Solicitud directa (CEACR) - Adopción: 2021, Publicación: 110ª reunión CIT (2022)

Convenio sobre la discriminación (empleo y ocupación), 1958 (núm. 111) - España (Ratificación : 1967)

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Observación

Solicitud directa

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The Committee notes the observations of the Trade Union Confederation of Workers’ Commissions (CCOO) and the observations of the Spanish Confederation of Employers Organizations (CEOE) transmitted with the Government’s report. The Committee also notes the Government’s responses.

Article 1(1)(a) of the Convention. Discrimination on the grounds of sex. Sexual orientation and gender identity. The Committee notes the information provided in the Government’s report in response to its earlier comment, requesting information on the measures adopted or envisaged on the basis of the assessment of discrimination against lesbians, gays, bisexuals and transsexuals. The Committee notes the Government’s indication in its report that this assessment has been broadened with a 2019 exploratory study into the social and labour integration of trans persons, which will be published shortly and which throws light on the reality of a group suffering significant discrimination in access to education, employment and the free exercise of an occupation. The Government also refers to the preparation of a preliminary bill on equality and non-discrimination for lesbian, gay, bisexual, trans and intersex persons (LGBTI), which would prohibit all forms of discrimination on the grounds of sexual orientation, gender identity, gender expression or sexual characteristics in access to and retention of employment, recruitment, terms and conditions of employment, as well as to a preliminary bill on real and effective equality for trans persons, which would mandate the public administrations to adopt the measures required to promote integration, employability and social and labour insertion. The Government also refers to the establishment, by Order IGD/577/2020, of the Council for the Participation of LGBTI Persons which, among other functions, been given responsibility for proposals related to LGBTI policies, and the promotion of equality, presentation of criteria and observations in respect of the projects, plans and programmes of the General State Administration (AGE), and the annual review of LGBTI policies. The Committee also notes the “Making progress with LBGTI diversity” project (Avanzando en gestion de la diversidad LGBTI), to promote sexual and gender diversity within enterprises and universities. The Committee further notes the CCOO’s observations according to which there is existing autonomous LGBTI legislation that is not being implemented, and in respect of promotional measures that the organization has taken. The Committee requests the Government to provide information on progress made regarding the preliminary bills referred to above, as well as on the application in practice of the legislation in force, including details of violations and sanctions. The Committee also requests the Government to provide information on the action taken by the Council for the Participation of LGBTI Persons to promote equality in employment and occupation for the LGBTI group.

Article 2. Legislation. The Committee notes that the Government refers in its report to European Court of Justice decisions of 18 January 2018 and 11 September 2019, which consider that section 52.d of the Workers’ Statute is discriminatory on the grounds of disability, since it permits the termination of a contract with right to a reduced compensation where unjustified absences or periods of sick leave for common contingencies of less than 20 days’ duration exceed fixed percentages. The Committee welcomes that this section has been repealed by Royal Decree-law No. 4/2020 of 18 February.

Equality of opportunity between men and women. In its previous comment, the Committee requested the Government for information on the findings of the evaluation of the Strategic Plan for Equality of Opportunity (PEIO) 2014–2016, on any other measure taken to the same end, and on the application and impact of the new PEIO. The Committee observes that the Government refers to the PEIO 2014-2016 final implementation and evaluation report, indicating the complete or partial implementation of 191 of the Plan’s 212 measures. The plan includes changes to or development of rules with wide ranging impact, sectoral action plans, training courses for specific publics aimed at a wide spectrum of profiles, a significant number of projects mounted with the aid of grants, the use of products to generate knowledge, and improvements to statistics and information systems. The Government also emphasizes that the plan has contributed to reducing inequality between women and men and that its principal activities have shown a high degree of continuity. The Committee also notes the observations of the CCOO, to the effect that the Plan, as designed, fails to take account of the impact and consequences on workers of policies to cut budgets, reduce public services and reform labour, and neither does it guarantee employment for the more than 2.4 million unemployed. Likewise, the CCOO indicates that, according to the web page of the Institute for Women (IMs), the PEIO 2018-2021 is being drawn up, but that the trade unions have not been contacted to participate. The Committee notes in this regard the Government’s indication that the PEIO 2014-2016 was not intended to create employment for 2.4 million unemployed, but to contribute to reducing the gender gap in equality of opportunity. With regard to the elaboration of the PEIO 2018-2021, civil society participation is assured through the Council for Participation, which was consulted at the appropriate moment and would be once again when a new draft was ready.

The Committee further notes the Government’s indication in its report that a Strategic Plan for Effective Equality between Women and Men 2021-2025 (III PEIEMH) is being drawn up, and will include, in its second section, entitled “Economy for living, and a fair distribution of wealth and time”: possible situations of multiple discrimination on the grounds of sexual orientation, gender identity, class or membership of an ethnic minority; a system of specific indicators to help measure the incidence of multiple discrimination; studies to provide a better understanding of multiple discrimination, with a focus on women in a socially vulnerable situation. The Committee also observes the CCOO’s indication that the Annual Employment Policy Plan (PAPE) no longer includes women under “priority objectives”, but that they are now classified under “special interest group”. In this regard, the Government indicates that women’s classification in employment policy has not changed, in conformity with section 30 of Royal Legislative Decree No. 3/2015, and that it was for the duly mandated Autonomous Communities to manage employment programmes, adopting and implementing those which best suited the needs of their territories. The Committee requests the Government to provide information on: (i) progress in formulating and adopting the PEIO 2018-2021 and the III PEIEMH, and on participation by the employers’ and workers’ organizations in the process; and (ii) measures adopted under the Annual Employment Policy Plans that contribute to the application of the principle of gender equality in employment and occupation, including those taken at the level of the Autonomous Communities.

