Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

Hours of Work (Commerce and Offices) Convention, 1930 (No. 30) - Spain (Ratification: 1932)

The Committee notes the Government’s reply to its previous comment. It also notes a communication from the General Confederation of Workers (UGT), reiterating the observations made previously by this organization. The communication has been forwarded to the Government, which has not yet provided a reply.

The UGT, in its previous observations as well as in its most recent communication, indicates that the combination of the various provisions of Legislative Decree No. 1/1995 of 24 March 1995, which consolidates the Workers’ Charter, makes it possible to bring the hours of work in a week up to 60 hours. Under the terms of these provisions, ordinary hours of work may not exceed 40 hours in the week on an annual average, but they may be distributed unevenly over the year within the framework of a collective agreement or where agreement is reached between the enterprise and the representatives of the workers. Furthermore, daily working hours are nine hours at the maximum, unless a collective agreement or an agreement between the enterprise and the representatives of the workers provides for another method of distributing working time. The UGT adds that, in practice, enterprises make use of this flexibility to extend working hours excessively and, in most cases, do not compensate the workers for the hours performed in these circumstances.

The Committee notes that the Government, in its report on this point, emphasizes that the distribution of working time on an annual basis is accompanied by guarantees, as it is necessarily the product of collective bargaining. Furthermore, the distribution of hours of work has to comply with the rules on daily and weekly rest. With regard to the maximum working day, this is in principle nine hours, except where a collective agreement or an agreement between the enterprise and the workers’ representatives sets out a different rule, which nevertheless must comply in any event with the obligation of at least 12 hours rest between two working days. The Government’s report also contains a list of collective agreements applicable to establishments covered by the Convention. All these agreements contain an annual limit on the hours of work, but only some of them also establish a weekly or daily limit, as provided for by the provisions of the Convention examined below.

Article 3 of the Convention. Maximum weekly working hours. Section 34 of the Workers’ Charter provides that hours of work shall be determined by collective agreement or in the employment contract, with maximum weekly hours of work being 40 hours as an annual average (subsection 1). A collective agreement or an agreement between the enterprise and the workers’ representatives may provide for an uneven distribution of working hours over the year, provided that the rules relating to weekly rest and rest periods between two working days are respected (subsection 2). However, Article 3 of the Convention provides that hours of work shall not exceed eight hours in the day and 48 hours in the week. The possibility of distributing working hours over a period longer than a week, as envisaged in Article 6 of the Convention, is limited to exceptional cases in which the limits on normal working hours are recognized as being inapplicable. As a consequence, section 34(2) of the Workers’ Charter does not comply with the conditions set out in this provision of the Convention and is therefore contrary to Article 3. The Committee requests the Government to take the necessary measures to amend the legislation to bring it into conformity with the provisions of the Convention on this point.

Article 4. Maximum hours of work in the day. Under the terms of section 34(3) of the Workers’ Charter, the maximum hours of work in the day are nine hours, unless a collective agreement or an agreement concluded between the enterprise and the workers’ representatives establishes a different distribution of working hours, on the understanding that the compulsory rest period between two working days shall be respected. However, Article 4 of the Convention lays down that where working hours are distributed unevenly in the week, the hours of work in any one day shall not exceed ten hours. The Committee requests the Government to indicate the measures adopted to ensure that the collective agreements or enterprise agreements referred to in section 34(3) comply with this limit.

Substantial modifications in conditions of work. Section 41(1) of the Workers’ Charter authorizes the employer to undertake substantial modifications in conditions of work, including those relating to working hours, where there are established grounds for so doing, whether they are of an economic or technical nature or related to organization or production. The Committee requests the Government to indicate the manner in which compliance with the provisions of the Convention is ensured in the context of this procedure. The Government is also requested to provide information on cases in which employers are authorized to modify conditions of work in this manner.

Article 7, paragraph 2. Additional hours and authorized exceptions. Section 35 of the Workers’ Charter provides that the performance of additional hours must be voluntary, unless provided for in a collective agreement or the employment contract (subsection 4). Their number may not exceed 80 hours in the year, although additional hours which are compensated for by rest periods or those required to prevent or repair damage that is out of the ordinary and requires urgent action are not taken into account (subsections 2 and 3). However, Article 7, paragraph 2, of the Convention makes a limitative enumeration of the cases in which temporary exceptions are allowed. The Committee requests the Government to provide further information on the circumstances in which a collective agreement or a contract of employment may provide for the performance of additional hours.

Article 7, paragraph 3. Maximum number of additional hours. Under this provision of the Convention, the regulations which grant temporary exceptions shall determine the maximum number of additional hours which may be allowed in the day and in the year (except in the cases of accident, force majeure or urgent work). The determination of the maximum number of additional hours solely on an annual basis, as provided for in section 35 of the Workers’ Charter, is therefore insufficient. Furthermore, the failure to take into account additional hours which have given rise to compensation in the form of rest periods could lead to abuses, as their numbers are not subject to any limits. The Committee requests the Government to indicate whether daily limits are also applicable to the performance of additional hours.

Article 7, paragraph 4. Higher rates of pay. Under the terms of section 35(1) of the Workers’ Charter, additional hours are compensated for either in the form of rest or payment. In the latter case, the remuneration is to be determined by collective agreement or in the employment contract, but cannot be lower than that for normal working hours. The Government indicates in its report that many collective agreements applicable to the commercial sector provide for a higher rate of pay for the performance of additional hours. Article 7, paragraph 4, of the Convention requires that the rate of pay for additional hours of work in the context of temporary exceptions shall be at least 25 per cent higher than the regular rate. This requirement has to be met in all cases, whether or not it is provided for in a collective agreement. The Committee therefore requests the Government to indicate the measures adopted to ensure compliance with this obligation in all establishments covered by the Convention.