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

With the aim of providing a comprehensive view of the issues relating to the application of the ratified Conventions on wages, the Committee considers it appropriate to examine Conventions Nos 95 (protection of wages), 131 (minimum wage) and 173 (protection of workers’ claims in the event of insolvency) together in the same comment.

The Committee notes the observations of the Trade Union Confederation of Workers’ Commissions (CCOO) and the General Union of Workers (UGT), and the joint observations of the Spanish Confederation of Employers’ Organizations (CEOE) and the Spanish Confederation of Small and Medium-sized Enterprises (CEPYME), received with the Government’s report, and the Government’s response to all of these observations.

Minimum wage

Article 3 of Convention No. 131. Criteria for determining the minimum wage. The Committee notes the indication by the UGT in its observations that Royal Decree No. 99/2023, of 14 February, increases the minimum inter-occupational wage (SMI) for 2023 by 47 per cent in relation to the five previous years, with a significant effect in terms of the reduction of wage, social and economic inequality. The CCOO indicates that: (i) since 2018, the increases to the minimum wage amounted to 41.30 per cent in total up to 2022; and (ii) nevertheless, in households with more than one person, the minimum wage is still below the poverty risk threshold, even though the difference has been reduced by 10 percentage points.

The Committee also notes that, in their joint observations, the CEOE and the CEPYME indicate that, between 2015 and 2023, the minimum wage rose by 62 per cent. In the view of these organizations, this increase: (i) amounts to interference in collective bargaining, as it has an impact on the basic wage components upon which the price of the work factor is negotiated in collective agreements; (ii) is blocking negotiations in such sectors as agriculture and fruit production; and (iii) is particularly affecting enterprises that work for the public sector, in view of the impact of this increase on the contracts of enterprises engaged in works and services.

The Committee further notes that, in its response to the observations of the CEOE and the CEPYME, the Government indicates that: (i) there will have to be changes to the national legislation due to the transposition of Directive (EU) 2022–2041 of the European Parliament and of the Council of 19 October 2022 on adequate minimum wages in the European Union, the time limit for the transposition of which expires on 15 November 2024; and (ii) in accordance with the Directive, the criteria to be taken into account for the establishment of adequate statutory minimum wages are the general level of wages and their distribution, and the growth rate of wages, which are not currently covered by the Spanish legislation. The Committee notes this information which replies to its previous request.

Protection of w ages

Article 12 of Convention No. 95. Regular payment of wages. Application in practice. With reference to its previous comments, the Committee notes the Government’s indication that: (i) in 2021, the Labour and Social Security Inspectorate (ITSS) undertook 126,928 activities concerning labour relations, 12.69 per cent of which were related to wages, wage slips and termination records; (ii) 13.7 per cent of a total of 29,111 compliance notices and 8.9 per cent of a total of 15,055 violations relating to labour relations were on wage issues; and (iii) through Instruction No. 2/2019 on inspection relating to unpaid wages for a better, rapid and effective response to complaints, with an intensification of gender-related activities, a wage programme and a new campaign to control wage conditions were established in 2019.

The Committee notes the UGT’s indication in its observations that unpaid wages or wage arrears are an enterprise practice that is a matter of concern in the country and, while it appreciates the efforts made by the Government to intensify the activities of the ITSS in this field since 2019, the following information is not available which is necessary to assess the extent of the problem: the number of complaints made to the courts on this subject and their outcome; and the mechanisms that have been established since 2012 for the settlement of wage claims by the labour courts. The Committee notes the Government’s indication, in response to these observations, that the ITSS does not have data available on the complaints made to the courts in relation to wages.

The Committee also notes the indication by the CCOO in its observations that: (i) there appears to have been an increase in the overall level of activities by the ITSS since 2016, especially for the launching of the programme on unpaid wages in 2019; (ii) according to data produced by the General Council of the Judiciary, judicial action on wage claims increased by 9.3 per cent between 2016 and 2021, with a resulting increase in delays in the settlement of such cases; and (iii) according to data published in 2022 in a European Union study, the informal economy accounts for 15.8 per cent of the Gross Domestic Product, which has an impact on guarantees of the payment of wages. The Committee notes the Government’s indications in response to these observations that, with a view to preventing cases of non-compliance, the amounts of the penalties set out in section 40 of Royal Legislative Decree No. 5/2000, of 4 August, have been increased, for which reason a revised version of the Act on social infringements and penalties has been adopted. While welcoming the efforts made by the ITSS in relation to wages, the Committee requests the Government to continue providing information on the measures adopted or envisaged to ensure in practice the regular payment of wages to all workers, including workers in the informal economy.

Articles 9 to 13 of Convention No. 173. Protection of workers’ claims in pre-insolvency proceedings. The committee notes the CCOO’s indications in its observations that neither the Insolvency Act (Royal Legislative Decree No. 1/2020, of 5 May) nor its revision (Act No. 16/2022, of 5 September, transposing Directive (EU) 2019/1023 of the European Parliament and of the Council, of 20 June 2019) have improved the situation with regard to workers’ claims. The UGT emphasizes in its observations that the reform of the Insolvency Act improves the protection of workers’ claims during the pre-insolvency period in comparison with the previous regulations through the exclusion of workers’ claims from the debt restructuring process and the protection offered by sections 32 and 33 of the Workers’ Charter. In response to these observations by the social partners and with reference to its previous comments, the Committee notes the Government’s indication that, following the 2022 reform: (i) pre-insolvency agreements are taking the form of restructuring plans and, in the case of micro-enterprises, through the special continuation procedure; (ii) workers’ claims are not being affected by restructuring plans, unless they are accepted on a voluntary basis and with the exception of higher managerial personnel, under the terms of section 616 of the Insolvency Act; and (iii) the guarantees for wage claims set out in section 32 of Royal Legislative Decree No. 2/2015, of 23 October, are maintained, for which reason the amended text of the Workers’ Charter was approved, as well as the protection afforded by the Wage Guarantee Fund, as envisaged in section 33(3) of the Workers’ Charter. The Committee notes this information which replies to its previous request.

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes the observations of the Trade Union Confederation of Workers’ Commissions (CCOO) and the General Union of Workers (UGT), received in 2017, regarding the application of Convention Nos 95 and 173. The Committee further notes the Government’s reply to these observations. The Committee also notes the observations of the Spanish Confederation of Employers’ Organizations (CEOE), supported by the International Organisation of Employers (IOE), concerning the application of Convention No. 95, received with the Government’s report in 2017, and the Government’s reply to these observations. With the aim of providing a comprehensive view of the issues relating to the application of the ratified Conventions on the protection of wages, the Committee considers it appropriate to examine Conventions Nos 95 and 173 together.

Protection of Wages Convention, 1949 (No. 95)

Article 4(2)(b) of the Convention. Partial payment of wages in the form of allowances in kind. In its previous comments, the Committee requested the Government to provide further information and, in particular, copies of court rulings, on issues relating to the application of this Article of the Convention. The Committee notes the CCOO’s indication that the payment of wages in kind gives rise to significant problems insofar as, in many cases, it is difficult to determine the value of the allowances, and that these difficulties lead to an increase in the number of cases being brought to court, mainly in relation to claims relating to dismissals for the purpose of calculating the compensation to be paid for the termination of the contract. The Committee notes the UGT’s indication that section 26(1)(2) of the Workers’ Statute restricts payments in kind by establishing a ceiling for such allowances in relation to the wages received in cash, and by guaranteeing the payment of a minimum proportion of the wage in cash. The Committee observes that the Government and the CCOO have communicated several court rulings that reflect the application of the legislation on personal income tax to determine the cash value of payments in kind.

