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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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Prevention of occupational hazards. Publication of the sanctions for very serious infringements
Royal Decree 597/2007 of 4 May, regulates the publication of the sanctions for very serious infringements related to the prevention of occupational hazards. (More information)
Foreign citizens must provide evidence that they have economic means in order to enter Spain. Issue of the letter of invitation by individuals in favour of foreigners seeking to enter Spain
Order PRE/1282/2007 of 10 May, establishes the economic means that foreigners must provide when seeking to enter Spain. Order PRE/1283/2007, of the same date, establishes the terms and requirements for the issue of a letter of invitation by an individual in favour of a foreigner seeking to enter Spain. (More information)
Collective dismissal. No entitlement for damages. Authorisation revoked by the Contentious-Administrative Court
The judgment of the Labour Chamber of the Supreme Court of 31 May 2006 declared that there is no entitlement to compensation regarding unpaid salaries during the period they remained terminated where the termination resulted from the authorisation of a collective dismissal. In the case at hand, the administrative authorisation was revoked by the ruling passed by the Contentious-Administrative Courts. (More information)
Social security. Surcharge on social security benefits. No expiry of the procedure
The judgment of the Labour Chamber of the Supreme Court of 5 December 2006, declared that the expiry of the procedure for surcharge on social security benefits cannot be argued due to the ending of the 135 day statutory period in which to resolve the procedure. The judgment was delivered in consideration that there was no specific provision which stated that the consequence of lack of resolution within the surcharge procedure entails its expiry. In this sense, the Supreme Court understood that the expiration of the procedure can only take place in sanctioning procedures and the procedure to impose the surcharge on social security benefits lacks such a feature. (More information)
Retirement at the age of 64. Re-joining the company and simultaneous retirement of the employee along with the hiring of a substitute employee is not regarded as fraudulent
The Supreme Court, in its judgment of 18 January 2007, concluded that a breach of the rules related to retirement is not considered to exist in the case of an employee who had provided services to a company for 31 years and had agreed on a suspension of his employment contract. The same employee then re-joined the company when he was 64 years old and on the same day, left the company due to special retirement at the age of 64. The company had fulfilled the requirement of hiring an employee at the time of the retirement, in accordance with the applicable rules on this matter. (More information)
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Prevention of occupational hazards. Publication of the sanctions for very serious infringements
Royal Decree 597/2007 of 4 May, which regulates the publication of the sanctions for very serious infringements related to the prevention of occupational hazards. Spanish Official Gazette of 5 May 2007
Royal Decree 597/2007 of 4 May establishes the procedure for publishing the sanctions for very serious infringements related to the prevention of occupational hazards.
The procedure for the publication of these sanctions will be initiated ex officio at the proposal of the Labour and Social Security Inspectorate.
Once the sanction becomes final, the competent authority that issued the sanctioning decision or, failing that, the competent body appointed by the corresponding autonomous region, will determine the publication of the sanction in the Spanish Official Gazette or in the Official Gazette of the corresponding autonomous region. Similarly, the sanction may be published in any public media other than that mentioned.
The term for the publication is 3 months from the moment the sanction becomes final.
The data to be included in the publication are as follows: (i) identification data of the company and description of the infringement, (ii) the economic sanction imposed, including the specific amount, and (iii) the principal or ancillary sanctions imposed.
However, the publication will not include the imposed surcharges on social security benefits.
Data included in the publication will be filed with a public consultation registry, which will be set up in each competent administration. The data will be deleted 5 years from publication.
Foreign citizens must provide evidence that they have economic means in order to enter Spain. Issue of a letter of invitation by individuals in favour of foreigners seeking to enter Spain
Order PRE/1283/2007, of 10 May, under which the terms and requirements for the issue of a letter of invitation by an individual in favour of a foreigner seeking to enter Spanish territory for tourist or private purposes; and Order PRE/1282/2007 of the same date, on the economic means that foreign citizens must provide evidence of in order to enter Spain
Foreigners other than those from European Union Member States, European Economic Area Agreement signatories, the Swiss Confederation or the Principality of Andorra and the relatives of all those to whom Royal Decree 240/2007 of 16 February applies, will be required to provide evidence, if so required, that they have minimum economic resources, in accordance with the following:
(i) for his/her daily subsistence, an amount representing 10% of the professional salary or equivalent in a foreign currency, multiplied by the number of days for which he/she intends to stay in Spain;
(ii) the tickets or closed nominative tickets for the means of transportation to be used in order to return to his/her country of origin or to travel to third countries.
The fulfilment of the requirements set out above is not necessary when:
(i) the foreign citizens hold a valid passport and are holders of an authorisation or residency, diplomatic or student card which is valid in Spain, in any of the European Union Member States or the Principality of Andorra;
(ii) the foreign citizens hold a valid passport which authorises them to stay and provide services or study in Spain; and
(iii) the foreign citizens hold a valid passport and return authorisation the issue of which has been carried out according to Royal Decree 2393/2004.
