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A Government representative pointed out that the observation of the Committee of Experts was based on the comments made by two Spanish unions but that the corresponding Government report had been handed in to them in compliance with the standards of tripartism figuring in the IL0 Constitution and Convention No. 144. The necessity of increasing the actual staff available to the labour inspectorate - in relation to Articles 1, 3 (paragraph 1) and 16 of the Convention - was one of the aspects upon which the present team in the labour inspectorate had concentrated attention upon; the simplification procedures; full distribution of information with respect to what were the essential characteristics of the work accomplished by inspection; conclusion in October 1991 of an agreement with the Savings Bank Organisation to provide long-term and low-interest credit in order to facilitate the preparation of examination procedures to enable staff to join the labour inspectorate. According to statistics put at the Committee's disposal, these measures permitted in 1992 to hold examinations for 75 new posts in the senior grade of labour inspectors and social security and for 40 new posts in the grade of labour controllers. There was also a corresponding increase of material resources and of ancillary staff necessary to fulfil the objectives of labour inspection. With regard to "workplaces which were not inspected to ensure the effective application of the relevant legal provisions" (Article 16 of the Convention), it was appropriate to point out the provisions of section 12 of Act No. 39 of 21 July 1962 on the Organisation of Labour Inspection and of section 10 of Decree No. 2122 of 23 July 1971 which approved the regulation of labour inspection establishing the determining circumstances for the priority and frequency of visits to the workplace. There were also statistics on the number and nature of the activities undertaken by the labour inspectorate as well as on the steep increase in the number of workplaces inspected and the total number of activities carried out (more than 12 per cent in 1991 in comparison with 1990). With regard to the actual cooperation between employers' and workers' representatives and those of the labour inspectorate, the Circular of September 1988 issued by the General Inspectorate of Labour should be referred to. It provided that the inspector had to collect information as per section 30.2 of Act No. 32 of 1962 and of section 22(i) of Decree No. 2122 of 1971. It also provided that during inspection visits representatives of workers and of the company should be present and that meetings should be convened with such persons when the circumstances required. Cooperation with the labour inspectorate was going to be reinforced by a draft regulation of a procedure for penalties which was provided by Act No. 8 of 7 April 1988 on violations and penalties with regard to welfare matters particularly when the procedures of the labour inspectorate were related to the rights of representation, the protection of freedom of association or the compliance with labour standards on occupational safety and health. Moreover, workers' representatives received copies of the reports of the labour inspectorate. Since January 1991 cooperation between the labour inspectorate and employers' and workers' representatives were required on the matter of recruitment of workers and this cooperation between the labour inspectorate and employers' and workers' representatives were required on the matter of recruitment of workers and this cooperation had to be extended to prevent work hazards under section 39 of a draft Bill, a copy of which had also been transmitted to this Committee. As for the measures adopted by the labour inspectorate to ensure the implementation of the clauses of collective agreements, information on this matter had been transmitted in the Government's reports on the implementation of the Convention. Certain judicial decisions confirmed the competence of labour inspectors to implement the normative clauses of collective agreements. Generally speaking, the labour inspectorate had fixed its activities towards specific objectives and had planned its work in order to reinforce control over companies. As to the point made by the Committee of Experts in its observation on labour controllers, it would be appropriate to supplement the information communicated in the Government's report on the implementation of the Convention by adding that section 27 of Act No. 31 on Budgetary Resources for 1992 had amended section 52 of Act No. 8 of 1988. It contained a new paragraph which provided for the presumption of veracity with regard to the statements of violations made by labour controllers when they concerned facts which had been duly proved. Thus the problem which had arisen due to certain legal decisions which had contested the validity of the procedures carried out by labour controllers had been resolved.

The Workers' members thanked the Government representative for the fairly detailed information supplied in response to the requests of the Committee of Experts, whose observation reflected the comments made by the workers' organisations concerning insufficient means available to the labour inspection and the lack of collaboration with the workers' organisations. The decrease of financial means made available to the labour inspection seemed to be related to the budgetary restraints inspired by the necessity, strongly felt in Spain, of aligning the European economic policies. It however might have negative social consequences. When the inspection was supplied with excessively limited means, the practical application of labour standards was less controlled, to the detriment of workers and also of employers who respected these standards, as the visits on-the-spot of enterprises constituted the most effective form of supervision. The cooperation between the labour inspection and the workers' organisations should be developed. In spite of the declaration of the Government representative, there seemed to be problems in this regard. As the Committee of Experts indicated in paragraph 57 of its general report and also emphasised in this Committee, such cooperation, not costly for the State, was likely to improve the application of the Convention. It was therefore important to request the Government to respond as precisely as possible to the requests of the Committee of Experts, which should be easier since the statement of the Government representative already included a certain number of elements which should be found in its next report.

The Employers' members also thanked the Government representative for the detailed reply. In a large measure, the observation of the Committee of Experts summarised the criticisms made by the workers' organisations concerning the structure and function of the labour inspection, said to be under-equipped and provided with insufficiently qualified personnel. It was for example indicated that the labour inspectors would not be able to determine whether the clauses of collective agreement were of a "normative" or "obligational" nature. It concerned a problem on which it was difficult for the present Committee to pronounce itself, and neither did the Committee of Experts take a position in this regard. The Committee of Experts limited itself to enumerate the problems on which detailed reply of the Government was requested. The Government representative had supplied a full reply. Nevertheless, it concerned a type of case where a written reply was necessary. It would not be possible to make a fundamental appreciation on the basis of a simple oral statement. Only a written report submitted for the examination by the Committee of Experts according to the normal procedure would permit it to determine which problems had been resolved and which remained. For the moment, it might be questioned whether it was useful to treat in the Conference Committee cases for which the Committee of Experts had not been in a position to formulate its opinion.

