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

Termination of Employment Convention, 1982 (No. 158) - Spain (Ratification: 1985)

The Committee notes the observations from the General Union of Workers (UGT), received on 22 August 2016, from the Trade Union Confederation of Workers’ Commissions (CCOO), received on 31 August 2016, and from the International Organisation of Employers (IOE), received on 1 September 2016. It also notes the joint observations from the Spanish Confederation of Employers’ Organizations (CEOE) and the IOE, also received on 1 September 2016, and the Government’s reply, received on 26 October 2016. Furthermore, it notes the adoption of Royal Legislative Decree 2/2015 of 24 March 2015 adopting the amended text of the Workers’ Statute.

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the ILO Constitution)

In its report, the tripartite committee set up to examine the representation made under article 24 of the ILO Constitution by the CCOO and the UGT found that it lacked sufficient basis to consider that the extension to one year of the exclusion from the scope of the Convention might be considered reasonable, especially as this extension was not the result of social dialogue and was introduced in this type of employment contract which was of a general nature. The tripartite committee consequently invited the Government to provide information on the evolution of the “entrepreneur-support contract” and, in light of the information available, to examine the possibility of adopting measures, in consultation with the social partners, to ensure that this contractual arrangement is not terminated at the initiative of the employer in order to avoid in an abusive manner the protection provided for in the Convention.

The UGT and the CCOO state that the Government has not followed up on the recommendation of the tripartite committee to increase its efforts to strengthen social dialogue and, in consultation with the social partners, to seek solutions to economic problems that are consistent with the Convention (paragraph 226 of GB.321/INS/9/4). The CCOO adds that not only has the Government failed to arrange meetings with the social partners to hear and take into consideration their proposals regarding labour legislation, especially the regulatory framework governing dismissals, but it has also continued to adopt legislation without any real consultation of the trade unions. By way of example, the CCOO refers to the case of Royal Legislative Decree 2/2015 of 24 March 2015, in respect of which the statutory minimum period of seven working days was applied to consultations with the trade unions and employers’ organizations, a period that the Economic and Social Council, in its opinion dated 28 July 2015, considered insufficient “for ensuring adequate consultations on a legal standard of this nature and importance”. In reply to the observations of the CCOO on consultations in the context of the Royal Legislative Decree, the Government considers that the time allocated to the trade unions and employers’ organizations to make observations on the draft legislation was sufficient, since the adopted legislation entailed amendments limited to formulating a single text regularizing, clarifying and harmonizing the consolidated texts, in accordance with article 82.5 of the Spanish Constitution.

Exclusions. Establishment of a one-year trial (probationary) period under the “entrepreneur-support contract”. Further to the tripartite committee’s invitation to provide information on developments concerning the “open-ended entrepreneur-support contract” (CAE), the Government states that an analysis of recruitment, using data available up to January 2016, shows that, after a period of 13 months under contract, 49.1 per cent of workers on CAE contracts were still employed (59.2 per cent of the total number of workers holding contracts with discounts were still employed, compared with 43.1 per cent of those holding contracts without such discounts), compared with 62 per cent of persons holding standard open-ended contracts (contracts of indefinite duration). The UGT indicates that the destruction of jobs, which was already significant before the labour reform because of the economic and financial crisis, has accelerated drastically. It observes that, according to the statistics supplied by the Government, CAE contracts with discounts for employers (but not CAE contracts without discounts for employers) display patterns similar to those of standard open-ended contracts. The UGT and CCOO observe that the number of CAE contracts without employer discounts terminated on or before 13 months exceeds that of open-ended contracts between 13 and 18.9 percentage points. The UGT expresses its concern at the increase in CAE contracts, which in 2016 accounted for 38 per cent of open-ended contracts. The CCOO indicates that, since December 2013, it has been possible to conclude part-time “open-ended entrepreneur-support contracts” (Royal Decree-Law 16/2013 of 20 December 2013), but no disaggregated data are available that show what proportion of the increase in CAEs in 2014 and 2015 corresponds to part-time contracts. The CCOO also considers that the increase in job rotation for open-ended employment is resulting in growing precariousness for open-ended contracts and that the 2012 labour reform is adding to the instability of open-ended employment during the recovery period. On the other hand, the CEOE and IOE consider that the one-year trial period does not violate the provisions of the Convention. They refer to ruling No. 8/2015 of 22 January 2015 handed down by the Constitutional Court (constitutional challenge No. 5610-2012), in which the various grounds submitted to challenge the trial period were dismissed, since the trial period meets the requirement of proportionality and constitutes a necessary and appropriate measure. In its reply to the observations of the CCOO and UGT, the Government indicates that, as regards recruitment analysed with information updated to September 2016, it can be seen that, after 13 months on contract, 47.2 per cent of persons holding CAE contracts are still employed (of these, 59 per cent are contracts with employer discounts, while 41.2 per cent are contracts without employer discounts), compared with 64.3 per cent of persons holding standard open-ended contracts and 8 per cent of persons holding temporary contracts. The Committee requests the Government to continue providing information on developments relating to CAE contracts, particularly part-time CAE contracts and CAE contracts without discounts for employers, disaggregated by sex where possible. This Committee recalls that it is for each country to determine the reasonableness of a probationary period under Article 2(2)(b) of the Convention depending on the nature of, and qualifications required for the job. The Committee considers, like the tripartite committee, that an important factor in determining the reasonableness of a probationary period is whether it is the result of social dialogue. The Committee requests the Government to indicate whether in the light of available information it has examined the possibility of adopting measures, in consultation with the social partners to prevent CAE contracts being terminated at the initiative of the employer with the aim of avoiding the protection afforded by the Convention.

