obstacles encountered in the implementation thereof.

Article 3. Measures against misleading propaganda. The Committee notes the Government’s reference to the monitoring activities carried out by the labour inspectorate. While noting this information, the Committee requests the Government to provide information on the specific measures taken to prevent misleading propaganda and to penalize conduct that is misleading and harmful to migrants for employment, in addition to the monitoring activities carried out by labour inspectors.

Article 6(1)(a)(iii). Equal treatment in respect of accommodation. The Committee notes that the UGT refers to section 13 of Basic Act No. 4/2000 of 11 January 2000 concerning rights and freedoms of foreign citizens in Spain and their social integration, indicating that the aforementioned section guarantees conditions of equality with long-term residents as regards housing accommodation. The same section provides that foreign residents have the right of access to public assistance schemes concerning housing in accordance with the terms established by the legislation and the competent authorities, and provides that long-term foreign residents are entitled to such assistance under the same conditions as Spanish citizens. The Committee notes the Government’s reply to these observations, indicating that the Act only provides that in the hypothetical case that it was strictly necessary to make distinctions between Spanish and foreign citizens as regards access to assistance, this could never affect long-term residents. To this end, the Committee notes Royal Decree No. 106/2018 of 9 March 2018 regulating the “State housing plan 2018–21”, which includes foreign citizens who are legally resident in the country as potential beneficiaries (section 7), without any distinction between temporary residents and long-term residents. The Committee requests the Government to provide information on the application of the “State housing plan 2018–21” to migrant workers and on any cases where section 13 of Basic Act No. 4/2000 has been applied that have involved differences of treatment between foreign workers who are long-term residents and other workers with respect to housing.

Labour inspection. In its previous comments, the Committee asked the Government to continue: (i) to supply statistical information on the action of the labour inspectorate in relation to the application of the Convention, indicating in particular the sectors of activity and country of origin of the workers affected; and (ii) to provide information on the measures taken by the labour inspectorate in the context of the “Citizenship and integration strategy 2011–14”, and on infringements reported and penalties imposed for violations of immigrants’ rights, particularly those relating to the matters enumerated in Article 6(1)(a)–(d) of the Convention. The Committee notes the information supplied by the Government concerning the inspection campaign relating to discriminatory conditions of work for immigrant workers conducted in the context of the “Citizenship and integration strategy 2011–14”, which detected non-compliance chiefly with regard to hours of work, wages, health checks, employment contracts, training and information on occupational risks, and lack of social security affiliation/discharge for workers. With regard to the sectors concerned, according to the statistics supplied by the Government, the agriculture, fishing and services sectors were the areas where the most infringements were detected. The Committee notes that the Government also refers to other inspection campaigns, including on effective gender equality and pay discrimination, which, albeit not specifically targeting them, also cover migrant workers. The Committee also notes the observations of the CCOO, which highlight the lack of resources and limited action of the labour inspectorate, and the observations of the UGT, which refer to the situation of migrant workers in the fishing sector and underlines the inadequacy of inspection plans (small number of vessels to be inspected) and also the need to disaggregate the detected infringements by nationality and administrative status of the workers. The Committee notes that the Government, in reply to these observations, provides information on the inspection activities undertaken as part of the Segumar (Panama Maritime Authority) campaign. The Government also indicates that classifying inspection information by nationality could give rise to unwanted situations and create discrimination or xenophobic sentiments against particular immigrant communities. It also points out that, even though it is desirable to increase the number of inspections, the labour inspectorate has extensive competencies but limited resources to allocate to them; hence priorities are defined, which in recent years have been to combat unofficial employment and social security fraud. The Committee requests the Government to continue providing information on the action of the labour inspectorate in relation to the application of the Convention, on infringements reported and penalties imposed, and to indicate whether other special inspection campaigns are planned aimed at monitoring the conditions of work of migrant workers, especially in the fishing and agriculture sectors.

Annex I, Article 3. Operations of recruitment, introduction and placement of migrant workers. Articles 2 and 7 of the Convention. Employment services. The Committee once again requests the Government to provide information on the number of migrant workers who have benefited from employment services, disaggregated, where possible, by sex, place of origin and sector of activity, and also to indicate procedures for cooperation with the corresponding services of other countries.

Private employment agencies. In its previous comments, the Committee noted the adoption of Act No. 35/2010 of 17 September 2010, Royal Decree No. 1796/2010 of 30 December 2010, and Royal Decree-Law No. 3/2012 of 10 February 2012, which establish urgent measures for the reform of the labour market and, inter alia, recognize the legality of the action of private intermediaries in the placement of workers. The Committee asked the Government: (i) to provide information on the number of migrant workers who have recourse to private employment agencies, the steps taken to protect them against abuse, and the measures taken in cases of abuse; (ii) to indicate any difficulties arising from the application of the legislation on private employment agencies in relation to the Convention; and (iii) to provide information on the application of section 36 of Royal Decree-Law No. 5/2000, which prohibits the establishment of recruitment agencies for emigrants. The Committee notes the Government’s indications that the regulations governing job placement activities are those established by the amended Employment Act, adopted by Royal Legislative Decree No. 3/2015 of 23 October 2015, which provides that job placement activities may also be carried out by “services to be determined by regulation for workers abroad” (section 32(c)). The Government indicates that the labour inspectorate monitors compliance with regulations governing job placements and monitors temporary work placement agencies and enterprises, irrespective of whether the workers concerned are migrants or other workers. The Committee also notes the UGT’s indication that a number of employment agencies specializing in domestic work do not comply with labour standards and even offer starting wages for workers recruited abroad which are lower than those for local workers, and propose hours of work that are more subject to change. The Committee requests the Government to provide information on the application in practice of section 36 of the amended Employment Act with regard to the placement in employment of migrant workers and on any non-compliance with the regulations in force detected by the labour inspectorate and the penalties imposed, and also on any other measures taken or contemplated to protect migrant workers against any form of abuse.

