Demande directe (CEACR) - adoptée 2016, publiée 106ème session CIT (2017)

Convention (n° 158) sur le licenciement, 1982 - Espagne (Ratification: 1985)

Article 7 of the Convention. Procedure prior to or at the time of termination. In reply to the observations made in 2015 by the Trade Union Confederation of Workers’ Commissions (CCOO), sent together with the Government’s report, which are concerned with exceptions to the guarantee of a hearing prior to disciplinary dismissals, the Government indicates that the issue was raised 20 years ago by the CCOO and the General Union of Workers (UGT) and was resolved at that time. The Government adds that the legislation establishes a set of measures designed to provide workers with an opportunity to defend themselves, such as the requirement to give written notice of the dismissal to the worker concerned, indicating the grounds for the dismissal and the date on which it will take effect (section 55(1) of the Workers’ Statute), and attempted conciliation or mediation, as the case may be, prior to the initiation of judicial proceedings vis-à-vis the corresponding administrative service or body responsible for those functions (section 63 of Act No. 36/2011 of 10 October 2011 concerning labour jurisdiction). In its observations of 2016, the UGT considers that there is no real system of mediation for avoiding a dispute at the time of termination of employment and ensuring the protection of the worker prior to the dispute, and even less so in bankruptcy proceedings. The Committee recalls that the application of Article 7 of the Convention was addressed during the 1990s by the ILO regular supervisory mechanisms. In its General Survey of 1995 on protection against unjustified dismissal, paragraph 150, the Committee indicates that “… the opportunity for a worker to defend himself must be given before the employment is terminated. Even if the worker is entitled to procedures after the termination of employment, and even if the termination is not considered as final until the appeals procedures are exhausted, it is necessary for the application of Article 7 that the worker be given an opportunity to defend himself ‘before his employment is considered to have been terminated’”. The Committee requests the Government to provide information on the manner in which effect is given to this provision of the Convention.

Application of the Convention in practice. The Committee notes the observations made by the International Organisation of Employers (IOE) regarding the general application of the Convention. The Committee also notes the information supplied by the Government regarding the functions of the labour and social security inspectorate in the event of collective dismissals on economic, technical, organizational or production-related grounds. It also notes the results of the actions of the labour inspectorate with regard to collective dismissals in 2015. The Committee requests the Government to continue providing information on the application of the Convention in practice.