November 2009
LABOUR LAW
1. New Judicial Office. Supplementary law.
Deposit for appeals.
Basic Law 1/2009 of 3 November, which
supplements the Procedural Reform Law for the introduction of the new
Judicial Office (Law 13/2009), modifies the Basic Law governing the
Judiciary (Basic Law 6/1985). (More
information)
2. New Judicial Office. Amendment of the Labour
Procedure Law.
Law 13/2009 of 3 November reforms the procedural
law for the introduction of the new Judicial Office and amends, among
others, the Labour Procedure Law. (More information)
3. “Company Equality” sign.
Royal Decree 1615/2009 of 26 October on the
awarding and use of the “Company Equality” sign.
(More information)
4. Public holidays in 2010.
Decision of the General Labour Directorate of 12
November 2010 on the public holidays for 2010. (More
information)
5. Social Security. Instructions for
reimbursing travel expenses.
Decision of the Social Security State Department
of 21 October 2009 on the reimbursement of travel expenses incurred for
medical attention needed as a result of an occupational health hazard,
and in order to carry out medical examinations and assessments.
(More information)
6. Draft bill amending the Criminal Code. New
crime of mobbing.
The Cabinet has given its approval to a draft
bill amending the 1995 Criminal Code being referred to Congress.
(More information)
7. Unfair dismissal in temporary contracts.
Nullity of the probationary period and back pay restrictions.
In its ruling of 23 July 2009, the Labour
Chamber of the Supreme Court held that a probationary period is void
when the aptitude of the employee was already known by, what the Supreme
Court (“SC”) considered to be, the same employer. The nullity of
the probationary period caused the dismissal to be unfair. In addition,
the SC stated that back pay awarded for the unfair dismissal of a
temporary employee must be limited to the date on which the contract
would have ended had the employee not been dismissed.
(More information)
8. Pension undertakings. Banking sector
employees can only rescue or transfer their pension funds as established
in the relevant collective bargaining agreement.
The judgment of the Labour Chamber of the
Supreme Court of 21 September 2009 held that a bank employee is not
entitled to rescue his internal pension fund created by the bank, unless
he is retired, permanently disabled, or has passed away.
(More information)
9. Substantial changes to employment conditions.
Salary cut not agreed with trade unions declared fair.
The Labour Chamber of the National Court,
confirmed in its judgment of 28 September 2009 that if negotiations
between a company and the employee representatives comply with all the
formal requirements and, despite not reaching an agreement, the company
justifies the need to implement its decision, it may implement it
unilaterally. (More information)
10. Salary review. Discounting the excess
amount of the Consumer Price Index already paid.
In its ruling of 28 October 2009, the Labour
Chamber of the National Court held that, on the basis of the collective
bargaining agreement, employers belonging to the Spanish Association of
Pre-prepared Foods for Home Delivery are entitled to discount the
difference between the amount corresponding to the Consumer Price Index
paid in advance and the real Consumer Price Index. (More
information)
11. Holidays and temporary disability.
Possibility of postponing holidays when an employee becomes temporarily
disabled during the enjoyment of the same.
The Labour Chamber of the National Court’s
judgment of 26 November 2009 recognised the right of employees subject
to the Collective Bargaining Agreement for Department Stores, to
postpone their holidays when they become temporarily disabled during
their holidays. (More information)
12. Reduction of working hours. Hours that
exceed the reduced working timetable cannot be remunerated less than
ordinary hours.
The High Court of Justice of Catalonia’s ruling
of 19 June 2009 held hours exceeding the reduced working timetable of an
employee to be overtime. Consequently, on the basis of article 35 of the
Statute of Workers, the remuneration of these extra hours cannot be less
than that corresponding to ordinary hours. (More
information)
13. The release of a pregnant employee during
her trial period is valid when the employer was aware of such
circumstance upon her recruitment.