Statistics. In its previous comments, the Committee asked the Government to provide information on the number of foreign workers resident in Alicante, Almería and Murcia, indicating the number of workers who have residence and work permits, the estimated number of foreign nationals working without permits, and the measures aimed at their regularization. The Committee notes the statistical information provided by the Government regarding residence and employment permits issued in Alicante, Almería and Murcia from 2011 to 2016. The Committee also notes the observations of the CCOO referring to the situation of migrant workers in agriculture in these provinces and the frequently appalling housing conditions that they experience. The Committee requests the Government to continue providing information on foreign workers resident in Alicante, Almería and Murcia, including information on any assistance and information service available for these workers and any measures taken to guarantee them treatment no less favourable than that given to Spanish citizens.

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes the observations of the General Union of Workers (UGT) received on 17 August 2017, and which were forwarded by the Government, and the Government’s reply.

Article 6(1)(a) and (b) of the Convention. Equal treatment regarding conditions of work and social security. The Committee notes the observations of the UGT concerning the exclusion of domestic workers from the Occupational Risk Prevention Act (No. 31 of 8 November 1995) and particularly concerning the fact that section 26 of the Act relating to maternity protection is not applied to these workers. The Committee notes the Government’s reply in its report indicating, inter alia, that the above-mentioned Act does not apply to domestic work because the household is not considered an enterprise or workplace, and so it is impossible to monitor compliance with obligations in this area. However, the Act provides that the householder is obliged to ensure that the work of his/her employees is done under appropriate conditions of safety and health (section 3(4)). The Government also refers to section 7(2) of Royal Decree No. 1620/2011 of 14 November 2011 establishing special labour regulations for domestic work, under which the employer is obliged to ensure that the work of the domestic employee is done under appropriate conditions of safety and health, for which purpose the employer shall adopt effective measures, taking due account of the specific features of domestic work. Serious failure to comply with these obligations shall constitute grounds for resignation by the employee. Recalling that migrant domestic workers are at particular risk of abuse and exploitation, the Committee requests the Government to indicate the measures taken: (i) to ensure that such workers receive information, in an appropriate manner and in a language that they understand, on the conditions of work applicable under national law; and (ii) to ensure that existing complaint mechanisms are effective and accessible. Further, recalling that over half the foreigners employed in Spain are engaged in domestic work, the Committee requests information on complaints filed by domestic workers, investigations conducted, and sanctions issued.

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

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes the observations dated 31 August 2012 of the General Union of Workers (UGT) referring to the suspension of the budget allocation to the Immigrant Welcome and Integration Support Fund provided for in Organic Act No. 4/2000, the replacement of integration policies with those that favour the return of migrants to their countries of origin and the budget cuts which affect the implementation of the Citizenship and Integration Strategy 2011–14 and the Comprehensive Strategy against Racism and Xenophobia. The Committee notes that the Government’s reply makes no reference to these matters. The Committee requests the Government to send its comments on the observations from the UGT.

Article 1. Information on national policies, laws and regulations. The Committee notes the adoption of Organic Act No. 2/2009 of 11 December 2009 and Organic Act No. 10/2011 of 27 July 2011 amending Organic Act No. 4/2000 concerning the rights and freedoms of foreign nationals in Spain and their social integration. These reforms transpose into Spanish law the latest European Union (EU) directives on immigration and the most recent decisions of the Constitutional Court concerning fundamental rights, including the right of association; establish provisions concerning the protection of women who are victims of gender violence and trafficking; and amend the provisions governing infringements and penalties relating to the status of foreigners. The Committee also notes Royal Decree No. 557/2011 of 20 April 2011 adopting implementing regulations for Organic Act No. 4/2000 further to its reform and regulating procedures for authorizing the entry, residence and work in Spain of foreign nationals whose occupational activities involve economic, social or labour interest or entail research or development work, or teachers, who need to have high levels of qualifications (“blue card”), or artistic activities of special cultural interest. The Committee further notes the Citizenship and Integration Strategy 2011–14 based on the principles of equality and non-discrimination, citizenship, inclusion and multiculturalism. It notes in particular the evaluation of the previous plan for 2007–10, according to which progress was achieved in, among others, social integration and cohesion, and measures for the adaptation of society to the phenomenon of migration. The Committee further takes note of the Forum for the Social Integration of Immigrants. In addition, the Committee notes the concluding observations of the United Nations Committee on Economic, Social and Cultural Rights, which expresses concern at the situation of immigrants in the context of the economic and financial crisis and at the constant growth in unemployment rates (E/C.12/ESP/CO/5, 6 June 2012, paragraph 12). The Committee requests the Government to continue to provide information on the application in practice of any measures adopted in relation to the Convention and in particular on the impact of the employment crisis on migrant workers. While noting the information supplied by the Government on the steps taken to increase employment for women, the Committee requests the Government to provide information on any measures taken with a view to eliminating, in particular, any form of discrimination against migrant women. The Committee also requests the Government to send information on the activities undertaken by the Forum for the Social Integration of Immigrants.

Furthermore, the Committee notes the statistical information for the 2007–11 period supplied by the Government in relation to quotas of foreign workers from outside the EU, which currently come under the heading of collective management of recruitment in countries of origin. It also notes the Government’s indication that, in view of the national employment situation, the Ministry of Employment and Social Security decided not to authorize the recruitment of foreign nationals in 2013. However, this mechanism is still being used for hiring workers who already worked in previous years and were holders of residence and work permits. The Committee requests the Government to continue to provide information on the collective management of recruitment in countries of origin and the rules that govern it, and also on the numbers of workers selected in this way each year, disaggregated by sex, place of origin and economic sector.

