December 2008
LABOUR LAW
1. Temporary
recruitment agencies. Employee protection
Directive 2008/104/EC of 19 November
2008 requires Member States adopt measures to protect workers hired by
temporary recruitment agencies. (More information)
2. Female victims of
domestic violence. Reinsertion into society and the workplace
Royal Decree 1917/2008 of 21 November
2008 approves a program of measures to aid the reinsertion of female
victims of domestic violence into society and the workplace. The
measures make the hiring of these women more attractive, allow them to
make their working conditions more flexible and to improve their
training and work orientation. (More information)
3. Limiting the
accrual of salaries during dismissal proceedings. Term for the
recognition the unfairness of a dismissal
The judgment of 3 November 2008 of the
Labour Chamber of the Supreme Court held that, for the purposes of
limiting the salaries accrued during a dismissal proceedings, the
conciliation proceedings established as the deadline for acknowledging
the unfairness of the dismissal (referred to in article 56.2 of the
Statute of Workers), are the judicial conciliation proceedings and not
just the administrative conciliation or prior conciliation proceedings.
(More information)
4. Prevention of
occupational hazards. Robbery in a saving bank
The Labour Chamber of the Supreme Court
in its judgment of 25 June 2008 held that a robbery in a credit entity
was an “occupational hazard” for which the credit entities must adopt
prevention measures. (More information)
1.
Temporary recruitment agencies. Employee protection
Directive 2008/104/EC of the
European Parliament and the Council of 19 November 2008, on temporary
agency work. (Official Journal of the European Union of 5 December 2008)
Directive 2008/104/EC of the European
Parliament and the Council of 19 November 2008 (“Directive 2008/104”)
is designed to ensure that Article 31 of the Charter of Fundamental
Rights of the European Union is fully applied to temporary agency
workers. Article 31 sets out the right of all employees to working
conditions that respect their health, safety and dignity, and to the
limitation of maximum working hours, to daily and weekly rest periods
and to an annual period of paid leave.
To that end, Directive 2008/104
establishes that the basic working and employment conditions of
temporary agency workers, for the duration of their assignment at a user
company, must be at least those that would apply if they had been hired
directly by the user company.
Directive 2008/104 puts particular
emphasis on those provisions related to the protection of pregnant women,
the equal of treatment of women and men, access to collective facilities,
and finally, all those related to access to work, promotions and
vocational training.
The Directive provides that each Member
State must establish the penalties for not complying with its provisions
and have adopted the legislation required to ensure temporary agency
workers enjoy the protection offered by the Directive by 5 December
2008.
Directive 2008/104 came into force the
day of its publication in the Official Journal of the European Union (5
December 2008).
2.
Female victims of domestic violence. Reinsertion into society and the
workplace
Royal Decree 1917/2008 of 21
November on the program for the reinsertion of female victims of
domestic violence into society and the workplace. (Spanish Official
Gazette of 10 December 2008)
The aim of this Royal Decree, in force
from 11 December 2009, is to create a program for the reinsertion of
female victims of domestic violence into society and the workplace.
The program, which includes a series of
active employment policy measures, is aimed at all those women who are
listed as looking for work, as having suffered domestic violence, and
whose aggressor has been convicted or has a protection order or
injunction against him.
The measures include guidance offered
by individuals specialised in reinsertion, training programs, flexible
working conditions, and special economic incentives to compensate for
differences in salary that have arisen from the domestic violence
situation. Companies are offered incentives to take on female victims of
domestic violence and obligated to give them more flexible working
conditions and, in particular, to facilitate the geographic mobility of
these women.
3.
Limiting the accrual of salaries during dismissal proceedings. Term for
the recognition the unfairness of a dismissal
Judgment of the Labour Chamber of
the Supreme Court of 3 November 2008
This judgment analysed the requirements
that the communication of the acknowledgment of an unfair dismissal must
meet to limit the accrual of salaries during the dismissal proceedings.
The Supreme Court upheld the appealed judgment and held the
acknowledgment of unfairness and the communication of the same to the
employee must be made between the date of the dismissal and the date of
the conciliation proceedings (as defined in the last subsection of
article 56.2 of the Statute of Workers, i.e. judicial conciliation
proceedings). This conclusion is based on a grammatical, teleological
and historical interpretation of the Statute of Workers. The Supreme
Court found that as the article in question only refers to “conciliation
proceedings” and not specifically, as other articles do, to “prior
conciliation proceedings”, the conciliation referred to must be
understood as being the judicial conciliation proceedings. The Court
also considered that, since the legislator erased the term “prior” from
the previous wording of the law, it was clearly the legislator’s aim not
to refer to the administrative conciliation proceedings.
4.
Prevention of occupational hazards. Robbery in a saving bank
Judgment of the Labour
Chamber of the Supreme Court of 25 June 2008
This judgment held that a robbery in a
saving bank must be considered an “occupational hazard” and, as a
consequence, considered the obligations that the Saving Banks Prevention
Service -of occupational hazards- (Servicio de Prevención Mancomunado
para las Cajas de Ahorro) and its members must assume.
The National Appeal Court held that the
Saving Banks Prevention Services could not be sued in this situation and
found that the saving banks must review the risk evaluation at the
workplace and adopt the necessary preventive or corrective measures,
make provision for robberies in the emergency plan, and give the
employees the appropriate training courses to deal with robberies. It
also acknowledged the right of the employees’ representatives and
prevention delegates to be informed and consulted on these measures.
The National Appeal Court’s judgment
was appealed to the Supreme Court, which rejected the appeal and upheld
the original judgment. The Supreme Court held that a robbery in a saving
bank is an “occupational hazard” because it represents a situation in
which an employee may suffer harm at work, where harm is understood to
be an illness, condition or injury suffered at work.
