April 2008
LABOUR LAW
1. Vocational Training
The Royal Decree Law 2/2008 of April 21 introduces a package of
measures of guidance, vocational training and job placement, aimed at
increasing the hiring and the strengthening professional stability of
unemployed people and people which are exposed to its labour foreclosure.
(More information)
2. European Union. Movement of workers
Commission Recommendation of March 31, 2008 demands Member States to
improve their administrative cooperation systems and to take the
appropriate measures to make the information on the terms and conditions
of employment generally available in the framework of the provision of
services. (More information)
3. European Union. Security and health in working place
Directive 2004/40/EC of the European Parliament and of the Council
establishes minimum health and safety requirements to protect workers
against the risks arising from exposure to electromagnetic fields.
(More information)
4. Wage Guarantee Fund
Resolution of the General Secretary of the Wage Guarantee Fund of
April 3, 2008 passes the new application form for benefits at the
request of interested parties. (More information)
5. Unfair dismissal. Calculation of severance payment. Impact of
stock options
The judgment of the High Court of Justice of Madrid, dated 12 March
2007, declares that in the calculation of severance payment, salary only
can be regarded as the sums received in the twelve months following the
maturation period of stock options instituted, because retribution is
only the vesting period which in turn is within the year preceding the
dismissal. (More information)
6. Labour accident. Civil liability of the employer. The labour
jurisdiction is the appropriate
The judgment of the Spanish Supreme Court, dated 15 January 2008,
confirms that claims for civil liability of the employer for breaching
the labour contract must be known by Labour Courts. (More
information)
7. Insolvency. Protection of employees. Exclusions
Judgment of the European Court of Justice of 21 April 2008
establishes that, in order to avoid abuses, Member States can exclude
extra-judicially agreed severance payments for unfair dismissal from
salary guarantees. (More information)
8. Fair dismissal. Manager who made false representations in his
curriculum vitae in order to obtain a position during a selection
process
The judgment of the Labour Chamber of the High Court of Justice of
Madrid of 21 April 2008 declares the dismissal of a director who made
false representations in his curriculum vitae as fair. The
director had stated that he held a university degree, a master in
business management and had extensive professional experience. When he
obtained the position, he could not carry out the basic responsibilities
of the position. The court declares that the manager acted with a
serious lack of loyalty to the company, which was the basis for his fair
dismissal for breach of the duty of contracting in good faith.
(More information)
9. Unfair dismissal. Balance between employees’ right to privacy
and the duty of employers to ensure safety and health in the workplace
The High Court of Justice of Asturias of 9 November 2007 declares the
dismissal of an employee who did not attend a medical examination
required by the company after a long period of sick leave to be unfair.
The court holds that the obligation to submit to a medical examination
as imposed by the company is only valid when there is an important
justification established in law. (More information)
10. Special legal procedure for industrial disputes.
Extraordinary change to the salary review system. Rebus sic stantibus
principle
Labour Court number 1 of Elche of 27 March 2008 analyses the
application of the principle of rebus sic stantibus in relation
to an increase of ad personam benefits. The court accepts the
company’s reasoning which asserted that a substantial change in the
circumstances in which the collective bargaining agreement was
negotiated had occurred and that, consequentially, there was a
significant imbalance in the obligations assumed by the company.
(More information)
11. Reduction of working hours for legal guardianship. A
reduction of working time does not justify a reduction of working days
The judgment of the Labour Court number 1 of Sevilla of 30 November
2007 rejects the claim of an employee who requested that the company
reduce her working hours on the basis of taking care of her child. The
employee requested to not work on Saturdays, when her normal working
days were Monday through Saturday. (More
information)
1. Vocational
Training
Royal Decree 2/2008 of April 21, 2008, which introduces a
package of measures of guidance, vocational training and job placement.
Chapter II Special plan of measures of guidance, vocational training and
workplace, Official Spanish Gazette of 22 April, 2008
Royal Decree 2/2008 introduces a package of measures which are doom
to promote the labour insertion and the training. This Royal Decree is
applicable to unemployed people who can be excluded of the labour market
and is applicable in all around Spain.