Information on general agreements and special rules. The Committee notes the Government’s statement that limits have been placed on bilateral agreements due to the national employment situation. However, the Government reports on the agreements signed with El Salvador, Mali, Mauritania, Mexico, Senegal and Ukraine. The Committee further notes Order No. PRE/2072/2011 publishing the agreement of the Council of Ministers relating to the transition period in relation to the free movement of workers from Romania. The Committee notes that under this agreement measures have been taken to regulate access by Romanian nationals to the labour market pursuant to the treaty governing Romania’s accession to the EU. The Committee requests the Government to continue to provide information on the general agreements and special rules concerning the regulation and management of migration flows, and also on the application of Order No. PRE/2072/2011 and its impact on the immigration of Romanian workers.

Article 2. Return. The Committee notes Act No. 40/2006 of 14 December 2006, Title II of which establishes the comprehensive policy regarding return, with the aim of ensuring access to social benefits and housing and facilitating the social and labour integration of Spanish returnees. The Committee also notes the production of the “Guide on return”. The Committee requests the Government to provide information on the application in practice of Act No. 40/2006, including statistical information on the number of Spanish migrants for employment who have benefited from it and on any obstacles to its implementation.

Article 3. Measures against misleading propaganda. The Committee notes the statistical information, which however was not disaggregated according to the level of the offence, relating to infringements of sections 34, 35 and 36 of Royal Legislative Decree No. 5/2000 adopting the amended text of the Act concerning infringements and penalties in the social order. The Act penalizes conduct that changes initial conditions of work, is misleading or is detrimental to migrant workers and simulation or deception in the recruitment or contracting of migrants for employment. The Committee further notes the measures for welcoming migrants for employment established in the context of the Citizenship and Integration Strategy 2011–14. The Committee requests the Government to continue to provide information on the application in practice of measures to prevent misleading propaganda and to penalize conduct that is misleading and harmful to migrants for employment.

Labour inspection. The Committee notes the information provided by the Government on the measures adopted by the labour inspectorate. The Committee also notes that in the context of the Citizenship and Integration Strategy 2011–14, the labour inspectorate was assigned the task of monitoring and imposing penalties in relation to situations of racial discrimination or xenophobia in certain enterprises in sectors such as food and beverages, supermarkets, clothing sales and sales of sports equipment. The Committee notes that 95 enterprises were selected in this context, 349 inspections were undertaken and 28 infringements were reported. The Committee further notes the statistical information on the infringements detected and the penalties imposed by the labour inspectorate between 2007 and 2011 and the Government’s indication of a considerable drop in the number of infringements, owing to the incorporation into the EU of the countries of origin of a large percentage of migrants for employment. The Committee requests the Government to continue to supply statistical information on the action of the labour inspectorate in relation to the application of the Convention, indicating in particular the sectors of activity and country of origin of the workers affected. The Committee also requests the Government to continue to provide information on the measures taken by the labour inspectorate in the context of the Citizenship and Integration Strategy 2011–14, and of infringements reported and penalties imposed for violations of immigrants’ rights, in particular those relating to the matters enumerated in Article 6(1)(a)–(d) of the Convention.

Annex I, Article 3. Operations of recruitment, introduction and placement of migrant workers; Articles 2 and 7 of the Convention. Employment services. In its previous comments, the Committee noted that Order No. TAS/3698/2006 of 22 November 2006 regulated the registration of foreign nationals from non-EU countries in public employment services and employment agencies. The Committee notes that the aforementioned order was amended by Order No. TAS/711/2008 of 7 March 2008. However, the Committee notes that the Government has not provided any information on the application of those orders. The Committee requests the Government to provide information on the number of migrant workers who have benefited from employment services, disaggregated, where possible, sex, place of origin and sector of activity. The Government is also requested to indicate procedures for cooperation with the corresponding services of other countries.

Private employment agencies. The Committee notes the adoption of Act No. 35/2010 of 17 September 2010, Royal Decree No. 1796/2010 of 30 December 2010 and Royal Legislative Decree No. 3/2012 of 10 February 2012, which establish urgent measures for the reform of the labour market. The legislation recognizes the action of private intermediaries in the placement of workers. Private employment agencies must have been granted authorization and must provide services free of charge to workers. For jobseekers to be eligible, they must be registered with the public employment services. Persons who register as jobseekers are informed by the public employment services about authorized employment agencies that operate in the country. The rules regarding infringements and penalties are those laid down by Royal Legislative Decree No. 5/2000 adopting the amended text of the Act concerning infringements and penalties in the social order. The Committee requests the Government to provide information on the number of migrant workers who have recourse to private employment agencies, the steps taken to protect them against abuse and the measures taken in cases of abuse. The Government is also requested to indicate any difficulties arising from the application of the legislation on private employment agencies in relation to the Convention. The Committee further requests the Government to provide information on the application of section 36 of Royal Legislative Decree No. 5/2000, which prohibits the establishment of recruitment agencies for emigrants.

Part V of the report form. Statistics. With regard to the situation of migrant workers in El Ejido, observing that the Government has not sent any information in this regard, the Committee again requests the Government to provide information on the number of foreign nationals resident in Murcia, Alicante and Almería, indicating the number of workers who have residence and work permits, the estimated number of foreign nationals working without permits, and the measures aimed at their regularization.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

1. Article 1. Information on policies and national legislation. The Committee notes with interest the recent developments in legislation and national policy on migration. The Committee notes, in particular, the Regulations to Organic Act No. 4/2000, approved by Royal Decree No. 2393/2004, which allow some foreigners in Spain to modify their status by obtaining a residence and work permit; Organic Act No. 3/2007 of 22 March on effective equality for men and women, which provides, in section 14(6) that the public authorities may adopt affirmative action measures for particularly vulnerable groups, including migrant women; and the Strategic Plan on Citizenship and Integration (2007–10), which was formulated by the Government together with the social partners and immigrants’ organizations, and which seeks to promote social cohesion through policies based on equality of opportunity and equality of rights and duties. The Committee hopes that the Government will pursue such measures and asks it to provide information on their practical application in relation to the principles of the Convention. Please also provide information on the affirmative action measures adopted pursuant to section 14(6) of Organic Act No. 3/2007.