Article 12(1). Regular payment of wages. Application in practice. In its previous comments, the Committee requested the Government to provide information on the action taken to address the non-payment or delayed payment of wages, and to provide information on the manner in which the Convention is applied in practice, including on the outcome of labour inspection activities. The Committee observes the indication by the CCOO and the UGT that, despite the increase in cases of non-payment and delayed payment of wages in recent years, the number of interventions carried out by the Labour and Social Security Inspectorate (ITSS) in this regard decreased. The Committee notes the Government’s indication that: (i) the ITSS carries out continuous monitoring of the regulations governing wages, particularly with regard to their payment in time and the amount paid; (ii) many of the activities of the ITSS have their origin in complaints made by the workers concerned, and that there have been fewer complaints of delays in the payment of wages; (iii) it should be borne in mind that the labour inspectorate is not the only competent body for wage-related claims, and that since 2012, there have been mechanisms for the swift resolution of wage-related claims by the labour courts; (iv) the ITSS undertakes various inspection campaigns that have a very direct impact on the supervision of wages, such as campaigns to monitor part-time recruitment, overtime and illegal subcontracting and assignment; and (v) the ITSS plays a proactive role in this regard, and over half of its inspections are not based on complaints. The Committee requests the Government to provide information on a number of complaints received by the ITSS concerning the regular payment of wages, as well as on the number of complaints filed with the courts on the same matter, and their respective outcomes. The Committee also requests the Government to provide information on the mechanisms which have been established since 2012 for the resolution of wage claims by labour courts.

Protection of Workers’ Claims (Employer’s Insolvency) Convention, 1992 (No. 173)

Articles 1, 9 and 13 of the Convention. Protection of workers’ claims in pre insolvency proceedings. The Committee notes the allegations by the CCOO that the pre-insolvency proceedings established through various reforms of the Insolvency Act (Act No. 22/2003 of 9 July 2003) affect the protection of workers’ claims. The CCOO specifically indicates that: (i) the commencement of negotiations on pre-insolvency agreements gives rise to the freezing of the debtor’s assets, which prevents the payment of workers’ claims; (ii) the conclusion of pre-insolvency agreements allows for the imposition on workers of reductions in the debt for workers’ claims or deferral in the payment of such claims for up to ten years; and (iii) the legislation does not allow workers to have access to coverage by the Wage Guarantee Fund (FOGASA) during the negotiation of such agreements, and does not require the FOGASA to assume responsibility for labour debts if a pre-insolvency agreement is reached which reduces such debts. The Committee notes the Government’s indication that: (i) the pre-insolvency situation of the negotiation of an out-of-court agreement on payments does not imply a legal situation of insolvency; (ii) the enterprise concerned will attempt to guarantee workers’ claims through the out-of-court agreement; and (iii) in the event of a subsequent declaration of insolvency, the workers’ claims will be guaranteed by the FOGASA. The Committee observes that the legislation allows the initiation of pre-insolvency procedures and the conclusion of pre-insolvency agreements when employers are already in a situation of insolvency, that is, when they can no longer regularly meet their obligations (sections 2, 5 bis and 231 of the Insolvency Act). The Committee also observes that pre-insolvency agreements may include other measures, such as: waiting periods not exceeding ten years, discharges, transfers of assets or rights to creditors in payment or for the payment of the whole or part of their claims, and the conversion of debts into shares or holdings in the debtor enterprise (section 236(1)(a)–(e) of the Insolvency Act). Lastly, the Committee observes that in no case may the proposal for an out-of-court agreement change the order of priority of claims legally established, without the explicit agreement of creditors whose claims are postponed (section 236(1)(3) of the Insolvency Act). In this regard, the Committee requests the Government to indicate the remedies that exist in legislation and practice to give effective protection to workers’ claims in cases in which pre-insolvency agreements are concluded without the consent of the workers and which adversely affect the payment of their claims, once the employer’s insolvency has been declared.

Article 8. Rank of privilege in insolvency proceedings. The Committee recalls that, in its previous comments, it requested the Government to indicate the measures adopted or envisaged to ensure that workers’ claims, in accordance with the definition and limits established by Article 8(1) of the Convention, have a higher rank of privilege than most other privileged claims. The Committee notes the UGT’s indication that the system of guarantees for workers’ claims established by national legislation does not sufficiently and adequately comply with Article 8. The Committee notes the Government’s indication that, in the context of insolvency proceedings, in the event of liquidation, workers’ claims may be considered as claims against the assets of the insolvent employer (sections 84(2)(1) of the Insolvency Act), claims with a special privilege over the items produced by the workers concerned (section 90(1)(3) of the Insolvency Act) or claims with a general privilege (section 91 of the Insolvency Act), and that these privileges give such claims preference for payment over most other privileged claims. The Committee also notes the Government’s indication that when the insolvent enterprise does not have sufficient assets for the liquidation of workers’ claims, such claims are protected by the FOGASA.

Articles 9–13. Protection of workers’ claims through a guarantee institution. Application in practice. With reference to its previous comments, the Committee notes that the Government provides statistical information on the activities of the FOGASA. The Committee also notes that the CCOO reports repeated delays in the finalization of proceedings by the FOGASA. The Committee notes the Government’s indication that: (i) the serious economic crisis that affected the country between 2008 and 2014 led to a significant rise in the number of claims submitted to the FOGASA, which required an increase in its material and human resources, and that it is currently undergoing a process of modernization; (ii) the proceedings brought before the FOGASA are generally processed within the period of three months set out in section 28(7) of Royal Decree No. 505/1985 on the organization and operation of the FOGASA.

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the observations of the Trade Union Confederation of Workers’ Commissions (CCOO) and the General Union of Workers (UGT) received on 11 and 17 August 2017, respectively. The Committee also notes the observations of the Spanish Confederation of Employers’ Organizations (CEOE), which were communicated with the Government’s report and supported by the International Organisation of Employers (IOE). The Committee also notes the Government’s reply to these observations.

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the ILO Constitution)

The Committee notes that, in March 2017, the Governing Body approved the report of the tripartite committee set up to examine the representation made in 2014 by the CCOO and the UGT with regard to the application of the Convention (GB.329/INS/20/4).

Article 3 of the Convention. Criteria for determining the minimum wage. The Committee notes that in its report, the tripartite committee requested the Government to continue, in consultation with the most representative employers’ and workers’ organizations, to make every effort to take into consideration, so far as possible and appropriate, the needs of workers and their families and the economic factors referred to in Article 3(a) and (b) and give them proper weight in determining the level of minimum wages. The Committee notes that, in their observations, the CCOO and the UGT consider that, despite the increase of the minimum wage by 1 per cent in 2016, by means of Royal Decree No. 1171/2015 of 29 December 2015, and by 8 per cent in 2017, through Royal Decree No. 742/2016 of 30 December 2016, the minimum wage remains far below the required levels from the perspective of social justice and economic development. The CEOE and the IOE consider that the increase in the minimum wage can have adverse effects on access to the labour market. They also note the possible repercussions on wage costs, collective bargaining and the calculation of various social protection benefits. The Committee notes the Government’s indication that, for the revision of the minimum wage, the factors listed in section 27(1) of the Workers’ Charter are taken into account, namely: the consumer price index, the average national productivity attained, the increased share of labour in national income, and the general economic situation, and that the determination of the minimum wage is the result of an assessment of all of these factors combined. It adds that, to determine the minimum wage for 2017, account was taken of the improvement in the general economic situation, while continuing to promote competitiveness in a balanced manner, thus matching the adjustment of wages and the employment recovery process.

Article 4. Participation of the social partners in the fixing of the minimum wage. The Committee notes that in its report, the tripartite committee hoped that in all processes for the determination of the minimum wage, the Government would fully consult the representative employers’ and workers’ organizations concerned, ensuring that they have full knowledge of all the necessary information and sufficient time to determine their positions. The Committee notes that, in their observations, the CCOO and UGT indicate that the consultation process for the fixing of the minimum wage for 2017 was once again a mere formality. The Committee notes the Government’s indication in this respect that: (1) the draft decision on the setting of the minimum wage for 2017, accompanied by an impact assessment in which the factors established in section 27(1) of the Workers’ Charter were evaluated in detail, was submitted for consultation to the social partners at the beginning of December 2016; (2) the UGT and the CCOO expressed their disagreement with the proposal to the Government in writing on 20 December 2016; and (3) the most representative employers’ organizations also submitted their views in this regard.

