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

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

The Committee notes the information supplied by the Government with its last report.

Article 5 of the Convention. In reply to the observations made by the General Union of Workers (UGT) in 1994 on the subject of the enjoyment of holidays under temporary contracts, the Government points out that no legal difference is made between workers engaged under temporary contracts and those employed on a regular basis. The Committee notes that Law No. 63/1997 of 26 December 1997 amends the Workers’ Charter on the subject of temporary contracts, approves the regulatory function of collective agreements in general and of the "Interconfederate Agreement on Employment Stability" of 1997 in particular, without however providing for any legal provisions to ensure that workers, whose temporary contracts exceed a period of six months, have the right to paid annual leave. According to the Government, the outcome of collective bargaining on the issue has to be awaited first.

The Committee asks the Government to supply the "Interconfederate Agreement on Employment Stability" of 1997 and any up-to-date subsequent collective agreements on annual holidays with pay for workers (including those under temporary contracts), ensuring that in practice the qualifying period for paid annual leave shall not exceed six months.

Article 6, paragraph 2, of the Convention. The Committee notes that section 38(2) of the Workers’ Charter, as amended in 1995, merely prescribes the minimum annual holidays with pay, leaving the details of the regulation to individual or collective negotiations. The Government indicates that no legislative measures are envisaged because, in its view, they might interfere with the autonomy of the social partners negotiating on the issue of annual holidays with pay.

The Committee recalls that Article 6, paragraph 2, embodies as a general principle that days of incapacity for work resulting from sickness or injury should not be counted as days of the minimum annual holiday with pay. Referring to its previous comments, it also recalls that, while Article 6, paragraph 2, is flexible enough to leave it to the discretion of the competent authority or the appropriate machinery to determine the conditions under which effect would be given to that principle, these conditions should be laid down as clearly as possible. The Committee notes that the court decisions dating from 1995 to 1999, which have been communicated by the Government with its last report, do not show a coherent jurisdiction. Where the application of this provision is not made clearly effective by means of collective agreements, court decisions or any other measures consistent with national practice as may be appropriate under national conditions, clear legislative measures should be taken in accordance with Article 1, with the aim of establishing the conditions under which periods of incapacity for work resulting from sickness or injury may not be counted as part of the minimum annual holiday with pay. The Government is, therefore, requested to supply, with its next report, further information on the measures taken or envisaged to this end.