2. The Committee further notes the resolution of 26 December 2006 on Spain’s quota of non-community foreign workers for 2007, and the resolution of 28 February 2007 publishing instructions by the Council of Ministers to determine the procedure for authorizing the entry, residence and work in Spain of foreigners whose occupational activity is of interest on economic, social or labour grounds, or involves research and development or teaching activities, which require high qualifications. The Committee asks the Government to send information on the application of the resolutions in practice, including particulars of the processes for the selection of foreign workers and the number of workers selected thereunder each year, indicating to the extent possible their sex, place of origin, and sector of employment.

3. Information on general agreements and special arrangements. The Committee takes note of the resolution of 14 February 2007, issued by the Secretariats of State for Security, Immigration and Emigration, determining the itineraries for which companies, transport firms or transporters are required to submit information. Please provide information on the application of the resolution of 14 February 2007 indicating in particular, and in what circumstances, contraventions have been detected and penalties applied to transport companies, and on what grounds. The Committee would also be grateful if the Government would continue to provide information on any agreements it has signed on the regulation and management of migratory flows, including copies thereof.

4. Article 3. Measures against misleading propaganda on emigration and immigration. The Committee notes the penalties laid down in sections 34(1), 35(1) and (2) and 36(2) of the Act on Social Offences and Penalties, which punish behaviours that modify the original conditions of work, and which are misleading and adversely affect migrant workers and which prohibits the publication of job offers without administrative authorization, as well as fraudulent or deceitful practices in the hiring of migrant workers. The Committee would appreciate receiving information on the practical effect given to these provisions and on the manner in which measures to prevent misleading propaganda are applied.

5. Labour inspection. Under section 3(1) of Act No. 42/97 of 14 November, the Act Organizing the Inspection of Labour and Social Security, the Labour and Social Security Inspectorate is responsible for the monitoring and enforcement of the rules on migration movements and the work of foreigners. It has the authority to intervene in all sectors of economic activity. The Committee notes the total number of interventions by the Labour and Social Security Inspectorate regarding foreigners (71,631), the number of offences reported (10,980), the total amount from penalties imposed and the number of workers affected by the offences (10,980). While welcoming the information received, the Committee requests the Government to provide more specific relevant statistical data, disaggregated by sex, place of origin and sector of activity, on the nature of the offences reported and the type of penalties imposed.

6. Annex I, Article 3. Operations of recruitment, introduction and placing of migrant workers, and Articles 2 and 7 of the Convention. The Committee notes Order No. TAS/3698/2006 of 22 November regulating the registration of foreign (non-community) workers in public employment services and placement agencies. The organization of the National Employment System is based on the registration of jobseekers in public employment services for the placement of workers, access to services to improve their employability and, where appropriate, unemployment benefits. While noting with interest that migrant workers have access to public placement services, the Committee requests the Government to provide information on the number of migrant workers who have benefited from such services, indicating as far as possible their gender, place of origin and sector of activity. Please also provide information on any arrangements for cooperation with the corresponding services in other countries that have ratified the Convention.

7. Private employment agencies. The Committee notes that section 36 of the Act on Social Offences and Penalties establishes as a very serious offence the setting up of any type of recruitment agency for emigrants. The Committee would appreciate receiving information on the existence of such agencies and any offences reported under section 36 of the Act on Social Offences and Penalties. Please indicate whether the activities of private agencies are to be regulated, or, if appropriate, provide information on any measures taken to encourage self regulation for the purpose of protecting migrant workers against any abuse.

8. The Committee notes that the Government has not provided the information requested in paragraph 7 of its previous direct request. It accordingly repeats the request, which read as follows:

The Committee notes that, according to the Government’s report, there has been a radical change in the situation of foreign workers in El Ejido since the regularization process of 2005, and a total of 5,408 people have obtained work permits due to that process. The Government points out that, since the Aliens Regulations were passed, it is the employers who file applications for regularization, and work and residence permits are not valid until social security clearance is obtained. The Committee would be grateful if the Government would provide information on the number of foreign workers residing in Murcia, Alicante and Almería, indicating how many of them have work and residence permits, and if it would give an estimate of the number of foreigners working without permits, and continue to provide information on the progress of the regularization process.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

1. Legislative measures. The Committee takes note of the legislation enacted on foreign nationals, particularly Order PRE/140/2005 of 2 February setting forth the procedure for the regularization process established in the Third Transitional Provision of Royal Decree No. 2393/2004 of 30 December, approving the Regulations to Basic Law No. 4/2000 of 11 January, on the rights and freedoms of foreign nationals in Spain and their social integration. The Committee requests the Government to keep it informed of the effect given to this law in practice in relation to the provisions of the Convention.

2. The Committee also notes that Basic Act No. 14/2004 of 20 December led to further amendment of Basic Act No. 4/2000 on the rights and freedoms of foreign nationals and that, according to the report, the aims of the amendment include: (1) improving the management and position in law of foreign nationals and the determination of types of visa; (2) strengthening the instruments and machinery for penalties in order to combat unlawful immigration and human trafficking, and promoting cooperation with transport companies; and (3) incorporating European Union requirements regarding visa charges, penalties applying to transporters, and mutual recognition of expulsion orders. The Committee requests the Government to provide information on the application of these measures in practice. It once again asks the Government to indicate whether, and in what circumstances, penalties have been applied to transport companies.

3. Bodies set up to develop government policy on foreign nationals and immigration. The Committee notes that, as a result of the enactment of Royal Decree No. 553/2004 of 17 April, the Secretary of State for Immigration and Emigration has taken over the duties of the former Government Delegation for Foreign Nationals and Immigration. The Secretariat has support from the Higher Council on Immigration Policy, the Permanent Observatory for Immigration, the Inter-ministerial Committee on Alien Affairs and the Forum for the Social Integration of Immigrants. The Committee requests the Government to provide information on the activities carried out by the abovementioned bodies and on any other measure taken to combat racism and xenophobia effectively.

