Observation (CEACR) - adopted 2024, published 113rd ILC session (2025)

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 1 (hours of work in industry), 14 (weekly rest in industry), 30 (hours of work in commerce and offices), 106 (weekly rest in commerce and offices), 132 (holidays with pay), and 153 (hours of work and rest periods in road transport) in a single comment.

The Committee notes the joint observations of the Spanish Confederation of Employers’ Organizations (CEOE) and the Spanish Confederation of Small and Medium-Sized Enterprises (CEPYME), and the observations of the Trade Union Confederation of Workers’ Commissions (CCOO), on Conventions Nos 1, 14, 30, 106, 132 and 153, sent with the Government’s report, and also the Government’s reply to these observations on Conventions Nos 1, 14, 30, 106 and 132.

Hours of work

Article 2 of Convention No. 1 and Article 3 of Convention No. 30. Limits on normal daily and weekly hours of work. With regard to daily and weekly limits on normal hours of work, the Committee notes the CCOO’s indication in its observations that: (i) section 34(1) of Royal Legislative Decree 2/2015 of 23 October 2015, adopting the consolidated text of the Workers’ Statute (hereinafter the Workers’ Statute), defines the maximum duration of ordinary working time as 40 hours per week, in terms of averaging over a whole year, but does not establish the maximum number of hours of work which can be performed by a worker in an actual week; (ii) the only limits on working time are the rest period of at least 12 hours between working days (section 34(3) of the Workers’ Statute) and the minimum weekly rest period of one and a half uninterrupted days which can be cumulated over periods of up to 14 days (section 37(1) of the Workers’ Statute); and (iii) section 34(3) of the Workers’ Statute prescribes a daily maximum of nine hours of work which can be modified through a collective agreement or, failing that, by an agreement between the enterprise and the workers’ representatives, provided that the minimum 12-hour rest period between working days is observed.

The Committee notes the Government’s indication, in reply to the CCOO’s observations, that under section 34 of the Workers’ Statute, the weekly limit exists but is averaged over a period of a year and so it can be exceeded in individual weeks and made up for subsequently under the terms of a collective agreement or, failing that, an agreement between the enterprise and the workers’ representatives, provided that the minimum daily and weekly rest periods (regardless of any overtime worked) are respected. In this regard, the Committee observes that: (i) the 40-hour weekly limit established in section 34(1) of the Workers’ Statute represents only an average of hours during an annual reference period and is not an absolute limit on hours worked in an actual week; (ii) the nine-hour limit on normal daily working time established in section 34(3) of the Workers’ Statute can be changed through a collective agreement or by an agreement between the enterprise and the workers’ representatives; and (iii) the absolute limit of 12 hours of work per day established in section 34(3) of the Workers’ Statute is not a limit on normal working hours but on total hours (including overtime). The Committee recalls that the Conventions set out a double limit (8 hours per day and 48 hours per week) on normal hours of work, and that this limit is cumulative and not alternative (2018 General Survey on working-time instruments, paragraph 176). The Committee also recalls that this absolute limit should not be confused with the averaging of daily and weekly working hours, which is authorized only in certain exceptional cases. The Committee requests the Government to take the necessary steps to ensure in both law and practice that normal hours worked in an actual day or week do not exceed 8 hours per day or 48 hours per week, in accordance with these Articles of the Conventions.

Articles 2(c), 4 and 5 of Convention No. 1 and Articles 4 and 6 of Convention No. 30. Variable distribution of normal daily and weekly hours of work. Further to its previous comments, the Committee notes the Government’s indication in its report that while the two major limits on working time established in the national legislation are observed (namely, 40 hours per week averaged over the year and a 12-hour minimum rest period between two working days – section 34(1) and (3) of the Workers’ Statute), the parties are free to determine the distribution of working hours throughout the year, by means of a collective agreement or an agreement between the enterprise and the workers’ representatives. The Committee notes the CCOO’s indication in its observations that: (i) section 34(2) of the Workers’ Statute does not stipulate that the forms in which working hours are distributed shall be applied only in exceptional cases; (ii) section 41(1) of the Workers’ Statute allows the employer to make unilateral changes, among other conditions of work, to working time, schedules, distribution of working time and rules regarding shift work, if there are proven economic, technical, organizational or production-related grounds; (iii) the Workers’ Statute does not establish precisely what constitutes these grounds. The Committee recalls that in general terms the Conventions only authorize the averaging of working hours over a reference period of one week and on condition that the daily limits of nine or ten hours are not exceeded (Article 2(b) of Convention No. 1 and Article 4 of Convention No. 30); and that in all other cases where the averaging of working hours over periods of more than one week is allowed on an exceptional basis, the circumstances must be clearly specified, as follows:

• where persons are employed in shifts, working time may exceed 8 hours in a day and 48 hours in a week provided that the average number of hours over a period of three weeks or less does not exceed 8 per day and 48 per week (Article 2(c) of Convention No. 1);
• the daily and weekly limits on working time may also be exceeded in work which, by reason of its nature, is required to be carried on continuously by a succession of shifts, on condition that the average working hours do not exceed 56 in the week (Article 4 of Convention No. 1);
• in exceptional cases where it is recognized that the limits of 8 hours per day and 48 hours per week cannot be applied, agreements between workers’ and employers’ organizations can fix a longer limit on daily working hours provided that the average weekly working time, calculated for the number of weeks specified by these agreements, does not exceed 48 hours per week (Article 5 of Convention No. 1) and daily working time does not exceed 10 hours in any day (Article 6 of Convention No. 30).

The Committee therefore requests the Government to take the necessary steps to bring its law and practice into conformity with these Articles of the Conventions.

Articles 3 and 6(1) of Convention No. 1 and Article 7(1) and (2) of Convention No. 30. Exceptions to normal hours of work.Circumstances. Further to its previous comments, the Committee notes the Government’s indication that, under the general regulations, overtime work is voluntary, unless otherwise established in a collective agreement or an employment contract (section 35(4) of the Workers’ Statute). The Committee notes the CCOO’s indication in its observations that the voluntary performance of overtime and the compulsory working of hours agreed upon via a collective agreement or individual employment contract go beyond the scenarios established by the Conventions. In this regard, the Committee observes that section 35 of the Workers’ Statute regulating overtime does not include a precise list of the circumstances in which overtime is permitted. The Committee recalls that the temporary exceptions to normal hours of work are permitted in the Conventions in very limited cases and in specific circumstances. The Committee requests the Government to take the necessary steps to bring its law and practice into conformity with these provisions of the Conventions.

Article 6(2) of Convention No. 1 and Article 7(3) of Convention No. 30. Limits on the number of additional hours. Further to its previous comments, the Committee notes the Government’s indication that the amount of overtime may not exceed 80 hours per year (section 35(2) of the Workers’ Statute). The Committee also notes the CCOO’s indication in its observations that the limit of 80 overtime hours per year does not cover hours compensated for through rest in the four months after the work has been done or hours worked to prevent accidents or repair damage resulting from accidents or other types of damage. In this regard, the Committee recalls the fundamental importance of prescribing clear statutory limits for additional hours of work and of keeping the number of additional hours allowed within reasonable limits that take into account both the health and well-being of workers, and the employers’ productivity needs (2018 General Survey on working-time instruments, paragraphs 151 and 179). The Committee requests the Government to take the necessary steps to bring its law and practice into conformity with these Articles of the Conventions.

Article 6(2) of Convention No. 1 and Article 7(4) of Convention No. 30. Compensation for additional hours of work. Further to its previous comments, the Committee notes the Government’s indication that the legislation proposes two alternatives to be established by collective agreement or employment contract: (i) compensating for overtime worked by means of equivalent periods of rest; in the absence of an agreement, it shall be understood that overtime worked must be compensated for by rest within the four months following the period of overtime; or (ii) remunerating overtime up to an amount to be fixed by collective agreement or employment contract, which in any case shall not be less than the remuneration for normal working hours (section 35(1) of the Workers’ Statute). The Committee notes the CCOO’s indication in its observations that section 35(2) of the Workers’ Statute, which provides that remuneration for overtime shall under no circumstances be less than that for normal working hours, violates the provisions of the Convention since it does not prescribe at least 25 per cent more than normal pay rates. In this regard, the Committee recalls the need to provide, in all circumstances, for the payment of overtime at no less than 125 per cent of the ordinary wage rate, irrespective of any compensatory rest granted (2018 General Survey on working-time instruments, paragraph 158). The Committee requests the Government to take the necessary steps to ensure that in both law and practice the payment of overtime hours is guaranteed at no less than 125 per cent of the ordinary wage rate, irrespective of any compensatory rest granted, in accordance with Article 6(2) of Convention No. 1 and Article 7(4) of Convention No. 30.

Application in practice.The Committee requests the Government to provide examples (collective agreements, enterprise agreements, statistics, etc.) of the manner in which it is ensured in practice that the provisions of the Conventions are respected regarding the limits on normal hours of work of 8 hours per day and 48 hours per week in a given week, averaging of hours of work, and overtime hours, in the sectors covered by the Conventions.

Weekly rest

Follow-up to the recommendations of the Tripartite Committee (representation under article 24 of the ILO Constitution)

The Committee notes that in November 2016 the Governing Body approved the report of the Tripartite Committee set up to examine the representation made in 2014 by the Independent Judicial Forum professional association (document GB.328/INS/17/9).

Article 7(2) of Convention No. 106. Permanent exceptions. Compensatory rest. The Committee notes that the Tripartite Committee in its report requested the Government to ask the General Council of the Judiciary to: (i) inform the social partners about the additional measures adopted to ensure that, in practice, judges in judicial districts with only one court of first instance and preliminary investigation benefit from the weekly rest established under the Convention; and (ii) assess the impact of the new system of substitutions on the right to weekly rest for judges, and to inform the social partners, in order to ensure that in practice they benefit from the equivalent of a minimum of 24 hours of rest for every seven days worked, in accordance with the Convention. The Committee observes that the Government’s report does not contain any relevant information in this respect. The Committee requests the Government to provide the detailed information previously requested by the Tripartite Committee.

