1. Non-EU
workers. Procedure for admission to and residence in the European Union
of highly qualified workers
Directive 2009/50/EC of the Council of 25 May
2009 on the conditions of entry and residence of third-country nationals
for the purposes of highly qualified employment (Official Journal of the
European Union of 18 June 2009)
Directive 2009/50/EC establishes the
requirements to be met by highly qualified non-EU nationals and their
families to enter and reside in the European Union (“EU”) for
periods of over three months.
Highly qualified employment (“Highly
Qualified Employment”) is that performed by a person who has the
required adequate and specific competence, as proven by higher
professional qualifications (“Highly Qualified Worker”).
According to Directive 2009/50/EC, a higher professional qualification
is (i) a post-secondary higher education qualification for which at
least three years of study are required; or (ii) exceptionally, if the
national law allows, when five years of professional experience have
been acquired in the profession or sector in which the job offer exists.
In general terms, the procedure to be followed
to enter and reside as a Highly Qualified Worker is: (i) to apply for
the corresponding permit (the “EU Blue Card”) and; (ii) to meet
several admission conditions [i.e. to have an employment contract or job
offer to perform Highly Qualified Employment for one year, the required
professional qualification, to meet the mandatory conditions to practice
the corresponding profession, to have health insurance and to receive a
gross annual salary of, at least, 1.5 times the average gross annual
salary in the corresponding EU Member State (“EU Member State”)].
EU Member States will determine if the application should be submitted
directly by the employee or by the employer.
The EU Member States will set a standard
validity period for EU Blue Cards of between one and four years. EU Blue
Cards allow the Highly Qualified Workers to do paid work for two years,
provided that admission conditions are being met at all times. After the
two-year period, EU Member States can award the Highly Qualified Workers
the same status as national employees with regard to Highly Qualified
Employment.
Directive 2009/50/EC also provides for family
reunification and the transfer of the Highly Qualified Worker and his
family to other Member States for Highly Qualified Employment purposes
when they have resided in the first Member State for, at least, 18
months.
Directive 2009/50/EC must be implemented by the
Member States before 19 June 2011.
2. Illegal
immigration in the European Union. Sanctions and measures against
employers of illegally staying third-country nationals
Directive 2009/52/EC of the European
Parliament and of the Council of 18 June 2009 providing for minimum
standards on sanctions and measures against employers of illegally
staying third-country nationals (Official Journal of the European Union
of 30 June 2009)
The purpose of Directive 2009/52/EC is to fight
against illegal immigration and introduce minimum standards on sanctions
against offending employers (“Offending Employers”).
The Directive 2009/52/EC clearly defines the
following obligations for employers: (i) to require that a third-country
national, before taking up the employment holds and presents to the
employer a valid residence permit or other authorisation for his or her
stay; (ii) to keep, for at least the duration of the employment
relationship, a copy of such documents; (iii) to notify the competent
authorities of the start of employment of third country nationals.
The sanctions include fines and payment of the
costs of returning illegally staying third-country nationals, although
Member States can include these costs in the fines.
In addition to the sanctions, the Directive
2009/52/EC establishes supplementary measures such as: (i) exclusion
from entitlement to benefits and subsidies, including EU funding, for up
to five years; (ii) exclusion from public tenders during a maximum
period of five years; (iii) recovery of some or all benefits and public
subsidies granted to the employer for up to 12 months preceding the
detection of illegal employment; (iv) temporary or permanent closure of
the establishments of the Offending Employers that have been used to
commit the infringement, or temporary or permanent withdrawal of a
licence to conduct the business activity in question.
Finally, a contractor who subcontracts with
Offending Employers may in addition to or in place of the Offending
Employer be liable to pay any financial sanction. Liability may extend
to intermediate subcontractors, where they knew that the employing
subcontractor employed illegally staying third-country nationals.
Member States must implement the Directive
before 20 July 2011.
3. Collection
of social security contributions. Modifications to the collection
procedure
Royal Decree 897/2009 of 22 May, on the
modification of the General Regulation on the Collection of Social
Security Contributions, approved by Royal Decree 1415/2004 of 11 June (Official
Spanish Gazette of 15 June 2009)
Several rules of the General Regulation on the
Collection of Social Security Contributions (“Collection
Regulation”) have been modified in order to improve the collection
procedure.