In its judgment of 10 November 2009, the Labour
Chamber of the High Court of Justice of Galicia upheld a company’s
decision to release a pregnant employee during her probationary period
on the basis that the company already knew about her condition at the
time of her recruitment, which overrides the circumstantial evidence
supporting a discriminatory termination. (More
information)
1.
New Judicial Office. Supplementary law. Deposits for appeals.
Basic Law 1/2009 of 3 November, which
supplements the Procedural Reform Law for the introduction of the new
Judicial Office, modifies Basic Law 6/1985 of 1 July on the Judiciary (Official
Spanish Gazette of 4 November 2009).
The payment of a EUR 50 deposit is compulsory
when lodging an appeal for reversal, provided that the appeal is not
mandatory for the subsequent lodging of an appeal against the refusal of
leave to appeal, and does not constitute actions to enforce labour
rights in bankruptcy proceedings when the appellant is an employee or a
recipient of social security benefits.
Appeals for reversal and those to the Supreme
Court are excluded from this new provision and, therefore continue to be
governed by the Labour Procedure Law which establishes similar deposit
requirements.
2. New
Judicial Office. Amendments to the Labour Procedure Law.
Law 13/2009 of 3 November reforms the
procedural law for the introduction of the new Judicial Office. (Official
Spanish Gazette of 4 November 2009)
The purpose of Law 13/2009, which will enter
into force on 4 May 2010, is to reform and modernize the judicial system
through the amendment of procedural law. The main aim is to decrease
judges’ obligations by assigning the less jurisdictional obligations to
court officers. In this regard, Law 13/2009 amends, amongst others, the
Civil Procedure Law, the Criminal Procedure Law and the Bankruptcy Law.
As regards the Labour Procedure Law, the
amendment also confers court officers judges’ supervisory duties in pre-trial
settlement proceedings. Moreover, cases involving reconciling personal,
professional, and family life or the exercise of actions deriving from
the rights established in Basic Law 1/2004 of 28 December on
Comprehensive Protection Measures Against Gender Violence are also
included in the simplified proceedings.
3. “Company
Equality” sign.
Royal Decree 1615/2009 of 26 October on the
awarding and use of the “Company Equality” sign (Official Spanish
Gazette of 3 November 2009).
In developing article 50 of Basic Law 3/2007,
Royal Decree 1615/2009 governs various aspects of the distinctive
“Company Equality” sign, such as the procedure for its award and use.
The purpose of this recognition is to encourage and recognise equality
policies between women and men in the workplace, and therefore do away
with discrimination and sexist behaviour.
Any company meeting the relevant requirements
will be able to apply for this recognition, which will be valid for 3
years, with the possibility of extensions. The most significant
advantage for companies is the use of the sign for commercial purposes
and the advantage it holds for the company when applying for public
subsidies and awards. However, this recognition also implies certain
obligations which if breached will lead to its suspension or even
revocation.
4. Public
holidays in 2010.
Decision of the General Labour Directorate of
12 November 2010 on the public holidays for 2010 (Official Spanish
Gazette of 20 November 2009).
· January:
1 and 6 (both of which are national holidays).
· March:
1 (Andalusia and the Balearic Islands) and 19 (Castile-La
Mancha, Castile and Leon, Valencian Community, Extremadura, Galicia,
Madrid, Murcia, Navarra, Basque Country, La Rioja and Melilla).
· April:
1 (Andalusia, Aragon, Asturias, Balearic Islands,
Canary Islands, Cantabria, Castile-La Mancha, Castile and León,
Extremadura, Galicia, Madrid, Murcia, Navarra, Basque Country, La Rioja,
Ceuta and Melilla), 2 (national), 5 (Balearic Islands, Catalonia,
Valencian Community, Navarra and Basque Country) and 23 (Castile and
Leon and Aragon).
1 (Spain), 17 (Galicia) and 31 (Castile-La
Mancha and Canary Islands).
3 (Madrid), 9 (Murcia and La Rioja) and 24 (Catalonia).
28 (Cantabria).
16 (Andalusia, Aragon and Asturias).
