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Solicitud directa (CEACR) - Adopción: 2020, Publicación: 109ª reunión CIT (2021)

Convenio sobre el trabajo forzoso, 1930 (núm. 29) - España (Ratificación : 1932)
Protocolo de 2014 relativo al Convenio sobre el trabajo forzoso, 1930 - España (Ratificación : 2017)

Otros comentarios sobre C029

Observación
  1. 2012
  2. 2003
  3. 1998
  4. 1996
  5. 1995
  6. 1992
  7. 1991
  8. 1990
Solicitud directa
  1. 2020
  2. 2016
  3. 2013
  4. 2009
  5. 2005

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Recalling that in September 2017 Spain ratified the Protocol of 2014 to the Forced Labour Convention, 1930, the Committee notes the information provided by the Government in its 2019 report on the measures taken to apply the Convention as supplemented by the Protocol. The Committee also notes the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020).
Furthermore, the Committee notes the observations of the General Union of Workers (UGT) and the Trade Union Confederation of Workers’ Commissions (CCOO), included in the Government’s 2019 report and in its supplementary information.
Articles 1(1) and 2(1) of the Convention and Article 1(1) of the Protocol. Effective measures to combat forced labour, including trafficking in persons. 1. Article 1(2) of the Protocol. National plan and systematic, coordinated action. The Committee notes that the Comprehensive plan to combat the trafficking of women and girls for sexual exploitation, covering the 2015–2018 period, was adopted further to the evaluation of the implementation of the first Comprehensive plan to combat trafficking in persons for sexual exploitation (2009–2012). This second plan includes five priorities: (i) strengthening of the prevention and detection of trafficking; (ii) victim identification, protection and assistance; (iii) analysis and reinforcement of knowledge for an effective response; (iv) initiation of judicial prosecution; and (v) coordination and cooperation among institutions and participation of civil society. The Committee observes that the plan entrusts the Social Forum against Trafficking for Sexual Exploitation charged with monitoring and evaluating its implementation, especially through the production of annual reports and the formulation of proposals to improve the effectiveness of planned measures.
The Committee also notes that, at the institutional level, the Government established in 2014 the function of national rapporteur on trafficking in persons, tasked with monitoring actions, plans and policies to combat trafficking in persons. In this regard, the Government indicates in its 2019 report that the Office of the National Rapporteur responds to the need to adopt an overview of trafficking at the national level, bringing together the principal actors of the administration and of specialist civil society entities responsible for providing assistance to victims. The Committee also notes that another form of coordination was established in the context of the follow-up Committee on the Framework Protocol for the protection of victims of trafficking in persons, provided for in section 140 of Royal Decree 557/2011 adopting implementing regulations for Act 4/2000 on the rights and freedoms of foreign citizens in Spain. The Framework Protocol establishes guidelines for action and coordination of the different entities involved in the detection, identification, assistance and protection of trafficking victims.
The Government indicates that, further to the ratification of the Protocol to Convention No. 29, the social dialogue round table placed on its agenda the drafting of a national plan of action against compulsory labour and other forced human activities. The Government explains in the supplementary information sent in 2020 that the formulation of the National Strategic Plan to combat trafficking in persons (PENTRA) is under consideration and that it will cover all the forms of trafficking listed in the penal legislation in force, including forced labour. The Committee notes in this regard that the UGT emphasizes in its observations that the action plans adopted previously only cover the trafficking of women for sexual exploitation, which leaves victims of trafficking for other purposes with little protection. The CCOO also expresses regret at the fact that a comprehensive action plan for the prevention and eradication of trafficking for labour exploitation has not been adopted, despite a draft having been prepared previously under the auspices of the Ministry of the Interior. The union expresses concern at the vulnerable situation of migrant workers who are victims of trafficking, forced labour or exploitation, especially in agriculture. The CCOO also considers it essential to continue the legislative work begun in 2018 for the adoption of a comprehensive law against trafficking in persons with a view to better detection and protection of victims.
The Committee requests the Government to take the necessary steps to ensure that the PENTRA also covers trafficking for labour exploitation and not only trafficking of women and girls for sexual exploitation. It also requests the Government to indicate whether the National Plan of Action against forced labour and other forced human activities has been adopted and, if so, to explain how forced human activities are defined and indicate the practices covered by this concept. At the institutional level, the Committee requests the Government to indicate how coordination and systematic action against all practices amounting to forced labour are ensured in practice. The Committee further requests the Government to provide more details of the actions taken by the national rapporteur on trafficking in persons and on his/her interaction with other institutions. Lastly, the Committee requests the Government to provide information on the evaluation of the policy for combating all forms of forced labour (trafficking in persons and situations involving labour exploitation amounting to forced labour).