The most relevant modification relates to joint
and several debt claims. In these types of claims, a 15-day period is
granted to the claimant from the notification of the start of the
proceedings in order to submit the pleadings and the corresponding
documents. Furthermore, a maximum term of 6 months is set to notify the
joint and several debt as from the day following the agreement to start
the debt proceedings.
As regards the seizure of the current accounts,
the seized amounts will be transferred to the Social Security General
Treasury (“SSGT”) within ten days from the date of seizure (until
now this term was 20 days).
The rules on the competence of regional bodies
to agree on the transfer of seized property have been also modified.
Therefore, the General Director of the SSGT can decide which regional
body is most competent depending on where the goods are located or
deposited. Finally, the concept of bad debts has been extended to cases
in which, from the goods and rights of the debtor which are known to
exist, there is insufficient additional income to satisfy the debt.
4. Road
transport and working time
Land Transport Directorate’s resolution
of 5 June 2009 on the modification of the 19 April 2007 resolution on
the setting up of minimum controls on the working time of transport
drivers (Official Spanish Gazette of 25 June 2009)
The Land Transport Directorate’s resolution of 4
June 2009 (the “Resolution”), transposed Directives 2009/4/EC and
2009/5/EC of the European Commission and modified the Road Transport
Directorate’s resolution of 19 April 2007 .
The regulation establishes measures to prevent
and detect the manipulation of the vehicle’s tachograph records, in
order to avoid non-compliance with maximum continuous driving times.
Furthermore, a new more comprehensive list of infringements has been
created, which takes seriousness into account when considering the risks
taken by the breaching companies. This classification, however, will
have no bearing on the classification of the actual infringement for
sanctioning purposes.
5. Harassment
and violence in the workplace. Infringements of legislation on
occupational hazards. New criteria of the Labour and Social Security
Inspectorate
Technical Criterion 69/2009 of 19 February
2009 on Labour and Social Security Inspectorate actions concerning
harassment and violence in the workplace
Technical Criterion 69/2009 (“TC”) of the
Labour and Social Security Inspectorate (“LSSI”) establishes that
violence and harassment in the workplace (“Psychosocial Risks”)
may also constitute an infringement of legislation on occupational
hazards.
According to the TC, the failure to respond to
the detection of Psychosocial Risks (i.e., acts of employers giving rise
to the risks or the failure of an employer to act in the presence of
such risks) could imply a breach of legislation on occupational hazards.
Depending on the risk, this situation could be considered a minor breach
(punishable with a fine of between €40 to €2,045), a serious breach (punishable
with a fine of between €2,046 and €40,985), or a very serious breach (punishable
with a fine of between €40,986 and €819,780).
The LSSI’s new criterion is particularly
important given the impact on the amounts of the fines that could be
imposed. [Of relevance is the fact that, until now, the LSSI has
considered harassment cases as very serious infringements of labour
legislation (punishable with a fine of between €6,251 and €187,515)].
Finally, the TC specifically states that the
failure to carry out the precautions regarding Psychosocial Risks (e.g.,
absence of evaluation, identification, or review, not implementing the
measures established in the risk evaluation or the plan for the
monitoring of health, lack of information and training) could constitute
a serious infringement of legislation on occupational hazards (punishable
with a fine of between €2,046 to €40,985).
6. Transfer
of undertakings. Applicability of Directive 2001/23/EC even if the
transferred activity does not retain its organizational autonomy in the
transferee company
Judgment of the Court of Justice of the
European Communities of 12 February 2009 (Case C-466/2007)
This judgment responds to a reference for a
preliminary ruling that the Landesarbeitsgericht of Düsseldorf (the
“German Court”) sought from the Court of Justice of the European
Communities (“ECJ”) on whether there is a transfer of undertaking
(for the purposes of Directive 2001/23/EC) when the part of the
undertaking or business transferred does not continue to be part of an
autonomous undertaking or business in the transferee company.
The German Court raised this point in relation
to an asset and business sale agreement (the “Agreement”) between
two companies. Under the Agreement, the transferee company acquired all
rights to software, patents, patent applications and inventions, as well
as the rights over product names and technical know-how, the development
hardware and manufacturing materials. A list of suppliers and customers
was also transferred, as well as a number of employees, who were
integrated into the organizational structure of the transferee company
and started to perform tasks linked to products other than those
transferred.
Although the transferred elements did not retain
their organizational autonomy or identity in the transferee company, the
ECJ held that a transfer of undertaking may also occur in these
circumstances, provided that the functional link between the various
elements of production transferred is preserved, and that that link
enables the transferee to use those elements to pursue an identical or
analogous economic activity; which it is for the national court to
determine.