The Workers' member of Spain emphasised that in this case it was not the activity of labour inspectors which had to be questioned but the Government's attitude to the labour inspectorate. Labour inspectors worked very well and it would only be necessary to give them more resources. In addition, they were too few in number, which hampered the effective implementation of the Convention. If Convention No. 81 was not fully applied, all international labour Conventions risked remaining a dead letter. The application of the Convention should be examined under three headings: hiring; control of compliance with collective agreements; and activities of labour inspection as regards health and safety at work. As regards the hiring of workers, a distinction was made in Spanish labour inspection between "inspectors" and "controllers". The latter dealt exclusively with work centres employing fewer than 25 workers and only for subsidised contracts. Taking into account the multiplication of the types of precarious contracts, in practice it was the majority of work centres with fewer than 25 workers, where such contracts were the most frequent, which were not inspected, by inspectors or controllers. Because of the high levels of unemployment in Spain, i.e. about 15 per cent of the working population, the labour inspectorate had to intervene in order to prevent employers from unduly resorting to temporary contracts. Rather than raising the resources of labour inspection, the Government chose instead to reduce unemployment benefits by 40 per cent, which led to the half-day strike on 28 May 1992. Spanish labour law doctrine distinguished between "normative" provisions in collective agreements and those which are "obligatory". According to this doctrine, the labour inspectorate should abstain from controlling the application of obligatory clauses. Therefore, the labour inspectorate ceased filling its conciliatory functions, which led to an increase in the number of strikes and to a situation where Recommendation No. 92 of 1951 on voluntary conciliation and arbitration was not complied with. The Government also presented a draft law restricting the right to strike rather than promoting with the same dispatch a new legislation on health at work. The multiplication of visits by the labour inspectorate was an essential means to prevent violations and accidents in the field of health and safety at work, but of course the Government seemed to be mainly preoccupied by its economic commitments under the Maastricht Treaty signed on 7 February 1992, even though that would mean limiting the resources of labour inspection. Two issues remained: the exact distribution of work between labour inspectors and controllers, and measures which would be taken to ensure that the labour inspectorate may control the implementation the collective agreements.

A Workers' member of Greece emphasised the importance of the implementation of this Convention. The Government's attitude was well known: for reasons of image, they voted for the adoption of Conventions, then they enacted legislation which was compatible with these Conventions. However, the situation was different when these acts had to be applied. The European trade unions heard quite often the excuse of insufficient financial means; it was reflected today by the pretext of economic convergence provided for by the Maastricht Treaty of 7 February 1992. And yet, it would be preferable to combat tax evasion rather than asking sacrifices from workers, in order to put public finances in order. Countries had nothing to benefit from neglecting their labour inspection services since it was well known that violation of labour laws had a cost for the community as a whole.

The Government representative stated that he had taken due note of the discussion. As regards the intervention of Workers' members, it should be noted that there were no links between the project on European economic convergence and the labour inspection budget, which indeed had been raised, as was the number of inspectors. All the data available showed that visits by labour inspectors increased both in number and in quality, which helped improve collaboration between employers' and workers' representatives. Concerning the Employers' members' intervention, a written reply to the issues raised by the Committee of Experts' observation was more appropriate. The statement of the Workers' member of Spain went beyond the questions relating to the application of the Convention. There could always be a feeling of insufficiency, even if in reality personnel and material resources for labour inspection had been increased. The points made on the recruitment of workers were more related to employment policy, and those made on the nature of clauses in collective agreements involved an academic debate which had no bearing on the practical activities of labour inspection. One could not but share the opinion expressed on the vital role played by inspectors' visits to workplaces. In reply to the questions raised, it had to be pointed out that, in general terms, the procedures followed by labour inspectors and controllers were the same and their validity was recognised for both categories of officials. Except for one observation raised in certain judicial decisions, labour inspection could fully monitor the application of the contents of collective bargaining agreement and a circular had been adopted on this subject. If the solidarity expressed by the Workers' member of Greece was well understood, he shared that speaker's opinion that labour inspection did not have adequate resources. Each year the ILO received a copy of the annual report of the central labour inspection authority in conformity with the Convention, and the comments made did not concern questions of substance relating to labour inspection activities.

The Workers' member of Spain recalled the distribution of tasks between labour inspectors and labour controllers and stated that while this was not clearly laid out by law, it was the subject of internal labour inspection circulars.

The Committee took note of the information provided by the Government representative according to which the Government had taken measures to improve the position of the labour inspectorate with a view to increasing its resources and strengthening its powers. Although it welcomed the detailed information which had been supplied, it considered that it was not in a position to discuss it in substance without an assessment by the Committee of Experts. It consequently hoped that the Government would transmit, as it had said it was ready to do, a report to the ILO containing all the particulars necessary for the Committee of Experts to weigh that information and make a full assessment of the situation. It hoped that it would be able to come to the conclusion that the situation was in full conformity with the requirements of the Convention at one of its next sessions.