2. Article 25 of the Convention and Article 1(1) of the Protocol. Penalties. The Committee recalls that several provisions of the Penal Code criminalize practices falling under the definition of forced labour, such as section 177bis (trafficking in persons); section 187 (forced prostitution); sections 311 and 312 (imposition of conditions of work that violate, suppress or restrict the rights of workers, using deceit or taking advantage of a situation of need). With regard to the suppression of the crime of trafficking, the Committee notes the action of the Central Anti-Trafficking Unit, which, in cooperation with the judicial, prosecution, police and administrative authorities, combats criminal networks and organizations involved in trafficking, labour exploitation or exploitation of prostitution (Order INT/28/2013 of the Ministry of the Interior). The Committee also observes that, further to the adoption in June 2016 of Instruction 6/16 of the Secretariat of State for Security, “social partners on trafficking in persons” have been established within the national police and the civil guard. These social partners ensure coordination, cooperation and promotion of measures to combat trafficking in their regional area of competence and act as contact points with organizations that are experienced in providing assistance to victims of trafficking.
The Government also refers to the fundamental role of the labour inspectorate in the detection of trafficking cases and violations of workers’ rights, emphasizing that the information collected by its employees constitute a key pillar of the subsequent judicial procedure. In this regard, the Government mentions the agreement establishing a general framework for cooperation between the labour inspectorate and law enforcement bodies regarding action against irregular employment and social security fraud, which covers trafficking in persons for labour exploitation as well as labour exploitation not involving trafficking, and serious discrimination in employment. The agreement provides for the establishment of “joint intervention groups” which, on finding evidence of an offence, notify the Public Prosecutor’s Office and the judicial authority. In parallel, inspectors can initiate penalty procedures if the facts also constitute an administrative offence. The Committee observes in this regard that the Decent Work Strategy (2018–2022) refers to the intensification of coordination between the labour inspectorate and law enforcement bodies, as provided for in the cooperation agreement, and for the strengthening of the inspectorate’s training activities. The Committee notes the Government’s indication in its supplementary information that the cooperation agreement is currently being revised.
The Committee also notes the information supplied on training for judges as part of the Judiciary General Council’s ongoing training programme (covering in particular the identification of the crime of trafficking, the judicial framework and case law relating to the exploitation of labour) and also the statistics produced by the Public Prosecutor’s Office on proceedings in cases of trafficking for sexual exploitation and judgments handed down between 2013 and 2018 (624 proceedings initiated, 112 judgments handed down, of which 74 were upheld). Moreover, between April 2019 and June 2020, 40 decisions were issued on the basis of sections 177 bis and 86 decisions on the basis of section 311 of the Penal Code. The Committee also notes that, according to the court decisions which have been communicated, there is an abundance of case law which has defined and interpreted the elements that constitute the crime of trafficking in persons (section 177 bis) and the crimes covered by sections 311 and 312 of the Penal Code.
The Committee encourages the Government to continue taking capacity-building measures for those involved in the prosecution system and the labour inspectorate to achieve better detection and suppression of trafficking for both sexual and labour exploitation, and of any situation for labour exploitation amounting to forced labour. The Committee requests the Government to provide information on the joint intervention groups formed under the agreement establishing the general framework for cooperation between the labour inspectorate and the law enforcement agencies with regard to combating irregular employment, and on the resources at their disposal. The Committee also requests the Government to continue providing information on the judicial proceedings initiated with regard to the crime of trafficking (section 177 bis) and crimes against workers’ rights (sections 311 and 312) and on the penalties imposed on the perpetrators of these crimes.
3. Article 2 of the Protocol. Prevention. Clauses (a) and (b). Awareness-raising, education and information. The Committee notes the measures taken under the second Comprehensive plan to combat the trafficking of women and children for sexual exploitation, aimed at preventing and raising awareness of trafficking in persons for sexual exploitation. It notes that the purpose of these measures included: showing the reality of trafficking; raising awareness of the impact of the demand for sexual services; promoting a message of “zero tolerance” to trafficking; carrying out studies for a better understanding of the characteristics of trafficking for sexual exploitation; and compiling data. In this regard, the Committee observes that the Intelligence Centre against Terrorism and Organized Crime operates a database specifically on trafficking in persons and regularly publishes reports. The Committee requests the Government to reinforce awareness-raising and education activities on trafficking in persons, particularly for labour exploitation, and also on other forms of labour exploitation amounting to forced labour, especially in at-risk sectors such as agriculture. The Committee further requests the Government to provide information on the data compiled and the studies carried out in this regard.