2 (Ceuta), 8 (Asturias and Extremadura), 11 (Catalonia)
and 15 (Cantabria).
9 (Valencian Community) and 12 (national).
1 (Spain) and 17 (Ceuta and Melilla).
6 (Spain), 8 (national) and 25 (national)
5. Social
Security. Instructions for reimbursing travel expenses.
Decision of the Social Security State
Department of 21 October 2009 on the reimbursement of travel expenses
incurred for medical attention needed as a result of an occupational
health hazard, and in order to carry out medical examinations and
assessments (Official Spanish Gazette of 4 November 2009).
A series of instructions on the implementation
and development of Order TIN/971/2009 of 16 April are issued through
this decision. The Order provides for the reimbursement of travel
expenses incurred for medical attention needed as a result of an
occupational health hazard and in order to carry out medical
examinations and assessments when requested by those in charge of
disability assessments, bodies of the National Institute of Social
Security that evaluate and monitor permanent incapacity cases or by the
medical services of mutual insurance societies (once the 12-month period
for temporary incapacity has expired).
Only public transport expenses can be reimbursed
for trips made by workers who live both in and away from the area in
which medical assistance is provided or where medical examinations are
carried out. Taxis and ambulance expenses will be only reimbursed if the
doctor or management or collaborating entities request such form of
transport. Furthermore, in both cases, the travel expenses of a
chaperone will be reimbursed if he/she has travelled using ordinary
means of transport, and only when the doctor or the mutual insurance
society states that his/her presence is essential.
There are also restrictions on the amounts that
can be reimbursed. The most economical public transport fare can be
reimbursed, whilst for private transport the limit is 0.19 euros per
kilometre. Nevertheless, taxi expenses are not limited and must
therefore be proved through the corresponding bill.
Finally, if the patient claims that he/she
cannot travel, the doctor must decide if the patient should be moved by
ambulance or otherwise whether she/her should travel to see the patient.
6. Draft bill
amending the Criminal Code. New crime of mobbing.
This draft bill, passed by the Cabinet on 13
November 2009, introduces a new crime called “mobbing” to the 1995
Criminal Code. This crime is included under torture and crimes against
moral integrity. It is defined as “hostile or psychological harassment
under the scope of any labour or civil servant activity, which
humiliates the recipient and causes serious harm to one’s dignity”. The
draft bill is now subject to parliamentary debate.
7. Unfair
dismissal in temporary contracts. Nullity of the probationary period and
back pay restrictions.
Judgment of the Labour Chamber of the Supreme
Court of 23 July 2009.
In this case, SC confirmed that the public
company “Servicios Agrarios Gallegos” (through which forestry services
were outsourced) and the Regional Government of Galicia (which used to
provide these services) are the same employer. Consequently, the
aptitude of the worker who had previously performed the same duties for
the Regional Government, was known by Servicios Agrarios Gallegos, and
therefore a new probationary period should not have been set. As a
consequence, the dismissal based on the failure to pass a void
probationary period was declared unfair.
In connection with the employee’s rights to
reinstatement in the post and compensation, the SC concluded that back
pay cannot exceed the date on which the contract would have ended for
legal or validly agreed reasons. Finally, the SC affirmed that
reinstatement in the post is not an option when the contract is already
terminated.
8. Pension
undertakings. Banking sector employees can only rescue or transfer their
pension funds as established in the relevant collective bargaining
agreement.
Judgment of the Labour Chamber of the Supreme
Court, dated 21 September 2009.
This judgment reverses the ruling of the Labour
Chamber of the High Court of Justice of Madrid, and denies the
right of a bank employee to rescue a pension fund created by his
employer after being dismissed.
These internal funds were created by the
collective bargaining agreement for the banking sector (the “CBA”) and
are not to be considered pension schemes as such. This is the reason why
a consolidated right is not established unless one of the situations set
out in the CBA takes place (i.e., retirement, permanent disability or
demise). The mere expectation of a future right is not enough to be
entitled to rescue or transfer any amounts once the employment
relationship is terminated.
9.