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Article 5(b) of the Convention. Collaboration between the labour inspection services and the social partners. Further to its previous comment concerning cooperation between the labour inspection services and the social partners, the Committee notes the Government’s indication that this is possible at institutional level by means of the Tripartite Advisory Committee set up within the Labour and Social Security Inspectorate. Moreover, the Committee notes that, in 2009, a working party was formed with the social partners, and this will analyse the statistical data relating to labour inspectorate activities, including action by the inspection services in enterprises which operate in several autonomous communities.

As regards promotion of the labour inspectorate’s duty to provide information, the Committee notes the indication that this duty is performed during inspection visits. Furthermore, the inspection services adopt more general measures, including the distribution of brochures during lectures and information meetings. This type of activity is undertaken as part of specific inspection campaigns. In this regard, the Committee notes the campaigns which took place in 2008, in particular the European campaign on the manual transport of loads and the SEGUMAR campaign concerning the prevention of occupational hazards on board fishing vessels.

Articles 9 and 10. Cooperation of experts and technicians. Numbers and qualifications of labour inspection staff. The Committee notes with interest the establishment of a labour and social security inspection college, which is in the process of being constructed. It notes that this college will be open to the participation of all the autonomous communities and to cooperation with other public or private institutions concerned with training. The Committee also notes the Government’s indication that in 2007 a total of 559 training courses were held for 5,983 persons. In this respect the Committee notes that, for 2008, the numbers of inspection staff increased to 1,746 officials, comprising 836 inspectors and 910 deputy inspectors, as well as 236 technicians. It notes in particular that the new INTEGRA computer application, developed in the context of the “LINCE” project, has been a valuable tool in the training of labour inspectors. The Government also mentions that a study has been conducted on “Training needs of the inspection system and evaluation of appropriate solutions”. The Committee further notes that, in 2008, the focus was placed on quality, not quantity, of training courses, and most of the 447 courses given were devoted to technical rather than computer education.

Article 11(1)(a). Labour inspection information system. As regards the development of the “LINCE” project and the new INTEGRA computer application mentioned above, the Committee notes that this application has constituted the core of the “LINCE” project since its creation in 2007 and encompasses the four subsystems of vital importance for labour inspection and social security, namely: (i) programmes and campaigns; (ii) inspection activities; (iii) follow-up to reports of infringements through administrative and dispute settlement channels; and (iv) evaluation and monitoring. According to the Government, this application, apart from providing IT support for labour inspection activities, constitutes an integrated information management system which enables information to be transmitted, shared and utilized in a coherent manner. Moreover, the Committee notes that two other systems have been developed: (i) the INTEGRA-PERSONAL system, which manages the human resources of the inspection and social security services; and (ii) the INTEGRA-PRODUCTIVIDAD system, which manages the productivity of the inspectorate and support staff. Finally, the Committee notes the creation of a number of databases, namely: (i) the CEPROSS database concerning occupational diseases; (ii) the ADEXTTRA database concerning information on foreign workers; and (iii) the e-SIL database (occupational information system) concerning social security. It notes that, since 2007, all these projects have been subject to constant improvement, inter alia, in order to ensure coherence in methods and quality of implementation of activities in all inspection and social security services, by documenting and disseminating working procedures in a clear and accessible manner, which enables the provision of a knowledge base ensuring the coherence of inspection activities.

Articles 18 and 21. Penalties applicable to infringements. Content of the annual general report. The Committee notes the information supplied by the Government concerning infringements reported with regard to gender equality and discrimination and also with regard to subcontracting in the construction industry. It notes that, between 2007 and 2008, the number of infringements increased considerably (52 and 43 respectively in 2007 compared with 121 and 631 in 2008). The annual labour inspection report for 2008 indicates that 610,774 establishments were inspected, giving rise to 1,047,977 reports and 92,098 notices of infringement of the legislation. The Committee further notes the statistics on penalties imposed in the areas of labour relations (5,955 infringements reported), occupational risk prevention (27,882 infringements, in addition to which there were 5,851 infringements reported during investigations conducted further to industrial accidents), industrial accidents (954,981 in 2007 compared with 828,941 in 2008, namely a decrease of approximately 10 per cent), employment and foreign workers (12,994 infringements) and social security (40,564 infringements). Finally, the Committee notes the statistics for 2009 relating to each autonomous community and also indicating that 69,694 infringements were reported at national level.

As regards the laws and regulations relating to the competencies of the labour inspectorate, the Committee notes the adoption of Royal Decree No. 1109/2007 of 24 August 2007 concerning procedures in force in the construction industry, Act No. 20/2007 of 11 July 2007 regulating the status of self-employed workers, Act No. 38/2007 of 16 November 2007 modifying the powers of the general administration of the State to impose penalties, Act No. 44/2007 of 13 December 2007 including recruitment agencies in the list of enterprises which may be held liable for occupational infringements, and also the Decision of 25 November 2008 of the Directorate-General of Labour Inspection and Social Security, which establishes the basis for authorizing enterprises to use the electronic inspection register. The Committee further notes with interest Instruction No. 1/2007 of 27 February 2007 on the strengthening of relations between the Labour and Social Security Inspectorate and the Public Prosecutor’s Office concerning criminal acts in the sphere of occupational safety and health.