Article 2(1) of Convention No. 14 and Article 6(1) of Convention No. 106. Minimum weekly rest period. Further to its previous comments regarding section 37(1) of the Workers’ Statute, the Committee notes the Government’s indication that the aforementioned section prescribes a minimum weekly rest period which exceeds that provided for in the Conventions, namely, one and a half days, and two days for persons under 18 years of age; and (ii) in order to provide the necessary flexibility for both enterprises and workers, the possibility is established for this rest period to be accumulated over a maximum period of 14 days. The Committee also notes the CCOO’s indication in its observations that the above-mentioned section allows the continuous, uninterrupted provision of services for periods longer than seven days as a general principle, regardless of whether or not the conditions for exceptions provided for in the Conventions are met. The Committee observes that section 37(1), which provides that workers shall have the right to minimum weekly rest – which can be accumulated over periods up to 14 days – of one and a half uninterrupted days, establishes a general rule and does not refer to exceptional cases within the meaning of Article 4 of Convention No. 14 and Article 7 of Convention No. 106. The Committee once again requests the Government to take the necessary steps, including amendment of section 37(1) of the Workers’ Statute, to ensure in both law and practice that all workers enjoy minimum rest of 24 consecutive hours for each seven-day period actually worked, as required by these Articles of the Conventions. The Committee also requests the Government to provide examples of the manner in which the above-mentioned section of the Workers’ Statute is applied in practice.

Holidays with pay

Article 8 of Convention No. 132. Division of annual holiday with pay into parts. Minimum period of two uninterrupted weeks. Further to its previous comments, the Committee notes the Government’s indication that: (i) paragraph 9(3) of the Decision of 28 February 2019 of the State Secretariat for the Civil Service establishes that holidays shall be taken in minimum periods of five consecutive working days and (ii) paragraph 9(4) of that Decision stipulates that at least half (11 working days) of the total annual holiday must be taken between 16 June and 15 September, unless the work calendar fixes other periods because of the particular nature of the services provided in the respective sphere. The Committee also notes the CCOO’s indication in its observations that paragraph 9(4) of the above-mentioned Decision does not guarantee that one of the possible divisions of the annual holiday period shall have a minimum duration of two uninterrupted working weeks but merely regulates the dates between which the annual holiday must be taken and not the uninterrupted minimum holiday periods, which are regulated by paragraph 9(3). The Committee once again requests the Government to take the necessary steps to ensure in both law and practice that one of the divisions of holidays for public employees in the General Administration of the State and its public bodies consists of at least two uninterrupted working weeks.

Hours of work and rest periods in road transport

Article 2 of Convention No. 153. Exclusions from the scope of application. The Committee notes the CCOO’s indication in its observations that: (i) some of the exclusions established in section 2 of Royal Decree 640/2007 of 18 May 2007, establishing exceptions to the binding regulations regarding driving time and rest periods and the use of tachographs in road transport, go beyond the possible exceptions provided for in Article 2 of the Convention; (ii) no limits or regulations have been laid down regarding driving time or rest periods for these exceptions, which violates Article 2(2) of the Convention; and (iii) Royal Decree 1082/2014 of 19 December 2014, concerning special cases for the application of regulations relating to driving time and rest periods in road transport on islands whose surface area does not exceed 2,300 km2, which lays down specific regulations, significantly worsens working conditions. The Committee observes that transport relating in particular to the following categories is excluded from the scope of application of Royal Decree 640/2007: (i) provision of services relating to sewage, flood protection and water supplies, among others; (ii) circus equipment and fairground attractions; (iii) mobile exhibitions; (iv) cash or valuables; (v) electric or gas-propelled vehicles; (vi) special construction vehicles; (vii) transport in Ceuta and Melilla or on islands with a surface area less than 250 km2; and (viii) empty runs necessary before or after one of the activities covered by an exception. The Committee also notes that, under section 2 of Royal Decree 1082/2014, in road transport undertaken exclusively on islands with a surface area over 250 km2 and not more than 2,300 km2, the following factors apply: (i) reduced weekly rest periods may be applied for three weeks following one week containing a normal weekly rest period; (ii) a daily rest period can be taken in two or three separate periods, one of which cannot be less than eight uninterrupted hours and none of which can be less than one hour; and (iii) a continuous rest break can be replaced by two or three breaks, interspersed with the driving time or occurring immediately after it. The Committee recalls that only persons who drive vehicles engaged in the types of transport specified in Article 2(1) of the Convention can be excluded from the scope of application of the Convention and that adequate standards concerning driving time and rest periods of excluded drivers must be laid down (Article 2(2)). The Committee requests the Government to take the necessary steps to ensure that adequate standards concerning driving time and rest periods are applied to drivers excluded from the scope of the legislation referred to above, in accordance with Article 2 of the Convention.

Articles 5, 6 and 7. Limits on driving time. The Committee notes the CCOO’s indication in its observations that the national legislation: (i) allows up to four and a half hours of continuous driving instead of the four hours established by the Convention; (ii) provides for up to ten hours of daily driving time rather than the nine hours prescribed in Article 6 of the Convention, without any connection with an exceptional situation or a situation of force majeure; (iii) prescribes a break for working days of more than six hours, while the Convention establishes the right to a break after five consecutive hours of work; and (iv) does not provide for any reduction in driving time when carried out under particularly difficult conditions. In this regard, and with reference to its previous comments, the Committee observes that Royal Decree 1561/1995 of 21 September 1995, concerning special working hours, establishes maximum continuous driving time of four and a half hours and a daily driving time limit of nine hours, which can be extended to ten hours twice a week (section 11). The Committee also observes that this Decree does not lay down a 48-hour weekly limit apart from average working hours, and does not stipulate that driving time must be reduced in particularly difficult conditions. The Committee further observes that section 10bis(4) provides that working days of more than six hours must contain a break, but does not state that a break has to be taken after five continuous hours of work. The Committee recalls that: (i) the maximum continuous driving time is four hours and this can only be exceeded by a maximum of one hour on account of particular national conditions, in accordance with Article 5(1) and (2) of the Convention; (ii) the maximum total driving time, including overtime, must not exceed either nine hours per day or 48 hours per week (Article 6(1)). The maximum driving time may be calculated as an average over a number of days or weeks to be determined by the competent authority or body (Article 6(2)); (iii) the maximum total driving time must be reduced in the case of transport activities carried out in particularly difficult conditions (Article 6(3)); and (iv) drivers shall be entitled to a break after five continuous hours of work (Article 7). The Committee requests the Government to take the necessary steps to bring its law and practice into conformity with Articles 5, 6 and 7 of the Convention.

Article 11. Inspection and penalties. Application in practice. The Committee notes the statistical data provided by the Government on the results of the activity of the Labour and Social Security Inspectorate (ITSS) with respect to working time, including overtime hours, in the road transport sector for the 2018–22 period, in relation to: (i) operations conducted; (ii) violations recorded and penalties imposed; (iii) compliance orders; and (iv) mediation and consultation. The Committee requests the Government to continue providing statistical information on the results of the activity of the ITSS with respect to working time in the road transport sector.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

In its previous comments, the Committee had noted certain discrepancies between the national legislation and the provisions of the Convention, in particular with respect to the break for each period of continuous driving (four and a half hours instead of the four hours provided under Article 5 of the Convention) and the maximum total driving time (ten hours instead of the nine hours provided under Article 6). In its report, the Government indicates that section 10(5) of Royal Decree 1561/1995 as amended by Royal Decree 1635/2011 on presence time in road transport, provides that different criteria for calculating presence time in order to fix the limit on weekly hours of work may be agreed through sectoral collective agreement. It also provides information on the results of inspections carried out between 2008 and 2012 concerning working time in the transport sector. The Committee notes the observations of the General Union of Workers (UGT) of 4 September 2013 pointing out discrepancies between the legislation in force and certain provisions of the Convention. In its reply to the UGT’s observations, the Government indicates that the applicable legislation derives from the transposition of European legislation (Royal Decree 902/2007 transposes Directive 15/2002/CE, and Regulation 2006/561/CE is of direct application and has been partly incorporated in the national legislation). The Government stresses that such legislation, while not entirely in line with the Convention, is in fact more recent and in certain aspects more flexible and more favourable than the Convention itself. The Committee takes note of the above information and requests the Government to continue providing information on the practical application of the Convention, including detailed statistics – where available – on the hours of work and periods of rest of wage-earning drivers covered by the Convention.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee notes the observations of the Trade Union Confederation of Workers’ Commissions (CC.OO.), received on 8 and 22 August 2014, and of the General Union of Workers (UGT), received on 29 August 2014, relating in particular to Article 9 of the Convention with regard to the uninterrupted part of the annual holiday with pay, as well as the Government’s reply received on 26 November 2014.