4. With regard to the bilateral agreements regarding the arrival of migrants from their countries of origin, the Committee once again asks the Government to send copies of such agreements together with information of their entry into force. It would also appreciate receiving information on the working of the agreements, particularly in connection with the quota system for foreign workers established by the Government under section 39 of the Aliens Act.

5. The Committee requests the Government to indicate whether the ordinary or any other courts have ruled on matters of principle relating to the application of the Convention.

6. Discrimination on grounds of race, national extraction and colour. In its observation of 2004, the Committee took note of a communication dated November 2003 from the Democratic Federation of Labour (FDT) of Morocco, alleging racism in a number of incidents in El Ejido (province of Almería). It also took note of the Government’s reply that migrant workers from Morocco had been assaulted in the El Ejido region but that the incidents were not part of any organized wave of xenophobia and involved only individuals. The Committee decided to pursue its examination of the matter in the more general context of measures to be taken by the Government under the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), to eliminate discrimination in employment on grounds of race, colour, religion and national extraction. It will continue to examine, under the present Convention, the situation of migrant workers in the region as it relates to this Convention.

7. The Committee notes that, according to the Government’s report, there has been a radical change in the situation of foreign workers in El Ejido since the regularization process of 2005, and a total of 5,408 people have obtained work permits due to that process. The Government points out that, since the Aliens Regulations were passed, it is the employers who file applications for regularization, and work and resident permits are not valid until social security clearance is obtained. The Committee would be grateful if the Government would provide information on the number of foreign workers residing in Murcia, Alicante and Almería, indicating how many of them have work and residence permits, and if it would give an estimate of the number of foreigners working without permits, and continue to provide information on the progress of the regularization process.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee hopes that the Government’s next report will contain the information requested in its previous direct request, which read as follows:

1. The Committee notes Act No. 8/2000 of 22 December, reforming Act No. 4/2000 of 11 January on the rights and freedoms of foreign nationals in Spain and their social integration, as well as the implementing regulations approved by Royal Decree No. 864/2001 of 20 July.

2. With regard to the rights and freedoms of foreign nationals, the text of the new Act, as amended, still accords foreign nationals the rights of assembly, demonstration, association, trade union rights and the right to strike. However, to be able to enjoy the full exercise of these rights under conditions comparable to those of nationals, foreign nationals must now be legally resident in the country to be able to exercise the rights of assembly, demonstration, association and trade union membership. Furthermore, they may exercise the right to strike when they are authorized to work.

3. Moreover, changes have been made with regard to infringements relating to foreign nationals and the penalties imposable for such infringements. The reform introduces into the new Act penalties against persons who transport foreign nationals onto Spanish territory without verifying whether they fulfil the conditions required to enter Spain. Finally, provisions have been introduced to penalize the trafficking in persons.

4. The Committee requests the Government to indicate the impact of the new reform on the situation of immigrants in Spain, including its effects in terms of combating illegal immigration and on the results of the various measures to regularize foreign nationals which have been taken in Spain up to now. It also requests the Government to specify whether penalties have been applied to transport enterprises and, if so, to provide information on the conditions under which these penalties have been imposed.

5. With regard to bilateral agreements on the entry of immigrants coming directly from their country of origin, the Committee requests the Government to provide copies of such agreements and to indicate the date of their entry into force. The Committee also requests information on the procedures for the operation of these agreements, particularly with regard to the system of quotas for foreign workers which the Government has established, in accordance with section 39 of the Act respecting foreign nationals.

6. The Committee requests the Government to continue indicating whether courts or other bodies have issued rulings on matters of principle relating to the application of the Convention.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

Discrimination on the basis of race, national extraction and colour

1. The Committee notes a communication, dated 19 November 2003, from the Democratic Federation of Labour (FDT) of Morocco. The communication alleges that Moroccan workers in El Ejido (Province of Almeria) have been victims of racism and xenophobia in a number of recent incidents. The FDT also sent copies of letters addressed to the Prime Minister of the Spanish Government and the General Secretary of the Spanish General Union of Workers (UGT) stressing the gravity of the situation resulting from a recurrence of violence against foreigners, which, according to the FDT, is now systematic and shows signs of becoming organized and of posing a real threat to the Moroccan community in Spain.

2. The Committee notes the Government’s reply to these allegations. According to the Government, the Almeria provincial labour inspection services received no complaints between September 2003 and May 2004 and have detected no breaches of the law against discrimination in employment on the basis of nationality or race. The alleged violence should therefore be seen in the broader context of social relations and local law and order. In September 2003, the local police reported an assault by three Spanish nationals against a Moroccan immigrant worker the reasons for which have not been ascertained. The police also indicated that, following complaints of - in some instances serious - violence filed by immigrants from the Magreb, an investigation was carried out and three Spanish nationals were arrested on 7 November 2003 and charged. Other police reports refer to lawful police action against immigrants from the Magreb who forcibly resisted expulsion orders. In every case, the incidents are unrelated to the world of work and concern acts by individuals. Consequently, they cannot be regarded as a wave of xenophobia involving organized extremist groups.

3. The Government of Spain condemns any act or conduct of a racist or xenophobic nature against foreigners on Spanish territory, whatever their nationality or administrative status. Combating racism and xenophobia and imposing sanctions for such acts or conduct is an integral part of its immigration policy. It consistently takes measures at provincial level to prevent and deal with all racist or xenophobic violence against immigrants. These measures include: constant surveillance of extremist groups and individuals known for their racist or xenophobic ideology; positive treatment of immigration in the press and media; contacts with political, trade union and immigrants’ organizations; immediate action on any complaints of ill-treatment or exploitation of immigrant workers; educating police in observance of the rights of immigrants and the immediate sanctioning of any ill-treatment of immigrants by the police; and support for any initiatives for the social integration of migrants, whether from the Magreb or elsewhere.