Clause (c). Reinforcement of labour inspection. The Committee notes that the aim of the Decent Work Strategy 2018–2020 is to qualitatively drive the action carried out by the labour inspectorate and provides for measures concerning the protection of fundamental rights and the promotion of equality, the strengthening of action against the irregular economy, and action against the misuse of fixed-term contracts and of unpaid overtime. Referring to the experience gained by the labour inspectorate regarding action against trafficking in persons, the Government emphasizes that although the number of cases detected is low compared with the number of interventions, the existing cases constitute such violations of labour rights that action needs to be taken against them with all possible means. The Committee welcomes the willingness to strengthen the capacity of the labour inspectorate to prevent and identify abuses and violations of the labour legislation which could amount to forced labour and requests the Government to provide further information on the measures taken to enable the labour inspectorate to intervene in sectors where it is more difficult to reach victims.
Clause (d). Protection of migrants during the recruitment process. The Committee notes the information provided by the Government on inspections in agriculture where migrants form the vast majority of workers recruited. The Committee requests the Government to provide information on the measures taken to monitor the recruitment process for these workers and ensure that they are properly informed about their conditions of employment.
Clause (e). Support for due diligence by enterprises. The Committee requests the Government to provide information on the measures taken to support due diligence by enterprises.
4. Article 3 of the Protocol. Identification and protection of victims. The Committee previously noted the adoption of the Framework Protocol for the protection of victims of trafficking in persons, which implements the rights established in sections 140–146 of the regulations implementing Act 4/2000 on the rights and freedoms of foreign citizens in Spain, relating in particular to the information to be given to victims in a language that they understand, the period of recovery and reflection, the exemption of victims from administrative responsibility for illegal residence, residence and work permits for exceptional circumstances, and assisted return to the victim’s country of origin. The Framework Protocol stipulates that police units shall be given specific training in identifying and assisting victims. It is these units that conduct interviews with the victims. The victim identification process is carried out on the basis of a list of indicators. The police authorities must inform the victims of the assistance available to them (suitable accommodation, material aid, psychological and medical assistance, interpreting services and legal assistance) and, if necessary, put them in contact with the competent social services and non-governmental organizations. The Committee notes that the second Comprehensive plan to combat the trafficking of women and girls for sexual exploitation provides for the reinforcement of support to non-governmental organizations and the grants that they receive.
The Committee also notes that employers who, for a fixed or open-ended period, hire trafficking victims who have obtained a residence and work permit owing to exceptional circumstances are entitled to a monthly reduction in employer social security contributions (Act 26/2015 of 28 July 2015 modifying the child and young person protection system).
The Committee requests the Government to provide further information on the nature of the assistance granted to trafficking victims and also to victims of labour exploitation amounting to forced labour (medical and psychological assistance, accommodation, number of reflection periods, residence permits and work permits granted, etc.), indicating the number of victims benefiting from this. Observing that the status of “potential victim of trafficking” is determined by the police authorities, the Committee requests the Government to indicate how trafficking victims not identified by the police authorities or victims of other practices amounting to forced labour benefit from protection measures provided for by the Convention. The Committee also requests the Government to provide information on the cooperation that exists between state actors and non-governmental organizations regarding identification and protection of victims.
5. Article 4(1) of the Protocol. Access to remedies and compensation. The Committee recalls that Act 4/2015 on the status of victims of crimes, which sets forth the rights of victims during and outside court proceedings, provides for specific care for the most vulnerable victims, which includes trafficking victims (section 23). These rights include the guarantee for victims to make statements and be informed about the criminal procedure, to benefit from translation and interpreting services, reimbursement of costs and free legal assistance. The Committee duly notes the establishment by the Ministry of Justice of victim assistance units, composed of psychologists, lawyers and social workers, who provide general information on victims’ rights, including the possibility of accessing a public system of compensation for the injury suffered (sections 27 and 28). In this regard, the Committee notes that, according to the Criminal Procedure Act, prosecutors are required to demand compensation for victims of offences, unless the victim explicitly waives the right to compensation. Moreover, as regards the possibility for judges to order the seizure of property, assets and earnings deriving from certain crimes, such as trafficking in persons and crimes against workers’ rights (section 127bis of the Penal Code), the Committee notes the establishment of an office to recover and administer these assets and use them for prevention and assistance activities for victims (Office for the Recovery and Administration of Assets (ORGA)), Royal Decree 948/2015 of 23 October 2015).
The Committee requests the Government to provide information on cases in which prosecutors have ordered compensation for victims and also the measures taken to enforce the decisions concerned, especially in the context of the public compensation system. The Committee also requests the Government to provide information on the actions taken on the basis of section 127bis of the Penal Code to confiscate property, assets and earnings deriving from trafficking and on the actions undertaken by ORGA to this end.
