February 2020

 
     
 

LABOUR LAW

LEGISLATIVE AND CASE LAW DEVELOPMENTS

 
     
 

1. THE COURT OF JUSTICE OF THE EUROPEAN UNION DECLARES THAT LIMITATIONS ON SUBCONTRACTING IN THE PUBLIC SECTOR ARE NOT COMPATIBLE WITH EU LAW

Judgment of the Court of Justice of the European Union of 27 November 2019

The Court of Justice of the European Union (the “CJEU”) has delivered its judgment on a preliminary ruling, holding that the limitations on subcontracting in public tenders laid down by Italian legislation are incompatible with EU law. These limitations prohibited the tenderer from using subcontracting for a volume of more than 30% of the total amount of the contract and from setting a price for the subcontracted services that is more than 20% lower than the unit price resulting from the award. The CJEU has taken the view that these restrictions on subcontracting are incompatible with EU law as they are limitations set out abstractly regardless of the characteristics of the economic sector, the contract or the nature of the subcontracting.

2. ENTITLEment TO receive social security BENEFITs FOR medical leave RESULTING FROM AN OPERATION NOT FINANCED BY THE national HEALTH system

Judgment of the Labour Chamber of the Spanish Supreme Court of 8 January 2020

The Supreme Court has recognised an employee’s right to receive social security benefits when she was on a medical leave following a surgical operation not financed by the National Health System. The Supreme Court stated that the decisive factor was not whether the treatment was financed by the National Health System, but if there was an illness and it resulted in being unfit for work, as long as the unfitness for work has been assessed by a physician from the National Health System.

3. A CLAUSE IN an EMPLOYER-FINANCED SAVINGS PLAN THAT REQUIRES MEMBERSHIP in THE UNION that created that plan IS NULL AND VOID, EVEN THOUGH IT WAS THE ONLY UNION IN THE SECTOR WHEN the Plan WAS CREATED

Judgment of the Labour Chamber of the Spanish Supreme Court of 8 January 2020

As a result of an end-of-strike agreement entered into by the majority union – and only union at the time – and the sector’s employers, the union created a long-term savings plan, financed by employer contributions, for when workers end their professional careers. Following a challenge by another union that was formed subsequently, the Supreme Court has ruled that restricting a benefit financed by the sector’s employers to those who prove that they are members of a particular trade union infringes freedom of association, irrespective of whether it was the only trade union in the sector either at the time the savings plan was created or at the time the agreement from which it derives was entered into.

4. THE TERMINATION OF A substitution CONTRACT DUE TO A VACANCY IS VALID WHEN THE position IS AWARDED EVEN IF THE SUCCESSFUL candidate SIMULTANEOUSLY goes ON LEAVE AND A DIFFERENT PERSON IS HIRED

Judgment of the Labour Chamber of the Spanish Supreme Court of 8 January 2020

The Supreme Court has consolidated recent case law establishing that a substitution contract due to a vacancy is terminated by the award of the position following the statutory selection process, regardless of subsequent changes in connection with the specific job position. The law does not require verification of material performance of the position by the new employee in order to terminate the substitution contract and, therefore, the contract is validly terminated when the position is filled. The Supreme Court confirmed that the position is filled once the successful candidate takes up the position, even if they do not actually perform any work because they simultaneously go on a leave of absence and another person is hired.

5.  Labour courts have Jurisdiction OVER EMPLOYEE LOANS WHERE THE company acts As GUARANTOR

Judgment of the Labour Chamber of the Spanish Supreme Court of 12 December 2019

The Supreme Court has ruled that a company’s action against an employee claiming back the amount paid to the bank as a guarantor falls within the jurisdiction of labour courts. The Supreme Court took the view that it is the individual’s condition as employee that means that the loan is guaranteed by the company and, therefore, if their conditions as guarantor and guaranteed individual are obtained because the employee and company are bound by an employment agreement, the action of the guarantor-company against the guaranteed employee is based upon that employment relationship.

6. THE UNIT FOR CALCULATING THRESHOLDS FOR A SUBSTANTIAL MODIFICATION OF WORKING CONDITIONS IS THE COMPANY, AND THE COLLECTIVE REDUNDANCIES DIRECTIVE DOES NOT APPLY

Judgment of the Labour Chamber of the Spanish Supreme Court of 19 November 2019

The Supreme Court has clarified that the Collective Redundancies Directive, which establishes the workplace as the calculation unit, does not apply to substantial modifications of working conditions. Although for both collective measures the Statute of Workers establishes a consultation procedure and identifies the same thresholds, the measures differ and, consequently, regulation of collective redundancies deriving from the Directive does not affect other collective measures. The Supreme Court held that, in accordance with the Statute of Workers, the calculation unit to classify a substantial modification of working conditions as collective is the company, and not the workplace.

7. VALIDity of A WorkDAY registry featuring A STANDARD WORKING DAY IN CASEs OF WORK OUTSIDE THE OFFICE, with A deduction of REST periods AND THE REQUIREMENT for THE EMPLOYER’S CONSENT to work OVERTIME

Judgment of the Labour Chamber of the Spanish National Court of 10 December 2019

A company implemented a system for recording working hours in the workday registry featuring the following characteristics: (i) the registration of a standard working day for employees who travel or do not finish their working day in the office, regardless of the time spent travelling or working; (ii) the requirement for the company’s prior authorisation to work overtime; and (iii) the deduction of rest periods, coffee or cigarette breaks from actual working hours. The National Court has endorsed the implementation of a system for recording working hours with these characteristics.

 
   
 

In case of any doubts or comments, please do not hesitate to contact

           
 

Mario Barros
mario.barros@uria.com


 

Juan Reyes
juan.reyes@uria.com

 

Ana Alos
ana.alos@uria.com

           
 

Jorge Gorostegui
jorge.gorostegui@uria.com


 

Raúl Boo
raul.boo@uria.com

 


 
     
 

The information contained in this Newsletter is of a general nature and does not constitute legal advice

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