Article 8 of the Convention. Division of annual holiday with pay in parts. In its previous comments, the Committee noted that, by virtue of the Resolution of 28 December 2012 of the Public Administration State Secretariat, public employees are entitled to 22 days of annual holiday with pay which may be taken in minimum periods of five consecutive days. The Committee notes that, in its previous report, the Government indicates that at least half of the holiday (that is 11 working days) must be taken during the summer period, namely between 15 June and 15 September, unless the working schedule, in consideration of the particular types of services provided in each sector, specifies other periods. In this regard, in its previous comments the Committee observed that, under Article 8 of the Convention, the division of annual holiday with pay may be authorized by the competent authority in each country, provided that one of the parts consists of at least two uninterrupted working weeks, unless otherwise provided in an agreement applicable to the employer and the worker. The Committee requests the Government to take the necessary measures to bring the above resolution into full conformity with the requirements of this Article of the Convention.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 8 of the Convention. Division of annual holiday with pay in parts. The Committee notes the Government’s information that, by virtue of the Resolution of 28 December 2012 of the Public Administration State Secretariat, public employees are entitled to 22 days of annual holiday with pay which may be taken in minimum periods of five consecutive days. The Committee observes, in this regard, that under Article 8 of the Convention, the possible division of the annual holiday into parts may be authorized by the competent authority, provided that one of the parts consists of at least two uninterrupted working weeks, unless otherwise provided in an agreement applicable to the employer and the worker. The Committee accordingly requests the Government to take the necessary measures to bring the above referenced Resolution into full conformity with the requirements of this Article of the Convention.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 2(1) of the Convention. Minimum weekly rest period. The Committee requests the Government to refer to the comments made under Article 6(1) of the Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106).

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 6(1) of the Convention. Minimum weekly rest period. In its previous comments, the Committee noted that the unrestricted possibility of accumulating weekly rest over a period of two weeks pursuant to section 37(1) of the Workers’ Statute is not fully consistent with the letter and the spirit of the Convention. The Committee also noted that the fact that section 37(1) of the Worker’s Statute may reflect a similar permissive provision contained in Directive 2003/88/EC of the European Parliament and of the Council concerning certain aspects of the organization of working time, is not in itself sufficient to ensure compliance with the requirements of this Convention. In its latest report, the Government indicates that, in any event, the need to consult the workers’ representatives before introducing exceptions to the general 36 hours’ rest per week rule offers adequate protection against any unjustified decision taken unilaterally by the employer. The Government refers, in this respect, to certain collective agreements that continue to provide for between 36 and 48 hours of rest to be taken in each seven-day period. The Committee wishes to reiterate that by authorizing in general terms and without specific conditions the accumulation of weekly rest over a 14-day period, section 37(1) of the Workers’ Statute fails to give effect to the basic principle of Article 6 of the Convention which requires a minimum uninterrupted rest of 24 hours in the course of each period of seven days. The Convention permits, of course, temporary and permanent exemptions but only under limited circumstances specified in Articles 7 and 8. The Committee accordingly asks the Government to consider appropriate action in order to ensure that any exceptions to the workers’ standard entitlement to weekly rest are limited to those provided for in the Convention. The Committee also requests the Government to communicate more detailed information on the extent to which use is made in practice of the possibility to accumulate weekly rest over a 14-day period.

In addition, the Committee notes the comments of the Trade Union Confederation of Workers’ Commissions (CC.OO.), which were received on 30 August 2013 and communicated to the Government on 16 September 2013, as well as the comments of the General Union of Workers (UGT), which were received on 4 September 2013 and transmitted to the Government on 23 September 2013. The UGT indicates that in the commercial sector, enterprises do not comply with legislation on weekly rest so that workers often enjoy only one day of rest instead of the statutory one-and-a-half days. The UGT alleges that such practice is particularly frequent in department stores, even though the Supreme Court has established on three occasions the obligation of enterprises to grant weekly rest in a manner that does not overlap with daily rest. Moreover, the UGT and the CC.OO. maintain that the regulations of the central Government and autonomous regions allowing shops to open on a seven-day basis weaken the possibility of workers to fully enjoy their right to weekly rest. In reply to the comments of the UGT, the Government indicates that the Labour and Social Security Inspectorate is charged with monitoring compliance with the working hours and rest periods. While noting the Government’s statistical information provided in its report regarding compliance with working time, the Committee requests the Government to take the necessary measures to ensure that the principle of at least 24-hours rest per week is effectively implemented in practice.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 5 of the Convention. Averaging of hours of work. The Committee previously noted that the Workers’ Statute establishes no overall limit to weekly hours of work and allows exceeding the nine-hour daily limit through collective or enterprise agreements. In its latest report, the Government indicates that, in 2011, only 18 per cent of the workforce was concerned by a system of annualized hours of work while the remaining 82 per cent were subject to the normal nine-hour working day and 40-hour working week established under the Workers’ Statute. The Government points out that, under section 34(2) of the Workers’ Statute as amended by Act No. 3/2012, the uneven distribution of hours of work over a period of one year requires the conclusion of a collective agreement and, only in absence of such an agreement, an employer may apply a system of annualized hours to 10 per cent of working time to promote flexibility. The Government adds that such distribution has to conform in any case to the minimum daily and weekly rest periods and be notified to the worker at least five days before the new working time arrangement becomes effective. The Committee notes, in this respect, the new comments of the General Union of Workers (UGT) dated 4 September 2013, according to which in practice the only effective limit to the duration of working hours is the minimum 12-hour period of daily rest. The Committee further notes the Government’s reply to these comments, in which it states that, in addition to the benefits previously identified, such as ensuring internal flexibility for companies while respecting national regulations concerning weekly rest hours and collective agreements, section 34(8) of the Workers’ Statute entitles workers to adjust the duration and distribution of daily work hours to effectively balance work and family. The Committee is bound to recall that the Convention allows the uneven distribution of hours of work over a period longer than a week (averaging) only in exceptional cases where it is recognized that the normal hours of work cannot be applied, and therefore offering the possibility of introducing annualized systems of working time in such general terms as those set out in the Workers’ Statute goes beyond the letter and the spirit of the relevant provisions of the Convention. The Committee hopes that the Government will take appropriate action to bring the national legislation into full conformity with the Convention in these matters.

Article 6. Limits to overtime hours. Overtime pay. The Committee previously observed that section 35(4) of the Workers’ Statute permits the performance of overtime hours under much broader conditions than those prescribed by the Convention, i.e. cases of accident, urgent repair work, force majeure, and exceptional pressure of work. The Committee further noted that section 35(2) of the Workers’ Statute provides for an annual limit of 80 overtime hours but leaves open the possibility of exceeding that limit under certain circumstances without fixing an overtime cap. Moreover, the Committee noted that section 35(1) of the Workers’ Statute provides that additional hours may be compensated in the form of either extra pay or equivalent periods of rest, and recalled that under Article 6 of the Convention an overtime premium of at least 25 per cent must be paid in all cases. In this connection, the Committee notes the comments of the UGT according to which the current legislation on overtime that no longer provides for overtime pay, in practice, facilitates employers’ requests for additional hours of work. According to the UGT, overtime is very frequent in sectors such as hotel and catering, as well as in private security enterprises, and the media have regularly drawn attention to problems of non payment of overtime work and the effects of excessive overtime on the workers’ safety and health. The Committee further notes the Government’s response to the comments of the UGT, in which it indicates that the Labour and Social Security Inspectorate is charged with monitoring compliance with the working hours and rest periods as well as its effects on the security and health of workers. While noting the Government’s statistical information regarding compliance with overtime regulations and pay, the Committee hopes that the Government will take the necessary measures to ensure that the provisions of the Convention regarding overtime are fully implemented both in law and in practice.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Articles 6 and 7 of the Convention. Averaging of hours of work. Overtime. The Committee notes the comments of the General Union of Workers (UGT), which were received on 4 September 2013 and transmitted to the Government on 23 September 2013. It also notes the communication of the Trade Union Confederation of Workers’ Commissions (CC.OO.) dated 30 August 2013 which was transmitted to the Government on 16 September 2013. The UGT indicates that hours of work in the commerce sector are essentially regulated through collective agreements providing for the averaging of working hours over a period of one year subject to a 40-hour weekly limit. The UGT points out that, whereas normal hours of work are eight per day, following the crisis and new legislation on working time, the ten-hour working day tends to become general practice. Finally, the UGT indicates that, notwithstanding the normal 12-hour period of daily rest, Royal Decree No. 2001/1983 provides for the possibility of reducing daily rest to only eight hours in the sectors of commerce, catering and transport, thus seriously worsening the working conditions in these sectors. For its part, the CC.OO. refers to section 34(2) of the Workers’ Statute, as amended by Act No. 3/2012, according to which, in the absence of a collective or enterprise agreement allowing the uneven distribution of working hours throughout the year, an enterprise may still apply the averaging to 10 per cent of the working hours. The CC.OO. indicates that this possibility, together with the employers’ discretionary power to unilaterally modify working conditions (section 41(1) of the Workers’ Statute) and the modification of working-time arrangements in the commerce sector pursuant to Royal Decree No. 20/2012, has a significant impact on workers in the commerce sector and may give rise to practices that are inconsistent with the provisions of the Convention. The Committee notes, in this respect, the Government’s response to the comments of the UGT in which it indicates that section 2 of Royal Decree No. 1561/1995 requires any reduction in daily or weekly rest to be compensated with alternative rest of the same duration, which may be accumulated and taken together with annual holiday. The Committee asks the Government once more to take the appropriate steps to ensure that the national legislation only allows the limits determined by the Convention in relation to daily and weekly hours of work to be exceeded occasionally, in the context of the averaging of working time, in the circumstances envisaged by the Convention. The Committee also requests the Government to refer to the comments made under Articles 5 and 6 of the Hours of Work (Industry) Convention, 1919 (No. 1).

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the detailed information provided by the Government, and particularly the adoption of Act No. 7/2007 of 12 April issuing the conditions of service of public employees, the resolution of 20 December 2005 of the General Secretariat for the Public Administration respecting periods of incapacity for work and Decree No. 306/2007 of 2 March updating the amounts of financial penalties imposed for violations of the labour legislation.

Article 5 of the Convention. Minimum period of service giving entitlement to annual holidays with pay. The Committee notes the Government’s indication that the national legislation does not establish a minimum period of service, as entitlement to holidays is acquired from the first day of work in accordance with the principle of equality of treatment between workers covered by a fixed-term contract and workers with permanent contracts.