7. Pregnant
employee. Void dismissal regardless of whether employer knows about
pregnancy
Judgment of the Second Chamber of the
Constitutional Court of 18 May 2009
The Constitutional Court (“CC”),
confirmed its previous decision of 21 July, stating that “(…) article
55.5.b) of the Statute of Workers does not provide that termination of
employment contracts of pregnant employees are to be considered void if
employees provide evidence that the employer was aware of that situation,
and that the employee notified that circumstance to the employer (…)”.
Therefore, the CC confirmed that the dismissal
of pregnant employees is automatically void, provided that the pregnancy
is evidenced and that no reasons for fair termination concur. The CC
stated that the law protects pregnant employees by exonerating them from
providing evidence that can be very difficult to collect sometimes, and
therefore it could imply a limitation of the fundamental right of
pregnant employees. Thus, pregnant employees are exempt from providing
evidence justifying that a third person (the employer) knew something
about the employee’s personal life.
However, there was a dissenting opinion
according to which, the criterion established in judgment no. 92/2008 (and
now confirmed), should be decided by the plenary meeting of the CC, in
accordance with article 13 of the Basic Law of the Constitutional Court.
The dissenting opinion also stated that there
was no breach of constitutional rights - articles 24 and 14.1 of the
Spanish Constitution (“CE”)- in this case, and therefore the
interpretation involved ordinary law as opposed to constitutional law.
The Supreme Court (“SC”) is the body with authority to interpret
article 55.5 b) of the Statute of Workers (“SW”), and not the CC.
Finally, in his opinion, there cannot be a
discrimination if the employer is unaware of the employee’s pregnancy,
because “(…) the concept of discrimination logically requires that
the discrimination be known, therefore the reason for the dismissal
cannot be the pregnancy if it is not known.”
8.
Post-contractual non-compete agreements. Validity of penalty clauses
Judgment of the Labour Chamber of the
Supreme Court of 9 February 2009
The SC held a penalty clause in a
post-contractual non-compete agreement to be valid. The clause provided
that if the employee breached the post-contractual non-compete agreement,
he would be bound to pay the employer twice the amount of the
non-compete compensation he had received.
The SC rejected the appeal lodged by the
employee whereby he claimed a breach of article 3.5 SW. The SC declared
that the approval of these type of clauses did not imply an early waiver
of reserved rights, as only rights established by law, as well as
reserved rights established by a collective bargaining agreement cannot
be waived.
Nevertheless, the SC held that in certain cases
the proportionality of the compensation for the penalty clause can be
questionable (i.e. if it is abusive or against the principle of good
faith provided in article 7.2 of the Spanish Civil Code).
9. Collective
labour disputes. Different salary on the basis of start date in the
company
Judgment of the Labour Chamber of the Supreme
Court dated 10 March 2009
The SC heard the appeal against a National Court
(“NC”) decision which rejected a labour dispute claim.
The claim was brought by a trade union in
representation of 70 employees hired by the company since June 2004. The
employees demanded same salary conditions than employees hired prior to
June 2004 arguing that a salary discrimination was taking place.
The improved salary conditions were granted to
the employees hired before June 2004 within the scope of a merger, and
were implemented by means of a non-statutory collective agreement of the
year 2002 published in the Official Spanish Gazette and of a board of
directors resolution in 2004.
The SC rejected the appeal on the following
grounds:
(i) The absence of discrimination in
consideration of the doctrine which establishes that article 14 of the
CE does not imply a general obligation of equal treatment in all cases.
Undoubtedly, the free will of parties can lead to differences in salary,
provided that the minimum salaries established by law and the relevant
collective bargaining agreements are complied with.
(ii) The board of directors resolution has no
legal status and private agreements cannot be considered in breach of
the principle equality, except when the difference is based on the
discrimination grounds established in the CE or in the SW.
(iii) The non-statutory collective agreement of
2002 cannot be considered a collective bargaining agreement and thus is
a private agreement, which cannot be in breach of the principle equality
as the difference in salary is not based on the discrimination grounds
established in CE or in the SW.
10.
Difference between a collective dismissal and a redundancy dismissal
based on economic reasons. The calculation of the number of terminations
must be carried out taking into account the company as a whole, and not
the work centre
Judgment of the Labour Chamber of the Supreme
Court dated 18 March 2009
The Labour Chamber of the SC heard an appeal
regarding the framework for determining if redundancy dismissals must be
considered as a collective or individual dismissals. Specifically, the
matter involved the question of whether the number of terminations must
be calculated taking into account the number of the affected employees
in the entire company or of the work centre affected by the
restructuring.