Substantial changes to employment conditions. Salary cut not agreed with
trade unions declared fair.
Judgment of the Labour Chamber of the
National Court, dated 28 September 2009.
Upon examination of the facts and the lawsuit
filed by the employee representatives, the National Court (“NC”)
concluded that the company had complied with the formal requirements
established in article 41.4 of the Statute of Workers with regard to
substantial changes to employment conditions (e.g., establishing a
consultation period, explaining the reasons and consequences of the
changes to them and trying to reach an agreement). Furthermore, the
company proved that the change was necessary in order to improve the
salary system and productivity. The NC held that despite the lack of
consensus (the decision was taken unilaterally), it was lawful.
10. Salary
review. Discounting the excess amount of the Consumer Price Index
already paid
Judgment of the Labour Chamber of the
National Court dated 28 October 2009.
The pay review clause established a salary
increase corresponding to the forecasted Consumer Price Index (“CPI”)
plus 0.5%, which would be subject to adjustment upon the release of the
actual CPI. The Labour Chamber of the National Court stated that a
salary review clause included in a collective bargaining agreement was
sufficiently clear and could only lead to one possible interpretation.
The NC therefore held that it was evident that the subsequent adjustment
could not only increase salary, but also reduce it when the actual CPI
is less than that forecasted.
11. Holidays
and temporary disability. Possibility of postponing holidays when an
employee becomes temporarily disabled during the enjoyment of the same.
Judgment of the Labour Chamber of the
National Court dated 26 November 2009.
In its judgment of 17 June 2009, and in
accordance with case law of the European Court of Justice (“ECJ”),
the Supreme Court granted employees the right to postpone their holidays
if they become temporarily disabled before commencing them, until they
recover. However, the Supreme Court also ruled that when temporary
disability arises once the holiday period has started, there is no right
to postponement as such risk is borne by the employees.
In contrast to the above courts, the National
Court granted department store workers the right to postpone holidays
even when their holiday period has begun. Therefore this decision
recognises employees’ rights to enjoy a holiday period in a good state
of health, by allowing them to suspend their holidays if they become
temporarily disabled during the holiday period. As a result, the
remaining holiday period will be postponed until the temporary
disability ceases to exist, even if this occurs in the following year.
12.
Reduction of working hours. Hours that exceed the reduced working
timetable cannot be remunerated less than ordinary hours.
Judgment of the Labour Chamber of the High
Court of Justice of Catalonia, dated 19 June 2009.
In applying the principle of proportionality,
the High Court of Justice of Catalonia stated that the ordinary working
timetable of part-time workers is that agreed upon even though this
could be less than that of other workers and that, as such, hours
exceeding the ordinary working day, must be considered as overtime. In
applying article 35 of the Statute of Workers, it was held that overtime
may not be remunerated less than those corresponding to ordinary working
hours. A decision to the contrary would be discriminatory to such
workers, particularly when the reduction of the working timetable is
based on the right to reconcile family and professional obligations.
13. The
release of a pregnant employee during her trial period is valid when the
employer was aware of such circumstance upon her recruitment.
Judgment of the Labour Chamber of the High
Court of Justice of Galicia dated 10 November 2009.
During trial periods, both the employer and the
employee are entitled to abandon the employment contract without
providing any cause for the same. Nevertheless, abandoning the contract
will be considered void if based on discriminatory grounds.
The judgment of the High Court of Justice of
Galicia (“HCJ”) stated that, in the matter before it, given the
possibility of a discriminatory dismissal, objective nullity does not
apply to the dismissal of pregnant employees and, instead, the
possibility of the company attempting to destroy discriminatory evidence
needed to be considered.
Taking into consideration the particular
circumstances of the case, the HCJ held that the fact that the company
was aware of the pregnancy of the employee at the time of her
recruitment was sufficient to override the circumstantial evidence
supporting discrimination and therefore held the termination of the
contract to be fair. Furthermore, the reasons provided by the company in
support of its decision were deemed to be justified and reasonable.