Article 6, paragraph 2. Periods of incapacity for work. The Committee notes the Government’s indication that temporary incapacity caused by illness is considered to be actual work with a view to calculating the length of holidays. It also notes numerous references to court rulings relating to entitlement to holidays with pay, and particularly the ruling of the High Court of Justice of the Basque country of 17 September 2003, which explicitly referred to the provisions of Convention No. 132. The Committee would be grateful if the Government would provide copies of the rulings referred to relating to the application of Article 6, paragraph 2, of the Convention. The Committee also refers to its previous comments relating to the conditions under which, in the private sector, periods of incapacity resulting from illness or accident may not be counted in the minimum period of annual holidays with pay. In the absence of a clear reply on this point, the Committee is bound to reiterate its request and asks the Government to specify the measures adopted or envisaged to establish the conditions under which days of incapacity for work are not counted as part of the minimum annual holidays with pay in the private sector.

Article 14. Adequate inspection. With reference to the earlier comments of the General Confederation of Workers (UGT) relating to the difficulties encountered by precarious workers in ensuring compliance with their entitlement to holidays with pay, the Committee notes the Government’s reply that in this case the problem is not the inadequacy of the provisions of the national legislation, but the violation by employers of laws, regulations or agreements, as a result of which they are liable to sanctions for these violations. The Committee observes in this respect that it is not sufficient, in order to give effect to the provisions of a Convention, to guarantee legislative conformity, but also, and most importantly, to ensure that these provisions are applied effectively in practice. The Committee would therefore be grateful to receive additional information on the extent of the problem raised by the UGT and the measures adopted or envisaged to resolve it. In this respect, the Committee notes the Government’s indication that the activities of the inspection services address “working time” in global terms, as the current computer systems do not allow the disaggregation of data referring exclusively to holidays with pay. The Committee trusts that the Government will make every effort to establish a system for the collection of information on the basis of which a more detailed analysis can be made of the results achieved by the inspection services so as to identify more effectively any problems in the application of the legislation respecting annual holidays with pay.

Part V of the report form. The Committee notes the statistical information provided by the Government on the number of violations relating to working time reported during the period 2003–07. The Committee would be grateful if the Government would continue to provide statistics, and particularly extracts from the reports of the inspection services, which enable the Committee to assess the application of the Convention in practice.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the detailed information provided by the Government, concerning, among other things, the developments in legislation both at national and European level, and in particular the adoption of Regulation (EC) No. 561/2006 of the European Parliament and the Council of 15 March 2006 on the harmonization of certain social legislation relating to road transport. In this respect, the Committee draws the Government’s attention to certain discrepancies between the national legislation and the provisions of the Convention, especially with respect to the break for each period of continuous driving (four and a half hours instead of the four hours provided under Article 5 of the Convention) and the maximum total driving time (ten hours instead of the nine hours provided under Article 6).

Part IV of the report form. Practical application. The Committee requests the Government to continue providing general information on the way in which the Convention is applied, in law and in practice, by submitting, for example, extracts of reports of the inspection services indicating the number of breaches of working time requirements in the transport sector and the penalties applied, information on the number of workers covered by the legislation, copies of relevant collective agreements, recent surveys on conditions of work in the transport sector, etc.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 7 of the Convention. Special weekly rest schemes. The Committee notes the Government’s explanations in reply to its previous comment concerning the accumulation of half-day rest periods over a period of up to four weeks or the division of the rest period, with the half day being granted on another day of the week. According to these explanations, section 6 of Decree No. 1561/1995 of 21 September 1995 makes no difference to the principal obligation of the Convention to grant an uninterrupted weekly rest period comprising not less than 24 hours for each period of seven days.

Substantial modification of conditions of work. The Committee notes the Government’s explanations in reply to its previous comments concerning the application of section 41(1) of the Workers’ Statute, which allows an employer to make substantial modifications to conditions of work, including those relating to hours of work, where there are established grounds for doing so, whether they are of an economic or technical nature, or related to organization or production. According to these explanations, a substantial modification to conditions of work imposed by the employer cannot undermine the provisions concerning weekly rest, as these are minimum requirements which cannot be modified.

Part V of the report form. Practical application. The Committee notes the statistics supplied by the Government relating to infringements reported in relation to working hours for the 2007–08 period. The Committee would be grateful if the Government would continue to supply general information on the manner in which the Convention is applied in practice, including, for example, extracts of the reports of the inspection services, information concerning the number of workers covered by the relevant legislation in force or by other measures mentioned in Article 1 of the Convention, the number and nature of infringements reported and sanctions imposed, copies of relevant collective agreements, etc.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 2 of the Convention. Daily and weekly hours of work. The Committee notes that under section 34, paragraph 1(2), of the Workers’ Statute, the maximum number of normal hours of work is 40 actual hours of work a week as an annual average. Under paragraph 2, the irregular distribution of hours of work over the year may be decided upon by collective agreement or, in the absence of a collective agreement, in an agreement concluded between the enterprise and the workers’ representatives, provided that the minimum periods of daily and weekly rest are respected. The Committee further notes that section 34, paragraph 3, establishes the minimum period of daily rest at 12 hours and provides that the number of normal hours of actual work may not exceed nine in the day, unless provided otherwise in a collective agreement or, in the absence of collective agreement, an agreement concluded between the enterprise and the workers’ representatives. Finally, it notes, that under section 37, paragraph 1, workers are entitled to a weekly rest of at least one and a half days without interruption. However, this rest may be accumulated over periods of 14 days as a maximum.

The Committee also notes the Government’s reply to its previous comments and the observations made in 2003 by the General Union of Workers (UGT). It notes in particular that working time arrangements may not be imposed unilaterally by the employer, but must be a result of agreements concluded through collective bargaining or, in the absence of collective bargaining, between the employer and the workers’ representatives. The Government also refers to the criteria, guidance and recommendations that have to be taken into account in collective bargaining, which are enumerated in the various inter-confederation agreements for collective bargaining (ANC) concluded by the social partners, including the UGT, and in particular the ANC of 2007, which addresses, among other matters, collective bargaining on the management of working time, including the annualization of hours of work. The Government adds that workers’ representatives participate in the process of determining hours of work, particularly in the event of their irregular distribution, which only affects a small percentage of workers. In this respect, it indicates that the annualization of hours of work concerned 17.5 per cent of workers in 2005 and 16.9 per cent in 2006. In conclusion, the Government states that it does not understand the reasons why the UGT made observations on the application of the Convention and considers that Spanish legislation is in conformity with the requirements of the Convention and is more favourable than the standards set out in the 2003 European Directive on the organization of working time.

However, in the light of the above provisions of the Workers’ Statute, the Committee is bound to observe that the national legislation does not establish an absolute limit for weekly hours of work and that the maximum daily hours of work, set at nine hours, may be exceeded by means of collective agreements or enterprise agreements. Accordingly, taking into account the rules respecting daily rest (12 hours) and weekly rest (one and a half days), daily hours of work could in theory be as many as 12 hours and weekly hours of work could total 66 hours. The Committee therefore shares the analysis made by the UGT, according to which hours of work may exceed 60 in a week. Furthermore, if the possibility of accumulating weekly rest over a period of 14 days is taken into account, an employed person could be required to work a maximum of 12 hours for seven consecutive days, that is 84 hours, and 48 hours the next week (four times 12 hours). In this respect, the Committee notes the UGT’s indication that it is not aware of cases in which workers are engaged under such a schedule, but claims knowledge of more common cases involving 63-hour weeks (seven days of nine hours), followed by a 36-hour week (four days of nine hours).

The Committee recalls that under Article 2 of the Convention working hours, with the exceptions provided for in that Article, must not exceed eight in the day and 48 in the week. Under the terms of Article 2(b), where the hours of work on one or more days of the week are less than eight, the limit of eight hours may be exceeded on the remaining days of the week, provided however that in no case may the daily limit be exceeded by more than one hour. The Committee is bound to reiterate its observation of 2004 in which it emphasized that the possibility offered by the national legislation to allow a working day of more than nine hours is contrary to the Convention even if this is provided for by collective agreement or enterprise agreement. It therefore once again requests the Government to take the necessary steps rapidly to bring the legislation into conformity with the Convention on this point.

Furthermore, the Committee draws the Government’s attention to the fact that the Convention only allows the averaging of hours of work in excess, in certain weeks, of the limit of 48 hours under certain specific circumstances (for example, in the case of shift work, covered by Article 2(c) of the Convention). The Committee is accordingly bound to observe that section 34 of the Workers’ Statute, which allows the averaging of weekly hours of work without any restriction, is not in conformity with the provisions of the Convention. The Committee trusts that the Government will take the necessary measures rapidly to amend the legislation so that it only allows the limits determined by the Convention in relation to daily and weekly hours of work to be exceeded occasionally, in the context of the averaging of working time, in the circumstances envisaged by the Convention. It requests the Government to provide information on any developments in this respect.

The Committee also notes that under section 34, paragraph 7, of the Workers’ Statute, the Government may, after consulting the most representative organizations of trade unions and employers, increase or limit hours of work and periods of rest in sectors and types of work where the specific characteristics so require. The Committee requests the Government to indicate whether decisions to increase hours of work or reduce rest periods in specific branches of activity or for particular types of work have already been taken on the basis of this provision. If so, the Government is requested to provide all relevant information concerning the exceptions established and the rules applicable to the workers concerned in relation to hours of work.

The Committee further notes that, in accordance with section 34, paragraph 8, of the Workers’ Statute, all workers are entitled to adapt the duration and distribution of their working time so as to enable them to reconcile their personal, family and professional life in accordance with the terms set out by collective bargaining or in the agreement concluded with their employer. The Committee requests the Government to provide the available information on the implementation of this provision.

