Observation (CEACR) - adoptée 1992, publiée 79ème session CIT (1992)

1. The Committee takes note of the Government's observations, transmitted in April 1990, the Government's report for the period ending June 1991 and the observations of the Trade Union Confederation of Workers' Commissions (CC.OO) and of the General Union of Workers (UGT), annexed to the Government's report.

2. Article 2, paragraphs 2 and 3, of the Convention. The Committee takes note of Act No. 2/1991 of 7 January 1991 respecting the right of workers' representatives to information on contracts of employment (Documento de Derecho Social, 1991-Esp1). This is an Act adopted "... as one more step in the policy of improving and increasing employment, the common will to avoid fraud and abuses in labour contracting". The Committee also notes the many judicial decisions transmitted by the Government in connection with the protection of workers who hold temporary contracts of employment. Provision has been made in the draft State General Budgets for 1992 for subsidies for employers who convert a temporary contract of employment into a contract of employment of indefinite duration.

The Workers' Commissions drew attention to the vast increase in the number of temporary contracts of employment in Spain. In practice, they say, it is becoming a habit to use fixed-term contracts in order to evade the protection enjoyed by the holders of contracts of indefinite duration. UGT too refers to the high proportion of temporary workers and draws attention to the problem of successive temporary contracts; it would be desirable, as UGT sees it, to "limit recourse to contracts for a specified period of time to cases in which, owing either to the nature of the work to be effected or to the circumstances under which it is to be effected or to the interests of the worker, the employment relationship cannot be of indeterminate duration" (Paragraph 3(2)(a) of Recommendation No. 166 concerning Termination of Employment, 1982).

The Committee hopes that the action taken to encourage new forms of institutional participation by the social partners in the follow-up of employment contracts will make it possible to give better guarantees against the use of fixed-term contracts whose purpose is to evade the protection prescribed by the Convention. The Committee would be grateful if detailed information on the impact produced in this matter by Act No. 2/1991 could be included in the next report. Please continue giving examples of the main judicial decisions and statistics on the intervention of appeal bodies and on the number and categories of workers affected by the various procedures of fixed-term contracting.

3. Article 7. In its 1990 observation, the Committee referred to section 55 of the Workers' Charter, which allows dismissal (for disciplinary reasons) if the alleged breach of discipline is stated in the employer's written notification. The Committee asked the Government to state when the employment is considered to be terminated, in the national legislation and in practice, and to specify the procedure available to a worker to defend himself against the allegations prior to the termination, as required by this Article of the Convention.

The Workers' Commissions point out that the worker receives notice of dismissal without first having been given any opportunity to defend himself against the charges brought against him. If the labour tribunal declares his dismissal valid, it takes effect on receipt by the worker of the notice of dismissal, and not on delivery of the judicial decision. UGT, for its part, points out that the safeguards provided are available only in case the matter is referred to the competent court to determine whether the employer's decision is legal or not.

The Government states in its report that the employment relationship cannot be considered terminated merely when a record is made that the worker has received a notice of dismissal. The notice of dismissal will be fully valid and produce its full effects as such only if the worker has allowed the period of 20 days following the date of the notice which the law allows for an appeal to elapse (section 103 of the Labour Procedure Act) (Law Legislative Decree No. 521/1990 of 27 April 1990, approving the articled text of the Labour Procedure Act, Boletín Oficial del Estado of 2 May 1990, No. 105, pp. 11800-11822). In the case of dismissal for disciplinary reasons (sections 103 to 113 of the Labour Procedure Act), the court shall declare the employment relationship extinguished only if he holds the dismissal to be valid (section 109). If the court declares the dismissal invalid, it may order reinstatement of the worker or the payment of compensation (section 110). The dismissal is deemed to be proper when the fault alleged in the employer's written notice of dismissal is held proved by the court (section 108, 1).

The Committee refers to its previous comments and points out that the worker must obviously be given an opportunity to defend himself before the employment is terminated for reasons related to the worker's conduct or performance. Section 3 of the above-mentioned Act No. 2/1991 provides that "the worker may request the attendance of an official representative of the workers at the time of signing the receipt for the release" presented to him by the employer when serving notice of the termination of a contract of employment or, where applicable, notice of termination at a future date. The receipt for the release must be signed by the worker "in the presence of an official representative of the workers". The Committee would be grateful if the Government would indicate in its next report whether section 3 of Act No. 2/1991 is applicable also in case of termination of a contract of employment for reasons related to the worker's conduct or performance and how it is applied in a case where a worker has no opportunity to have recourse to an official representative of the workers when the employment relationship is terminated or when the worker does not file an appeal before the competent court and also when he files such an appeal.

Article 11. Please give examples of judicial decisions in cases of "serious and culpable breaches of contract by the worker" (section 54 of the Workers' Statute), taking into account that this Article of the Convention requires a reasonable period of notice or compensation in lieu thereof unless the worker is guilty of "serious misconduct".