The Committee requests the Government to continue to supply information on the manner in which the Convention is applied, indicating in particular:

(a)   Any measure or initiative aimed at improving cooperation between the labour inspection services and other institutions and the social partners, and also any activity or programme relating to the duty of the labour inspectorate to provide information. The Committee also requests the Government to supply information on the activities of the working party set up in 2009, including any studies or official reports which have been drawn up.

(b)   Any measure or initiative taken with a view to increasing the numbers and improving the qualifications of labour inspectors and also the results achieved. The Committee also requests the Government to keep the Office informed of the progress made regarding the establishment of the labour inspection and social security college and to supply documentation relating to the legal framework of the college and its operation.

(c)   Any further developments relating to the labour inspection information systems – LINCE, INTEGRA-PERSONAL, INTEGRA-PRODUCTIVIDAD, etc. – and their impact on inspection service activities. The Committee also requests the Government to supply a copy of the study on the “Training needs of the inspection system and evaluation of appropriate solutions” and to indicate the measures taken to follow up on its conclusions.

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The Committee notes the Government’s detailed report for the period ending on 1 June 2007. It notes with interest Royal Decree No. 1299/2006 approving a new schedule of occupational diseases, and also the implementing regulations for the legislation recently adopted to respond to changes made in modes of production: Order TAS/1/2007 concerning the notification of cases of occupational disease and the resolution on the Labour and Social Security Inspectorate of 11 April 2006, amending employers’ records of inspection visits.

The Committee also notes the information supplied in reply to its previous comments and to the comments dated 20 September 2005 from the Trade Union Confederation of Workers’ Commissions (CC.OO.) and sent to the Government by the ILO on 20 October 2005.

The CC.OO. made proposals on ways to strengthen the labour inspectorate with a view to improving its functioning. The proposals are based on: (1) cooperation between its services and other institutions; (2) collaboration of the social partners; (3) the number of inspectors and deputy inspectors; (4) the computer resources and systems available to inspectors; (5) the planning of inspection visits; (6) the deterrence of fines; and (7) the content of annual inspection reports.

1. Article 5(a) of the Convention. Cooperation between the labour inspection services and other institutions. According to the Government, even though Spain is not a federal State, the autonomous communities have their own competence with regard to the application of labour legislation, especially the performance of inspection visits and the implementation of procedures for the enforcement of penalties imposed by the Labour and Social Security Inspectorate. Act No. 42/1997 establishing the structure and functioning of the labour inspectorate established two mechanisms for collaboration between the general administration of the State and the autonomous communities: the Sectoral Conference for Labour Affairs and the territorial committees of the Labour and Social Security Inspectorate. The first of these bodies is a forum for meetings and deliberations in which the Ministry and some autonomous communities are represented. The central inspection authority presents a report once a year to this forum on the work of the labour inspectorate during the previous year. In this context, it takes note of general and territorial programmes setting objectives, proposals for coordination or integration of territorial plans, resources of the system and the distribution thereof, and any other relevant question. Within the Sectoral Conference, a labour committee constitutes a standing entity for communication, collaboration and information between public administrative bodies on issues relating to labour inspection. The other mechanism for collaboration comprises the territorial committees of the Labour and Social Security Inspectorate. These are bilateral cooperation bodies whose objective is to facilitate the performance of inspection duties in each autonomous community. Their composition, powers and rules of operation are established by means of bilateral agreements between the general administration of the State, on the one hand, and each autonomous community, on the other. Under these agreements, rules may be laid down for technical support and expert collaboration, and for programming and follow-up regarding enforcement of the legal provisions adopted by the communities, the monitoring of which, however, comes under the competence of the labour inspectorate.

Since the criteria on which the CC.OO. bases it assessment regarding the inadequacy of such cooperation are not clear to the Government, the latter points out that the plans for annual objectives are as a rule drawn up on the basis of information available in their respective areas of interest by the Labour and Social Security Inspectorate and other public administrative bodies such as the General Social Security Treasury, the Public Employment Service and the National Social Security Institute. The Committee understands that the CC.OO. would like such cooperation to be extended to analysis of the results of labour inspection activities as they should appear in the annual report on its work, including follow-up to reports of contraventions and information on the implementation of decisions issued in cases referred to the courts. The Committee hopes that the Government will invite the CC.OO. to specify the subjects for which it would like to see the inter-institutional cooperation referred to by this Article developed, and in what form, and that it will inform the Office of its position in this respect.

2. Article 5(b). Collaboration between the social partners and the inspection services. The Government states that such collaboration is provided for by section 10 of the Act on the structure and functioning of the labour inspectorate and that a Tripartite Advisory Committee on Labour and Social Security Inspection, established in 2006, is responsible for supplying advice, formulating proposals on strategies for action, priorities and general objectives in the field of labour inspection, inspection campaigns, staff and material resources of the inspection system, procedures for the selection of inspection staff and their training, etc. The Committee notes this information with interest and requests the Government to send, if possible, copies of extracts from any reports on the work of the Tripartite Advisory Committee indicating the examination of the subjects covered by the Convention.

Referring also to the suggestion made by the CC.OO. to promote further the function of providing information to employers and workers, the Committee requests the Government to indicate any measures taken or contemplated in this regard.