The Committee further notes that, in reply to its previous comment concerning the possibility for the employer to undertake substantial modifications of conditions of work under section 41, paragraph 1, of the Workers’ Statute, the Government indicates that such modifications have to be in compliance with the applicable regulations, including those respecting hours of work. It notes that case law has determined what is to be understood by “substantial modification of conditions of work”. Accordingly, the High Court of Madrid considered that a measure consisting of the suppression of a flexitime schedule came under section 41 of the Workers’ Statute. However, an increase of 25 hours in annual hours of work, representing less than ten minutes a day, did not constitute a substantial modification of conditions of work. The Government adds that, in general, substantial modifications of conditions of work relate to changes in the regular distribution of hours of work over the year, but do not include modifications involving a reduction of working time accompanied by a reduction of wages, nor an increase in working time, nor the irregular distribution of hours of work over the year. The Committee notes the fact that the modifications covered by section 41 of the Workers’ Statute have to conform to the applicable legal provisions and it requests the Government to provide copies of the court decisions referred to in its report and of any other relevant decision or official report prepared on this subject.

Articles 3 and 6, paragraph 1(b). Cases in which additional hours may be performed. The Committee notes the indication contained in the Governments’ report that collective agreements or employment contracts may envisage the performance of additional hours in various cases. These normally consist of work performed to respond to production needs. However, the Committee notes that section 35, paragraph 4, of the Workers’ Statute is confined to providing that the performance of additional hours must be voluntary, unless it is envisaged in a collective agreement or an employment contract. In this respect, the Committee recalls that the Convention only allows the performance of additional hours on a temporary basis in the following specific cases: accident, urgent work to be done to machinery or plant, or in case of force majeure (Article 3) or exceptional cases of pressure of work (Article 6, paragraph1(b)). The Committee hopes that the Government will take measures rapidly to amend the Workers’ Statute so as to allow the performance of additional hours only in the cases envisaged by the Convention.

Article 6, paragraph 2. Limitation of the number of additional hours. The Committee notes that, under section 35, paragraph 2, of the Workers’ Statute, the number of additional hours cannot exceed 80 in a year. It also notes that, according to the case law of the High Court of the Basque Country, this limit may not be exceeded either by means of collective bargaining or in the employment contract. However, under the terms of section 35, paragraph 2, additional hours which give rise to compensatory rest during the four months following their performance are not taken into account in this context. The Committee recalls that Article 6, paragraph 2, of the Convention requires that, in exceptional cases of pressure of work, regulations fix the number of additional hours authorized in each instance. The Committee requests the Government to take the necessary measures to extend the limits set forth in the Workers’ Statute in relation to the number of additional hours authorized to those which give rise to compensatory rest during the four months following their performance. The Committee also requests the Government to provide a copy of the ruling by the High Court of the Basque Country to which it refers in its report.

Remuneration of overtime. The Committee notes that section 35, paragraph 1, of the Workers’ Statute provides that additional hours must be paid at a rate determined by a collective agreement or, in the absence of a collective agreement, by the individual employment contract, but which may not be lower than the rate applicable for normal hours of work, or may be compensated in the form of equivalent periods of paid rest. It notes the indication in the Government’s report that the law shows a clear preference for the compensation of additional hours in the form of periods of paid rest of equivalent duration. The Committee also notes that the collective agreement applicable in the tiles, bricks and special clay forms sector envisages compensatory rest periods increased by 75 per cent in respect of overtime. The agreement applicable to the sugar industry provides for rest periods equivalent to the number of additional hours performed, supplemented by an additional wage rate of 50 per cent. The Committee however draws the Government’s attention to the fact that, in accordance with Article 6, paragraph 2, of the Convention, the increased rate of pay for additional hours performed to deal with exceptional cases of pressure of work of not less than one and one-quarter times the regular rate has to be of general application and cannot therefore be left to the discretion of collective bargaining. Furthermore, compensation for additional hours in the form of paid holiday but without an increased wage rate, does not give effect to this provision of the Convention. The Committee hopes that the Government will take measures rapidly to bring its legislation into conformity with the Convention on this point. It also requests the Government to provide copies of the collective agreements referred to in its report.

Part V of the report form. The Committee notes the information provided by the Government concerning the activities of the labour and social security inspection services in relation to hours of work in the industrial sector during the period 2003–07. It notes in this respect that the number of inspections more than doubled between 2006–07 and that, over the same period, the number of violations reported and the amount of the penalties imposed almost tripled; while the number of workers concerned rose from 941 to 6,013 and the number of warnings issued rose from 166 to 425. The Committee requests the Government to provide information on the reasons for this significant strengthening of labour inspection activities in the sector and on the measures adopted in practice. The Government is also requested to continue providing information on the application of the Convention in practice including, where possible, more detailed information on the nature of the violations reported of the legislation respecting hours of work and on the measures adopted to bring them to an end.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee requests the Government to refer to the comments made in relation to Convention No. 106.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Articles 3 and 4 of the Convention. Daily and weekly hours of work. The Committee notes that, under section 34, paragraph 1(2), of the Workers’ Statute, the maximum number of normal hours of work is 40 actual hours of work a week as an annual average. Under paragraph 2, the irregular distribution of hours of work over the year may be decided upon by collective agreement or, in the absence of a collective agreement, in an agreement concluded between the enterprise and the workers’ representatives, provided that the minimum periods of daily and weekly rest are respected. The Committee further notes that section 34, paragraph 3, establishes the minimum period of daily rest at 12 hours and provides that the number of normal hours of actual work may not exceed nine in the day, unless provided otherwise in a collective agreement or, in the absence of a collective agreement, an agreement concluded between the enterprise and the workers’ representatives. Finally, it notes that, under section 37, paragraph 1, workers are entitled to a weekly rest of at least one and a half days without interruption. However, this rest may be accumulated over periods of 14 days as a maximum.

The Committee also notes the Government’s reply to its previous comments and the observations made in 2003 by the General Union of Workers (UGT). It notes in particular that working time arrangements may not be imposed unilaterally by the employer, but must be a result of agreements concluded through collective bargaining or, in the absence of collective bargaining, between the employer and the workers’ representatives. The Government also refers to the criteria, guidance and recommendations that have to be taken into account in collective bargaining, which are enumerated in the various inter-confederation agreements for collective bargaining (ANC) concluded by the social partners, including the UGT, and in particular the ANC of 2007, which addresses, among other matters, collective bargaining on the management of working time, including the annualization of hours of work. The Government adds that workers’ representatives participate in the process of determining hours of work, particularly in the event of their irregular distribution, which only affects a small percentage of workers. In this respect, it indicates that the annualization of hours of work concerned 17.5 per cent of workers in 2005 and 16.9 per cent in 2006. In conclusion, the Government states that it does not understand the reasons why the UGT made observations on the application of the Convention and considers that the national legislation is in conformity with the requirements of the Convention and is more favourable than the standards set out in the 2003 European Directive on the organization of working time.

However, in the light of the above provisions of the Workers’ Statute, the Committee is bound to observe that the national legislation does not establish an absolute limit on weekly hours of work and that the maximum daily hours of work, set at nine hours, may be exceeded by means of collective agreements or enterprise agreements. Accordingly, taking into account the rules respecting daily rest (12 hours) and weekly rest (one and a half days), daily hours of work could in theory be as many as 12 hours and weekly hours of work could total 66 hours. The Committee therefore shares the analysis made by the UGT, according to which hours of work may exceed 60 in a week. Furthermore, if the possibility of accumulating weekly rest over a period of 14 days is taken into account, an employed person could be required to work a maximum of 84 hours, that is 12 hours for seven consecutive days, and 48 hours the next week (four times 12 hours). In this respect, the Committee notes the UGT’s indications that it is not aware of cases in which workers are engaged under such a schedule, but has knowledge of more common cases involving 63-hour weeks (seven days of nine hours), followed by a 36-hour week (four days of nine hours).

The Committee recalls that under Article 3 of the Convention working hours, with the exceptions provided for in the Convention, may not exceed eight in the day and 48 in the week. Article 4 allows the unequal distribution of weekly hours of work, on condition that hours of work in any day do not exceed ten hours. The Convention only allows the averaging of hours of work so that in certain weeks they exceed the limit of 48 hours in the exceptional cases envisaged in Article 6 of the Convention. The Committee is accordingly bound to observe that section 34 of the Workers’ Statute, which allows the averaging of weekly hours of work without any restriction, is not in conformity with the provisions of the Convention. It trusts that the Government will take the necessary measures rapidly to amend the legislation so that it only allows the limits determined by the Convention in relation to daily and weekly hours of work to be exceeded occasionally, in the context of the averaging of working time, in the circumstances envisaged by the Convention. It requests the Government to provide information on any developments in this respect.

The Committee also notes that under section 34, paragraph 7, of the Workers’ Statute, the Government may, after consulting the most representative organizations of trade unions and employers, increase or limit hours of work and periods of rest in sectors and types of work where the specific characteristics so require. It requests the Government to indicate whether decisions to increase hours of work or reduce rest periods in specific branches of activity or for particular types of work have already been taken on the basis of this provision. If so, the Government is requested to provide all relevant information concerning the exceptions established and the rules applicable to the workers concerned in relation to hours of work.

The Committee further notes that, in accordance with section 34, paragraph 8, of the Workers’ Statute, all workers are entitled to adapt the duration and distribution of their working time so as to enable them to reconcile their personal, family and professional life in accordance with the terms established through collective bargaining or in the agreement concluded with their employer. The Committee requests the Government to provide any available information concerning the implementation of this provision.