4. The Committee observes that in February 2000, there were serious acts of violence in the El Ejido region against Moroccan workers and their families (see the observations of 2000 and 2002). The Committee notes that, according to the detailed information supplied by the Government in response to the FDT’s new allegations, in the autumn of 2003 Moroccan immigrant workers were assaulted in the El Ejido region, but the assaults were perpetrated by individuals and were not part of some organized wave of xenophobia. In the Committee’s view, since serious incidents already occurred in 2000 in the same region, any violence, even isolated instances, against immigrants or persons of foreign extraction warrants the utmost attention. The Committee takes due note that the Government strongly condemns any racist or xenophobic acts against foreigners on Spanish soil, and notes the measures that the Government has taken to prevent and deal with such occurrences. Since, as the Government points out, the incidents in question would appear to stem from the coexistence of different communities and not from unequal treatment or discrimination in employment of the kind dealt with in this Convention, the Committee will pursue its examination of the matter in the more general context of measures to be taken by the Government under Convention No. 111 to eliminate discrimination in employment on grounds of race, colour, religion and national extraction.

5. The Committee hopes that the Government’s next report will contain the information it requested in its 2002 observation concerning the activities of the bodies responsible for immigration policy that were created in 2001, and on the measures taken to provide immigrant workers with employment and working conditions that meet the requirements of the Convention.

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

[The Government is asked to report in detail in 2006.]

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s detailed report and the numerous documents attached.

1. The Committee notes Act No. 8/2000 of 22 December, reforming Act No. 4/2000 of 11 January on the rights and freedoms of foreign nationals in Spain and their social integration, as well as the implementing regulations approved by Royal Decree No. 864/2001 of 20 July.

2. With regard to the rights and freedoms of foreign nationals, the text of the new Act, as amended, still accords foreign nationals the rights of assembly, demonstration, association, trade union rights and the right to strike. However, to be able to enjoy the full exercise of these rights under conditions comparable to those of nationals, foreign nationals must now be legally resident in the country to be able to exercise the rights of assembly, demonstration, association and trade union membership. Furthermore, they may exercise the right to strike when they are authorized to work.

3. Moreover, changes have been made with regard to infringements relating to foreign nationals and the penalties imposable for such infringements. The reform introduces into the new Act penalties against persons who transport foreign nationals onto Spanish territory without verifying whether they fulfil the conditions required to enter Spain. Finally, provisions have been introduced to penalize the trafficking in persons.

4. The Committee requests the Government to indicate the impact of the new reform on the situation of immigrants in Spain, including its effects in terms of combating illegal immigration and on the results of the various measures to regularize foreign nationals which have been taken in Spain up to now. It also requests the Government to specify whether penalties have been applied to transport enterprises and, if so, to provide information on the conditions under which these penalties have been imposed.

5. With regard to bilateral agreements on the entry of immigrants coming directly from their country of origin, the Committee requests the Government to provide copies of such agreements and to indicate the date of their entry into force. The Committee also requests information on the procedures for the operation of these agreements, particularly with regard to the system of quotas for foreign workers which the Government has established, in accordance with section 39 of the Act respecting foreign nationals.

6. The Committee requests the Government to continue indicating whether courts or other bodies have issued rulings on matters of principle relating to the application of the Convention.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

1. The Committee notes the mechanisms established by the Government with a view to implementing its general immigration policy: the creation on 11 May 2000 of the Government Office for Foreign Nationals and Immigration within the Ministry of the Interior, as the body responsible for formulating government policy on affairs relating to foreign nationals and immigration; the establishment on 4 April 2001 of the Higher Council on Immigration Policy, a collegiate body responsible for ensuring coordination and cooperation between the national authorities, the autonomous regions and local authorities; the adaptation as of 4 April 2001 of the Permanent Observatory on Immigration, which analyses and surveys migration trends in Spain and disseminates relevant information; and the restructuring, also in April 2001, of the Forum for the Social Integration of Immigrants, a tripartite government consultative, information and advisory body dealing with all matters of immigration policy. The Committee also notes the agreement of April 2001 approving the General Regulatory and Coordination Programme for affairs relating to foreign nationals and immigration.

2. The Committee understands from the Government’s report that there has been no reoccurrence of the acts of violence perpetrated in 2000 in El Ejido. It nevertheless requests the Government to provide information on the activities of all the abovementioned bodies and on any measures adopted to combat effectively the exploitation of migrant workers, racism and xenophobia.

3. The Committee is also addressing a request directly to the Government.

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

The Committee notes the Government’s report and the many attached appendices.

1.  The Committee notes that Act No. 7/85 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. The main purpose of this Act is to guarantee equality of treatment between nationals and foreigners lawfully present on Spanish territory with a view to better social integration of this category of the population. One of the major innovations of this Act concerns the introduction of a chapter on discrimination which defines precisely the discrimination against foreigners which is illegal in general but also particularly in the employment field (section 21). Another innovation in this Act concerns the granting to foreign workers who are legally on Spanish territory of access to the same social benefits as nationals, particularly in regard to unemployment benefit. The Committee considers that the entry into force of this new Act requires it to carry out a thorough examination. It notes, however, that the implementing regulations for this Act have not yet been enacted and that discussions are continuing within the Government on the possible attraction that this Act may exert on potential immigrants and therefore the need to amend it. It therefore proposes to carry out an analysis of this new Act once it is in possession of the implementing decree.

2.  The Committee notes in addition that Chapter XV of the new Penal Code adopted in 1995 (Organic Law No. 10/1995 of 23 November 1995) is devoted to infringements of workers’ rights, including those concerned with migration for employment in illegal conditions (sections 312-314). This chapter groups the provisions which were formerly dispersed and the various types of offence are defined with greater detail: for example, section 312.2 under which participation in migration for the purpose of employment in fraudulent conditions is henceforth described as an infringement of the rights of the workers concerned, as is the employment of foreign workers who do not have a work permit, in conditions prejudicial to the rights to which they are entitled by the law, collective agreements or contractual clauses; or again section 314 which describes as an offence any discriminatory action in regard to employment committed against a person because of his ethnic, racial or national extraction and requires re‑establishment of equality before the law, subject to punishment, as well as compensation for any economic prejudice which may have resulted. The Committee also notes that the adoption of Organic Law No. 4/2000 has resulted in amendments to the Penal Code: for example, under section 312.1, the penalty for illegal trafficking in workers rises from between six months and three years of imprisonment to between two years and five years. It requests the Government to supply information, including statistics, on the application of sections 312-314 of the Penal Code.