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

Articles 3 and 4 of the Convention. Readjustment of the minimum wage. The Committee notes the comments of the International Organisation of Employers (IOE) and the Spanish Confederation of Employers’ Organizations (CEOE), which were received on 15 July 2013 and transmitted to the Government on 11 September 2013. The IOE and the CEOE refer to the system of annual readjustment of the interoccupational minimum wage (SMI) by royal decree after direct consultations with the most representative employers’ and workers’ organizations, and indicate that the SMI is only relevant for those workers who are not covered by collective agreements. However, an increase of the SMI may lead to requests for general wage increases, raises the threshold of labour cost for the purposes of collective bargaining, and also puts an upward wage pressure on many categories of workers concerned about their remuneration levels. In addition, an increase of the SMI results in an increase of the reference base used for the calculation of social security contributions and therefore affects the employers’ share of such contributions. In its reply, the Government recalls that the obligation to consult employers’ and workers’ organizations prior to the establishment of the minimum wage is expressly provided for in section 27 of the Workers’ Statute. The Government also recalls that consultations with the social partners are facilitated by an impact analysis of the proposed minimum wage which includes information on factors such as the consumer price index, the national productivity rate and the general economic climate. The Government is requested to reply to the observation the Committee addressed in 2012.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 8 of the Convention. Protection of workers’ claims by means of a privilege – Rank of privilege. Further to its previous comment, the Committee notes the information sent by the Government on the status of claims enjoying a special privilege. However, there is no indication in this information that claims on the available assets (namely, those arising from the activity of the enterprise after the declaration of insolvency) take priority over other types of claims enjoying a special privilege. Section 154(1) of the Insolvency Act (No. 22/2003 of 9 July 2003), as amended by Act No. 38/2011 of 10 October 2011, provides that claims on the available assets will be paid out of the property and entitlements not attached to the payment of claims enjoying a special privilege. The settlement of wage claims on the available assets may therefore be called into question should the employer’s assets, apart from property attached by special privilege, be insufficient to fulfil them. Moreover, as the Committee emphasized in its previous direct request, the other wage claims protected by the Insolvency Act, corresponding to periods of work prior to the last month preceding the declaration of insolvency, do not constitute claims on the available assets but form part of the liabilities (créditos concursales). However, claims on the available assets (including legal costs arising from the insolvency procedure and maintenance claims) take priority over these wage claims. The Committee requests the Government to indicate the measures taken or contemplated to ensure that wage claims, as defined by and within the limits of Article 8(1) of the Convention, enjoy a higher rank of privilege than most other privileged claims, whether they are classified as claims on the available assets or claims forming part of the liabilities.

Part III of the Convention. Protection of workers’ wage claims by a guarantee institution. The Committee notes the observations made by the Trade Union Federation of Workers’ Committees (CCOO) and the General Union of Workers (UGT) in communications dated 13 and 31 August 2012, respectively. According to the CCOO and the UGT, Royal Legislative Decree No. 20/2012 of 13 July 2012 issuing measures to guarantee budgetary stability and develop competitiveness has drastically reduced guarantees relating to workers’ claims in the event of employer insolvency. Firstly, the amount of outstanding wages covered by the wage guarantee fund (FOGASA) is now only twice the interoccupational minimum wage (SMI) for a maximum period of 120 days, whereas the said amount previously corresponded to three times the SMI for a maximum period of 150 days. Secondly, the ceiling for allowances due in the event of dismissal or termination of the employment contract remains fixed at one year’s wages but that the daily wage serving as the basis for calculation is now limited to twice, and no longer three times, the SMI. Thirdly, in bankruptcy proceedings, allowances due from FOGASA will be calculated on the basis of 20 days’ wages per year of service, up to a maximum of one year’s wages, without the daily wage serving as the basis for calculation exceeding twice the SMI, whereas the previous limit was three times the SMI.

The Committee notes that, in its reply to the observations of CCOO and UGT received on 20 November 2012, the Government indicates that the framework for the protection of wage claims by FOGASA, which was introduced by the Royal Legislative Decree No. 20/2012, is virtually identical to the framework that was applicable before the adoption of Act No. 43/2006 of 29 December 2006 on economic growth and employment. The legislation currently in force is, however, more favourable to workers in a certain number of points, in particular, in so far as it covers compensation for termination of temporary or fixed-term contracts. The Government has also provided statistical data showing a considerable increase between 2008 and 2012, of the number of protected workers (from 90,318 to 198,574) and of the sums of compensation paid by FOGASA (€434,015 in 2008 and €1,166,200 on 30 September 2012). This evolution is due to the severe economic crisis, the significant number of enterprises that have ceased their activities and the high rate of unemployment. In this context and given the impossibility of increasing the resources of FOGASA by raising the employers’ contribution, the only option in order to maintain its sustainability was to reintroduce the ceilings that were applicable to benefits before the legislative amendments introduced in 2006, while preserving the abovementioned improvements. Finally, the Government underlines that, in any event, the level of protection afforded by the national legislation is higher than that required under the Convention.

The Committee notes the Government’s explanations and requests it to keep the Office informed of new developments relating to the regulation of the protection of wage claims by FOGASA and to transmit together with its next report statistical data on the evolution of the number of employees covered by the relevant legislation, the sums paid by the Fund and the number of bankruptcies registered per year.

Part IV of the report form. Application in practice. The Committee notes that the UGT also refers in its observations – as does the Government in its reply – to the substantial increase in the amount of benefits paid by FOGASA and in the number of enterprises affected while noting that budget cuts in 2012 reduced the amount of benefits by 10.7 per cent and the body that collects employer contributions has not repaid the amount of these contributions to FOGASA since May 2011. The UGT concludes from this that a considerable financial imbalance is to be expected in the accounts of the latter. Finally, it mentions that the large increase in the number of cases processed has not been matched by an increase in staff. Consequently, in certain agencies, the average time for processing a file is more than six months, whereas the legal maximum is three months. The Committee requests the Government to send in its next report any comments it may wish to make in reply to the observations of the UGT on this point.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 4 of the Convention. Partial payment of wages in kind. The Committee notes the observations of the Trade Union Confederation of Workers’ Committees (CCOO) set out in a communication of 13 August 2012. It notes that with reference to the Committee’s previous comments on the application of this Article of the Convention, the CCOO states that the amendment of section 26(1) of the Workers’ Statute by Act No. 35/2010 of 17 September 2010 on urgent measures to reform the labour market, merely provides that wages in kind may not exceed 30 per cent of the worker’s remuneration or lead to a reduction in the amount of the interoccupational minimum wage. The Committee notes that in its reply to the comments of the CCOO, received on 20 November 2012, the Government underlines that the 30 per cent limit to the remuneration that may be paid in the form of allowances in kind, combined with the obligation to pay the amount of the interoccupational minimum wage in cash, make up a regulatory framework that is more protective than the Convention.

In addition, in reply to the Committee’s previous comments, the Government states in its report that payments in kind must be quantifiable in monetary terms, though the labour legislation contains no provisions on the evaluation of such payments. According to the Government, case law and business practice follow the rules for evaluation set in the legislation on the taxation of natural persons, which refers to the market value of payments in kind. The Government adds that in any event the value attributed or agreed by the parties must be reasonable and contribute to satisfying the needs of the person concerned and his/her family while adding to his/her personal assets. Otherwise, the payments would not be wage payments. According to the Government, assistance with school or day-care fees and meal allowances are not deemed to be part of the wage. Lastly, the Government indicates that no provision in the law expressly forbids payment of wages in the form of alcoholic beverages or noxious drugs. It nevertheless considers, in the light of the above considerations, that it can be concluded that such substances lack the characteristics needed to treat them as payment in kind. The Committee notes with interest the amendment to section 26(1) of the Workers’ Statute restricting partial payment of wages in kind. It notes that there is a similar provision in section 8(2) of Royal Decree No. 1620/2011 of 14 November 2011 issuing specific regulations on the employment relationship of domestic workers. While noting the Government’s explanations, the Committee would appreciate receiving more detailed information, in particular copies of court decisions bearing on matters dealt with in this Article of the Convention.