3. Articles 9 and 10. Collaboration of technical experts and specialists.  Numbers and qualifications of labour inspection staff. The Committee notes with interest the increase in inspection staff between 2002 and 2006, from 739 inspectors and 806 deputy inspectors to 814 inspectors and 854 deputy inspectors. With reference to its previous comments, the Committee also notes with interest that 137 technical officers from the autonomous communities are collaborating with the labour inspectorate in the area of occupational risk prevention and that their numbers are set to rise. However, it notes that the Government does not reply to the comment made by the CC.OO. regarding the need to update the qualifications of inspection staff, given the increasing complexity and diversity of employment relations, the increase in temporary work, the size of the immigrant workforce, illegal employment, and the high frequency of industrial accidents. As regards the CC.OO.’s suggestion to consider extending to deputy inspectors some of the prerogatives assigned solely to inspectors, the Committee notes that, according to the Government, this matter is still under consideration. The Committee requests it to supply information on any new measures taken with a view to enhancing the training of labour inspectors in the abovementioned areas and to supply information on any development regarding any additional prerogatives which might be assigned to deputy inspectors.

4. Article 11, paragraph 1(a). Labour inspection information system. The Committee notes with interest the information supplied by the Government in reply to the comments made by the CC.OO. regarding the need to improve the computer systems of the Labour and Social Security Inspectorate. This information is also given on the latter’s web site and is mainly concerned with the development, since 2004, of the “Lynx” computer project (Proyecto Lince), the purpose of which is to modernize the information systems of the Labour and Social Security Inspectorate, facilitating the work of the staff. Launched in the autonomous community of Aragón, this project is set to be extended to the other 49 labour inspectorates. It is based on a new approach to labour, centralizing information in a portal which is also accessible to other public stakeholders. This system allows the following functions: (1) issue of service orders relating to the planning of inspection visits; (2) collection of information necessary for the performance of visits by inspectors and deputy inspectors; (3) administrative or judicial follow-up to reports of contraventions; and (4) evaluation and exploitation of data. The Committee would be grateful if the Government would supply a regular evaluation in its subsequent reports of the impact of the implementation of the “Lynx” project on the results achieved by the Labour and Social Security Inspectorate and on the development thereof.

5. Article 18. Penalties applicable to contraventions. According to the CC.OO., the system of penalties is not adequate in that it does not take account of the reality of the labour market. All too often, employers prefer paying fines to taking the necessary steps to put a stop to the contraventions concerned. The Confederation therefore suggests that penalties should be increased for the most serious violations, such as those giving rise to occupational risks, recruitment fraud, undeclared work and gender-based discrimination. It adds that the system of sanctions should be extended to areas where no penalties apply at present. The Committee notes with satisfaction in this respect that major legislative amendments have made it possible to bridge the legal gaps which have been identified, and define new contraventions and penalties. Such legislation includes: Royal Decree No. 689 of 10 June 2005 amending the regulations on the structure and functioning of the Labour and Social Security Inspectorate and the general regulations on the procedures for the imposition of penalties for contraventions of a social nature and in relation to the payment of social security contributions; Act No. 32/2006 of 18 October 2006 on subcontracting in the construction industry and incorporating new contraventions in the Act on contraventions of a social nature and their related penalties; Order TAS/3869/2006 of 20 December 2006 establishing the Tripartite Advisory Committee on Labour and Social Security Inspection (see above); Royal Decree No. 306/2007 revising the amounts of fines provided for by Royal Decree No. 5/2000 and Royal Decree No. 597/2007 on the publication of penalties imposed in cases of serious violations of the legislation on the prevention of occupational risks; Act No. 3/2007 on gender equality; Royal Decree No. 5/2006 for improving growth in employment; Act No. 31/2006 on the participation of workers in public limited companies and European cooperatives; and Act No. 40/2006 concerning the status of Spanish citizens abroad. The Committee would be grateful if the Government would ensure that information on the practical implementation of these provisions is included on a regular basis in the annual inspection report.

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The Committee notes the Government’s report and the useful information sent in reply to its previous request. It also notes the comments sent on 20 September 2005 by the Trade Union Confederation of Workers’ Commissions (CC.OO.), which were forwarded to the Government. The Committee requests the Government to continue providing detailed information on the application of the Convention, and on the following points in particular.

1. Duties and powers of deputy-inspectors of employment and social security. The Committee notes the Government’s explanations responding to the observations made by the General Union of Workers (UGT) in September 2003 concerning the duties and powers of deputy-inspectors of employment and social security. The Committee refers the Government to the CC.OO.’s comments on this subject and requests it to indicate whether, in the period covered by the report, there have been any changes affecting the duties of the above deputy-inspectors, particularly as regards the functions of the labour inspection system set forth in Article 3 of the Convention.

2. Occupational risk prevention. The Committee notes with interest the provisions of Act No. 54/2003, which strengthen the authority of technical occupational risk prevention staff in the autonomous communities by authorizing them to issue orders to remedy defects observed and to report any violations to the labour inspectorate. It requests the Government to continue to provide information on cooperation between the labour inspectorate and the various technical services in the autonomous communities in the area of occupational safety and health (Articles 9 and 13).

3. Annual report of the labour inspectorate. The Committee notes the data on the inspectorate staff sent by the Government. It also notes that the most recent data on the activities of the inspectorate are available on the website of the Ministry of Labour and Social Affairs. The Committee observes, however, that the last annual report sent by the Government under Article 20 of the Convention was for the year 2002. It accordingly requests the Government to ensure that a report on all the subjects listed in Article 21 of the Convention is published annually and sent to the ILO within the prescribed time limits.

