1. Amendment to the Foreign
Persons Basic Law.
Basic Law 2/2009 of 11 December amends Basic
Law 4/2000 of 11 January on the rights and obligations of foreigners in
Spain and their integration in society (Official Spanish Gazette of 12
December 2009).
The amendment of the Foreign Persons Basic Law
seeks to establish a framework of rights and obligations for foreigners
in Spain that ensures that they can fully exercise their fundamental
rights. To this end, the amendment removes the requirement that a person
be lawfully resident in Spain to exercise the fundamental right to
assemble, of association, to join a trade union, and strike. This
requirement had already been declared unconstitutional by the
Constitutional Court in its decisions 236/2007 of 7 November and
259/2007 of 19 December.
The Law introduces amendments adopted according
to the new European regulations. A total of 9 Directives are implemented
by this Law, such as Council Directive 2003/109/EC of 25 November 2003
concerning the status of third-country nationals who are long-term
residents, Council Directive 2004/82/EC of 29 April 2004 on the
obligation of carriers to communicate passenger data, and 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.
The Law also introduces amendments adopted to
reflect the current immigration situation in Spain. The purpose of the
Law is to reinforce the relationship between Spain’s capacity to act as
a host country for foreign workers and the needs of its labour market.
The Law also adapts the Foreign Persons Basic
Law as regards the distribution of powers between the State and the
autonomous regions to grant initial work permits, and responsibilities
for receiving and integrating immigrants.
A new article 2 bis is created in which
the basic principles governing the relationship between the State and
the autonomous regions regarding illegal immigration are set out.
Sanctions related to illegal immigration are increased in an attempt to
stop the flow of illegal immigrants.
2. Amendment to various laws
to bring them into line with the Law on the free access to and provision
of services.
Law 25/2009 of 22 December amends various
laws to bring them into line with the Law on the free access to and
provision of services (Official Spanish Gazette of 23 December 2009).
The amendment made by this Law seeks to
implement Directive 2006/123/EC of the European Parliament and of the
Council into Spanish law, which does away with or reduces the
requirements to have access to services, and removes administrative
burdens.
With regard to labour law, Royal Decree Law
1/1986 of 14 March on urgent administrative, financial, and labour
measures is amended. As a result, it is no longer necessary to request
prior authorisation in order to open a workplace; a communication to the
relevant authorities is sufficient.
Law 31/1995 of 8 November is also amended by
introducing, among other modifications, the possibility of simplifying
risk evaluation and prevention activity planning, depending on the
number of workers and the risks involved in the activity carried out.
Persons or entities that provide prevention system audit services need
only obtain one authorisation for the whole of Spain. In order to
provide prevention services, specialized entities must hold an
accreditation issued by a labour authority and an insurance policy that
covers their liabilities.
Law 42/1997 of 14 November on the Work and
Social Security Inspectorate is also amended. If an inspection affects
companies located in other Member States and the corroborated facts may
be sanctioned by the authorities in the Member State where the company
is based, these facts may be communicated to the competent authority of
the other Member State so that the appropriate action may be taken.
3. Urgent measures to
safeguard and promote employment and to protect the unemployed.
Law 27/2009 on urgent measures to
safeguard and promote employment and to protect the unemployed (Spanish
Official Gazette of 31 December 2009).
This Law is intended to ratify Royal Decree-Law
2/2009 of 6 March on urgent measures to safeguard and promote employment
and to protect the unemployed, although it also introduces some changes.
The Law on urgent measures to safeguard and
promote employment and to protect the unemployed significantly modifies
the taxation of compensation received by employees when they are made
redundant.
The thirteenth additional provision sets out
that when an employee is dismissed or made redundant pursuant to a
collective dismissal procedure in accordance with article 51 of the
Statute of Workers and with the prior approval of the authority in
charge, or on the grounds established in article 52.c) of the Statute of
Workers, and provided that the dismissal/redundancy is due to economic,
technical, organization, production or force majeure reasons, the part
of the compensation that does not exceed the statutory severance payment
for unfair dismissal (i.e., 45 days’ salary per year of employment, with
a maximum limit of 42 months’ salary) is tax free.
The third temporary provision establishes that
this modification will apply to redundancies approved following the
enforcement of Royal Decree-Law 2/2009 of 6 March (8 March 2009), and to
dismissals on the grounds established in article 52.c) of the Statute of
Workers.
The Law amends Law 43/2006 of 29 December on
measures to improve and increase employment, the General Social Security
Law, the Self-Employed Workers Statute, Law 44/2007 of 13 December on
Worker Integration Companies, the Personal Income Tax Law and Law
18/2007 of 4 July on Self-Employed Agricultural Workers.
