February 2010
LABOUR LAW
Portuguese Labour Law Newsletter
Uría Menéndez has a strong labour law practice in Lisbon and Porto
which is headed-up by Filipe Fraústo da Silva. We offer a free monthly
Portuguese labour law newsletter on the latest legislative developments
and court decisions.
Click
here to access to the Portuguese Labour Law Newsletter.
1. Disciplinary sanction procedures
The general regulation on labour and social security sanction
procedures is modified in view of recent legislative changes.
(More information)
2. Extension of unemployment protection programme
The unemployment protection programme established in Law 14/2009 of
11 November will be extended for unemployed individuals who meet
specific requirements. (More information)
3. Early retirement. Additional retirement benefit
The European Court of Human Rights upheld the Supreme Court’s
decision to reject a claim by a group of employees requesting the
maintenance of an additional retirement benefit after the approval of a
new collective bargaining agreement which established a single payment.
(More information)
4. Unfair dismissal. Settlement offer
The company is not bound by an unfair dismissal settlement offer and
the relevant severance pay when an employee receives the payment but
declares his/her disagreement to the dismissal. (More
information)
5. Salary. Tax withholdings
A company may require its employees to return amounts corresponding
to tax withholdings that were not made in their payslips by mistake,
provided that the company deposited the correct amounts with the
Treasury at the time the withholdings should have been made.
(More information)
6. Time off for breastfeeding. Collective claim
The judgment of the Labour Chamber of the Supreme Court dated 9
December 2009 states that employees have the right to receive their full
salary, including variable salary, during time off for breastfeeding.
(More information)
7. Pay supplement for length of service. Challenging a collective
bargaining agreement
An article of a collective bargaining agreement that removed the pay
supplement for length of service and instead set a fixed amount for the
employees who had been receiving the pay supplement was held to be valid.
(More information)
8. Salary review. Collective claim
The High Court of Justice of Castile and Leon (Valladolid) held that
salaries must be increased pursuant to the retail price index for that
year as stipulated in the applicable collective bargaining agreement
even when the national budget does not include a forecast.
(More Information)
9. Transfer of an undertaking. Acquisition of a bankrupt company
The High Court of Justice of Catalonia held that the transfer of a
business deriving from bankruptcy proceedings can be deemed a transfer
of an undertaking under article 44 of the Statute of Workers when the
activity of the company continues. (More information)
1.
Disciplinary sanction procedures
Royal Decree 103/2010 of 5 February
modifying the general regulation on labour and social security sanction
procedures approved by Royal Decree 928/1998 of 14 May (Spanish Official
Gazette of 23 February 2010)
Royal Decree 103/2010 (“RD 103/2010”)
adapts the general regulation on the labour and social security sanction
procedures to Law 25/2009 of 14 November regulating the Labour and
Social Security Inspectorate.
RD 103/2010 revokes the collection
powers previously held by the Ministry of Labour, Employment and
Immigration. These powers will be held by the Treasury and Economics
Department during the voluntary payment period and by Spain’s tax
authorities during the enforcement period.
RD 103/2010 also modifies the
requirements for the social security contribution payment records, while
at the same time simplifies the data to be provided in records for
social security contribution discounts that subsidise professional
training.
2.
Extension of unemployment protection programme
Royal Decree 133/2010 of 12 February
establishing a temporary extension of the unemployment protection
programme regulated by Law 14/2009 of 11 November (Spanish Official
Gazette of 16 February 2010)
The unemployment protection programme
established by Law 14/2009 of 11 November will be extended by six months,
from 16 February to 15 August 2010. The benefit granted will be 80% of
the national indicator of earnings for 2010 (IPREM).
Unemployed individuals under the age of
65 who exhaust their benefits after 16 February 2010 will receive the
new monthly EUR 426 benefit for a maximum of six months.
The number of individuals expected to
benefit from this extension is expected to be around 243,100.
3.
Early retirement. Additional retirement benefit
Judgment of the European Court of
Human Rights (section 13) dated 2 February 2010
In its judgment of 2 February 2010, the
European Court of Human Rights (“ECHR”) upheld the decision of
the Supreme Court (“SC”).
In this case, the claimant employees
were enjoying early retirement and were receiving an additional
retirement benefit until the age of 65 pursuant to a collective
bargaining agreement of 22 December 1983. The employees stopped
receiving the additional retirement benefit when a new collective
bargaining agreement was approved, which instead established a single
payment equivalent to three monthly payments of the additional benefit.
The employees filed a claim before the labour court which partially
accepted their claim and held the company liable.
The company lodged an appeal before the
SC, which upheld the appeal and endorsed the content of the new
collective bargaining agreement.
The employees then appealed before the
ECHR, which upheld the SC’s decision.
4.
Unfair dismissal. Settlement offer
Judgment of the Labour Chamber of
the Supreme Court dated 18 dated December 2009
In this case, a company dismissed an
employee and acknowledged that the dismissal was unfair. The company
paid the employee severance pay, which the employee received even though
he disagreed with the dismissal.
