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The information contained in this Newsletter is of a general nature and does not constitute legal advice |
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Statute of self-employed worker
Law 20/2007 of 11 July, regulates the legal framework of self-employed worker. (More information)
Special social security system for self-employed farm workers. Integration
Law 18/2007 of 4 July, whereby self-employed workers of the special social security regime for farm workers are incorporated into the special social security regime for self-employed workers. (More information)
Working time. Road transportation activities
Royal Decree 902/2007 of 6 July, modifies two articles and adds one to Royal Decree 1561/1995 of 21 September, on special working time, in connection with the working time of itinerant employees rendering road transportation activities, in order to fully implement Directive 2002/15/EC of 11 March. (More information)
Job position supplement. Security guards other than those rendering services in airports. Principle of equality
The judgment of 1 February 2007 by the Labour Chamber of the Supreme Court stated that security guards rendering services at the court house of Albacete using a specific radioscopy device are not entitled to a supplement (“plus de radioscopia”) established in the applicable collective bargaining agreement for those employees rendering services at airports and using this specific device, as the claimants failed to meet the requirements set out in the mentioned collective bargaining agreement. Furthermore, the principle of equality has not been contravened, even though security guards who render services at airports using the radioscopy device are entitled to this supplement. (More information)
Termination of the employment contract. Voluntary resignation. Validity
In this case, the company offered an employee the opportunity to voluntarily terminate his employment relationship as the former had evidenced that the latter had stolen certain goods while performing his employment duties. According to a judgment of the Labour Chamber of the Supreme Court dated 6 February 2007, a voluntary resignation, drafted and signed by the employee has no defects with regard to the free will of the relevant party that may lead to nullity. (More information)
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Statute of self-employed worker
Law 20/2007 of 11 July, of the Statute of self-employed worker. Spanish Official Gazette of 12 July 2007
Law 20/2007 applies to individuals carrying out on a continuous, personal, direct and independent manner and beyond the direction and organisational control of a third person, remunerated economic or professional activities, regardless of whether they hire other employees. This law also applies to the relatives of these individuals who are not employees of a third party.
In any event, Law 20/2007 specifically applies to, provided that the above requirements are met, the following: (i) working partners of general and limited partnerships; (ii) members of joint ownerships or partners of de facto civil code partnerships, provided that this activity is not limited to the management of the goods that are held in common; (iii) those administrators or members of the board of directors performing managerial functions for limited liability companies, provided that they are remunerated for these services and they perform them on a continuous or personal basis and when they have direct or indirect control over the company; and (iv) economically dependent self-employed workers, as governed by Law 20/2007. Likewise, Law 20/2007 expressly excludes from its scope of application the following: (i) employment relationships listed in article 1.1 of the Statute of Workers (“SW”); (ii) the mere performance of the duties associated with the position of administrator or member of the board of directors of limited liability companies; and (iii) special employment relationships established in article 2 of the SW.
The basic professional rights and duties of self-employed workers are also regulated, focusing particularly on the right to non discrimination and the guarantee of basic rights and liberties.
Law 20/2007 sets out that contracts entered into by self-employed workers in the performance of their duties can be executed in writing or orally. However, the relevant parties may request its formalisation in writing. The object of the contract may be the performance of any work or the rendering of one or more services and its length will be agreed by the parties.
Law 20/2007 introduces the legal regime of the “economically dependent self-employed worker”. In order to fall under this category the worker must perform an economic or professional activity in exchange for remuneration in a continuous, personal, and direct manner for an individual or legal entity, named “client”. According to Law 20/2007, at least 75% of the professional income of the economically dependent self-employed worker will come from the client. In this regard, among others, the following additional requirements must be met: (i) the activities must be performed in a different manner than the client’s employees; (ii) the activities must be preformed in accordance with its own independent organisational criteria; and (iii) there must be some sort of remuneration for the services provided, as agreed between the economically dependent self-employed worker and the client.
Furthermore, Law 20/2007 expressly excludes certain situations from the legal regime of the economically dependent self-employed worker. The most relevant characteristics of the regime of the economically dependent self-employed worker are summarised as follows:
(a) The contract between the economically dependent self-employed worker and the client must be executed in writing and be registered with the relevant public authority. The object of these contracts will be the completion of works or the rendering of one or more services and its duration will be agreed by the parties.
(b) According to Law 20/2007, the “agreements of professional interest” are the source of the legal regime of the economically dependent self-employed worker, to be entered into by the employee representatives and the companies. These agreements of professional interest will regulate the working conditions of the economically dependent self-employed workers.
(c) The economically dependent self-employed worker will be entitled to an annual period of rest of 18 working days, unless otherwise agreed with the client.
(d) The grounds for termination of the contract between the economically dependent self-employed worker and the client are clearly specified in Law 20/2007, which also declares the labour jurisdiction competent to deal with any disputes arising from these contracts. However, a conciliation procedure must be followed before the corresponding administrative body.
On the other hand, Law 20/2007 sets out the collective rights of the economically dependent self-employed workers, with special regard to the constitution of the Council of Self-Employed Work.
Finally, Law 20/2007 amends certain provisions of the Labour Procedure Law and the General Social Security Law (“GSSL”).
Special social security system for self-employed farm workers. Integration
Law 18/2007 of 4 July, whereby self-employed workers of the special social security regime for farm workers are incorporated into the special social security regime for self-employed workers. Spanish Official Gazette of 5 July 2007
As of 1 January 2008, self-employed workers included in the special social security regime for farmers will be registered with the special social security regime for self-employed workers, the provisions of this regime being of application to such employees.
