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

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

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

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

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

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

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

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

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

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