The package of measures of guidance and vocational training foresees
benefits to unemployed people who participate in programs of labour
insertion and vocational training. The maximum amount will be € 350 per
month for a maximum period of three months.
Also, this Royal Decree establishes a benefit to facilitate the
geographical mobility of unemployed people, when the hiring will involve
change of residence within the Spanish territory.
The benefit management corresponds to Public Service of Employment
and the management of these benefits will be correspond to the regional
organizations when they have the specific competences.
In the case of transfer of workplace (geographic mobility), the
manager will be the regional organisms of the territory in which the
employee will be transferred.
2. European Union.
Movement of workers
Commission Recommendation of 31 March 2008 on enhanced
administrative cooperation in the context of the posting of workers in
the framework of the provision of services. Official Journal of
the European Union of April 4, 2008
The European Commission imposes clear obligations as regards
cooperation between national administrations, and makes it the
responsibility of the Member States to create the necessary conditions
for such cooperation. This obligation includes the designation, in
accordance with national legislation and/or practice, of one or more
monitoring authorities organised and equipped in such a way as to
function effectively and to be able to deal promptly with requests of
information regarding terms and conditions of employment covered by
Directive 96/71/EC.
With respect to the posting of workers in the framework of the
provision of services different administrative cultures, structures and
languages, as well as lack of clearly established procedures and clearly
identified actors constitute significant barriers for an efficient
working cooperation between Member States in this area. The use of an
appropriate and well functioning electronic information system designed
to facilitate mutual assistance and information exchange between Member
States is a very effective tool to break down many of these barriers and
is thus essential for Member States to be able to cooperate closely.
Such a system should allow competent authorities and other actors
involved, such as social partners, to identify easily their relevant
interlocutors in other Member States and to communicate in an efficient
way. Furthermore, it should help in creating a climate of mutual trust
and confidence, fundamental for administrative cooperation to function
effectively.
3. European Union.
Security and health in working place
Directive 2008/46/EC of the European Parliament and of the Council
of April 23, 2008 amending Directive 2004/40/EC on minimum health and
safety requirements regarding the exposure of workers to the risks
arising from physical agents (electromagnetic fields) (18th individual
Directive within the meaning of Article 16(1) of Directive 89/391/EEC).
Official Journal of the European Union of April 26, 2008
Directive 2004/40/EC of the European Parliament and of the Council
establishes minimum health and safety requirements to protect workers
against the risks arising from exposure to electromagnetic fields.
Article 13(1) of that Directive provides that Member States are to bring
into force the laws, regulations and administrative provisions necessary
to comply with the Directive no later than 30 April 2008.
In this context, the potential impact of the implementation of
Directive 2004/40/EC on the use of medical procedures based on medical
imaging and certain industrial activities should be reconsidered
thoroughly. A study has been launched by the Commission to assess
directly and quantitatively the situation regarding medical imaging. The
results of that study, which are expected in early 2008, should
therefore be taken on board, in addition to the results of similar
studies launched in the Member States, in order to ensure a balance
between the prevention of potential risks to the health of workers and
access to the benefits available from the effective use of the medical
technologies in question.
4. Wage Guarantee
Fund
Resolution of the General Secretary of the Wage Guarantee Fund
dated April 3, 2008 adopting the model application form for benefits as
provided in Article 24.2 of Royal Decree No. 505/1985, March 6, on
organization and functioning of the wage guarantee fund. Official
Spanish Gazette of April 28, 2008
The Royal Decree 505/1985 establishes that when the procedure begins
at the request of interested parties for benefits, they will have to use
a new specific application form.
5. Unfair
dismissal. Calculation of severance payment. Impact of stock options
Judgment of the Labour Chamber of the High Court of Justice of
Madrid of 12 March, 2008
The High Court of Justice of Madrid analysed and confirmed the
calculation of the amount of stock option in the calculation of
severance payment.
The employee claimed to be included in the total amount of the
severance payment all amounts which were received by exercising options.
