Direct Request (CEACR) - adopted 1988, published 75th ILC session (1988)

Holidays with Pay Convention (Revised), 1970 (No. 132) - Spain (Ratification: 1972)

The Committee takes note of the Government's comments on the observations submitted by the the "El Radium" textiles technicians' union concerning the application of Article 6, paragraph 2, of the Convention.

The above union pointed out that for many years the labour courts considered that a worker could take holiday before the end of the year in which it was due if he was unable to take it during the holiday period of the enterprise due to incapacity for work. The union also pointed out that in 1983 the courts have changed their interpretation and now consider that workers who are involuntarily absent during the holiday period or some days before it shall forfeit their holiday.

In its comments, the Government points out that, in accordance with section 96, paragraph 1, of the Constitution, international treaties become part of the country's internal legal system, and for this reason the courts have referred in several judgements to Article 6, paragraph 2, of the Convention. The Government points out that section 117 of the Constitution establishes the independence of the judiciary and that the Government may not therefore intervene in the application and interpretation of provisions in force.

The Government states that there has been no change of interpretation and that a distinction must be drawn between the question of periods of temporary incapacity for work being undertaken into account for entitlement to holidays due and the question of temporary incapacity for work occurring after the holiday period has been fixed. With regard to the first case, jurisprudence has maintained that periods of temporary incapacity for work should be taken into account for the purpose of computing the holidays due. In the second case, although the labour courts have held different positions regarding the application of Article 6, paragraph 2, of the Convention, they have most frequently maintained that if holiday periods have been fixed collectively and they coincide with a period of temporary incapacity for work of one of the workers, the latter is not entitled to take his annual holiday at any other time. The Government states that a more moderate solution was proposed in the Decision of 4 February 1986 to the effect that the opinion of the courts mentioned above should apply only to cases of temporary incapacity for work beginning after the holiday period has started, and that if the period of temporary incapacity for work begins before the start of the holiday period the general principle of forfeiture should be adapted to different cases.

The Government concludes by stating that the different decisions handed down by the Spanish courts cannot be considered as consolidated jurisprudence either way, but that it is a question of free interpretation by the Spanish courts of Article 6, paragraph 2, of the Convention, and that the administration has issued no rules governing such interpretation.

The Committee wishes to point out that the text of Article 6, paragraph 2, of the Convention establishes clearly that "under conditions to be determined by the competent authority or through the appropriate machinery in each country, periods of incapacity for work resulting from sickness or injury may not be counted as part of the minimum annual holiday with pay prescribed in Article 3, paragraph 3, of this Convention".

The Committee therefore considers that the Government should take the necessary measures to determine clearly the conditions under which periods of incapacity for work resulting from sickness or injury may not be counted as part of the annual holiday to which workers are entitled, so that Article 6, paragraph 2, of the Convention may be interpreted and applied in conformity with the spirit and the letter of this provision.