Article 12(1) and Part V of the report form. Regular payment of wages – Application in practice. The Committee notes the information sent by the Government on the work done by the labour inspectorate in recent years to ensure compliance with the legislation on wages. It notes that between 2007 and 2011, inspection visits increased by 7.23 per cent, the number of infringements of this kind increased by 101.79 per cent, the amount of the penalties imposed increased by 165 per cent, and the number of workers affected by such infringements increased by 425.89 per cent. The Committee notes the information from the Government to the effect that, in most cases, infringements concern the non-payment of wages or wage arrears, the partial payment of the latter or the underpayment of wages due. The Government points out that the infringements are for the most part caused by a lack of liquidity in enterprises due to the economic and financial crisis. The Committee also notes that in many cases disputes about wages are not dealt with by the labour inspection services but are the subject of court proceedings. The Committee requests the Government to continue its action to put an end to practices of non-payment of wages or wage arrears, which are particularly harmful to workers in these times of economic crisis. It requests the Government to continue to provide information on the manner in which the Convention is applied in practice, and particularly on the results of the work of the labour inspectorate, and to send copies of any decisions handed down by the Spanish courts that concern matters of principle pertaining to the implementation of the Convention.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 3 of the Convention. Elements to be taken into consideration in determining the level of minimum wages. The Committee notes the observations made by the Trade Union Confederation of Workers’ Commissions (CC.OO.) and the General Union of Workers (UGT) in communications dated 13 and 31 August 2012, respectively. It notes that, according to the CC.OO., the purchasing power of the interoccupational minimum wage (SMI) has been decreasing every year since 2010 and the SMI has corresponded to an increasingly small proportion of the average wage since 2007. The CC.OO. recalls that the Spanish minimum wage is one of the lowest in the “EU15”, without this situation being justified by differences in hourly productivity levels. It considers that the economic crisis cannot be used as a pretext for abandoning the objective of attaining a minimum wage corresponding to 60 per cent of the average wage, which is the percentage considered to be fair in the context of implementation of the European Social Charter. The CC.OO. is asking the Government to restore the loss in purchasing power of the SMI which has been recorded since 2010 and is calling for a reform of section 27 of the Workers’ Statute in order to establish new criteria for fixing the amount of the SMI on an annual basis. The Committee further notes that the UGT refers in its observations to the loss of purchasing power of the SMI since 2010, and the freeze of the amount of the SMI in 2012, as well as the increased gap between the SMI and the average wage.

The Committee notes that, in its reply to the observations made by the CC.OO. and the UGT, the Government provides information on the evolution of the SMI, the consumer price index (IPC) and the gross average wage between 2006 and 2011. The Government points out that, by virtue of section 27 of the Workers’ Statute, the amount of the SMI is determined not only on the basis of the IPC but also other factors such as national average productivity, increased worker participation to the national revenue and the general economic environment. The freeze of the SMI for 2012 followed a period of six years of increases beyond the increase of the IPC but this tendency could no longer be maintained because of the economic crisis. Despite the small number of workers receiving the SMI, an increase of the minimum wage by 1 per cent has an impact of €57 million on the State budget because of the direct link between the amount of the SMI and the reference base for calculating social security contributions. Such an increase also results in an increase of the expenditure of the Wage Guarantee Fund by €3.066 billion and an increase of the expenditure related to unemployment benefits by €17.3 million.

The Committee notes that in its report on the application of the Convention, the Government also provides information on the evolution of the SMI since 2008, indicating that, at the time of the increase of the SMI in 2011, account was taken in particular of the economic recession and the need to pursue a moderate wage policy with a view to contributing to economic recovery and job creation. The Government also refers to a resolution adopted on 30 January 2012 by the Directorate-General of Employment, which registers an agreement for employment and collective bargaining for 2012–14 concluded by the Spanish Confederation of Employers’ Organizations (CEOE), the Spanish Confederation of Small and Medium-Sized Enterprises (CEPYME), the CC.OO. and the UGT. This agreement provides, inter alia, for wage moderation in collective bargaining and defines the criteria to be used for this purpose.

Furthermore, the Committee notes that the European Committee on Social Rights considered in 2010 that the situation in Spain was not in conformity with the European Social Charter on the grounds that the minimum wage was clearly unfair, based on the statistical information published by the Organisation for Economic Cooperation and Development (OECD), according to which the SMI corresponded in 2010 to 35 per cent of the average wage for full-time workers. It further notes that Royal Decree No. 1888/2011 of 30 December 2011, fixing the interoccupational minimum wage for 2012 has maintained the amount of the SMI at the same level as that which was in force in 2011, as confirmed by the Government. This decision was justified, according to the preamble to the Royal Decree, by the economic context which made it preferable, for 2012, to adopt wage policies contributing to the priority objective of economic recovery and job creation.

While being fully aware of the major economic difficulties currently faced by Spain, the Committee considers that the fixing of minimum wages in concertation with the social partners and enabling workers to meet their needs as well as those of their families is a key element for decent work, particularly in periods of economic and social crisis. It refers, in this regard, to the Global Jobs Pact, adopted by the International Labour Conference in June 2009 in response to the global economic crisis, an instrument which underlines the relevance of ILO instruments relating to wages in order to prevent a downward spiral in labour conditions and build the recovery (paragraph 14). The Pact also suggests that governments should consider options such as minimum wages that can reduce poverty and inequity, increase demand and contribute to economic stability (paragraph 23), and it provides that, in order to avoid deflationary wage spirals, minimum wages should be regularly reviewed and adapted (paragraph 12). The Committee hopes that the Government will endeavour to take full account of the needs of workers and their families, and not just the objectives of economic policy, when undertaking the annual adjustment of the minimum wage in future, avoiding depreciations in the purchasing power of the SMI, and that it will fully involve the social partners, on an equal footing, in decision-making in this field.

Finally, with regard to the relationship between the SMI and social security contributions or benefits, the Committee had noted in its previous direct request that, by virtue of section 1 of Royal Legislative Decree No. 3/2004 of 25 June 2004, the SMI no longer served as a basis for calculating certain social benefits and had been replaced to this end by the public indicator of multiple effect income (IPREM). The Committee requests the Government to provide additional explanations on this point, in the light of the information that it has communicated concerning the budgetary impact of minimum wage increases.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report and the information that it contains. It would be grateful to be provided with further particulars on the following points.

Article 2, paragraph 1, of the Convention. Scope of application. The Committee notes that section 2 of the Workers’ Charter enumerates the categories of “labour relations of a special nature”, including those of high-level managerial staff, domestic workers, professional sportspersons, artists engaged in public performances and any other work declared to be such. It notes that this provision is confined to providing that the regulation of these labour relations of a special nature shall comply with the fundamental rights set out in the Constitution. The Committee requests the Government to indicate the legal provisions governing the protection of the wages of these categories of workers.

Article 4. Partial payment of wages in kind. The Committee notes the adoption of Act No. 35/2006, of 28 November 2006, respecting taxation on individuals and partially amending the laws respecting taxation on companies, the income of non-residents and personal assets. It notes that sections 42 and 43 determine the rules for the evaluation of allowances in kind for the purposes of the calculation of taxation on individuals. The Committee requests the Government to indicate the measures, other than tax law provisions, which have been taken to ensure that, in cases in which wages are paid partially in kind, such allowances are appropriate for the personal use and benefit of the worker and her or his family, and that the value attributed to such allowances is fair and reasonable. In particular, the Committee requests the Government to indicate whether legal provisions prohibit the payment of wages in the form of liquor or of noxious drugs. The Government is also requested to provide a copy of collective agreements in force which permit the partial payment of wages in kind.

Article 7. Works stores. The Committee requests the Government to indicate whether measures have been taken to ensure that the goods sold and the services provided by the employer are at fair and reasonable prices and that the stores established by the employer are not operated for the purpose of securing a profit, but for the benefit of the workers concerned.

Article 8. Deductions from wages. The Committee notes that Act No. 1/2000 of 7 January 2000 on civil procedures only addresses judicial attachment, covered by Article 10 of the Convention, and not deductions from wages. The Committee requests the Government to provide information on the conditions and the extent to which deductions from wages may be permitted and on the steps taken to inform the workers.

Article 12. Regular interval for the payment of wages. The Committee notes that, under the terms of section 29(1)(1) of the Workers’ Charter, the interval between the payment of wages may not exceed one month. It requests the Government to indicate the legal or other measures which provide for the final settlement of all wages due within a reasonable period after the termination of the contract of employment.