The Committee further notes that, in reply to its previous comment concerning the possibility for the employer to undertake substantial modifications of conditions of work under section 41, paragraph 1, of the Workers’ Statute, the Government indicates that such modifications have to be in compliance with the applicable regulations, including those respecting hours of work. It notes that case law has determined what is to be understood by “substantial modification of conditions of work”. Accordingly, the High Court of Madrid considered that a measure consisting of the suppression of a flexi-time schedule came under section 41 of the Workers’ Statute. However, an increase of 25 hours in annual hours of work, representing less than ten minutes a day, did not constitute a substantial modification of conditions of work. The Government adds that, in general, substantial modifications of conditions of work relate to changes in the regular distribution of hours of work over the year, but do not include modifications involving a reduction of working time accompanied by a reduction of wages, nor an increase in working time, nor the irregular distribution of hours of work over the year. The Committee notes the fact that the modifications covered by section 41 of the Workers’ Statute have to conform to the applicable legal provisions and it requests the Government to provide copies of the court decisions referred to in its report and of any other relevant decision or official report prepared on this subject.

Article 7, paragraph 2. Cases in which additional hours may be performed. The Committee notes the indications contained in the Government’s report that collective agreements or employment contracts may envisage the performance of additional hours in various cases. These normally consist of work performed in response to production needs. However, the Committee notes that the Government does not reply in its report to its previous comment on this point. It observes that section 35, paragraph 4, of the Workers’ Statute is confined to providing that the performance of additional hours must be voluntary, unless it is envisaged in a collective agreement or an employment contract. In this respect, the Committee recalls that Article 7, paragraph 2, of the Convention contains a limitative enumeration of the cases in which the performance of additional hours is authorized in the context of temporary exceptions. The Committee hopes that the Government will take measures rapidly to amend the Workers’ Statute so as to allow the performance of additional hours only in the cases envisaged by the Convention.

Article 7, paragraph 3. Limitation of the number of additional hours. The Committee notes that, under section 35, paragraph 2, of the Workers’ Statute, the number of additional hours cannot exceed 80 in a year. It also notes that, according to the case law of the High Court of the Basque Country, this limit may not be exceeded either by means of collective bargaining or in the employment contract. However, under the terms of section 35, paragraph 2, additional hours which give rise to compensatory rest during the four months following their performance, and those performed to prevent or make good exceptional and urgent damage, are not taken into account in this context. The Committee recalls that Article 7, paragraph 3, of the Convention requires the determination of the number of additional hours of work which may be allowed in the day and in the year, in respect of temporary exceptions, save as regards cases of accident, force majeure, or urgent work to machinery or plant. The Committee notes that the collective agreement for driving schools limits the number of additional hours to two hours a day, 15 hours a month and 80 hours a year. It, however, draws the Government’s attention to the fact that the Convention requires daily and annual limits to be determined in all branches of activity and that this matter cannot be left to the discretion of collective bargaining. The Committee requests the Government to take the necessary measures to determine also a daily limit to the number of additional hours authorized and to apply the daily and annual limits to additional hours which give rise to compensatory rest during the four months following their performance. The Committee also requests the Government to provide a copy of the ruling by the High Court of the Basque Country to which it refers in its report.

Article 7, paragraph 4. Remuneration of additional hours. The Committee notes that section 35, paragraph 1, of the Workers’ Statute provides that additional hours have to be paid at a rate determined by collective agreement or, in the absence of a collective agreement, by the individual employment contract, but which may not be lower than the rate applicable for normal hours of work, or may be compensated in the form of equivalent periods of paid rest. It notes the indications in the Government’s report that the law shows a clear preference for the compensation of additional hours in the form of periods of paid rest of equivalent duration. The Committee also notes that the collective agreement applicable in the perfume and allied industries provides for the compensation of each additional hour by 1.25 hours of rest or, if that is not possible, by pay corresponding to 1.5 times the wage rate for normal hours. The collective agreement for the large-scale distribution sector provides that compulsory additional hours are to be paid at a rate increased by 50 per cent or compensated by an equivalent period of rest, at the worker’s choice. Similar provisions are also found in the collective agreement for travel agencies and that for financial credit institutions. The Committee however draws the Government’s attention to the fact that, in accordance with Article 7, paragraph 4, of the Convention, the increased rate of pay of at least 25 per cent more for overtime, except in the case of accidents, force majeure or urgent work to machinery or plant, has to be of general application and cannot therefore be left to the discretion of collective bargaining. Furthermore, compensation for additional hours in the form of paid leave, but without an increased wage rate, does not give effect to this provision of the Convention. The Committee hopes that the Government will take measures rapidly to bring its legislation into conformity with the Convention on this point. It also requests the Government to provide copies of the collective agreements referred to in its report.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 6, paragraph 1, of the Convention. Minimum weekly rest period. For a number of years, the Committee has been drawing the Government’s attention to the provisions of section 37(1) of the Workers’ Statute, which provides for the possibility of accumulating weekly rest days over a period not exceeding 14 days, contrary to the provisions of Article 6, paragraph 1, of the Convention, which requires the granting of an uninterrupted weekly rest period comprising not less than 24 hours in the course of each period of seven days. In this regard, the General Union of Workers (UGT) emphasized in its previous comments that this provision could affect the health and safety of workers and also the quality of work performed.

The Government states in its report that the national legislation as a whole applies the provisions of the Convention and that the exceptions to the general system may not be imposed unilaterally by the employer but are negotiated with workers’ representatives. The Government adds that the legislation is in full conformity with the provisions of Directive 2003/88/EC of the European Parliament and of the Council concerning certain aspects of the organization of working time, in particular article 16(a) thereof, which states that Member States may lay down a reference period not exceeding 14 days. While noting the Government’s explanations, the Committee reiterates that section 37(1) of the Workers’ Statute remains contrary to the provisions of the Convention. The Committee therefore hopes that the Government will review this matter and take the necessary steps in the near future to bring its legislation into full conformity with the provisions of the Convention.

The Committee is also raising a number of other points in a direct request to the Government.

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

The Committee notes the Government’s reply to its previous comment. It also notes a communication from the General Confederation of Workers (UGT). This communication has been forwarded to the Government, which has not yet replied.

Articles 5 and 14 of the Convention. Short-term contracts. The Government indicates in its report that the labour legislation makes no difference between permanent and temporary workers. It adds that Act No. 12/2001 of 9 July 2001 inserted subsection 6 into section 15 of the Workers’ Charter, under which workers engaged under temporary or fixed-term contracts have the same rights as workers whose contracts are without limit of time. These rights have to be recognized in laws and regulations, as well as collective agreements, in a proportional manner based on the working time of the persons concerned. Where a right is established on the basis of seniority, it has to be calculated on the basis of the same criteria for all workers, irrespective of their type of contract. The Committee requests the Government to indicate whether a minimum period of service is required in the legislation or collective agreements for entitlement to holidays with pay and to provide information on the manner in which this rule is applied in the case of workers engaged under short-term contracts.

With regard to the application in practice of the Workers’ Charter, the UGT indicates that precarious workers, who constitute 31 per cent of the population, are not protected in relation to enterprises which engage in blackmail to impose unfavourable conditions, including the denial of their right to holidays with pay. The Committee requests the Government to indicate the measures adopted, including through labour inspection, to secure compliance in practice with the rules on holidays with pay in the case of precarious workers.

Article 6, paragraph 2. Periods of incapacity for work. In its report, the Government indicates that the Secretary of State for the Public Administration adopted a resolution on 10 March 2003 under the terms of which, in the public sector, absences from work for reasons that are independent of the will of the worker, such as sickness or accident, are not counted in annual holidays with pay, but are taken into account in the calculation of the period of service.

With regard to the private sector, the Government reaffirms that the case law confirms the rule established by this provision of the Convention. However, it indicates that, while there is no doubt in this respect where the sickness or the accident occur during the course of the holidays, the same does not apply if it occurs before the holidays. Moreover, where holidays are granted at the same time to all workers at a period during which the enterprise is closed, no account is taken of illness or an accident which might occur to a worker during such holidays, unless a collective agreement provides otherwise.

In the comments that it has been making for several years, the Committee has noted that, while Article 6, paragraph 2, of the Convention leaves it to the discretion of the competent authority or the appropriate machinery to determine the conditions under which days of incapacity resulting from sickness or injury should not be counted as days of the minimum annual holiday with pay, these conditions nevertheless need to be laid out as clearly as possible. With regard to the private sector, the Government itself indicates that there are doubts as to whether days of incapacity occurring before the leave are taken into account or not.

The Committee therefore requests the Government to indicate the measures adopted or envisaged to establish clearly the conditions under which days of incapacity for work are not counted as part of the minimum annual holiday with pay in force in the private sector.

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

The Committee notes the Government’s reply to its previous comment. It also notes a communication from the General Confederation of Workers (UGT). This communication has been forwarded to the Government, which has not yet replied.

Article 6, paragraph 1, of the Convention. Minimum period of weekly rest. Section 37(1) of the Workers’ Charter provides that workers shall be entitled to an uninterrupted period of rest of at least one-and-a-half days in the week, which may be accumulated over a period not exceeding 14 days.

In its communication, the UGT contends that the new Spanish labour law introduces a period of work extended over two weeks which creates serious risks for the health and safety of workers in certain branches of activity and may affect the quality of the work performed. In commerce and activities related to office work, as well as in certain services sectors, such as hospitals and hotels, work is performed practically without a break and with compensatory days of rest being granted when it suits the enterprise. The UGT concludes that the possibility of accumulating weekly rest over a period of 14 days is contrary to the provisions of the Convention.

In its report, the Government indicates that the application of section 37(1) of the Workers’ Charter can indeed have the consequence that the granting of one day of rest a week, as prescribed by the Convention, is not guaranteed. However, if over a period of two weeks no rest has been granted during the first week, the rest period during the second week will be three days. This provision is intended both to take into account the need to protect workers in relation to occupational safety and health and to ensure the flexibility to allow production processes to achieve maximum efficiency. It is in conformity with European Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organization of working time, which authorizes States to establish a reference period not exceeding 14 days for the purposes of the weekly rest period. In its previous comments, the Committee emphasized that, by allowing such an accumulation of weekly rest as a general rule and in all circumstances, section  37(1) of the Workers’ Charter is not in conformity with Article 6, paragraph 1, of the Convention, which requires the granting of an uninterrupted weekly rest period comprising not less than 24 hours in the course of each period of seven days. Although the above Directive authorizes recourse to reference periods of 14 days, this is not the case of the present Convention. The Committee once again requests the Government to take the necessary measures to amend this provision so as to ensure that it is in conformity with the Convention.