The High Court of Justice upholds that amounts received by the
employee for stock options corresponds to the period of time fixed by
the company to remain compulsory in order to exercise them, so that
remuneration is exclusively the work played by the employee during this
period loyalty (vesting) after which consolidates the right of choice
and can be exercised.
In this case, the High Court of Justice declares that the value of
the options can not be taken into account as salary for purposes of
calculating severance payment because the transcendent is not when the
options are exercised (twelve months before the dismissal), while that
time is the sole discretion employee’s decision, but the run-up to the
realization of the right (or vesting period of maturation), which is
what the employee must necessarily remain at the company for further
development is being rewarded. Therefore, it only can be considered as
salary the amount corresponding to the maturation period (vesting) of
the options as in this case and this period is much earlier in the
twelve months prior to dismissal, there is no amount that may considered
wages for reimbursement purposes.
6. Labour accident.
Civil liability of the employer. The labour jurisdiction is the
appropriate
Judgment of the Civil Chamber of the Supreme Court of 15 January
2008
The Spanish Supreme Court analyzes a case of labour accident, in
which an employee of the building industry died when a metal structure
fell down over himself.
The employees’ mother sued against the employer, against the engineer,
who was the person in charge of the security, against the manager of the
building, against the subcontracted company and against the developer of
the construction work before the Civil Court.
Defendants claimed objection to the jurisdiction, which was admitted
by the Civil Court. The Court acquitted the defendants. The plaintiff
appealed the judgment of the Civil Court before the Court of Appeal, who
admitted the claim and dismissed the objection to the jurisdiction
alleged by the defendants.
Finally defendants appealed before the Spanish Supreme Court. The
Supreme Court admitted the objection to the jurisdiction and upheld that
the jurisdiction which have to known the claim is the Labour
Jurisdiction, because the origin of the claim is in the employment
contract. The responsibility is based on a breach of the employment
contract. In this case, the obligation of safety at work belongs to the
employer's strict scope of the employment contract.
However, the Supreme Court clarifies that in the cases in which there
were few people sued, who have not labour relationship with the employee,
the appropriate procedure will be the civil procedure, not the labour
procedure, because in accordance to the article 9.2 of the Judicial
Power Law, Civil Jurisdiction has vis atractiva.
7. Insolvency.
Protection of the employees. Exclusions
Judgment of European Court of Justice of 21 February, 2008
The European Court of Justice was asked for a First Ruling Procedure
which was focused on the interpretation of the Directive 80/987/CEE,
which has been changed by the Directive 2002/74/CE, of protection of the
employees in the case of employer insolvency.
This First Ruling Procedure arose in a claim between an employee and
the Spanish Wage Guarantee Fund, when this organization denied her the
compensation, because the payment was agreed between the company and the
employee.
The Directive 80/987/CEE is applicable to the labour debts arisen by
the employer insolvency. In the other hand, the Spanish Statute of
Workers (SW) establishes that the Spanish Wage Guarantee Fund will pay
pending salaries of employers which are in insolvency situations.
However, SW establishes that the Wage Guarantee Fund will take care of
the salary debts declared in a judicial ruling or in a administrative
decision but it is not expressly established such liability in relation
to extra judicial agreements.
The European Court of Justice has declared that the Directive
80/987/CE, which has been changed by the Directive 2002/74/CE, must be
interpreted restrictively. In this way, the Member States can exclude of
the protection of the Wage Guarantee Fund payments which have been
agreed extra judicially, in order to avoid abuses.
8. Fair dismissal.
Manager who made false representations in his curriculum vitae in
order to obtain a position during a selection process
Judgment of the Labour Chamber of the High Court of Justice of
Madrid of 29 October 2007
The High Court of Justice of Madrid analysed a case of an employee
who made false representations in his curriculum vitae (CV)
in order to obtain the position of manager. In his CV, he stated
that he held a university degree, a master in business management and
had extensive professional experience.
Upon obtaining the position, the company granted him freedom to
manage the company, but he abused his position by, among others,
authorising irregular payments and spending the company’s money to his
own benefit. These actions were only possible as a result of the
management position he held and the powers associated with it, which he
obtained by a dishonest CV.