Article 13. Time and place of the payment of wages. The Committee notes that, by virtue of section 29(4) of the Workers’ Charter, wages shall be paid punctually on the date and at the place agreed or in accordance with custom and practice. However, it notes that, contrary to the former Labour Act, this provision no longer establishes that the payment: (a) shall be made during the working day or immediately thereafter, and at the workplace; and (b) cannot be made during rest days or in places of amusement, bars, cafes or shops, except in the case of persons working in these establishment. The Committee requests the Government to indicate the measures adopted to ensure that effect is given to the Convention on this point.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes with interest the Government’s report and the information it contains, especially with regard to the increases in the inter-occupational minimum wage (SMI) which have occurred in recent years. It notes that the SMI, which was 451 euros (€) in 2003, increased by 2 per cent during the first half of 2004 and that a second (6.6 per cent) increase was then made to offset the loss of purchasing power which occurred between 1996 and 2003. The Committee notes that the increase in the SMI was 4.5 per cent in 2005, 5.4 per cent in 2006 and 5.5 per cent in 2007, these increases being greater than those of the consumer price index. Accordingly, the SMI was €570 per month in 2007, or 621 PPS (purchasing power standard). Finally, the Committee notes that the Government intends to increase the minimum wage to €600 in 2008 and to €800 during the next legislative session.

The Committee notes with interest the adoption of Royal Legislative Decree No. 3/2004 of 24 June 2004, the preamble to which explicitly mentions the Government’s objective of enhancing the status of the SMI by bringing it closer to the threshold considered acceptable by the European Committee on Social Rights, namely 60 per cent of the average national wage. It notes that, according to data published by Eurostat, the SMI represented 35.56 per cent of average monthly earnings in industry and services in 2003; 36.5 per cent in 2004; 40.44 per cent in 2005; and 41.39 per cent in 2006. The Committee also notes that, under the terms of section 1 of the above mentioned Royal Legislative Decree, the SMI no longer serves as a basis for calculating certain social benefits. In this respect, it notes that this dual role previously played by the minimum wage constituted the main obstacle to increasing it, because of its direct impact on public finances.

Moreover, the Committee notes that, according to data published by Eurostat, in 2005 Spain was the European Union Member State with the lowest percentage (0.8 per cent) of full-time workers being paid the minimum wage. The Committee also notes the indications in the Government’s report to the effect that between 80 and 85 per cent of workers are covered by a collective agreement and are paid a wage greater than the SMI.

Finally, the Committee understands that the Government, in the context of negotiations conducted in 2004 and 2005, intended to maintain purchasing power for recipients of the SMI by prescribing that increases in the minimum wage should not be less than the rate of inflation. The Committee requests the Government to indicate whether measures have been taken to this end and, if so, to send copies of the texts which are applicable in this regard.

The Committee also requests the Government to continue providing information on changes in the legal minimum wage and on the application of the Convention in practice. In particular, the Government is requested to supply information on trends in the relationship between the minimum wage and the average national wage and on the percentage of workers being paid the minimum wage in the main branches of economic activity (particularly in agriculture, the hotel industry and construction). The Committee also invites the Government to supply information on the results of labour inspection visits with regard to observance of the legal provisions concerning the inter-occupational minimum wage.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

Part II of the Convention. Protection of wage claims by a privilege. The Committee notes the adoption of the Insolvency Act (No. 22/2003 of 9 July 2003), which consolidates the various insolvency procedures, drastically reduces the number of privileges and preferences relating to claims on the assets available for distribution, and amends section 32 of the Workers’ Charter concerning the protection of wage claims by a privilege. It notes that the provisions of section 32 no longer apply when a declaration of insolvency has been made pursuant to the abovementioned Act.

The Committee notes that section 84 of Act No. 22/2003 establishes a distinction between claims constituting the liabilities and claims on the assets available for distribution. It notes that the following are considered as claims on the available assets: (1) wage claims corresponding to the 30 days of work preceding the declaration of insolvency, up to a limit of twice the inter occupational minimum wage (SMI), being claims that will be paid immediately under section 154(2) of the Act; (2) other claims, including wage claims arising from the debtor’s activity after the declaration of insolvency. The Committee also notes that, under section 154(3) of the abovementioned Act, claims on the available assets will be paid out of the property and entitlements not attached to the payment of claims enjoying a special privilege. If the assets are insufficient, the proceeds will be distributed between all parties making claims on the available assets according to the order of the due dates.

The Committee also notes section 89 of Act No. 22/2003, under the terms of which claims constituting the liabilities are divided into privileged claims (which are in turn divided into special privileged claims and general privileged claims), ordinary claims and subordinate claims. It notes that workers enjoy a special privilege on the goods that they have manufactured or constructed even if they are the debtor’s property or in the debtor’s possession, in accordance with section 90(1)(3) of the Act. Section 91 states that a general privilege applies, inter alia, to wage claims that do not enjoy a special privilege, up to a limit of three times the daily minimum wage for the number of days of unpaid wages, and also to statutory severance payments for an amount not exceeding three times the minimum wage. The Committee also notes that, under section 156, general privileged claims will be paid, after deduction of the property and entitlements necessary for the payment of claims on the available assets, out of the assets not subject to a special privilege and out of the remainder of the assets subject to such a privilege after payment of the corresponding claims.

Hence it can be seen from the above that Act No. 22/2003 grants the status of claims on the available assets to wage claims arising after the declaration of insolvency. However, they do not take priority over the other claims on the available assets, the various claims being paid according to the order of the due dates. At all events, claims on the available assets are paid out of the assets not attached to the payment of claims enjoying a special privilege (such as claims secured by mortgage). Moreover, the wages due for the period preceding the declaration of insolvency (beyond the first month, for which a claim on the available assets also applies) are covered by a general privilege but are paid only after settlement of all the claims against the available assets, including legal costs, etc. The Committee therefore understands that this Act provides substantial protection of workers’ claims by means of a privilege in the event of the insolvency of their employer. The Committee requests the Government to supply all relevant explanatory information on this subject.

Further, the Committee notes that the Spanish Government submitted a Bill to Parliament on 8 September 2006 concerning insolvency and the order of priority of claims in the case of individual liquidation (i.e. in the absence of a creditors’ agreement), which is likely to have consequences for the protection of wage claims. It notes that the Economic and Social Council has expressed certain reservations with regard to this Bill. The Committee requests the Government to supply information on the progress made on the the adoption of this Bill and on its possible impact on the order of priority of wage claims.

Part III. Protection of workers’ claims by a guarantee institution. The Committee notes that section 33(1)(2) of the Workers’ Charter was amended by Act No. 43/2006 of 29 December 2006 concerning the increase of economic growth and employment. It notes with interest that the maximum amount of wage claims protected by the wage guarantee fund, which used to correspond to twice the daily minimum wage for a maximum period of 120 days, now corresponds to three times the minimum wage for a maximum period of 150 days. The Committee also notes with interest that the guarantee fund also covers new types of payment for dismissal or termination of employment, including termination of the contract on objective grounds, judicial termination in the context of the Insolvency Act, and the expiry of temporary contracts and fixed-term contracts. Moreover, it notes with interest that the ceiling for payments covered by the guarantee fund remains fixed at one year’s wages but that the daily wage serving as the basis for calculation is now limited to three times (and no longer twice) the minimum wage, including, proportionally, the 13th and 14th months. Finally, the Committee notes with interest that the amount of payments in the event of termination of the employment contract on the worker’s initiative is calculated on the basis of 30 (and no longer 25) days’ wages per year of service, without prejudice to the abovementioned ceiling.

In addition, the Committee notes the fourth supplementary provision of Act No. 43/2006, under the terms of which future modifications to contributions and benefits relating to the wage guarantee fund will be determined according to the financial surplus of this fund. The Committee requests the Government to provide further information on the possible impact of the application of this provision on the level of protection of workers’ claims in the event of the insolvency of their employer.

Part IV of the report form. The Committee notes the information in the Government’s report to the effect that, in 2005, 68,557 workers were protected, for a total amount in excess of €232 million; and in 2006, 75,081 workers (+9.5 per cent) were protected, for a total amount in excess of €312 million (+34.5 per cent). The Committee requests the Government to supply further information on the reasons why the amount of wages and benefits paid by the wage guarantee fund increased so sharply between 2005 and 2006.

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

The Committee notes the detailed information contained in the Government’s last two reports and the attached documentation.