Promotion, training and skills development. The Committee observes that the Government refers in its report to various measures in respect of training and awareness-raising on gender equality, including: (1) the various training courses on equality between women and men in the working environment run by the IMs and its Virtual School for Equality (EVI); (2) the promotion of the principle of equality in structural and investment fund interventions via mechanisms and training aimed at administrative and management entities, intermediate bodies and fund beneficiaries; and (3) training on the principle of equality and non-discrimination in the design and implementation of public policies, with particular reference to hate crime, and racial or ethnic discrimination, age, religion, sexual orientation and gender identity, for jurists, teachers and educators, technical staff in establishments providing care for victims of discrimination, civil servants, etc. The Committee requests the Government to continue providing information on training and awareness-raising activities in respect of equality, including the level of participation, disaggregated by sex.

Enforcement and application. The Committee notes the statistics provided by the Government, regarding the action taken: (1) with regard to discrimination in access to employment, 31 actions with no violations identified in 2018; 21 actions with no violations identified in 2019; and 15 actions with one violation identified in 2020; (2) with regard to discrimination in employment, 1,583 actions with 29 violations identified in 2018; 1,781 actions with 39 violations identified in 2019; and 1,166 actions with 27 violations identified in 2020; and (3) in respect of the annual action plan on compliance with rules regarding measures for effective equality between women and men, 6,032 inspections with 164 violations identified in 2018; 7,201 inspections with 217 violations identified in 2019; and 5,803 inspections with 161 violations identified in 2020. In this regard, the Committee observes that a greater number of inspections appear to have been carried out in the context of specific campaigns than under general activities. The Government refers to a number of judgments regarding equality and non-discrimination in employment, and the Committee takes note of these. The Committee also observes, according to the Government’s indication, that the importance given to safeguarding equality in inspection activities is such that it has been given particular weight in the Decent Work Strategy 2018-2019-2020, which provides, inter alia, for the establishment of a Discrimination Combat Unit to coordinate measure to combat discrimination, collaboration with the labour inspectorate and the respective autonomous bodies concerned with equality, the participation of the Labour and Social Security Inspectorate (ITSS) in action plans and strategies on equality, and specialized training for inspectors. The Committee also notes that the Government refers to a cooperation agreement between the Ministry of Equality and the Ministry of Labour and the Social Economy, which provides for permanent monitoring of effective gender equality in enterprises, and which establishes collaboration between the IMs and the ITSS in fixing the quantitative and qualitative objectives for the labour inspectorate, the exchange of information and advice regarding the results of the inspection activity, and collaboration in awareness-raising and provision of information for enterprises, workers and the social partners on the importance of gender equality.

With regard to the labour inspectorate, the Committee notes the observations of the CEOE, according to which, in light of the make-up of the enterprise fabric in Spain, which consists of a majority of small and medium-scale, and micro, small and medium-scale enterprises, the assistance and information function of the labour inspectorate should be strengthened before resorting to enforcement action. The CEOE also states that the inspection figures provided by the Government should be disaggregated to indicate how many “violations detected” are final, that is, not subject to appeal. In this regard, the Government indicates that publication of inspection criteria is to make information public, and specifies that once a violation has been detected, the inspectorate first sends a communication to the enterprise concerned, informing it of the facts observed and requesting it to review the situation. Second, the inspectorate verifies the changes made by the enterprise. The Government also indicates that, as a result of the time scale of the appeal procedure, coupled with the fact that the labour inspectorate is not responsible for that procedure, it is not possible to disaggregate final “violations detected”.

The Committee also notes the information provided by the Government regarding institutional measures taken in respect of the configuration of the Ministry of Equality, through Royal Decree No. 139/2020, of 28 January, establishing the basic organic structure of the ministerial departments and Royal Decree No. 455/2020, of 10 March, setting out the basic organic structure of the Ministry of Equality, including the State Secretariat for Equality and against Gender Violence. The Committee also notes the Government’s indication that the regulation governing the Equality Units of the General State Administration (AGE) is intended to ensure effective gender mainstreaming and the monitoring of the application of equality legislation. The Committee requests the Government to continue providing information on the number and nature of the violations observed, including relevant specific inspection campaigns, and to provide information disaggregated by grounds of discrimination on action undertaken by the labour inspectorate as part of its general activities. The Committee also requests the Government to provide, to the extent possible, information on the most common grounds for a detected violation to be revoked on appeal. The Committee further requests the Government to provide information on: (i) the measures implemented regarding the labour inspectorate and the promotion of equality in employment and occupation under the Overall Plan for Decent Work 2018-2019-2020 and the cooperation agreement with the IMs; and (ii) the measures taken by the Equality Units of the AGE to monitor application of the labour legislation.