Articles 1, 8(1), 9(1) and (3). New regulations concerning economic, technical, organizational or production-related reasons for dismissal. The Government indicates that in 2015 the Supreme Court handed down 40 rulings relating to collective dismissals; the dismissals were declared lawful in 22 cases, unlawful in five, and null and void in 13. The CCOO indicates that, by comparison with the previous year, the number of files dealing with the regulation of employment (EREs) – relating to the termination of employment, lay-offs or reductions in hours – communicated between January and December 2015 fell by 46 per cent, while the number of persons affected decreased by 37 per cent. A total of 24.4 per cent of people affected by EREs had their contracts terminated (collective dismissals), amounting to 24,572 individuals, most of them belonging to the services sector (66 per cent) and industry (26 per cent). The CCOO refers to the Supreme Court ruling of 20 October 2015 (Case No. 172/2014), which deals with judicial review of the grounds for collective and objective dismissal, and also with whether those grounds are reasonable and proportionate. The CEOE and IOE, on the other hand, consider that the amendments introduced by the 2012 labour reform regarding collective dismissal do not violate the provisions of the Convention. They reiterate their observations of 2015 regarding the greater involvement of the courts in labour relations, especially with regard to collective dismissals. They mention the proposals put forward by the employers’ organizations to reduce the duality of the labour market and give greater legal certainty to employers’ decisions, with respect to the bonus of eight days’ compensation by the Wage Guarantee Fund (FOGASA) in cases of contracts terminated on objective grounds and collective dismissals. The Government indicates in its reply that the judicial rulings referred to by the CCOO are concerned with aspects of the labour legislation which were amended by the 2012 labour reform. In its reply to the joint observations of the CEOE and IOE concerning collective dismissals, the Government explains that the basis for administrative and judicial review is to be found in the Convention itself (Articles 4, 8, 9(3) and 14(1)). Moreover, the Government considers that the proposals put forward by the employers’ organizations regarding the review of collective dismissals in the administrative or judicial spheres are aimed at reducing or abolishing controls by the competent authorities. As regards the observations regarding the greater involvement of the courts in labour relations, an issue also raised in 2015, the Government refers to the reply made at the time. The Committee requests the Government to continue providing information on the manner in which the regulations concerning the economic, technical, organizational or production-related reasons for dismissal are applied in practice, including up-to-date statistics on the number of appeals made, the outcome of those appeals and the number of cases of termination for economic or similar reasons.

Article 6. Changes in the regulations on absence from work because of duly certified illness or accident. Dismissal for absenteeism. The Committee notes the rulings of the higher courts referred to by the Government dealing with the calculation of absences from work due to temporary incapacity. The Government recalled that absences due to medical treatment for cancer or any other serious illness are explicitly included in the category of those excluded from the calculation of absences. The Committee also notes the rulings handed down by the High Court of Madrid and the Supreme Court, referred to by the CCOO, dealing with objective dismissal for absenteeism (before and after the 2012 labour reform) and dismissal in situations of temporary incapacity, respectively. The CEOE and IOE consider that the labour reform provided a response to the serious problem of absenteeism, especially sick leave for common illnesses of short duration. They recall that the annual cost of absenteeism to employers in Spain is €7,250 million, of which over €6,500 million corresponds to incapacity for work due to common contingencies (direct contributions from enterprises). The Committee requests the Government to continue providing information on the manner in which absences due to temporary incapacity are calculated.

Article 10. Abolition of compensation wages in cases where the employer opts for termination of employment despite a court ruling of unfair dismissal. The Committee notes the information provided by the Government on the fifth transitional provision of Act No. 3/2012 of 6 July 2012 establishing urgent measures for reform of the labour market, relating to the calculation of compensation for unfair dismissal with respect to contracts formalized before and after 12 February 2012, equivalent to 45 and 33 days’ wages, respectively, for each completed year of service, with a pro rata amount per month for periods of less than a year in both cases, up to a maximum of 720 days’ wages. If, in calculating the compensation for the period before 12 February 2012, the number of days exceeds 720, the latter figure will be regarded as the maximum applicable to the amount of compensation, up to a maximum of 42 monthly payments. The CEOE and IOE consider that the abolition of compensation wages, together with the reduction of compensation to 33 days’ wages, has helped to reduce the costs of dismissal and is conducive to overcoming labour market duality and competitive disadvantages. The Committee requests the Government to continue providing information on the number and nature of compensation granted, including examples of court decisions that found that the termination of employment was unjustified.

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