1. ERTES extended by ROYAL DECREE-LAW 2/2021 OF 26 JANUARY
Royal Decree-Law 2/2021 was published in the Official State Gazette on 27 January 2021 and, among other measures, extends ERTEs until 31 May 2021. (See newsletter in Spanish on the extension of ERTEs for further details).
2. VI AGREEMENT ON THE independent SETTLEMENT OF LABOUR DISPUTES (VI ASAC) (OUT-OF-COURT SYSTEM)
On 23 December 2020, the resolution of the Directorate General of Labour of 10 December 2020 was published in the Official State Gazette, which registers and publishes the VI Agreement on the Independent Settlement of Labour Disputes (out-of-court system).
The new Agreement seeks to develop an out-of-court system to prevent and resolve labour disputes between companies and workers, or their representatives, and to promote collective bargaining. It also aims to respect the autonomy of the parties and to carry out the necessary actions to improve the quality and expertise of the alternative dispute resolution systems.
Title I is made up of two chapters. The first one regulates the purpose of the Agreement and its functional scope, it promotes collective bargaining, preventive mediation of conflicts, the resolution of conflicts between public employees and the General State Administration, and the resolution of disputes involving economically dependent self-employed workers. The second chapter is devoted to the functioning of the Servicio Interconfederal de Mediación y Arbitraje (the SIMA, Spain’s cross-sector mediation and arbitration body).
Title II regulates mediation and arbitration procedures as tools for the prevention and resolution of disputes, with the following new features being noteworthy: the deadlines and formalities are streamlined to make the procedures faster; in the case of strikes, the request for mediation must be approved when the strike is formally notified; and preference is given to proceedings before the SIMA conducted by a single arbitrator or mediator, who may be appointed by the SIMA.
Title III determines the composition, functions and head office of the Monitoring Committee of this Agreement, which allows progress to be made in some of the aspects addressed by this Agreement, such as using mediation as a preventive measure and the training of people to carry out mediation work.
3. AMENDMENTS MADE TO DIRECTIVE 96/71 regarding POSTED WORKERS DO NOT INFRINGE on THE FREEDOM TO PROVIDE SERVICES OR the EUROPEAN PRINCIPLES REGARDING POSTED WORKERS
Judgments of the Court of Justice of the European Union of 8 December 2020 in Case C-620/18 (Hungary) and in Case C-626/18 (Poland).
Both cases called for the annulment of Directive 2018/957 amending several aspects of Directive 96/71 on the posting of workers in the framework of the provision of services. The annulment actions were based on the infringement of certain European principles, such as the freedom to provide services and fair competition, and the failure to protect the rights of posted workers. The Court of Justice of the European Union dismissed the annulment actions on the ground that the amendments do not infringe on the freedom to provide services and that the services are provided respecting fair competition principles between undertakings established in different Member States.
4. WORKERS PROVIDING SERVICES IN DIFFERENT MEMBER STATES UNDER CHARTER CONTRACTS BETWEEN COMPANIES IN THE SAME GROUP ARE NOT POSTED WORKERS
Judgment of the European Court of Justice of 1 December 2020 in Case C-815/18.
In this case the Court of Justice of the European Union (”CJEU”) analysed Directive 96/71 in relation to companies belonging to the same corporate group which post workers to one another. The CJEU held that the existence of a corporate group is not sufficient for the worker to be regarded as “posted” for the purposes of Directive 96/71 and that the essential element to be taken into consideration is the existence of a link with the territory in which the service is provided.
5. THE SUPREME COURT reverses ITS approach AND STATES THAT THE DURATION OF A WORKS AND SERVICE CONTRACT CANNOT BE linked TO THE DURATION OF the principal CONTRACT
Judgment of the Supreme Court of 29 December 2020.
The Supreme Court has changed its approach and held that a works and service contract cannot be linked to the duration of the principal contract when the principle of autonomy and the principles that are essential elements of the works and services contract are not respected . This is because this type of temporary contract is being incorrectly used by companies to carry out certain activities that should be performed by employees with permanent contracts.
6. A TRADE UNION DELEGATE WHO IS also A MEMBER OF A WORKS COUNCIL CANNOT ACCUMULATE working time CREDIT for both roles
Judgment of the Supreme Court of 14 October 2020.
The Supreme Court has ruled that a worker who is a member of a works council and then appointed as a trade union delegate cannot accumulate working time credit for carrying out both roles. This is stipulated in the applicable regulations and justified on the grounds of the different nature of these two roles.
7. Employees had one year to CLAIM a CHRISTMAS HAMPER, even though it was awarded every year and the employer’s decision to stop giving the hamper was DECLARED VOID.
Judgment of the Supreme Court of 7 October 2020.
The Supreme Court (“SC”) has held that, in a case where an employer decided to stop giving its employees a Christmas hamper and this decision was declared null, the one-year term the employees had to claim the Christmas hamper still applied. The SC concluded that, although obligations arising from an employment contract are of a successive nature, to which the one-year limitation period in article 59 of the ET does not apply, in this case there was a collective dispute to which the one-year limitation does apply. The SC clarified that the elimination of a more beneficial condition by the employer (i.e. ceasing to give its employees a Christmas hamper) was void, because the statutory procedure for the substantial modification of working conditions had not been followed and therefore the employees’ action challenging that decision could not be time-barred.
8. THE TWENTY-DAY TIME LIMIT to challenge a business decision is not suspended by the state of emergency.
Judgment of the National Court of 12 November 2020.
The National Court has held that a collective dispute claim had been filed late as neither the state of emergency nor the filing of a request for conciliations suspended the terms for filing the action.
9. PAID LEAVE recoverable under measures implemented to contain the spread of COVID-19 MUST COMPLY WITH THE statute of workers AND THE APPLICABLE COLLECTIVE BARGAINING AGREEMENT
Judgment of the National Court of 16 November 2020.
The National Court analysed a case in which a company sought to recover paid leave in accordance with Royal Decree Law 10/2020 on measures to contain the spread of COVID-19. It analysed the company’s decision, which mainly affected daily working hours and rest periods. It came to the conclusion that none of the measures adopted by the company were contrary to the Statute of Workers or the applicable collective bargaining agreement, and the claim was dismissed.
10. abolishing meal tickets during the state of emergency is a substantial change in working conditions
Judgment of the National Court of 9 December 2020.
A company may not unilaterally cease the payment of meal tickets while its employees are working remotely during the state of emergency. The National High Court considered that this is a substantial modification of working conditions and that the statutory procedure must be followed to implement such a measure.
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