The SC held that the number of terminations to
be taken into account corresponds to the number of affected employees
companywide, and not the number of affected employees at the work
centre. In this regard, the SC stated that article 51 SW not only refers
to the company, but also establishes a procedure with more guaranties
than that established in Directive 98/59/EC on collective dismissals (and
which established that the framework should be the work centre). Spanish
law offers more protection not only by establishing the company as the
basis for calculating terminations, but also in requiring the
justification of the reasons on which terminations are based and by
introducing a procedure requiring a previous administrative
authorization to carry out the employment terminations.
The SC based the judgment on previous decisions
of the ECJ, which declared (judgement dated 18 January 2007 case
C-385/2005) that: “(…) Directive 98/59 (…) establishes a
minimum protection concerning the information and consultation to the
employees in case of termination, but Member States may adopt more
protective measures.” In its judgment of 15 February 2007 (case
C-270/2005), the ECJ clarified that the aim of Directive 98/59/EC is
“(…) to give additional protection to employees in the case of
collective dismissals, taking into account the need for economically and
socially balanced development in the EU.”
11.
Individual dismissals that exceed the limits established in article 51
of the SW (which regulates collective dismissals) are not null, but
unfair
Judgment of the Labour Chamber of the High
Court of Justice of Catalonia, dated 19 February 2009
In this case, the company wanted to reduce its
workforce and agreed with the employees and the works council to
terminate several employment contracts. The company subsequently
acknowledged that the terminations were unfair and paid the employees
the maximum statutory severance payment.
The Labour Chamber of the High Court of Justice
of Catalonia held that the dismissal of the claimant employee could not
be considered null, as the maximum limits established in article 51.1 SW
had been not breached. The judgment is based on the following reasoning:
(i) the dismissals carried out during the last
90 days prior to the termination of the claimant’s employment contract
should not be taken into account, as they were not dismissals based on
objective grounds;
(ii) the company did not commit a fraud of law
under article 6.4 of the Civil Code, as the dismissals carried out
previously were in fact agreed with the employees before the authorities;
(iii) disciplinary dismissals that lack
justification or that are carried out in fraud of law are unfair
dismissals, not null;
(iv) since the dismissals prior to the claimant’s
were not based on objective grounds, but were rather agreed (and carried
out as unfair dismissals), the doctrine set out in the SC’s judgment of
22 January 2008 is applicable. In that judgment, the SC held that there
is only a collective dismissal if the number of dismissals exceeds the
limits established in article 51.1 SW, and at the same time, the
dismissals are based on economic, technical, organizational or
production grounds.
12.
Discrimination based on gender. Large scale and disproportionate
dismissal of female employees
Judgment of the Labour Chamber of the High
Court of Justice of Cantabria of 25 February 2009
In its judgment of 25 February of 2009, the
Labour Chamber of the High Court of Justice of Cantabria decided on a
dismissal procedure started by a woman working in a company with a high
percentage of male employees. Eight of the nine redundancies implemented
affected women.
The collective redundancy was based on
organizational reasons due to the closing of a production line which was
staffed by seven men and two women. Although the company carried out
nine dismissals based on apparently objective criteria (length of
services), the dismissals were considered to affect a minority group
(i.e., most employees were male, in the company in general and in the
production line closed).
The ruling held that since there is an indirect
discrimination, the company was responsible for evidencing that the
disproportionate dismissal of women is based on an objective criteria,
unrelated to gender. As the company did not evidence the existence of
reasonable causes for the terminations, the High Court declared the
dismissals void.
13. Changes
to collective bargaining agreements. The procedure on the substantial
modification of working conditions should be followed
Judgment of the Labour Chamber of the
National Court of 28 May 2009
The NC heard trade dispute proceedings initiated
by several trade unions against a company decision to stop applying the
collective bargaining agreement, as it understood that the company’s
activity applied to a different collective bargaining agreement.
The NC upheld the claim and declared that the
company’s decision to apply a different collective bargaining agreement
breached the law, based on the following reasons:
(i) the legal procedure for implementing a
substantial modification of working conditions had not taken place; and
(ii) the requirements to apply the new
collective bargaining agreement were not fulfilled; amongst others, that
the company has not applied a different collective bargaining agreement
in the past.