Article 7. Special schemes. Commerce and hotels. Section 6 of Royal Decree No. 1561/1995, of 21 September 1995, provides that in the commerce and hotels sectors a collective agreement or, if no such agreement exists, an agreement between the enterprise and the workers’ representatives, may provide for the accumulation of half-day periods over a period of up to four weeks or the division of the rest period, with the half day being granted on another day of the week. In its report, the Government refers to a certain number of collective agreements applicable in the commerce sector. For example, the collective agreement for department stores, published by Resolution of 23 July 2001, provides that one day of weekly rest may be compensated by another day of rest during the course of the week, on a rota basis; furthermore, an agreement between the enterprise and the workers may provide that the remaining half-day of the weekly rest period may be accumulated over a maximum period of four weeks. In its report, the Government considers that the collective agreements to which it refers are in general terms, in conformity with Article 6, paragraph 1, of the Convention and, in so far as they are not, they are covered by Article 7 of the Convention. However, the special schemes introduced under this latter provision have to comply with a number of conditions, including the requirement that the persons covered by such special schemes shall be entitled, in respect of each period of seven days, to a rest period of a total duration of at least 24 hours. The existence of a collective agreement such as the one referred to by the Government cannot undermine this rule. Accordingly, while it is possible, in the context of special schemes, to divide the weekly rest period during the week, the Convention does not allow the accumulation of rest days in the manner established in the national legislation. The Committee requests the Government to take appropriate measures to ensure that all persons to whom such special schemes apply are entitled, in respect of each period of seven days, to a rest period of a total duration of at least 24 hours.

Substantial modification of conditions of work. Section 41(1) of the Workers’ Charter allows an employer to make substantial modifications to conditions of work, including those relating to hours of work, where there exist established reasons for so doing, whether they are of an economic or technical nature, or related to organization or production. The Government is requested to provide detailed information on the circumstances in which employers are authorized to modify conditions of work in this manner. Furthermore, the Government indicates in its report that an employer who modifies in a substantial manner the conditions of work shall do so within the context of the applicable regulations, including those on the weekly rest period. With regard to compensatory rest periods, the Government refers in its report under Convention No. 14 to section 2 of Royal Decree No. 1561/95, under which the reductions in the weekly rest period provided for by this text have to give rise to compensation. Nevertheless, this provision does not apply to the substantial modifications of conditions of work imposed under section 41(1) of the Workers’ Charter. The Committee therefore requests the Government to provide information on the compensatory rest periods granted in these circumstances.

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

The Committee notes the Government’s reply to its previous comments. It also takes note of a communication from the General Workers’ Union (UGT), repeating earlier observations of the organization. The communication was forwarded to the Government, which has not, as yet, replied.

The Government is asked to refer to the Committee’s comments under Convention No. 30. In addition, the Committee raises the following points.

Article 2 of the Convention. Maximum daily hours of work. Article 34(3) of the Workers’ Regulations sets a maximum of nine hours for the length of the working day, unless a collective agreement or an agreement between the enterprise and the workers’ representatives distributes the working time differently, it being understood that compulsory rest between two working days must be observed. However, Article 2(b) of the Convention allows the limit of eight hours a day to be exceeded only by one hour where working hours are unevenly distributed over the week. To allow a working day of more than nine hours is therefore contrary to this provision of the Convention. The Committee requests the Government to take the necessary steps to bring the legislation into line with this provision.

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

The Committee notes the Government’s reply to its previous comment. It also notes a communication from the General Union of Workers (UGT). This communication has been forwarded to the Government, which has not sent any reply to date.

The Government is asked to refer to the comments made under Convention No. 106.

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

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.

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

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.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s report and the information supplied in reply to its previous direct request. It has also noted the observations made by the Trade Union Federation of Workers’ Commissions (CC.OO.) on the effect given to Articles 2 and 5 of the Convention.

Article 2, paragraph 1, of the Convention.  The Committee recalls that its previous comments related to the need to amend section 37.1 of the Workers’ Charter to provide, in accordance with this Article of the Convention, in every period of seven days a period of rest comprising at least 24 consecutive hours. It notes that the Government merely indicates that the possibility provided in section 37.1 of accumulating the weekly rest period for up to 14 days is a feature of the policy it initiated in 1994 in order to make working time more flexible. The CC.OO. for its part denounces the Government’s lack of action despite the Committee’s comments. The Committee recalls that in its previous direct request it indicated that by permitting in general, and at any time, an accumulation of the rest period, section 37.1 of the Workers’ Charter goes beyond the latitude envisaged in Article 2, paragraph 1 of the Convention.

Article 5.  The Committee notes the information supplied by the Government on the application by Royal Decree No. 1561/1995, of section 37.1 in relation to section 34.7 of the Workers’ Charter. It recalls, however, that its previous comments also related to section 41.1 of the Workers’ Charter which provides in general that when there are imperative reasons imposed by the economy, technology, the organization or production of the undertaking, the employer may decide to carry out substantial modifications in the conditions of employment, particularly those relating to duration of work. It draws the Government’s attention once again to the need to adopt, in compliance with Article 5 of the Convention, provisions prescribing rest periods in compensation for suspensions or diminutions made.

The Committee trusts that the Government will take its comments duly into account and will take the necessary measures as soon as possible to bring its legislation into conformity with the Convention on the abovementioned two points.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee takes note of the Government’s report and the information supplied in answer to its previous direct request. It also notes the observations made by the Trade Union Confederation of Workers’ Committees (CC.OO.) on the effect given to Article 6 of the Convention.

Article 6, paragraph 1, of the Convention.  The Committee notes that, according to the CC.OO., section 37.1 of the Workers’ Charter is in breach of the provisions of this Article of the Convention, which provides for a weekly rest period of at least 24 consecutive hours in each seven-day period. The Committee is of the view that by allowing the weekly rest to be accumulated for up to 14 days as a general rule and in all circumstances, section 37.1 of the Workers’ Charter goes beyond what Article 6, paragraph 1, of the Convention allows.

Article 7.  The Committee takes note of Royal Decree No. 1561/1995 adopted pursuant to section 34.7 of the Workers’ Charter. It notes that according to the terms of this Decree, commerce is one of the sectors with specific requirements for which the Government may allow an increase or reduction in the number of days’ work and rest periods. The Committee draws the Government’s attention to the establishments to which the Convention must be applied pursuant to Article 2, and asks the Government to provide all available information on the commercial establishments on which a decision has been taken pursuant to the abovementioned Decree.

The Committee also notes the provisions of section 41.1 of the Workers’ Charter which provides that, as a general rule, for unavoidable reasons dictated by the economy, technology, organization or production of the enterprise, the employer may decide to make substantial changes in conditions of employment, particularly in respect of working time. In this connection, it wishes to point out to the Government that, according to Article 7, paragraph 2, it is necessary to grant all workers to whom special weekly rest schemes apply, pursuant to paragraph 1, a rest period of at least 24 consecutive hours for each seven-day period.

The Committee trusts that the Government will take due account of its comments and that it will take the necessary steps as soon as possible to bring its legislation into line with the provisions of the two abovementioned Articles of the Convention.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report for the period ending September 1998. It also notes a communication from the General Union of Workers (UGT) alleging that the provisions regarding hours of work in the Workers' Statute, revised by the Legislative Decree of 24 March 1995, are not compatible with the Convention. This communication was also transmitted to the Government which, to date, has not commented thereon.

The Committee wishes to draw the Government's attention to the abuse which could arise from the strict application of the provisions of section 34 of the Workers' Statute, and in particular its paragraphs 2 and 3. The Committee observes that the first paragraph of the section cited fixes normal weekly hours of work at 43 hours, but that it is provided that daily hours of work shall be established by collective agreements or employment contracts. It notes that paragraph 2 of the section provides for the possibility of recourse, through collective agreement or agreements at enterprise level, to irregular daily hours of work calculated according to a yearly average. These hours of work are only limited by the obligation to respect 12 hours of rest between working days granted under paragraph 3. In this connection the Committee wishes to remind the Government that the possibility of establishing daily hours of work over a longer period of time than a week, provided under Article 5 of the Convention, is only applicable to exceptional cases where it is recognized that the provisions of Article 2 cannot be applied. In particular it may concern any branch of activity which requires an irregular distribution of work due to the nature of the work, to technical reasons, to periodic pressure of work, or to seasonal variations. Consequently the Committee considers that by admitting the general possibility of exceptions to normal working hours, section 34, paragraph 2, of the Workers' Statute is in violation of Article 5 of the Convention.

Furthermore, section 34, paragraph 3, fixes maximum daily working hours at nine hours, and provides for exceptions thereto by collective agreements or agreements at enterprise level, subject only to respect of the 12 hours of rest granted between working days. In this connection the Committee wishes to draw the Government's attention to Article 2(b) of the Convention, which allows for recourse to an irregular distribution of normal working hours, but within the limit of one hour more than eight hours of work a day. It thus considers that section 34, paragraph 3, of the Workers' Statute is in violation of the provisions of Article 2 of the Convention.

The Committee trusts that the Government will take the steps necessary at the earliest date, to bring its legislation into conformity with the provisions of the Convention on the two abovementioned points, and requests it to report on progress achieved in this respect as soon as possible.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report for the period ending September 1998. It also notes a communication from the General Union of Workers (UGT) alleging that the provisions of the Workers' Charter, as amended in 1995, and of the Legislative Decree respecting special working hours (No. 1561 of 21 September 1995), are contrary to the Convention. This communication has been transmitted to the Government, which has not yet provided comments thereon.