Law 18/2007 creates within the special social security regime for self-employed workers, a specific regime, namely, the special system for self-employed farm workers (“Sistema Especial para Trabajadores por Cuenta Propia Agrarios”), applicable to individuals over 18 years of age who meet the following requirements: (i) that they own agricultural land and obtain, at least, 50% of their total income from the performance of agricultural activities or complementary activities to those activities; (ii) that total annual income does not exceed, on a yearly basis, the 75% of the maximum contribution base established in each moment for the general social security regime; and (iii) that the performance of the agricultural activities is personally and directly carried out without prejudice to the hiring of a maximum of two permanent employees or temporary employees whose remuneration does not exceed 546 daily wages per year.
Law 18/2007 has further implications regarding the contribution to the social security as regards the incorporation of the self-employed workers of the special social security regime for farmers into the special social security regime for self-employed workers.
Finally, Law 18/2007 annuls specific provisions of the GSSL, Law 30/2005 on National Budget for 2006, and the Amended Text of Law 38/1966 of 31 May and Law 41/1970 of 22 December.
Working time. Road transportation activities
Royal Decree 902/2007 of 6 July, whereby Royal Decree 1561/1995 of 21 September, on special working time in connection with the working time of itinerant employees rendering road transportation activities is modified. Spanish Official Gazette of 5 July 2007
Royal Decree 902/2007 specifies the concept of itinerant employees rendering road transportation services such as drivers, assistants, collectors and other auxiliary personnel rendering services related to transportation, its passengers or its load, either for companies of the road transportation sector (urban, interurban and travellers or goods) or for those companies incorporated into other sectors performing transportation activities or any auxiliary activities mentioned above.
Periods of time during which the itinerant employee cannot freely dispose of his/her time and is obliged to stay at his/her workplace to perform his/her regular work will be considered effective working time.
Periods other than breaks or pauses, during which the itinerant employee does not carry out any driving activity and is not required to stay at his/her work centre but, in turn, has to be available to receive instructions to start or resume driving or any other work shall be considered on call.
Royal Decree 902/2007 limits the working time of itinerant employees to a total of 48 weekly hours within a 4 month period, with a maximum limit of 60 weekly hours. Likewise, itinerant employees will interrupt the continuous working day exceeding 6 consecutive hours with a period of rest of, at least, of 30 minutes. In the event that the total daily working time exceeds 9 hours, the period of rest will be, at least, 45 minutes.
Finally, Royal Decree 609/2007 sets out that the maximum weekly and daily driving periods and the minimum weekly periods of rest will respect, in any event, the limits established in Regulation EC 561/2006 of 15 March 2006.
Job position supplement. Security guards other than those rendering services in airports. Principle of equality
Judgment of the Labour Chamber of the Supreme Court of 1 February 2007
Several security guards rendering services at the court house of Albacete using a specific radioscopy device, claimed the payment of a determined supplement (“plus de radioscopia”) according to the applicable collective bargaining agreement for those employees rendering services at airports and using this device. The first instance judgment rejected the claim. However, the High Court of Justice revoked the first instance decision and compelled the company to pay the mentioned supplement. Therefore, the company appealed the decision before the Supreme Court (“SC”) which, pursuant to the procedure to file the appeal, issued a judgment rejecting the entitlement to the supplement (“plus de radioscopia”) established in the collective bargaining agreement for employees rendering services in places other than airports.
Hence, according to the criterion of the SC, the requirements established in the applicable collective bargaining agreement are not met, taking into consideration that: (i) the rendering of services is not carried out at an airport; (ii) the radioscopy device is not exactly the same as the device used at the airport; and (iii) it cannot be concluded that the training provided to the claimants is specifically related to the utilisation of the radioscopy device, as required by the collective bargaining agreement.
For these purposes, the SC stated that the ratio decidendi in the appealed judgment was incorrect insofar as the stipulation of the collective bargaining agreement was clear and must be interpreted literally.
Finally, the SC stated that the dissimilar regulation of the working conditions through the applicable collective bargaining agreement does not contravene the principle of equality if it refers to different activities and is a consequence of the particularity of these activities and if the legal consequences resulting from this distinction are adequate and proportionate. Therefore, the non application of the supplement for the use of radioscopy devices in airports to workers who are rendering security services in places other than airports and who do not use the same specific device can be justified on the basis that this supplement is extraordinary and conditional upon the rendering of security services in airports and upon receiving very specific training by qualified professionals.
In view of the above, the SC declares the judgment of the High Court of Justice null and confirms the validity of the judgment of the first instance court.
Termination of employment contract. Voluntary resignation. Validity
Judgment of the Labour Chamber of the Supreme Court of 6 February 2007
The company in question wanted to terminate one employee on the basis of the recording of the security video cameras which revealed that such employee stole certain goods while performing his duties of stock clerk. The employee was called for a meeting in which the company expressed its loss of faith in him and, as a result, the company decided to dismiss him unless the employee decided to voluntarily resign by signing a resignation letter. The employee agreed to and, subsequently, claimed unfair dismissal which was disregarded by the first instance court. However, the appeal before the High Court of Justice was accepted and the dismissal was declared unfair as, in accordance with the principle of good faith, the company failed to act correctly and to give the employee some time to reflect before making the decision.
The SC, in analysing whether the will of the employee stated in the resignation letter was free or alternatively whether there were defects, considers that there were no defects in the case at hand. The SC understands that the signing of the resignation letter by employee, even though the company explained to the employee that the employee’s behaviour would be contrary to the principle of good faith and implied certain legal, labour and criminal consequences, does not constitute duress.
Likewise, the SC established that the employee was aware of the significance and extent of the facts disclosed by the company which led to his resignation, avoiding in this way any potential negative consequences. The fact that no time was given to reflect is irrelevant when assessing the free will of the employee, since this time is not a legal requirement.
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The information contained in this Newsletter is of a general nature and does not constitute legal advice