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The Committee notes the Government’s detailed report, the replies to its previous comments and the legislation appended to the report. It notes with interest the annual inspection reports for the years 1999-2001 containing information on child labour inspection activities.

Article 12, paragraph 1(b), of the Convention. With reference to its previous comments, the Committee notes that although labour and social security inspectors may, in practice and in the context of combating the underground economy and unlawful or clandestine employment, visit by day and by night work centres or workplaces not officially declared as such, no such authorization is provided for in sections 7, subsection 1(1), of Royal Decree No. 138/2000 and section 5 of the Labour and Social Security Inspection Act, No. 42/97, which the Government cites and which restricts such visits to workplaces liable to inspection. The Committee hopes that the Government will ensure that a basis in law is established for this practice, by making arrangements for the adoption of a text on the subject and that it will keep the ILO informed of the matter.

Paragraph 1(c)(iii). While noting the general scope of the labour inspectors’ supervisory authority, the Committee would be grateful if the Government would indicate whether effect is given, in law and in practice, to this particular provision of the Convention and, if so, to provide relevant information. If not, the Committee asks the Government to take steps to this end and draws its attention to the comments it made on this matter in its General Survey of 1985 on labour inspection (paragraphs 173-174).

Article 14. The Committee would be grateful if the Government would send a copy of Order TAS 2926/2002 of 19 November 2002, introducing new standard forms for the notification of industrial accidents.

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The Committee notes the Government’s detailed report and the replies to its previous comments. It also notes with interest Royal Decree No. 138 of 4 February 2000 approving the regulations on the organization and operation of the labour and social security inspectorate, and the table on the distribution of the staff of the inspection services, disaggregated by sex, showing that women account for an overall proportion of 39.44 per cent of inspection officials. The Government is requested to provide additional information on the following points.

1. Labour inspection and child labour. The Committee notes the interest shown by the Government in the value of including in the annual reports data concerning the supervisory activities carried out by the labour inspectorate in the field of child labour. It also indicates its commitment to strengthen these activities and accord them the priority that they deserve.

2. Impact of the new inspection system. With reference to the Government’s request concerning the precise purpose of the information that it requested in its previous comment on this point, the Committee asks the Government to provide details concerning subsequent developments in the supervisory activities of the inspection services, as well as the degree to which the relevant provisions are applied by employers.

3. Principal duties of the labour inspectorate (Article 3, paragraph 1(c) and paragraph 2, of the Convention). With reference to the information provided in a previous report of the Government to the effect that, although the legislation does not explicitly provide that inspectors are entrusted with bringing to the notice of the competent authority defects or abuses not specifically covered by existing legal provisions, this duty was discharged in practice and had resulted in the adoption of relevant provisions, the Committee would be grateful if the Government would indicate, firstly, whether it is envisaged to give a legal basis to the above provision of the Convention and, secondly, if it would provide information on the manner in which it is ensured that duties relating to conciliation, deriving from sections 1(2) and 3 of Royal Decree No. 138/2000, do not interfere with the discharge of the primary duties of labour inspectors and do not prejudice the authority and impartiality which are necessary in their relations with employers and workers.

4. Inspection by day of workplaces liable to inspection. The Committee notes that the powers of inspectors and inspection officials set out in section 7 of Royal Decree No. 138/2000 only apply to workplaces liable to inspection. With reference to paragraph 165 of its 1985 General Survey on labour inspection, it wishes to draw the Government’s attention to the case of workplaces which do not formally and clearly appear to be liable to inspection, but in which workers covered by the labour legislation are engaged. Recalling in this respect that, in accordance with Article 12, paragraph 1(b), of the Convention, labour inspectors must be empowered to enter these premises by day, it requests the Government to provide information on the manner in which it is ensured that workers engaged in these premises are covered by this provision or, if this is not the case, to take measures for this purpose and keep the ILO informed.

5. Supervision of notices required at the workplace. In accordance with Article 12, paragraph 1(c)(iii), labour inspectors should be authorized to require the posting of notices envisaged by legal provisions. The Government is requested to indicate the measures taken to enable inspectors to exercise this power.

6. Annual inspection report. The Committee notes that the most recent annual report transmitted on the work of the inspection services concerns the year 1998. It would be grateful if the Government would take the necessary measures to ensure that future annual reports are published and transmitted to the ILO within the time limits set out in Article 20.

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With reference also to its observation, the Committee requests the Government to provide information on the fields of labour inspection in which there is collaboration between the labour inspection services and employers’ and workers’ organizations (Article 5(b) of the Convention) and on the results of this collaboration in relation to the objectives of the Convention.

Noting the statistical data provided in the annual inspection report for 1998 on the staff of the labour inspectorate, the Committee would be grateful if the Government would indicate the proportion of women in this staff as a function of their hierarchical rank.

