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Subcontracting. Construction sector
Royal Decree 1109/2007 of 24 August, develops the Law on subcontracting in the construction sector. (More information)
Occupational accident. Heart attack suffered at the workplace during working hours
Judgment of the Supreme Court of 11 June 2007 stating that a heart attack suffered by an employee at the work place during working hours is an occupational accident, even when unconnected to the work activity. (More information)
Non-statutory collective bargaining agreement. Nullity of certain clauses. Limited effectiveness of these kinds of agreements
Judgment of the Supreme Court of 1 June 2007, considering certain clauses of a non statutory collective agreement void due to their limited effectiveness. (More information)
Informing and consulting employees in the European Community. Failure by Spain to transpose Directive 2002/14/EC within the established term
Judgment of the Seventh Chamber of the European Court of Justice of 5 July 2007, stating that Spain failed to fulfil its obligations under Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002. (More information)
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Subcontracting. Construction sector
Royal Decree 1109/2007 of 24 August, which develops Law 32/2006 of 18 October, regulates subcontracting in the Construction sector. Spanish Official Gazette of 25 August 2007
Royal Decree 1109/2007 (the “Royal Decree”) is applicable to companies that wish to be contracted or subcontracted for construction works.
Royal Decree develops four aspects of Law 32/2006 (the “Law”): (i) the Registry of Accredited Companies; (ii) the Subcontracting Book, (iii) the rules for calculating the percentage of employees with an indefinite employment contract set out in the Law; and (iv) the simplification in terms of paperwork of the statutory obligations in construction works.
Royal Decree regulates the operation of registries of accredited companies which are under the responsibility of the labour authorities of the relevant autonomous regions. Every construction contractor must register with the registry pertaining to the labour authority of the relevant autonomous region, by filing an equivalent of the model official form attached to the Royal Decree. The application must be made within a month before the rendering of the services. Registration will be valid for three years and may be extended for equal periods. Registration will be compulsory once twelve months have elapsed from the enforcement of the Royal Decree on 26 August 2007.
According to the Royal Decree every contractor must have a Subcontracting Book (the “Book”) before subcontracting with a contractor or self-employed person. Once the contractor has prepared the Book, using the standard form attached to the Royal Decree, it will have to be submitted to the competent labour authority for its approval. The Book must contain all the subcontracting contracts entered into with regard to the works. The contractor must keep the Book at the work site where works have been subcontracted until these works are completed and for the next five years after its involvement in the works.
The companies to be contracted or subcontracted to carry out construction works, as established in the Royal Decree, must employ 30% of their workforce through indefinite employment contracts. This percentage will be calculated in accordance with the regulation of the Royal Decree.
The Royal Decree simplifies the obligations established in the regulations governing construction works, especially with regard to the relocation of employees within the scope of international services.
Likewise, the Royal Decree contains some requirements regarding the training of the human resources department of the contractors and subcontractors.
Occupational accident. Heart attack suffered at the workplace during working hours
Judgment of the Labour Chamber of the Supreme Court of 11 June 2007
According to this judgment, a heart attack suffered by an employee while at work and during working hours but which symptoms had started prior to the start of the working day, constituted an occupational accident.
According to the mutual insurance company, the event that led to the employee needing medical assistance and being admitted to hospital actually began before the start of the working day, refusing to classify this contingency as an occupational accident. The Social Security concurred.
However, the Supreme Court (the “SC”) held that an occupational accident cannot be excluded by merely evidencing that the employee suffered from heart problems or on the basis that there had been symptoms before the start of the working day. The SC did not consider that the work performed was the cause of the heart attack, particularly, in view of the aetiology of this disease, but rather considered that its impact, in accordance with article 84.2.f) of the General Social Security Law, in triggering the crisis gives rise to the need to offer protection to the employee. Consequently, the presumption of occupational accident cannot be excluded on the basis that the employee had already suffered the symptoms, since, even in cases such as the one at hand, the actual heart attack is the factor to be taken into consideration when it comes to protection.
Non-statutory collective bargaining agreement. Nullity of certain clauses. Limited effectiveness of these kinds of agreements
Judgment of the Labour Chamber of the Supreme Court of 1 June 2007
The SC considered that certain clauses of the non statutory collective agreement are void due to the limited effectiveness of this kind of agreement, since within the scope of application of these agreements, they only affect and regulate the parties to the agreement.
A trade union filed a claim challenging the lawfulness of twenty articles and an additional transitional provision of the non statutory collective agreement entered into by a company and other trade unions on the basis that the agreement contained rules that were of general application to all the employees of the company, regardless of whether they were a party to the agreement.
In spite of the individual agreement that each employee of the company had signed, except for one, the SC held that, since the collective agreement is non statutory due to the fact that its execution did not meet the requirements of Section III of the Statute of Workers (the “SW”), it has no “erga omnes” effectiveness, thus only applying to those who entered into the agreement and to the employee representatives, although its scope may be broadened by individual agreements.
The contractual nature of these agreements implies their submission to labour regulations as established in article 3 of the SW, provided that they are in accordance with the law, regulations and collective bargaining agreements of general application.
The judgment revokes all the clauses of the agreement which are of general application or which replace clauses of the statutory collective bargaining agreement in force.
Informing and consulting employees in the European Community. Failure by Spain to transpose Directive 2002/14/EC within the established term
Judgment of the Seventh Chamber of the European Court of Justice of 5 July 2007. Official Gazette of the European Union of 25 August 2007
In this case, the Commission brought a claim against Spain for failing to adopt the necessary measures within the established period to comply with Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 (the “Directive”) establishing a general framework for informing and consulting employees in the European Community. The Directive is a joint declaration of the European Parliament, the Council and the Commission on employees representation.
The judgment held that Spain failed to implement the laws, regulations and administrative measures required in order to comply with the Directive within the established term.
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The information contained in this Newsletter is of a general nature and does not constitute legal advice