On the other hand, Order PRE/1283/2007 of 10 May regulates the terms relating to the issue of a letter of invitation in favour of a foreign citizen for entry into Spanish territory, by an individual who will assume all expenses related to the accommodation of the foreigner during his/her stay in Spain.
The individual wishing to obtain a letter of invitation in favour of a foreigner will submit a request with a police station in his/her domicile, which will be the competent authority for the processing and issue this letter of invitation.
Once the request is received, the competent authority will initiate the procedure. Should it be considered necessary, a personal interview with the requesting individual could be carried out by the authority, in order for it to verify his/her identity, the validity of the documents requested and the veracity of the information included in the request.
Once a decision is reached concerning the request, the authority will notify the requesting individual of the outcome which, if accepted, will contain the notice to collect the letter of invitation.
Collective dismissal. No entitlement for damages. Authorisation revoked by Contentious-Administrative Court
Judgment of the Labour Chamber of the Supreme Court of 31 May 2006
As a consequence of a collective dismissal, duly authorised by the Labour Authority, several employment contracts were terminated. These employees were paid compensation for the termination of their employment contracts.
However, after almost seven years, the authorisation of the collective dismissal was revoked by the Contentious-Administrative Court and 11 affected employees claimed for damages before the Labour Courts. The amount claimed was set taking into consideration the salaries not paid to them during the time their employment contracts remained terminated.
The High Court of Justice of Catalonia found the company liable for the damages claimed by the employees.
The Supreme Court (SC) stated that the payment of damages cannot be imposed on the company, providing arguments from both a labour and a civil law perspective.
From a labour law perspective, in the event of collective dismissals, article 51.8 of the Statute of Workers establishes a single compensation, without the possibility of claiming additional compensation. Similarly, the judgment pointed out that the procedure salaries are only to be paid in cases of disciplinary dismissal or dismissal based on objective grounds, which is the unilateral behaviour of the employer, and not in the case of a collective dismissal, where the Labour Authority is additionally involved.
Finally, from a civil law perspective, the outcome of the judgment is similar. The collective dismissal approved by the Labour Authority does not fall within the scope of article 1,101 of Spanish Civil Code, regarding contractual liability as the hospital was not the only legal body involved in the authorisation of the collective dismissal and, likewise, the delay of the judgment revoking the authorisation cannot be imposed solely on the company. Therefore, and bearing in mind that neither of the subjective requirements - fault or negligence - , nor the causal link exists for the purposes of the claim, the compensation cannot be imposed on the company.
In light of the above, the SC overruled the judgment of the High Court of Catalonia.
The present judgment relies on a particular vote by several SC judges.
Social Security. Surcharge on the social security benefits. No expiry of the procedure
Judgment of the Labour Chamber of the Supreme Court of 5 December 2006
In this judgment, the SC analysed a workplace accident suffered by an employee.
The judgment of the labour court upheld the administrative resolution that imposed on the company a surcharge of 40% for social security benefits.
The High Court of Justice rejected the appeal filed by the company against such first judgment. The appeal was based, among other arguments, on the expiry of the procedure to impose the surcharge for social security benefits.
When filing the appeal before the SC, the company submitted a judgment that declared the expiry of an administrative resolution when 135 days have elapsed from the initiation of the procedure.
The SC stated that article 14 of the Order of 16 January 1996 does not establish the expiry of the procedure as a consequence of the lack of a resolution, but that in the event a decision is not issued, the interested party may resort to the ordinary jurisdiction.
The SC concluded that expiry arises in proceedings involving sanctioning powers and the imposition of a surcharge does not refer to such powers.
Retirement at the age of 64. Re-joining the company and simultaneous retirement of the employee along with the hiring of a substitute employee is not regarded as fraudulent
Judgment of the Labour Chamber of the Supreme Court of 18 January 2007
The High Court of Justice of Catalonia acknowledged the right of an employee to be paid a retirement pension, as it understood that all requirements for the special retirement at the age of 64 had been met. The Social Security National Institute appealed this judgment before the SC.
The SC stated that the company did not breach the rules on special retirement at the age of 64. When the employee retired, the company simultaneously hired another employee, who was unemployed, in accordance with provisions on this matter. It must be highlighted that, prior to the retirement of the employee, his employment contract was suspended by agreement between the company and the employee who, at the age of 64, re-joined the company. The day he re-joined the company, he retired from the company.
According to the SC, the suspension of the employment contract was not fraudulent but a suspension based on statutory grounds. In addition, during the period of suspension, the company was contributing to the Social Security and the employee benefited from the company pension scheme plan.
The SC admitted that the fact the employee re-joined the company and retired on the same day was for the purposes of enabling the employee to benefit from the special retirement system at the age of 64. However, the SC also acknowledged that the company fulfilled its obligation of contributing to the Social Security Scheme on the day the employee re-joined the company and it cannot be concluded that there was no effective employment on the mentioned day.
The SC did not find fraudulence because the employee retired from the company and, on the same date, an unemployed person was hired by the company, as the purpose of rules on special retirement at the age of 64, which is to promote employment, have not been contravened.
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The information contained in this Newsletter is of a general nature and does not constitute legal advice