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The Committee notes the Government’s report for the period ending June 1999, which includes explanations in response to the observations made previously by the General Union of Workers (UGT) concerning the application of the provisions of the Convention. The Committee also notes the detailed information provided in the annual inspection report for 1998. The Committee notes the adoption of Act No. 42 of 1997 to organize the labour and social security inspectorate, under which the labour and social security inspection system is composed of a central authority and, at the regional level, provincial inspection services under the competence of each of the autonomous communities (section 15(2) of the Act). The autonomous communities also participate in the labour inspection system and in ensuring its unity in coordination with the respective public authorities, the Sectoral Conference on Social Affairs and the territorial inspection commissions. The Committee also notes Decree No. 138-2000 approving the rules for the organization and operation of the labour and social security inspectorate. Finally, it notes with interest that, with a view to the effective implementation of the new Act on labour inspection, a substantial increase (around 5 per cent) in high-level inspection personnel was made to strengthen the staff between 1997 and 1998, and that a new increase was envisaged for 1999. The Committee would be grateful if the Government would provide information in its future reports on the impact of the new labour inspection system on the application of the legal provisions under its supervision.

The Committee is addressing a request directly to the Government on certain matters.

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The Committee notes that the observations made in January 1998 by the General Union of Workers (UGT), whose allegations relate to the scope of labour inspection, which is considered too limited; the insufficiency of the human and material resources available to the inspectorate; the need to reform the functions of labour inspectors; the need for a statistical evaluation of the effectiveness of the inspectorate in terms of the legal action commenced and brought to completion and the penalties imposed; and the absence of measures to promote collaboration between the labour inspectorate and employers and workers or their organizations.

Noting that the Government has not provided a reply to the observations of the UGT, the Committee hopes that it will reply to them in its next report and that it will provide full information on the application of the Convention in law and in practice, taking into account developments in labour inspection following the adoption of Act No. 24/1997 respecting labour inspection and social security.

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The Committee notes the comments of the Union of Workers' Trade Unions (USO) (Regional Union of the Asturies) according to which the labour standards in respect of weekly rest and holidays are not respected in the large commercial centres. The Committee notes the Government's indications that the general management of the Labour Inspectorate and the provincial labour inspection service of the Asturies carry out inspections on the application of the labour standards relating to hours of work and of rest: at the national level, the inspection service carried out 13,111 visits and recorded 1,645 infringements; the regional inspectorate of the Asturies carried out 284 visits and recorded 41 infringements concerning 488 workers. The Committee asks the Government to continue to communicate in its future reports information on inspections in this field.

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The Committee notes the information supplied by the Government in its report, the observations of the Trade Union Confederation of Workers' Commissions (CC.OO.) and the General Union of Workers (UGT) and the Government's reply to these observations. The Committee recalls that its comments and the discussions held at the Conference Committee in 1992 concerned the strength and means of the labour inspectorate, cooperation between the inspectorate and employers' and workers' organizations, the powers of labour controllers and supervision of the application of collective agreements.

1. With regard to the number of inspectors and workplaces inspected (Articles 3, 10 and 16 of the Convention), the Committee notes the Government's indication that measures have been take to increase the strength and the material resources of the inspectorate. The Committee notes that, according to the 1994 annual inspection report, the strength of the inspectorate increased by 4.85 per cent over 1993 (51 inspectors and 16 controllers). The Government has set priorities for the inspection of workplaces and a considerable increase in the number of visits has been recorded. Under the remuneration system for these employees, the wage is supplemented according to productivity which is measured in terms of the attainment of set objectives, including the number of visits. The Committee notes that particular attention has been paid to the construction, maritime and catering sectors. It notes that, according to the annual report, the priority areas are occupational health and safety and curbing clandestine employment which accounted for almost two-thirds of inspection activity. The Committee asks the Government to continue to provide information on the numbers of inspectors, the priority areas and the visits carried out.

2. As concerns cooperation between labour inspectors and employers' and workers' representatives (Article 5(b)) the Committee notes the Government's indication that this is ensured by the presence of employers' and workers' representatives during inspection visits, by a consultation and information service organized in inspection offices and by a variety of meetings with the representatives.

3. With regard to the application of collective agreements, the Committee notes that, under the Act on offences and sanctions in the social organization, the labour inspectorate is responsible for checking actions or omissions of employers which are in breach not only of the provisions of laws and regulations but also of the labour and health and safety requirements of collective agreements. The Committee notes the Government's indication that a circular has been adopted on this subject. It asks the Government to provide a copy of the circular.

4. With reference to its previous comments in which it noted that, according to the observations made by the CC.OO., no "presumption of certainty and veracity" is established concerning the acts of controllers, which weakens the inspection system, the Committee notes the Government's indication that section 27 of the Finance Act for 1992 (No. 31) has amended section 52 of Act No. 8 of 1988 by adding a paragraph establishing a presumption of authenticity of the records of violations made by controllers where the facts have been duly proved. The Committee asks the Government to indicate any other measures taken or envisaged to give labour controllers the same powers as actual labour inspectors to enforce the provisions of the law.

5. The Committee notes the Government's indication that a national inspection corps represented by the central corps of labour and social security inspectors has been established to maintain the unity of the inspection corps in the country, following the transfer of its powers to the autonomous communities. It also notes the information to the effect that certain attributions of the labour inspectorate now come within the jurisdiction of labour tribunals ("jurisdicción social"), (for example the authority to declare a job toxic, arduous, dangerous). The Committee asks the Government to provide additional information on the reorganization of the labour and social security inspectorate and on the effects of the various reforms.