After an internal audit, the company discovered the manager’s
behaviour and that he had lied on his CV in order to obtain the position.
The company proceeded to dismiss the manager for breaching the duty of
contracting in good faith.
The manager brought a claim before the labour court, which was
rejected. The manager appealed the labour court’s judgment, but the High
Court of Justice of Madrid upheld the decision, stating that the
behaviour of the manager justified the dismissal as fair.
9. Unfair
dismissal. Balance between employees’ right to privacy and the duty of
employers to ensure safety and health in the workplace
Judgment of the Labour Chamber of the High Court of Justice of
Asturias of 9 November 2007
The High Court of Justice of Asturias analysed the dismissal of an
employee based on a breach of contracting in good faith. The employee
was dismissed because he did not go to a medical examination required by
the company after a long period of sick leave.
The judgment of the labour court declared the dismissal invalid on
the grounds that it constituted a violation of the employee’s right to
privacy. The High Court of Justice of Asturias agreed with the labour
court’s ruling that a medical examination can be required by a company
only if there is a reason established in law. The medical examination
becomes an obligation for the employee solely when it is an essential
measure, and not merely convenient, to achieve the duties imposed on the
employer by law. As a consequence, the High Court of Justice of Asturias
upheld the decision of the labour court ruling the dismissal as unfair.
10. Special legal
procedure for industrial disputes. Extraordinary change to the salary
review system. Rebus sic stantibus principle
Judgment of Labour Court number 1 of Elche of 27 March 2008
Labour Court number 1 of Elche analysed a claim for increased ad
personam benefits and extra pay for transportation through the
collective conflict procedure. The company opposed the revaluation of
both items.
In relation to the ad personam benefits, the company argued
that there had been a substantial and unforeseeable change in the
conventional salary review system, which caused an asymmetrical
bargaining position and an unusual imbalance. This, the company argued,
allowed them to apply the principle of rebus sic stantibus.
In its analysis of the requirements to apply the principle of
rebus sic stantibus, the court agreed with the position of the
company, deciding that: (i) an unforeseeable circumstance had occurred;
(ii) the change in the conventional pay review system was extraordinary
and unusual; (iii) the change caused a significant bargaining asymmetry
between the parties, given that the change was not foreseeable at the
time the collective bargaining agreement was negotiated; and (iv) as a
consequence, the company was under the obligation to assume a pay rise
which was disproportionate and excessive.
In determining that there was a breach in the bargaining relationship
which caused a significant imbalance in the duties of the parties and
that the employer’s duty was therefore disproportionate and excessive,
the judge rejected the request for the salary increase.
11. Reduction of
working hours for legal guardianship. A reduction of working time does
not justify a reduction of working days
Judgment of the Labour Court number 1 of Sevilla of 30 November
2007
An employee requested a reduction of working time in order to take
care of her child, according to Law 3/2007 of 22 March on equality for
women and men. The employee requested a reduction that consisted in
working Monday to Friday between 16:00 and 20:00. The employee claimed
that her spouse worked on Saturdays and that she therefore had to take
care of her child on Saturdays.
The company had no objection to the reduction of working hours
requested by the employee. However, it did not accept her request to not
work on Saturdays. These were the days on which the company produced the
highest number of sales. The company also confirmed that the employee’s
spouse only worked on Saturdays sporadically. While the company offered
to allow the employee to not work those Saturdays when her spouse had to
work, the employee rejected the proposal and offered no alternatives.
The legal question raised in the dispute was the collision between
the employee’s right to choose working time and the employer’s right to
manage and organise the company. The judge held that an employee has the
right to choose the reduction of the working time, but that it must be
chosen in good faith.
The court rejected the employee’s claim upholding the employer’s
decision on the basis that the employer did not object to the employee’s
request regarding the reduction of hours and that her normal working
time was from Monday to Saturday. In the same way, the court clarified
that for reductions in working time, it is the number of hours, i.e.,
the time while at work, and not the number of working days that are
reduced.