Articles 6(d) and 12(d) of the Convention. The Committee notes the decision of the Supreme Court of 26 December 2001 in which it was concluded that the termination benefits referred to in section 33(2) of the Workers’ Statute have the same meaning as the term "severance pay" employed in Articles 6(d) and 12(d) of the Convention and include compensation payable only in the event of the termination of employment at the initiative of the employer. The Committee recalls in this connection that the International Labour Office has on three different occasions given informal opinions suggesting that the term "severance pay" should be understood in a narrow sense to cover only that form of compensation due to workers upon termination of their employment at the initiative of the employer and that it should be read in conjunction with Articles 3 and 12 of the Termination of Employment Convention, 1982 (No. 158), which are drafted upon the same understanding.

Part IV of the report form. The Committee notes that according to the statistical information supplied by the Government, in 2000 the Wage Guarantee Fund (FOGASA) settled claims of 76,827 beneficiaries for a total amount of 228 million euros while in 2001 some 70,237 workers received payments totalling 214 million euros. The Committee would appreciate if the Government could continue to supply detailed information on the practical application of the Convention, including for instance available statistics on the number of bankruptcies and the amount of unpaid wages recovered through judicial proceedings in accordance with existing bankruptcy laws and regulations, but also full particulars on the operation, financing and management of the wage guarantee institution, particularly as regards the number of applications received, the proportion of claims settled and the sums of wage debts paid on a yearly basis.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s report and its reply to the comments of the General Workers’ Union (UGT), which were examined in its previous observation.

Articles 2 and 3 of the Convention. In connection with the comments of the UGT on the factors taken into consideration in determining the interoccupational minimum wage (SMI), the Committee notes the Government’s statement that the four elements referred to under section 27.1 of the Workers’ Charter are taken into consideration, that is the consumer price index, the average national productivity, the increase in the share of labour in national income and the general economic situation. The Government adds that the determination of the SMI is not automatically decided upon from the addition of specific factors, but is the result of an economic policy decision which takes into account the main macroeconomic factors, the economic and social objectives of the Government and the consultations with the social partners.

The Committee notes the Government’s indication concerning the difference between the average wage and statutory minimum wage, according to which the two concepts should not be related, as the first is an economic and statistical calculation based on data, while the latter is a legal concept based on hypothetical criteria. According to the Government, a simple mathematical comparison of the two cannot be used to determine whether the statutory minimum wage is sufficient to cover workers’ basic needs, since workers paid the minimum wage benefit from legal protection through fiscal and other social benefits, including housing, allowances, education grants, and assistance benefits, which other workers paid average wages do not receive or receive to a lesser extent.

Furthermore, the Government, referring to the specificities of the Spanish system, indicates that the SMI has a dual effect: on the one hand, it guarantees workers the minimum wage necessary to cover their basic needs by limiting the freedom of the parties to determine the remuneration for work; on the other hand, it serves to identify the income level entitling workers to certain benefits (education grants, legal assistance free of charge, unemployment assistance, etc.) and acts as a reference point for quantifying certain social benefits and contributions. According to the  Government this implies that an increase in the SMI has a direct impact on public expenditure, and therefore has to be fully consistent with its economic policy objectives.

The Committee requests the Government to indicate the manner in which it ensures that the annual adjustment of minimum wages reflects the basic needs of workers and their families, for example by guaranteeing the maintenance of their purchasing power in relation to a certain basket of basic products. The Committee also requests the Government to provide statistical information on changes in the minimum wage rates in relation to fluctuations in the inflation rate and the consumer price index over recent years.

Article 5 and Part V of the report form. The Committee notes Royal Decree No. 1466/2001 of 27 December 2001 which establishes the SMI for 2002 at 14.74 euros a day or 442,20 euros a month. The Committee requests the Government to continue to provide general information on the application of the Convention in practice, in particular: (i) statistical information on the results of inspections carried out relating to minimum wages (violations reported, sanctions imposed, etc.); (ii) the approximate number of workers covered by minimum wage rates in force; (iii) the minimum wage rates; and (iv) copies of studies or recent official reports on the minimum wage system and any other information relating to the application of the provisions of the Convention.

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

The Committee notes the observations made by the General Confederation of Workers (UGT), which were forwarded to the Government on 14 February 2000, although the latter’s comments have not yet been received. The Committee also notes the observations of the Democratic Confederation of Labour (CDT) of Morocco and the Government’s reply to these observations.

1.  With reference to the observations made by the UGT, the Committee notes that, according to the UGT, when determining the inter-occupational minimum wage (SMI), the Government only takes into consideration the consumer price index, without taking into account a series of other factors, such as average national productivity, the increased share of labour in the national income and the general economic situation, as established in Article 3, paragraph (b), of the Convention. The Committee also notes that, according to the UGT, the European Committee on Social Rights, the body responsible for the application of the European Social Charter, considered in 1996 that the SMI determined by the Government was once again unjust and inadequate, since it only amounted to 36 per cent of the average gross wage and was approximately 24 points below the level considered appropriate in the Charter (60 per cent of the average net wage).

The Committee notes that, taking into account these indications, the UGT and another workers’ organization requested the Government to increase the SMI in 2000. Nevertheless, the Government did not grant the request and increased the SMI by a percentage that was different from the level proposed by the above organizations.

The Committee recalls that, as it pointed out in its 1992 General Surveyon minimum wages, it has always emphasized the respect which is required for the fundamental principle of consultation and the participation of employers’ and workers’ organizations in the application of minimum wage-fixing machinery. The Committee however recognizes that consultation is only one stage in the decision-making process, as it indicated in its 2000 General Surveyon tripartite consultation.

The Committee hopes that the Government will provide its comments as rapidly as possible on the UGT’s allegations.

2.  With reference to the observations made by the CDT of Morocco concerning events in El Ejido (Almeria), the Committee notes that according to this organization, the Spanish Government should undertake to establish a system of minimum wages applicable to all groups of employees whose terms and conditions of employment are such that they require the safeguard of such protection.

The Committee notes the Government’s statements that, in terms of wages, Moroccan workers are covered in the same way as other workers by the corresponding collective agreement and that all workers who are not covered by a collective agreement are covered by the inter-occupational minimum wage which, in 2000, is set at 76,680 pesetas a month (equivalent to 4,258 dirhams), and that all Moroccan workers for any complaint respecting wages or general conditions of work can have recourse to the labour courts which are competent in such matters under the same conditions as Spanish workers.

The Committee hopes that the Government will continue to provide information on any developments in this respect.

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

Article 1, paragraph 3, of the Convention. The Committee notes with satisfaction the adoption of Royal Decree No. 2015/97, establishing a minimum wage without distinction based on age and for equality of wages between those over and under 18 years.

Article 3. The Committee notes the adoption of Royal Decrees Nos. 2015/97 and 2817/98 which respectively determine inter-occupational minimum wages for 1998 and 1999. The Committee also takes note of the Government's indication that, when determining the inter-occupational minimum wage (SMI), it will take the following into account: the consumer price index; national average productivity; the increase in contribution of the labour force to national income and the general economic situation, as established by section 27.1 of the Workers Statute. The Committee trusts that the Government, in determining minimum wages or the frequency of revisions thereof, will take care to ensure to workers a minimum wage that will provide a satisfactory standard of living for them and their families, in conformity with subparagraph (a) of this provision of the Convention.

Article 4, paragraph 2. The Committee notes the indication of the Government in its report that the SMI is not fixed by an automatic decision based on a calculation of certain factors, but entails an economic policy decision, and it is precisely for this reason that consultations with the social partners take place, as provided for by section 27.1 of the Workers Statute. In this connection the Committee would like to recall that, as stated by the tripartite committee established to examine the representation made by the Trade Union Confederation of Workers' Committees in its report submitted to the 243rd meeting of the Governing Body (GB.243/6/22), the consultations with the social partners referred to in this provision of the Convention are not a simple formality; their purpose is to enable account to be taken of the opinion of the social partners at the time of taking the decision. As the Committee pointed out in the General Survey on tripartite consultation, the term "consultation" has a different connotation both from mere "information" and from "codetermination", and it should enable influence to be exerted in decision taking. The Committee hopes that the Government will supply more detailed information in its next report on consultations with the social partners, including for example the existence of discussions of the replies provided by the latter, or other procedures the aim of which is to ensure "full" consultations as required by this provision of the Convention.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee has noted the Government's first report and requests the Government to supply further information on the following points:

Article 1(3) of the Convention. The Committee asks the Government to indicate in what way the extent of the employer's responsibility in the insolvency proceeding is determined by legislation or practice.