3.  According to the 1999 annual report of the Organization for Economic Cooperation and Development (OECD) on international migration trends, Spain has a growing number of female migrant workers. Recalling that under Article 6, paragraph 1, of the Convention, any State which has ratified the Convention undertakes to apply, without discrimination in respect of nationality, race, religion or sex, treatment no less favourable than that which it applies to its own nationals in respect of the matters listed in Article 6(a) to (d), the Committee would be grateful if the Government would indicate the measures taken or envisaged to ensure that female migrant workers are treated on the same footing of equality with their male counterparts - foreign or not - in regard to their working and living conditions, social security, employment taxes and access to legal proceedings.

4.  Finally, the Committee has noted the judicial rulings concerning application of the Convention, particularly that handed down by the Supreme Court on 21 December 1994, on an appeal in which the Supreme Court judged that the absence of a valid work permit does not prohibit a foreign worker from receiving unemployment benefit, provided that he has a residence permit valid for the duration of payment of the unemployment benefit. He may even, during this period, seek work and obtain a new work permit. It requests the Government to continue to keep it informed of judicial or other decisions made by the courts in respect of application of the Convention.

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

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.]

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee takes note of the detailed information supplied in the Government's report in answer to its previous comments.

The Committee notes the information supplied by the Government concerning the requirements to be met by migrant workers in order to renew their residence and work permits, in accordance with the agreement of the Council of Ministers of 7 June 1991 on the regularization of foreign workers. It also notes the indications provided by the Government concerning the court decisions handed down respectively by the high courts of the Balearics, Cataluña and Madrid regarding the denial of the migrant workers' rights referred to in Article 6 of the Convention. The Committee further notes the Government's statement that the right to associate freely is laid down by the Organic Law on Freedom of Association, No. 11/85 of 2 August 1985, for all workers, including foreigners lawfully employed in the country. The above Law also establishes the means of redress for all workers against treatment which is less favourable in terms of freedom of association, including the possibility of going to the labour inspection and social security services, without prejudice to the penalties provided for under Title V of the same Law in the event of anti-union conduct. The Government adds that the law governing the procedure for labour matters, approved by Royal Legislative Decree No. 521/1990 of 29 April 1990, provides in section 20 that trade unions may, with the authorization of the persons concerned, take legal action in the name of and on behalf of members, in order to defend their individual rights and see to it that they benefit from the effects of legal action.

The Committee would be grateful if the Government would continue to provide statistics of foreign workers in Spain, together with information on the number of Spanish workers employed abroad. It also asks the Government to point out any practical difficulties encountered in implementing Conventions and to send, if any, the relevant results of the activities of the inspection services, in accordance with point V of the report form.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

In its previous comments the Committee noted the information supplied by the Government concerning the incident that occurred during the police operation of 18 July 1993 which led to the disappearance of three Moroccan migrants, and the meetings between its representatives and those of the Moroccan Government for the purpose of establishing closer relations with the latter in order to take action against clandestine immigration networks.

The Committee notes with regret that the Government's report contains no information on this matter. It asks the Government to indicate the measures taken to prevent the recurrence of such an incident and to facilitate the departure, journey and reception of migrant workers, in accordance with Article 4 of the Convention.

Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee requests the Government to supply information on the following points raised in its previous direct request:

The Committee noted the communication of the General Workers' Union (UGT), dated 30 September 1992, alleging discrimination in the treatment of foreign workers in their access to employment and in their treatment during employment. The UGT notes specifically that workers who are legally working in the country and who are in possession of a work and residence permit are often dismissed without valid reason, that employers do not pay their contributions to the social security system, that they are submitted to a workday of up to 12 hours, that in the same workplace they are given more arduous tasks than nationals and that their remuneration is inferior to theirs. According to the UGT, employers prevent these migrant workers from claiming their legal rights to equal treatment by threatening them with dismissal or non-renewal of their contract, which would entail the non-renewal of their work and residence permit, thus making their further stay in the country illegal and ultimately leading to their expulsion.

In its reply, the Government indicated that, under Act No. 7/85 and Royal Decree No. 1119/86, wages and working conditions of foreigners authorized to take up work in Spain may in no case be inferior to those fixed by the provisions in force in the Spanish territory or determined through collective agreement for Spanish workers in the same activity, category and locality. Any contravening or discriminatory regulation, clause in a collective agreement, individual contract or unilateral decision of the employer would be null and void and punishable under the law. The Government further stated that a "type C" work permit, which is the type of permit that a stranger residing in a stable form ("forma estable") in the country would hold, has a validity of five years. This permit is renewable as long as the holder is in activity, be it as worker or jobseeker.

The Committee requests the Government to indicate the preconditions that a migrant worker must fulfil to obtain this type of permit, and to indicate also the other types of work permits and the conditions under which they may be obtained.

Referring to its previous direct request, the Committee recalls the communication from the Trade Union Confederation of Labour Committees (CC.OO.), dated 14 September 1990, in which it alleged that certain groups of migrant workers were receiving treatment less favourable than others, especially in access to professional training provided by the National Institute of Employment, in trade union rights and in access to accommodation. It noted the Government's reply which provided information on the legal provisions stipulating the non-discrimination of migrant workers in these areas, which are in conformity with the Convention.