In addition, the Committee notes that the general labour and social security inspectorate is in the process of preparing a complete reform of the inspection system to replace the present system. The Committee asks the Government to provide information on all developments in this respect. Recalling that Spain has also ratified the Labour Administration Convention, 1978 (No. 150), the Committee hopes that constructive consultations and cooperation will be established in this area between the Government and the employers' and workers' organizations.

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The Committee notes the detailed information provided by the Government in its report received in the ILO shortly before its session. It notes the observations by the Trade Union Confederation of Workers' Commission (CC.OO.) of 29 May 1995 and by the General Council of Workers (UGT) of 24 July 1995 and the Government's response to these observations contained in its report. The Committee also refers to the previous observations submitted by the CC.OO. and the UGT, the discussion in the Conference Committee in 1992 and the Government report of November 1993.

The Committee notes the labour inspection report for 1994 as well as the recent legislation supplied by the Government. Finally the Committee notes the information provided by the Government that the General Labour and Social Security Inspectorate is preparing a draft Act on Labour and Social Security Inspection which will regulate comprehensively the system of inspection and replace the legislation presently in force.

The Committee will examine at its next session all the information received. It hopes that the Government will provide the text of any new provisions on labour and social security inspection, and in particular the text of the draft Act when enacted.

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Further to its previous comments, the Committee notes the fresh observations made by the General Union of Workers (UGT) and the Trade Union Confederation of Workers' Commissions (CC.OO.). The UGT comments that the two branches of the labour inspectorate (comprising labour inspectors proper and labour controllers) are insufficiently staffed and lack both the legal authority and the resources to enable compliance with the requirements of Articles 1, 3(1) and 16 of the Convention. Provisions dealing with overtime, for example, are said to be inadequately enforced. The CC.OO. also notes that the inability of labour controllers to enforce relevant provisions directly has weakened the operations of the labour inspectorate as a whole. The CC.OO. states that there is little collaboration between officials of the labour inspectorate and workers' organisations (Article 5(b)), and that because of scarce personnel and material resources workplaces are not inspected frequently enough to ensure the effective application of relevant legal provisions (Article 16). It considers that the inability of labour inspection officials to determine which clauses of collective agreements are in legal doctrine "normative" and which are "obligational" further inhibits enforcement action being taken (Article 27).

The Government has described the involvement of workers' representatives in inspection proceedings under section 15 of Act No. 8/1988. It draws attention to an increase in inspection visits and sanctions proposed in 1989, whilst considering that other forms of control than visits may be equally effective. It stresses the need to ensure that the inspectorate has full evidence of the facts of each case in order to fulfil its functions.

The Committee recalls that the workers' organisations have expressed dissatisfaction at the manner in which the Convention is applied for several years. It notes the explanations given and further requests the Government to provide full information concerning the following matters in particular:

(a) steps taken so that the resources of the labour inspectorate are fully utilised and workplaces are in accordance with the Convention inspected as often and as thoroughly as is necessary to ensure the effective application of all the relevant legal provisions; and so that there is the necessary collaboration between officials of the labour inspectorate and employers' and workers' organisations in their work;

(b) measures taken or envisaged to ensure that the authority of the labour inspectorate to enforce all relevant legal provisions, including those in collective agreements, is fully exercised; and

(c) any measures contemplated to provide labour controllers with the enforcement powers of labour inspectors proper.

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The Committee notes that the Government's report, apparently due to clerical error, contains an incomplete reply to its comments. It hopes that the next report will be sent with full information on the matters raised in its previous direct request, which read as follows:

The Committee notes the comments made by the Trade Union Confederation of Workers' Commissions concerning the application of Articles 5(b), 16 and 27 of the Convention and the detailed observations submitted by the Government in reply to these comments. In view of the fact that it examined the matter at its last session, the Committee requests the Government to refer to its 1989 direct request.

Furthermore, the Trade Union Confederation of Workers' Commissions considers that this inspection system has been greatly weakened by the fact that the work of a major part of the inspection staff, namely labour supervisors, does not enjoy the "assumption of certainty and accuracy", which prevents enterprises that are violating provisions from being sanctioned. In reply, the Government states that this claim is unfounded and, to support its argument, refers among others to two decisions handed down in this connection by the Supreme Tribunal in 1988. While noting this information, the Committee requests the Government to indicate whether the draft regulations respecting the administrative procedure for the imposition of sanctions, provided for in Act No. 8/1988, has been adopted and, if so, to supply a copy of it.

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The Committee notes the comments made by the Trade Union Confederation of Workers' Commissions concerning the application of Articles 5(b), 16 and 27 of the Convention and the detailed observations submitted by the Government in reply to these comments. In view of the fact that it examined the matter at its last Session, the Committee requests the Government to refer to its 1989 direct request.

Furthermore, the Trade Union Confederation of Workers' Commissions considers that this inspection system has been greatly weakened by the fact that the work of a major part of the inspection staff, namely labour supervisors, does not enjoy the "assumption of certainty and accuracy", which prevents enterprises that are violating provisions from being sanctioned. In reply, the Government states that this claim is unfounded and, to support its argument, refers among others to two decisions handed down in this connection by the Supreme Tribunal in 1988. While noting this information, the Committee requests the Government to indicate whether the draft regulations respecting the administrative procedure for the imposition of sanctions, provided for in Act No. 8/1988, has been adopted and, if so, to supply a copy of it.