Articles 6(d) and 12(d). The Committee notes that, under sections 32.3 and 33.2 of the Workers' Statute (as consolidated by Legislative Decree 1/1995 of 24 March 1995), indemnities for dismissal (indemnizaciones por despido) are protected by privilege and by the guarantee institution. It also notes the Government's statement in the report to the effect that other types of severance pay (indemnizaciones por fin de servicios) are considered to be covered by the obligation of guarantee as having been incorporated into internal rules by way of the ratification of the Convention. The Committee recalls however that, under Article 2 of the Convention, its provisions have to be applied by means of laws or regulations or other means, and requests the Government to indicate measures taken to protect other types of severance pay than indemnities for dismissal by privilege and by the guarantee institution.

Article 7. With reference to its observation relating to the comments of the General Union of Workers (UGT) that the quantitative limit to the payment of guarantee by the Wage Guarantee Fund (FOGASA), which is based on the interprofessional minimum wage (SMI), is resulting in insufficient protection, and noting that quantitative limits based on SMI are also set for the protection by privilege, the Committee invites the Government to supply its observations with regard to the above-mentioned quantitative limitations to the protection by privilege.

Further to the observation it is making, the Committee requests the Government to supply information on the practical application of the Convention, with particular reference to the actual functioning of the FOGASA, and including the number of workers covered by the measures giving effect to the Convention, in accordance with point IV of the report form.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

1. The Committee notes the observations made by the General Union of Workers (UGT) concerning the application of the Convention in the country. Although these observations were communicated to the Government in March 1998, up to now no response or comment has been received from the Government.

2. The UGT points out in its observations, first, that the Interprofessional Minimum Wage (SMI) in Spain is fixed each year by the Government after a non-binding consultation with the social partners, which generally ends up as an information session on the Government's intention, without taking account of the trade unions' proposals. According to the UGT, the SMI directly affects the fixing of wages for a large number of workers, constitutes a point of reference for determining many basic benefits in the system of social protection (subsidies and benefits for unemployment, minimum pensions, social wages, wages guaranteed in the case of the employer's insolvency, etc.) and provides conditions of access to other benefits and rights (scholarships, officially protected housing, etc.).

3. The UGT observes that the fixing of the SMI has been constantly criticized on two main grounds, viz. (i) because its amount and periodical revisions do not comply with the national legislation or the accepted international criteria, and (ii) because it establishes a clear discrimination against workers under 18 years of age, for whom lower wages are fixed. Regarding the latter point, the UGT notes that the SMI fixed for 1998 will be applied to all workers, as the SMI for those under 18 years of age has disappeared.

4. The UGT states that the SMI has lost 2.5 points of purchasing power in the last decade, and continues to worsen further with the latest decision to fix the amount of SMI at 68,040 pesetas for 1998. The UGT recalls that section 27.1 of the Workers' Statute makes it obligatory to fix the SMI taking account of the consumer price index, the average national productivity attained, the increase of the labour participation in the national income and the general economic conjuncture. According to the UGT, the Executive applied only the first of these criteria (consumer price index) raising the previous amount by 2.1 per cent. The UGT considers that such a decision was also an infringement of Convention No. 131.

5. The Committee recalls again that it requested, in its observation of 1997, the Government to provide information on the measures taken to ensure effective consultation with employers' and workers' organizations concerned before the fixing of the SMI, in accordance with the provision of Article 4 of the Convention.

6. The Committee hopes that the Government will communicate detailed information in its next report regarding the observations made by the UGT and on the outstanding questions relating to the consultation with the organizations concerned.

[The Government is asked to report in detail in 1999.]

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee has noted the Government's first report, as well as the comments of the General Union of Workers (UGT), which were sent to the Government for observation on 24 March 1998.

The UGT points out that the quantitative limit to the payment of guarantee by the Wage Guarantee Fund (FOGASA) which is based on the interprofessional minimum wage (SMI) is resulting in insufficient protection. It also notes that, because of the budgetary insufficiency of the FOGASA itself and administrative procedures, it takes the worker at least three-and-a-half years to receive the indemnities after the non-payment by the employer occurred.

The Committee notes that the Government has not supplied its observations in reply to these comments and invites the Government to do so, with reference to Article 13 of the Convention regarding the first point, and treating the second point as a question of the application of Part III of the Convention in practice.

As to the contributions payable by the employer regarding social security, mentioned among other points by the UGT in the comments, the Committee notes that such contributions are not included in the "workers' claims" to be protected under this Convention (Articles 6 and 12), and therefore do not fall within its scope.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the detailed information supplied by the Government in its report.

Periodic adjustment of minimum wages

In its previous comments relating to the observations submitted by the General Union of Workers (UGT), the Committee requested the Government to indicate the procedure followed, under section 27(1) of the Workers' Statute which provides for the half-yearly revision of the interoccupational minimum wage (SMI) in the event that the price index forecasts prove inaccurate, in order to verify the correctness of the forecast and to determine whether the SMI should be revised, and to indicate whether the employers' and workers' organizations are consulted in this regard.

The Government indicates that during the reference period there have been no half-yearly revisions of the SMI in application of section 27(1) of the consolidated Workers' Statute. The Government recalls, however, that following the amendment of the regulations on the legal wages system by Royal Decree No. 170/1990 of 9 February 1990, loss of purchasing power is considered as a factor to be taken into account in revising wages when inflation proves to be higher than forecast and adopted for determining the minimum wage. Possible differences between the rate of inflation forecast and the actual rate may be known at the moment of determining the amount of minimum wage which will be in force the following year, by applying this minimum wage correction factor, namely the loss of purchasing power, in accordance with the revision clause provided in collective labour agreements or those applicable to civil servants and retirees.

The Committee notes these indications and requests the Government to indicate whether employers' and workers' organizations were consulted before the provisions relating to half-yearly re-examination of the SMI were used.

Application of the principle of equal remuneration for work of equal value for young workers receiving interoccupational minimum wage

In previous comments, the Committee noted the Government's statement to the effect that since 1990 the SMI has been fixed for workers of 18 years and over and for those under 18, while previously a distinction was made between workers up to 16 years old, those 17 years old and those 18 and over. It also noted point 10 of part II (Legal grounds), of the constitutional court decision dated 7 March 1984 (BOE of 3 April 1984) in which it was confirmed that the principle of equal wages for the same work or work of equal value applies to workers of all ages. The Committee requested the Government to indicate the measures taken or contemplated to ensure that workers under 18 years old can, as stated in the report, receive wages equal to those of older workers for the same work or work of equal value.

The Committee notes with satisfaction the indication supplied by the Government in its report that, in addition to abolishing the wage differential for 16-year old workers, Royal Decree No. 2199/95 fixing the interoccupational minimum wage for 1996 initiates a process of closing the gap in minimum wages for adults and workers younger than 18 years of age, with the aim of aligning them definitively within three years. Hence, for 1996, the wage for young workers amounted to 77.4 per cent of that for adult workers whereas the percentage in 1995 was only 66.1 per cent. Similarly, Royal Decree No. 2656/96 fixing the interoccupational minimum wage for 1997, increases the minimum salary for minors under 18 years old by 17.73 per cent, as in the previous year, while the wage for adults over 18 years old increases by only 2.6 per cent.

The Committee requests the Government to continue to supply information on the convergence of interoccupational minimum wages for adult workers and minors.

Minimum wages for apprentices

In previous comments, the Committee, referring to the UGT's comments noted that the Workers' Statute provides in section 11(2) for the possibility of an apprenticeship contract for workers over 16 and under 25 years old and that the maximum age-limit does not apply to disabled workers. At that time, the Committee requested the Government to supply information on the application in practice of these provisions, particularly in regard to measures taken or envisaged to prevent the abatement of the minimum wage.