Further to this information on the legal provisions, the Committee would be grateful to receive, in relation to the cases concerning both the comments of the UGT and the CC.OO., information on the practical application of the legislation to protect a migrant worker against the abuses alleged by both trade union organizations, such as the case of the Portugese construction workers employed in building the Olympic City of Barcelona, mentioned by the UGT. The Committee asks the Government to provide decisions of court rulings concerning abuses of migrant workers' rights which are relevant to Article 6(a), (b) and (d) of the Convention.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the comments made by the Democratic Confederation of Labour (CDT) of Morocco on the application of this Convention and of Convention No. 117, as well as the Government's observations on these matters.

CDT alleges that during an incident in the port of Algeciras, Moroccan migrants received bad treatment by the Spanish Civil Guard forces in an incident which resulted in dozens injured and three missing. According to the Government, this occurred on 18 July 1993 within the framework of an operation by the National Police Corps to repatriate 166 immigrants with false documentation. The Government indicates that, when the ferry boat carrying these expelled migrants commenced its manoeuvre to leave the dock, two persons fell into the water and that, despite the intervention of the Civil Guard forces, a patrol boat of the Maritime Service and a team of divers, these individuals were not found. The Government states that the forces of public order followed general standards of action, involving the greatest care and respect to the persons concerned. The Committee takes due note of the above information.

The Committee notes that the Government further describes in detail a series of meetings held between the Governments of Spain and of Morocco concerning the above-mentioned incident, following which the Government considers it useful for the two countries to cooperate closely in their battle against organized clandestine migration.

The Committee requests the Government to continue providing information on any measures taken in this regard, in the light of Article 4 of the Convention.

The Committee is also addressing a direct request to the Government on certain points.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes the Government's detailed report and the wide range of measures taken to enhance the working and living conditions of migrant workers, both migrating into and out of the country.

The Committee further notes the communication of the General Workers' Union (UGT), dated 30 September 1992, alleging discrimination in the treatment of foreign workers in their access to employment and in their treatment during employment. The UGT notes specifically that workers who are legally working in the country and who are in possession of a work and residence permit are often dismissed without valid reason, that employers do not pay their contributions to the social security system, that they are submitted to a workday of up to 12 hours, that in the same workplace they are given more arduous tasks than nationals and that their remuneration is inferior to theirs. According to the UGT, employers prevent these migrant workers from claiming their legal rights to equal treatment by threatening them with dismissal or non-renewal of their contract, which would entail the non-renewal of their work and residence permit, thus making their further stay in the country illegal and ultimately leading to their expulsion.

In its reply, the Government indicates that, under Act No. 7/85 and Royal Decree No. 1119/86, wages and working conditions of foreigners authorized to take up work in Spain may in no case be inferior to those fixed by the provisions in force in the Spanish territory or determined through collective agreement for Spanish workers in the same activity, category and locality. Any contravening or discriminatory regulation, clause in a collective agreement, individual contract or unilateral decision of the employer would be null and void and punishable under the law. The Government further states that a "type C" work permit, which is the type of permit that a stranger residing in a stable form ("forma estable") in the country would hold, has a validity of five years. This permit is renewable as long as the holder is in activity, be it as worker or jobseeker.

The Committee requests the Government to indicate the preconditions that a migrant worker must fulfil to obtain this type of permit, and to indicate also the other types of work permits and the conditions under which they may be obtained.

Referring to its previous direct request, the Committee recalls the communication from the Trade Union Confederation of Labour Committees (CC.OO.), dated 14 September 1990, in which it alleged that certain groups of migrant workers were receiving treatment less favourable than others, especially in access to professional training provided by the National Institute of Employment, in trade union rights and in access to accomodation. It notes the Government's reply which has provided information on the legal provisions stipulating the non-discrimination of migrant workers in these areas, which are in conformity with the Convention.

Further to this information on the legal provisions, the Committee would be grateful to receive, in relation to the cases concerning both the comments of the UGT and the CC.OO., information on the practical application of the legislation to protect a migrant worker against the abuses alleged by both trade union organizations, such as the case of the Portugese construction workers employed in building the Olympic City of Barcelona, mentioned by the UGT. The Committee asks the Government to provide decisions of court rulings concerning abuses of migrant workers' rights which are relevant to Article 6(a), (b) and (d) of the Convention.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee takes note of the detailed information supplied by the Government in reply to its previous comments. It notes with interest the very active programme of assistance to migrant workers, and the detailed attention that has been given to their situation.

The Committee also notes the communication from the Trade Union Confederation of Labour Committees (CC.OO.), dated 14 September 1990 and transmitted to the Government in a letter dated 8 October 1990. According to this communication, certain groups of migrant workers are receiving treatment less favourable than others, especially in access to professional training provided by the National Institute of Employment, in trade union rights and in access to accommodation. The Committee hopes that the Government will soon provide its comments and information on the points raised in the CC.OO. communication, which are relevant to Article 6(a) of the Convention.

Direct Request (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee takes due note of the information supplied by the Government in reply to its previous direct request, concerning the application of Articles 2, 3 and 4 of the Convention and Article 6 of Annex I. It notes in particular the information concerning the sanctions applicable to employers who employ foreign workers without a work permit and to persons who facilitate, procure or protect the employment of foreigners without permits, and the number of infringements recorded by the labour inspectorate, as well as the statistics on the number and origin of foreign workers in Spain and on foreign workers whose status has been regularised by virtue of Act No. 7/85. It would be grateful if the Government, in its next report, would continue to provide information on the situation of foreign workers in Spain and on the measures taken to prevent clandestine immigration.

Furthermore, the Committee takes note of the communication of the Democratic Confederation of Labour (CDT) of Morocco, dated 28 July 1988. In this communication, the CDT states that Moroccan and Algerian migrant workers travelling through Spain to spend holidays in their respective countries in 1988, had to wait two or three days before being able to make the crossing from Malaga to Melilla, as the tickets to Melilla had already been sold and were only available on the black market at six times their value. The comments of the CDT were transmitted to the Government in a letter dated 15 September 1988. The Committee hopes that the Government will be in a position to provide information in its next report, on the points raised in the CDT communication which is relevant to Article 4 of the Convention.