The measures approved by Law 27/2009 are divided
into four sections:
Chapter I. Safeguarding employment
Provision is made to encourage employers to
temporarily suspend/modify employment contracts rather than terminate
them. Employers’ social security contributions are subsidised by 50% if
they opt to modify working conditions temporarily (instead of laying off
workers) to ensure the survival of their business and protect jobs. The
employer must undertake to maintain the subsidised employment contracts
in force for a minimum of one year following the resumption of activity
after a suspension or temporary reduction of the working day.
The special agreement entered into between the
Social Security and companies not involved in insolvency proceedings
when they carry out collective redundancies is amended. The amendment is
designed to (i) avoid older employees stopping work prematurely as a
result of collective redundancies, and (ii) improve the protection given
to those employees.
Provision for this measure had already been made
in Royal Decree-Law 2/2009 of 6 March.
Chapter II. Unemployment benefit
Two measures are adopted to protect the
unemployed: (i) workers who first claim unemployment benefit as a result
of their employment contracts being suspended or their working time
being reduced do not lose any entitlement to benefits if their
employment contracts are subsequently terminated for economic, technical,
organisational or production reasons; and (ii) they no longer need to
wait one month after losing their jobs before being entitled to claim
unemployment benefit.
Provision for these measures had already been
made in Royal Decree-Law 2/2009 of 6 March.
Chapter III. Incentives to employ unemployed
workers
An employer who hires workers in receipt of
unemployment benefits is entitled to a 100% discount in the social
security contributions it must make for those employees, up to a maximum
amount equivalent to the unemployment benefits to which the employee
would have been entitled. This discount can be received for a maximum of
three years. The measure also promotes the use of part-time permanent
contracts and temporary part-time contracts for people who have
difficulty finding employment.
Provision for these measures had already been
made in Royal Decree-Law 2/2009 of 6 March.
Chapter IV. Special plan for the employment
of disabled workers
The measures are intended to improve the
employment of disabled workers in light of the effects that the current
economic crisis is having on employment levels among this group.
Provision for these measures was not made in
Royal Decree-Law 2/2009 of 6 March.
4. Non-working days’ calendar
for the purpose of calculating administrative terms.
The decision of the Civil Service State
Department dated 26 November 2009 provides the Public Administration’s
2010 non-working days’ calendar for the purpose of calculating
administrative terms. (Official Spanish Gazette of 9 December 2009).
The following are considered non-working days:
(i) at national level, Sundays and public holidays; (ii) at regional
level, as determined by each autonomous region; and (iii) at local level,
as established in the calendar of each autonomous region.
5. New procedures and
formalities to be carried out through the Ministry’s Electronic Register.
The decision of the deputy secretariat dated
23 December 2009 includes new procedures and formalities in the Ministry’s
Electronic Register. (Official Spanish gazette of 29 December 2009).
The following procedures and formalities, among
others, may be carried out via the electronic register:
a) Downsizing plans.
b) Collective transfers of employees at national
and supraregional level.
c) National and supraregional temporary
employment agencies. Authorisations for the start, resumption, extension
and termination of activities.
d) Central Collective Bargaining Agreements
Registry.
6. Freedom of expression.
Dismissal of trade unionists for an offensive publication.
Decision of the European Court of Human
Rights of 8 December 2009 in the Aguilera Jiménez and Others v. Spain
case.
This case involved several trade unionists who
published an information bulletin that was distributed among the company’s
employees. It showed a caricature of and derogatory statements in
respect to the director of human resources and two other employees. The
bulletin was also pinned up on the trade union’s notice board in the
company’s premises.
In order to determine if there had been a breach
of the right to freedom of expression, the European Court of Human
Rights (“ECHR”) took into account the terms used in the bulletin,
the context and the case as a whole.
The ECHR declared that freedom of expression
implies duties and responsibilities. Taking into account the seriousness
of the crude and vulgar terms used, their publicity and the fact they
were made in writing as opposed to a spontaneous exchange of accusations,
the ECHR concluded that the dismissals did not affect the freedom of
expression of the trade unionists.
7. Back pay. New requirement
to limit its accrual.
Decision of the Labour Chamber of the Supreme
Court of 27 October 2009.
The Supreme Court (“SC”) declared that it
is not compulsory for a company to provide back pay if it acknowledges
to its employee that a dismissal was unfair and offers compensation
within 48 hours following the dismissal. In addition, the mandatory
deposit must be made in the relevant court.
The SC’s decision confirmed that the following
two conditions must be fulfilled in order to avoid the accrual of back
pay:
(a) the employee must be informed of the company’s
offer; and
(b) the amount offered must be reasonable based
on statutory severance payments.
8. Law on Equality. The right
of employees to modify timetables is not guaranteed.