The Government indicates in its report that there have been various changes in the minimum wage for workers under a contract of training. A new section 11(2), which amends the old section 11(2) of the Consolidated Act on Workers' Status, replaces the training contract by an apprenticeship contract, and gives it a meaning that has a particular legal status. By this meaning, the purpose of the apprenticeship contract is to enable the apprentice to acquire the theoretical and practical training needed for performing a job or occupying a post of skilled work. It may be concluded with workers aged over 16 and under 25 years who do not possess the qualifications required for concluding a traineeship contract. The maximum age-limit does not apply to disabled workers. The theoretical training periods must alternate with practical work, comply with the provisions of the relevant collective agreement or, failing this, the labour contract, provided that the total time devoted to training is not less than 15 per cent of the maximum working day provided in the collective agreement. The theoretical part of the training is deemed to be complete when the apprentice confirms by means of a certificate issued by the competent public authorities that an occupational training course has been followed appropriate for the office or post in which the apprenticeship is undertaken. In this case, the worker's remuneration will increase in proportion to the work time not devoted to training. Enterprises which do not comply with their theory training obligations must compensate the worker by paying a sum equal to the difference between the wage received (bearing in mind the training time provided in the contract), and the interoccupational minimum wage or that provided under the collective agreement, without prejudice to the sanction incurred. The apprentice's remuneration is fixed by the collective agreement but, where there is no agreement, it may not be less than 70, 80 or 90 per cent of the interoccupational minimum wage during the first, second and third years of the contract respectively. In addition, the remuneration of apprentices aged under 18 years may not be lower than 85 per cent of the interoccupational minimum wage corresponding to his age.

According to the Government, the reduction in the interoccupational minimum wage corresponds to the occupational training which the worker receives in the enterprise.

The Committee notes these indications with interest. It requests the Government to continue to supply information on the impact of applying these measures to apprentices' minimum wages.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes the information supplied with the Government's report, and in particular, the observations made by the General Union of Workers (UGT).

The UGT points out (1) that the consultation before fixing the Interprofessional Minimum Wage (SMI) is confined to only one meeting per year with the workers' organizations, which is not enough for a detailed analysis of different elements, and which therefore results in the loss of purchasing power of the SMI; (2) that the differentiation of the minimum wage rates for the workers of 18 years and over and for those of less than 18 years is resulting in discrimination since neither the work performed nor the working hours are different; (3) that under the contract for training ("Contrato para la formación" under section 11(2) of the Workers' Statute (Act No. 8 of 10 March 1980, as amended by Act No. 32 of 2 August 1984), many young workers (261,916 contracts of this type in 1991) receive wages at less than the minimum rate because the employers can reduce the wages up to a half in relation to the time spent for teaching; and (4) that the provision of section 27(1) of the Workers' Statute concerning half-yearly revision of the SMI has not been implemented.

Regarding points (1) and (4) above, the Government indicates that the SMI has been revised annually after consultation with the representative organizations of the employers and the workers. It states that for the purpose of such consultation, the Government sends sufficient informative documentation and organizes meetings, and that workers' organizations often send back their proposal in writing, in which case the Government holds a last meeting to give the reply before the decision on the new SMI. The Government also indicates that the annual increase rates of the SMI were 6.0 per cent in 1989, 7.1 per cent in 1990 and 6.5 per cent in 1991, while the Consumer Price Index (CPI) in the real term increased 6.9 per cent, 6.5 per cent and 5.5 per cent respectively in the same period.

The Committee notes these indications. Regarding the periodicity of the adjustment, the Committee recalls that the tripartite committee set up to examine the representation made by the Trade Union Confederation of Workers' Committees (CC.OO.) under article 24 of the ILO Constitution concerning the application of section 27 indicated that "taking account of the information available, the Government has not failed to comply with the provisions of Article 4, paragraph 1, of the Convention in maintaining machinery whereby 'minimum wages can be adjusted from time to time'" (GB.243/6/22, Geneva, June 1989). The Committee further recalls that the Convention does not specify the frequency of wage adjustment. A given frequency of the minimum wage adjustment is in accordance with the provisions of the Convention insofar as it responds to the principal objective of the Convention, i.e. to ensure to workers a minimum wage that will provide a satisfactory standard of living for them and their families (paragraph 428 of the General Survey of 1992 on the Minimum Wages). In this connection, the Committee requests the Government to indicate the procedure followed under section 27(1) of the Workers' Statute which, however, provides for the half-yearly revision of the SMI in the case where the CPI forecasts did not prove correct, in order to verify the correctness of the CPI forecast and to determine whether the half-yearly revision of the SMI is necessary. It asks the Government to state whether the employers' and workers' organizations are consulted in this regard.

As to point (2) of the UGT's comments, the Committee notes the Government's indication that since 1990, the SMI has been fixed for the workers of 18 years of age or older and for those of less than 18, while previously there were three categories, i.e. up to 16 years, 17 years of age and 18 years and over. It also notes the court decision dated 7 March 1984 (BOE 3 of April 1984), in particular, point 10 of II. Legal Grounds, in which it was confirmed that the principle of equal wage for equal work also applies to the workers of different age. The Committee requests the Government to indicate concrete measures taken or contemplated to ensure that workers of less than 18 years can, as stated in the Government's report, receive equal wages if they perform work equal to that of the adults.

The Committee notes, regarding point (3) of the UGT's comments, that the Workers' Statute provides in section 11(2) for the possibility of a training work contract for workers of more than 16 and less than 20 years of age and, without the upper age limit, for disabled workers. The Committee requests the Government to supply information on the application in practice of these provisions, and, in particular, on measures taken or contemplated to prevent the abatement of the minimum wages.

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee takes note of the report of the committee set up to examine the representation made by the Trade Union Confederation of Workers' Commissions (CC.OO.) under article 24 of the ILO Constitution, alleging non-observance by Spain of this Convention (GB.243/6/22, Geneva, June 1989). It also takes note of the statement made by the representative of the Government of Spain at the 243rd meeting of the Governing Body, and the Government's communication of 16 May 1989 in which reference is made to the Committee's comments.

Articles 3(a) and (b) and 4, paragraph 1, of the Convention. In its observation, the CC.OO. indicated that the minimum wage is not being automatically adjusted to the Consumer Price Index (IPC), and it also pointed out that when the inter-occupational minimum wage is fixed, the needs of workers and their families are not taken into account, as the average rate of increase of the wages of workers covered by collective agreements is considerably higher than the wage of the workers covered by the inter-occupational minimum wage. It also pointed out that no account is taken of economic growth, since, according to the CC.OO., the rate of economic growth attained (from 5 to 6 per cent for 1988) has led to an increase in productivity which, in turn, should justify the minimum wage being increased to a level higher than the one granted by the Government. According to the CC.OO., the foregoing situations are contrary to the provisions of Articles 3(a) and (b) and 4(1) of the Convention.

The Committee recalls that the committee that examined the representation made by the CC.OO. indicated that "taking account of the information available, the Government has not failed to comply with the provisions of Article 4, paragraph 1, of the Convention in maintaining machinery whereby 'minimum wages can be adjusted from time to time'". In this connection, the Committee also indicated that "the methods for the fixing and adjustment of minimum wages are in accordance with the provisions of the Convention in so far as they respond to the principal objective of the Convention", which, moreover, does not specify the frequency of wage adjustments.

However, in view of the provisions of Article 3 of the Convention, in determining the level of the inter-occupational minimum wage, the Government should take into account the needs of workers and their families and the economic factors including the level of minimum wages fixed by collective agreements and of the Consumer Price Index, which, as the Government itself recognises, is higher than the percentage increase of the inter-occupational minimum wage. As a result, the growth of the latter over the period 1979 to 1988 has been less than the increase in the Consumer Price Index.

Article 4, paragraph 2. With reference to the statement made by the representative of the Government of Spain before the Governing Body, to which the Government refers in its report, the Committee notes that, according to that statement, when fixing the minimum wage for 1989, the Ministry of Labour and Social Security sent extensive documentation on the matter to the social partners, who submitted their respective replies which were discussed in meetings held on 27 December 1988 and 5 January 1989. The Committee hopes that the Government will continue to consult the social partners so that they can hold exhaustive discussions before the inter-occupational minimum wage is fixed, in conformity with the provisions of Article 4, paragraph 2, of the Convention.

The Committee asks the Government to continue to provide information concerning the procedures for fixing the inter-occupational minimum wage and particularly on the consultations held with the representatives of the workers' and employers' organisations, and on the elements taken into consideration in determining the inter-occupational minimum wage.