6. Article 6. Consultation of employers’ and workers’ organizations. The Committee notes that the UGT indicates in its observations that, contrary to the terms of the Protocol to Convention No. 29, no reference is made to the social partners in the legislation establishing the competent mechanisms for combating trafficking in persons and forced labour. According to the UGT, it is impossible, for example, for the social partners to participate in programmes devised by the public administrations relating to assistance for trafficking victims and they cannot obtain the grants earmarked for this purpose. In its observations sent with the Government’s supplementary information, the UGT adds that the social partners are not consulted in the formulation of PENTRA, which will cover trafficking in persons and forced labour. The Government indicates in this regard that PENTRA, which comes under the national strategy against organized and serious crime, is drawn up under the auspices of the Secretariat of State for Security, with the participation of the actors concerned, including entities and organizations specializing in victim assistance and protection. The Government considers that PENTRA is not designed as a plan of action to combat forced labour within the meaning of Article 1 of the Protocol and that since 2018 a working group has been set up under the auspices of the Ministry of Labour to develop the National Plan against compulsory labour and other forced human activities.
The Committee requests the Government to take the necessary steps to ensure that the employers’ and workers’ organizations are consulted as part of the formulation and implementation of any policy or plan of action aimed at combating all practices covered by the definition of forced labour, as established by Article 2(1) of the Convention. The Committee also requests the Government to indicate in particular how the social partners can be involved in actions taken in the context of the Framework Protocol for the protection of victims, in particular regarding the identification of victims.
Article 1(1) and Article 2(1) of the Convention. Obligation for persons receiving unemployment benefit to engage in community work. In its previous comments, the Committee examined the issue of the obligation for persons receiving unemployment benefit to engage in community work (regulated by Decree No. 1809/1986). The Committee noted that the CCOO considered that unemployed persons were not in a position to consent freely to do such work inasmuch as refusal results in the suspension of their unemployment benefit – to which they are entitled after contributing for a certain period. The CCOO emphasized that on top of the obligation to agree to do community work there is the obligation to be actively seeking work; to participate in employment or training programmes; and to accept any suitable job offer. The Government indicated that participation in this work facilitates the reintegration of unemployed persons by maintaining their physical and occupational skills and that this work is called for where it is not possible to integrate the beneficiary into the labour market. The Government pointed out that the employability of unemployed people, particularly the long-term unemployed, improves following their participation in community work. The Committee asked the Government to ensure that refusal to undertake community work does not entail a suspension of entitlement to unemployment benefit, particularly for persons who have just lost their jobs and need a reasonable period in which to look for and freely choose suitable employment. It also asked the Government to provide information on how community work functions in practice.
The Committee notes the statistical information sent by the Government on the number of persons performing community work, including their profile and geographical distribution and the sectors of activity concerned. It notes that the Government repeats that the obligation of community work must be applied in a restrictive manner and relate to persons for whom this type of relationship is more suitable than an ordinary employment relationship. Moreover, in the event of poor application of the legislation regulating community work, there are corrective mechanisms, both administrative and judicial, aimed at preventing abuses. In this regard, the CCOO considers that the law does not provide for a “restrictive” use and this assessment should not be left to the whim of the administrations which manage unemployment benefit. It adds that participation in this work may be required from recipients of unemployment benefit from the first day of their period of unemployment. The CCOO observes that the small number of penalties imposed in no way signifies that beneficiaries voluntarily accept this work since any refusal results in the suspension of benefits which, in the vast majority of cases, constitute their only means of subsistence.
The Committee observes that recourse to community work increased in 2018 then slightly decreased in 2019, rising from 1,502 in 2017 to 2,326 in 2018 and 2,127 in 2019. It also notes that some autonomous communities have had little or no recourse to it. Persons obliged to perform this work are largely men and the age groups most affected are 55–59 years, over 59 years, followed by 45–49 years. Lastly, the Government indicates that between 2016 and May 2020 penalties were imposed on 18 persons.
The Committee recalls that, under schemes where benefits are contingent upon the recipient having worked or contributed to an unemployment insurance scheme for a minimum period, and the length of time during which benefits are paid is linked to the length of time the person concerned worked, the subsequent imposition of an additional requirement to perform work which does not constitute suitable employment may affect the application of the Convention (see 2007 General Survey on the eradication of forced labour, paragraphs 129–131 and 205). The Committee once again requests the Government to ensure that persons who refuse to perform community work are not penalized by the suspension of their unemployment benefits where these constitute a right based on prior contributions. Given that the objective of community work is vocational reintegration and, additionally, that the number of refusals and penalties imposed is low, the Committee encourages the Government to take the necessary steps to establish the voluntary nature of participation in community work for unemployed persons receiving unemployment benefit based on prior contributions.
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