Decision of the Labour Chamber of the Supreme
Court dated 14 October 2009.
The Supreme Court (“SC”) held that
employees do not actually have a right to modify timetables in order to
care for their children but that such modification is directly linked to
the right to a reduction in working time and, thus, to the corresponding
decrease in remuneration.
The central issue before the SC was whether or
not an employee with a rotating shift timetable was entitled to a fixed
timetable of 7:00 A.M. to 3:00 P.M. in order to care for her child. The
employee did not request a reduction in total working hours. The SC
stated that the Law on Equality (“LE”) does not recognise the
right of employees to obligate an employer to modify timetables.
The SC held that the right recognised in article
37.6 of the Statute of Workers (“SW”) to modify timetables is
conditional upon a reduction in total hours worked.
The SC also stated that such modification would
not be allowed under the LE despite its modification of article 34 of
the SW, as the corresponding right to organise and adapt working time is
conditional upon the terms established in the relevant collective
bargaining agreement or in the specific agreement reached with an
employee.
9. Permanent differences in
remuneration cannot be based exclusively on starting date of employment.
Decision of the Labour Chamber of the
National Court dated 14 September 2009.
A Spanish bank had been paying employees
rendering services outside the Iberian Peninsula supplements as
calculated on the basis of their length of services with the company.
Workers hired before the entrance into effect of the applicable
collective bargaining agreement (“CBA”) received a bonus
calculated taking into account the base salary, plus a supplement for
length of services with the company. Workers hired after the entrance
into effect of the CBA received a supplement calculated exclusively in
accordance with their base salary.
The National Court (“NC”) found the
calculation method to be contrary to the right to equal treatment. The
NC stated that remuneration of employees may not differ exclusively on
the basis of their starting date of employment.
The NC affirmed the general principle that equal
work should be remunerated equally and that a CBA may not therefore
establish different remuneration based exclusively on the starting date
of employment.
10. Modification to the
variable remuneration system without applying the procedure set by the
Statute of Workers.
Decision of the Labour Chamber of the
National Court dated 26 October 2009.
The employees of a company received a variable
remuneration which was determined by a coefficient calculated on the
basis of the company’s financial results. The company informed its
employees of a change to the remuneration system through its intranet
and stated that if it were to suffer losses the coefficient used to set
the variable remuneration could be zero and that therefore no variable
remuneration would be paid.
The National Court declared that the payment of
variable remuneration is an acquired right, which the company expressly
acknowledged in a written communication addressed to all employees. At
no time did the company refer to the fact that in the event of losses in
any given six-month period, the coefficient could be zero.
As the new system could imply the complete
elimination of the variable remuneration, the National Court held that
the change entailed an amendment of a more favourable condition provided
by the company and that such amendment had not been made in accordance
with article 41 of the Statute of Workers. The National Court therefore
held that the employees were entitled to the previous remuneration
system and could therefore continue to receive their variable
remuneration until the company follows the correct procedure.
11. Changes to department
store working hours due to weekly and daily rest periods. Correct use of
the procedure established in article 41 of the Statute of Workers.
Decision of the Labour Chamber of the
National Court dated 25 November 2009.
This case regarded collective dispute
proceedings by means of which the claimants requested that an agreement
entered into by the company and the works council be deemed void. The
grounds of the claim were that the company had insufficient economic and
organisational grounds to modify company working hours.
The National Court held that it is only
compulsory to demonstrate that substantial modifications, which affect
the distribution of working hours and the shiftwork system, as
established by statutory collective bargaining agreements, enterprise
agreements, or unilateral company decisions, contribute towards
improving the company’s situation. It is therefore not necessary to
demonstrate that the company is suffering considerable losses.
The National Court held that the modification
implemented by the company was adequate given its purpose, namely, to
boost the company’s competitiveness and that reaching an agreement with
the majority of the employee representatives, as laid down by article
41.2 of the Statute of Workers, was sufficient.
12. Right to privacy.
Collecting documents and a copy of the hard disk from an employee’s
computer does not constitute a breach of this right.
Decision of the Labour Chamber of the High
Court of Justice of Madrid dated 13 July 2009.
This case concerned dismissal proceedings. The
employee contended that the documentary evidence collected from his
workplace and the copy taken from his computer’s hard disk were not
obtained with the necessary guarantees and claimed that these actions
breached his right to privacy.
The Court stated that these actions did not
affect any items or documents concerning the employee’s private
information. Therefore, it concluded that his right to privacy had not
been breached.
As regards the limitation period for serious
misconduct, when it is performed for a period of time or hidden by the
employee, the Court confirmed that the 6-month limitation period must be
calculated from the time the misconduct is discovered by the employer or
the employee stops concealing it, not from the date each act of
misconduct is committed.