The Committee wishes to draw the Government's attention to the abuses which may arise out of the strict application of section 34 of the Workers' Charter, and particularly subsections 2 and 3. The Committee notes that normal weekly hours of work are set at 40 hours under the terms of the first subsection, but that daily hours of work must be determined by collective agreements or contracts of employment. It notes that subsection 2 provides for the possibility of having recourse, through collective agreements or enterprise agreements, to an irregular arrangement of daily working hours, calculated on average on an annual basis. These hours of work are only limited by the requirement to grant a rest period of 12 hours between working days, under the terms of subsection 3. In this respect, the Committee wishes to remind the Government that the possibility of distributing hours of work over a period longer than the week, as set out in Article 6 of the Convention, is limited to exceptional cases where the circumstances in which the work has to be carried on make the normal hours of work set out in Article 3 inapplicable. These circumstances may arise in branches of activity which require an uneven distribution of working hours due to the nature of the work, for technical reasons, periodic peaks in the workload or seasonal variations. In these conditions, the Committee considers that, by permitting in a general manner possibilities for exceptions to normal hours of work, section 34, subsection 2, of the Workers' Charter is not in conformity with the provisions of Article 6 of the Convention.

Section 34, subsection 3, of the Workers' Charter establishes the maximum daily hours of work at nine hours, but provides for the possibility of exceptions to be made by collective agreements or enterprise agreements, under the sole condition of compliance with the 12-hour rest period granted between working days. The Committee wishes to draw the Government's attention to the fact that Article 4 of the Convention does indeed envisage the possibility of having recourse to an irregular arrangement of weekly hours of work, but only authorizes an additional two hours on top of the eight hours of work a day. In view of the above, the Committee considers that section 34, subsection 3, of the Workers' Charter is not in conformity with Article 4 of the Convention.

The Committee also notes that section 5, subsection 1, of the Workers' Charter no longer guarantees a higher rate of pay for overtime hours. On this point, it is not in conformity with Article 7, paragraph 4, of the Convention, which provides that the rate of pay in the event of the temporary exceptions envisaged in paragraph 2, has to be increased by at least 25 per cent of the normal wage.

Finally, the Committee wishes to draw the Government's attention to the need to ensure that the normal hours of work and the exceptions envisaged in the Convention are strictly complied with for employees in commerce, who are covered by section 6 of the Legislative Decree respecting special working hours (No. 1561 of 21 September 1995). The Government is requested to indicate the measures taken in this respect.

The Committee trusts that the Government will take the necessary action as soon as possible to bring its legislation into conformity with the provisions of the Convention on the above points and requests it to report the progress achieved in this respect as soon as possible.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the communication from the Workers' Labour Union (USO)-Regional Union of Asturias objecting to the Act of 6 June 1994 on opening hours for trade. It considers that the opening hours established by the Act and the authorization to open on certain Sundays, subject to prior permission from the Government Council, are contrary to the provisions of the Convention; and that the Act is part of a deliberate policy on the part of the Government to encourage large commercial centres to the detriment of small traders who will eventually go out of business as a result. The Committee notes that, in reply, the Government states that the above Act determines only the hours during which establishments may operate and so does not prevent the application of sections 34 et seq. of the Conditions of Employment of Workers setting normal hours of work at 40 per week.

The Committee asks the Government to provide in its next report a copy of Royal Decree No. 1561/95 of 21 September 1995 to which it refers several times in the reply.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the information provided by the Government in its report, the observations made by the General Union of Workers (UGT), as well as the Government's reply to these observations.

The Committee notes that section 4, paragraph 4, of Act 11/1994 of 19 May 1994 amends section 37.1 of the Worker's Charter (Act 8/1980 of 10 March 1980), to provide that workers are entitled to an uninterrupted weekly rest, which can be accumulated for up to two weeks, of at least one and a half days which, as a general rule, shall include Saturday afternoon or Monday morning and the whole day of Sunday. The Committee recalls that in accordance with Article 2, paragraph 1, of the Convention, every worker shall enjoy in every period of seven days a period of rest comprising at least 24 consecutive hours, subject to exceptions which might be authorized after consultation with responsible associations of employers and workers under Article 4. In this regard, the Committee points out that section 37.1 of the Worker's Charter permits in general and at any time an accumulation of the weekly rest period for up to two weeks and that that postponement does not appear to be limited to the allowable exceptions under Article 4, thus going beyond the latitude envisaged in Article 2, paragraph 1, of the Convention. The Committee requests the Government to indicate the measures taken or contemplated to bring the legislation into conformity with the Convention on this point.

The Committee also notes that with regard to increases and reductions of the weekly rest period, section 37.1, as amended, remits to section 34, paragraph 7, of the Worker's Charter (set forth by section 4, paragraph 1, of Act 11/1994). Section 34, paragraph 7, states that pursuant to a proposal from the Ministry of Labour and Social Security, and following consultation with the employers' and workers' organizations concerned, the Government may increase or reduce working days and rest periods in those sectors and jobs which by virtue of their peculiarities, necessitate such modifications. The Committee also notes that section 41.1 of the Worker's Charter (as amended by section 5, paragraph 3, of Act 11/1994), provides that where there are substantiated reasons attributable to the economics, technology, organization or production of the undertaking, the management may decide to make substantial alterations to the conditions of employment, which include, inter alia, the hours of work. Referring to Article 5 of the Convention the Committee requests the Government to provide information with regard to the provision made for compensatory periods of rest in cases where exceptions have been made pursuant to sections 34.7 and 41.1.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

In its previous comments, the Committee noted the observations made by the El Radium Textile Technicians' Union and the General Union of Workers (UGT) concerning periods of incapacity for work resulting from sickness or injury as they relate to the application of Article 6, paragraph 2, of the Convention, under the terms of which such periods may not be counted as part of the minimum annual holiday with pay prescribed in Article 3, paragraph 3, of the Convention. In this respect the Committee notes that, although the Convention leaves it to the appropriate machinery to determine the conditions under which such periods of incapacity resulting from sickness or injury may not be counted as part of the minimum annual holiday with pay, such conditions should be laid down as clearly as possible. The Committee notes that, in new observations submitted in October 1994, when referring to workers who are dismissed and those who are recruited under temporary contracts, the UGT states that the former generally only receive financial compensation in place of leave and that the latter, in both the private sector and the public administration, do not benefit from either leave or financial compensation. The Committee notes the information provided by the Government in its report to the effect that section 38(2) of the Workers' Charter, as amended in 1994, gives greater scope to collective agreements to determine the periods of annual leave and that nothing prevents them from taking into consideration periods of leave during which the worker suffers from sickness or injury. The Committee also notes that, in reply to the observations of the UGT, the Government states that the law makes no distinction between established and temporary workers with regard to the granting of leave and that any abuses that may occur arise less out of the regulations respecting leave than those governing temporary contracts and their enforcement. The Committee hopes that the Government will provide information on the measures which have been taken or are envisaged to ensure, in accordance with Article 6, paragraph 2, that periods of incapacity for work resulting from sickness or injury are not counted as part of the minimum annual holiday with pay prescribed in Article 3, paragraph 3. On the subject of precarious contracts, the Committee requests the Government to supply information on the effect given in practice to Article 5, under which the minimum period of service which may be required for entitlement to leave shall not in any event exceed six months.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes that section 4, paragraph 4, of Act 11/1994 of 19 May 1994 amends section 37.1 of the Workers' Charter (Act 8/1980 of 10 March 1980) to provide that workers entitled to an uninterrupted minimum weekly rest period, which can be accumulated for up to two weeks, of one day and a half, and as a general rule, comprising the whole day Sunday and Saturday afternoon or Monday morning. With regard to increases and reductions of the weekly rest period and alternative weekly rest schemes, this provision invokes section 34, paragraph 7, of the Workers' Charter (set forth by section 4, paragraph 1, of Act 11/1994). Section 34, paragraph 7, states that pursuant to a proposal from the Ministry of Labour and Social Security and following consultation with the employers' and workers' organizations concerned, the Government may increase or reduce working days and rest periods in those sectors and jobs which by virtue of their peculiarities necessitate such modifications. The Committee requests the Government to indicate whether the workers to whom special weekly rest schemes apply because of the nature of the work, the nature of the service performed by the establishment, the size of the population to be served or the number of persons employed in accordance with Article 7, paragraph 1, of the Convention, are guaranteed a rest period of at least 24 hours in respect of each period of seven days.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

Article 6(2) of the Convention. In its previous comment, the Committee noted the observation of the El Radium Textile Technicians' Union and the Government's indications as to conflicting judicial decisions. It concluded that measures should be taken to determine clearly the conditions under which periods of incapacity for work resulting from sickness or injury cannot be counted as part of the minimum annual holiday with pay.

In a new observation, the General Union of Workers (UGT) points out that in practice there is frequently a problem in determining whether periods of illness or injury are to be counted as annual leave. It states that the juridical problem is worsened by the difficult labour market, in which workers fear employers will not continue their employment contracts if they attempt to claim period of illness or injury occurring during the annual leave period. The UGT calls for a new standard defining the right to enjoy paid holidays not including periods of incapacity due to illness or injury.

The Government in its report emphasises that individual cases in the courts have been decided on their own facts. It concludes that in general periods of illness or injury are not counted as part of paid holidays. However, it considers the case where the whole of an enterprise is on holiday at one time to be an important exception.

The Committee appreciates the degree of flexibility built into Article 6(2), which appears to leave it to appropriate machinery such as collective bargaining to circumscribe the conditions in which periods of incapacity resulting from sickness or injury are not counted as part of the minimum annual holiday with pay. However, it would again stress the need for maximum clarity in the provisions operating. It hopes the Government will continue to supply information.

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

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.