Observación (CEACR) - Adopción: 1993, Publicación: 80ª reunión CIT (1993)

Referring to its previous comments, the Committee notes the detailed information supplied by the Government in its report and the attached documentation. The Committee also notes the observations submitted by the General Union of Workers (UGT), which the Government transmitted in its report together with its own comments.

1. The Committee notes with interest the adoption of new legislative measures designed to enforce standards of non-discrimination in employment, particularly section 96 of the Labour Procedure Act (promulgated by Legislative Decree No. 521 of 27 April 1990), which reverses the burden of proof by requiring defendant employers to demonstrate a reasonable, objective and sufficiently proven justification for the measures taken and their proportionality in cases where it appears from the allegations that there exist elements of discrimination on the ground of sex. It requests the Government to provide information on the application in practice of the new procedure.

2. The Committee notes from the latest statistics provided that women have improved their situation in the labour market relative to men. It requests the Government to continue supplying information on all progress achieved with regard to women in the labour market.

3. The Committee nevertheless again notes the concern expressed by the UGT over the persistence of discrimination against women. In particular, the UGT observes that, irrespective of ability and training, women are still denied promotions to certain posts traditionally held by men; they are subjected to discrimination on account of maternity (employers dismiss women or do not renew their contracts on account of pregnancy, and in certain situations, employers offer temporary workers employment for an indefinite period if they relinquish their maternity rights); they still earn lower wages than those of men in the same occupational category and are employed in lower categories with low pay. The Committee notes that, in response to the UGT's comments, the Government places emphasis on the procedures of redress available to victims of such discrimination. It also notes in this respect that the statistical data supplied by the Government on labour inspection activities for the enforcement of legal provisions are general and do not specify the activities and infractions relating to the principle of equal opportunity and treatment in employment.

The Committee notes the grievance procedures available and requests the Government to continue to provide information on court cases concerning discrimination where these procedures are used. It also requests the Government to provide information on the measures taken by the labour inspectorate to provide disaggregated statistics so as to show its efforts in enforcing the legislation prohibiting discrimination in employment based on sex and promoting the observance of the principle of equality of opportunity in employment, along the lines of cooperation and sensitization set out in Article 3(a) of the Convention.

4. The Committee notes that the UGT also expresses concern over the lack of remedial procedures for the victims of sexual harassment in the workplace, who are overwhelmingly women, and that in response thereto, the Government refers to Act No. 3 of 3 March 1989, which amends section 4(2)(e) of the Workers' Charter of 1980 to afford workers protection against verbal offences or physical conduct which are sexual in nature.

The Committee requests the Government to provide information on the complaints procedures available under the Workers' Charter in the event of allegations of conduct implying sexual harassment, as well as information on any other measures to protect persons against retaliatory action when they complain to the competent authorities or initiate legal action to enforce their rights in this respect.

5. Regarding the comments made in 1989 by the Trade Union Confederation of Workers' Commissions that workers of colour and workers of Muslim origin in the Catalan region of Maresme and in Ceuta and Melilla were subject to lower conditions of employment than other Spanish workers, the Committee notes the statistics supplied on the number of inspection visits carried out and violations found in 1991, as well as the creation of a programme aimed at eliminating racism and xenophobia through sensitization campaigns. The Committee asks the Government to continue supplying information on other measures that have been taken to ensure that, in practice, workers of colour and those of Muslim origin who have acquired Spanish nationality are not subject to any discrimination in employment in accordance with the Convention.

6. The Committee notes the comments provided by the UGT and the Government's response on the situation of foreign workers employed legally and residing in Spain. It refers to the observation it is making in this respect under Convention No. 97.

7. The Committee notes the comments of the UGT on the non-observance of the Act on social integration of the disabled, which reserves for disabled workers at least 2 per cent of the jobs in enterprises employing more than 50 workers. It also notes the statement that workers infected with the HIV virus are discriminated against and are subject to dismissal or non-renewal of their contracts; in certain enterprises, HIV tests are made without a person's knowledge or consent, in order to refuse employment to persons who are HIV positive. In due course, the Committee will deal with the comments concerning the employment of disabled persons in the framework of Convention No. 159, which has been recently ratified by Spain. As regards the allegations of discrimination against persons infected with the HIV virus, the Committee notes the Government's reply that such discrimination would be contrary to article 14 of the Constitution, which states the general principle of equality before the law, and to section 4(2)(c) of the Workers' Charter, which prohibits any discrimination on grounds of physical, mental or sensory handicap if the worker has the necessary skills to do the job or engage in the employment in question. Such discrimination would be prosecuted by the labour inspectorate.

Noting that by virtue of section 4(2)(c) of the Workers' Charter, physical handicap has been determined as a ground of discrimination, as envisaged in Article 1, paragraph 1(b), of the Convention, the Committee would be grateful if the Government would indicate the measures which have been taken or are envisaged to ensure that article 14 of the Constitution and section 4(2)(c) of the Workers' Charter are observed in respect of persons who are HIV positive or infected with AIDS. Please indicate whether specific laws or regulations have been adopted particularly in regard to testing and preventive measures, and whether special guidance has been given to employers and to the labour inspectorate. Please communicate information on the results of the work of the labour inspectorate in this regard and copies of any relevant court decisions.