The Labour Court held that the
dismissal was unfair and increased the severance pay as it considered
that the employee had a longer length of service than had been
acknowledged by the company. The Court gave the company the option to
reinstate or compensate the employee.
The High Court of Justice held that the
company should not have been given the option to reinstate the employee
as it had decided to pay the severance pay upon his dismissal.
The SC interpreted article 56.2 of the
Statute of Workers, article 100 of the Labour Procedure Law and certain
articles of the Civil Code together, and accepted the possibility of
giving the employee the choice to be compensated or reinstated. The
Court stated that the choice to pay severance pay upon the employee’s
dismissal was not binding since there was no agreement while the
employee’s right to a defence remained since the settlement offer had
not been accepted.
5.
Salary. Tax withholdings
Judgment of the Labour Chamber of
the Supreme Court dated 14 December 2009
A trade union filed a collective labour
claim because it considered void certain deductions that a company had
made in its employees’ payslips to regularise tax deductions that had
not been made in payslips dating from 2004 and 2005.
The Labour Chamber of the National
Court held that the labour courts were not competent to hear the case.
On appeal, the SC held that the labour
courts were competent and referred the proceedings back to the Labour
Chamber of the National Court, which rejected the trade union’s claims.
Finally, the trade union appealed to
the Supreme Court, which rejected the appeal and held that the company
was entitled to require the employees to repay the tax withholdings that
were not made in past payslips, provided that the company had paid the
correct amount to the Treasury when the withholdings should have been
made.
6.
Time off for breastfeeding. Collective claim
Judgment of the Labour Chamber of
the Supreme Court dated 9 December 2009
In this judgment the Supreme Court held
that employees have the right to receive their full salary, including
their target-based variable salary, during time off for breastfeeding.
The proceedings started with a
collective claim under article 41 of the collective bargaining agreement
for department stores. The employees requested the recognition of the
right to receive their full salary, including their target-based
variable salary.
The company considered that article 41
of the collective bargaining agreement excluded the payment of variable
salary to employees during time off for breastfeeding.
The Labour Chamber of the National
Court upheld the employees’ claim and found that they were entitled to
receive their variable salary during time off for breastfeeding.
The company appealed to the SC, which
rejected the appeal on the grounds that time off for breastfeeding is
not regulated by article 3 of the Statute of Workers, and must be
interpreted under Law 39/1999 of 5 November on the reconciliation of
work and family life.
The SC held that, in the absence of
specific regulations, any interpretation that reduces an employee’s
earnings is contrary to the aim of Law 39/1999.
7.
Pay supplement for length of service. Challenging a collective
bargaining agreement
Judgment of the Labour Chamber of
the Supreme Court dated 2 December 2009
A trade union filed a collective claim
requesting that an article of the collective bargaining agreement
applicable to its employees be declared void. The article in question
removed the pay supplement for length of service and instead set a fixed
amount for the employees who had been receiving the pay supplement.
The trade union claimed that the
article of the collective bargaining agreement was in breach of article
14 of the Spanish Constitution as the company was discriminating between
employees based on the date on which they joined the company.
The Supreme Court held that this was
not a double scale situation or a situation where the applicability of
the pay supplement for length of service differs depending on the group
of employees and the date on which they began working for the company
but instead that as a result of removing the pay supplement for length
of service, employees who received this supplement receive a fixed
amount. Therefore the article of the collective bargaining agreement was
held not to be discriminatory.
8.
Salary review. Collective claim
Judgment of the Labour Chamber of
the High Court of Justice of Castile and León (Valladolid) dated 18
November 2009
The High Court of Justice of Castile
and León upheld a first instance court decision issued in response to a
request by employees for an increase of their 2009 salaries pursuant to
the second final provision of the company’s collective bargaining
agreement. The provision established an increase in line with the annual
retail price index forecast by the government.
At first instance, the labour court
held that the salaries provided in the pay scale tariffs at the end of
2008 must be increased by 2% even though the national budget did not
include a retail price index forecast.
The High Court of Justice of Castile
and Leon held that the second final provision of the collective
bargaining agreement was applicable even though the national budget did
not include a forecast for the 2009 retail price index.
9.
Transfer of an undertaking. Acquisition of a bankrupt company
Judgment of the Labour Chamber of
the High Court of Justice of Catalonia 28 September 2009
This case related to the bankruptcy
proceedings of a company for which an offer to purchase was made.
Following the transfer, the employees of the transferred company filed a
claim seeking the payment of the pension benefits that the new owner was
not paying them but which they claimed they were entitled to as there
had been a transfer of undertaking.
The High Court of Justice of Catalonia
considered that the transfer of a business deriving from bankruptcy
proceedings can be deemed a transfer of an undertaking pursuant to
article 44 of the Statute of Workers when the activity of the company
continues. This is regardless of Directive 2001/23/EC, which excludes
from the definition of a transfer of undertaking the transfer of
entities as a result of bankruptcy proceedings. The High Court of
Justice held that article 149 of the Bankruptcy Law was not applicable
in this case because the Statute of Workers prevailed.
