April 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. Modification of air traffic
controllers’ labour conditions
Law 9/2010 temporarily modifies the
labour conditions of AENA air traffic controllers until the
implementation of the reform that will allow air navigation services to
be rendered by new certified providers. (More information)
2. Reduction of company
contributions for occupational contingencies when companies have
specifically contributed towards decreasing and preventing labour
accidents
Royal Decree 404/2010 establishes a
system that incentivises companies that contribute towards decreasing
and preventing labour accidents in their workplaces. (More
information)
3. Legal basis to award the
“Equality in the Company” sign
Order IGD/869/2010 provides the legal
basis and the procedure to award the “Equality in the Company” sign for
2010. (More information)
4. Criteria applicable to bank
accounts held by mutual insurance companies
Order TIN/866/2010 of 5 April sets out
the criteria to be followed by mutual insurance companies for work-related
accidents and illnesses when opening bank accounts that they intend to
use for funds they collect in their capacity as entities that
collaborate with the Social Security system. (More
information)
5. A non-compete agreement remains
valid if a contract is unilaterally terminated by an employer during the
probationary period
The Supreme Court analysed the validity
of a non-compete agreement when the contract was terminated during the
probationary period. (More information)
6. Labour courts have jurisdiction
to hear disputes between trade unions irrespective of the labour
situation of its members (workers or civil servants)
According to the Supreme Court, labour
courts have jurisdiction to hear disputes between trade unions
regardless of whether their members are workers or civil servants.
(More information)
7. Collective Bargaining Agreement
for Department Stores affected by amendment to breastfeeding leave
period in the event of multiple birth
The Collective Bargaining Agreement for
Department Stores has been amendment by Basic Law 3/2007. The length of
breastfeeding leave is extended as a consequence of the new wording of
article 37.4 of the Statute of Workers. According to the judgment
of the Labour Chamber of the Supreme Court dated 11 November 2009 the
amendment has not changed the maximum accumulation term of 14 calendar
days. (More information)
8. A worker must not interrupt his/her
journey to and from work and must take the usual route in order for an
accident to be classed as a labour accident
According to the judgment of the Labour
Chamber of the Supreme Court dated 10 December 2009, if a worker has an
accident on the way to work after running a personal errand (e.g.,
visiting a doctor), this accident cannot be considered a labour accident
on the way to and from work, regardless of whether the worker has the
employer’s authorisation. (More information)
9. Non-statutory collective
bargaining agreements can be challenged through the procedure regulated
by the Statute of Workers
The procedure for challenging a
collective bargaining agreement regulated by the Statute of Workers must
also be followed to challenge collective agreements that are not reached
in accordance with the Statute of Workers, such as company-specific
agreements. (More information)
10. A compulsory retirement age
linked to the creation of 3,000 jobs complies with the 10th additional
provision of the Statute of Workers
The collective bargaining agreement for
savings banks for 2007-2010 includes a clear and specific objective (the
creation of 3,000 jobs) that counterbalances the effects of the
compulsory retirement age it imposes. As such, it complies with the 10th
additional provision of the Statute of Workers. (More
information)
11. “Calculated” plan to be
dismissed by verbally abusing colleagues and superiors
The High Court of Justice considered
the dismissal to be for a legitimate cause, since the worker verbally
abused his colleagues and superiors from the moment he started looking
for another job. (More information)
12. The labour jurisdiction is
competent to hear claims for disciplinary dismissals even when the
company is declared insolvent
There is jurisdictional overlap for the
termination of employment contracts in companies that have been declared
insolvent. While commercial courts deal with collective redundancies,
labour courts do so with individual ones, other than those contained in
article 50.1.b) of the Statute of Workers. (More
information)
13. There is no illegal transfer of
workers within a group of companies when there are no services contracts
between them
On 19 April 2010, the High Court of
Justice of Aragon held that there had been no illegal transfer of
workers within the same group of companies as all the workers rendered
services for all the companies on an indistinguishable basis and there
were no services contracts between them. (More
information)
1.
Modification of air traffic controllers’ labour conditions
Law 9/2010 of 14 April on the
rendering of air traffic control services establishes the obligations of
providers and the labour conditions for air traffic controllers.
The aim of Law 9/2010 of 14 April on
air traffic controllers’ labour conditions in Spain, is to guarantee the
safety, efficiency and continuity of the service by (i) recovering AENA’s
management capacity, (ii) increasing productivity and (iii) adjusting
costs in line with the rest of Europe.
Law 9/2010 enables air traffic control
providers to: (i) select and train air traffic controllers, (ii)
organise shifts, timetables and rest periods and (iii) monitor and
control work performed by staff and impose appropriate sanctions in the
event of any breach. This law also enables AENA to: (i) temporarily move
its workers under certain circumstances, (ii) change working hours or
modify shift start times, (iii) approve and publish shifts, (iv) adapt
leave and holidays to the needs deriving from the obligation to
guarantee the security, efficiency and continuity of the service and (v)
check the possible failure of an air traffic controller to adapt to the
technical or technological modifications of his/her post.
According to Law 9/2010, a controller
may work a maximum of 1,670 hours per year and a maximum daily twelve-hour
shift. It also regulates a minimum rest period between each working day,
and limits overtime to 80 hours per year. Furthermore, it stipulates
that air traffic controllers over 57 years of age must cease to carry
out operative functions.
2.
Reduction of company contributions for occupational contingencies when
companies have specifically contributed towards decreasing and
preventing labour accidents
Royal Decree 404/2010 of 31 March
establishes a system to reduce the contributions made by companies for
occupational contingencies when they have specifically contributed
towards decreasing and preventing labour accidents.
Any company that makes social security
contributions for occupational contingencies may benefit from this
system, provided that it complies with the Law on the Prevention of
Occupational Hazards and certain other requirements, among others, in
relation to: (i) its investments, (ii) the amount of social security
contributions made for occupational contingencies, (iii) not having
exceeded certain labour accident rates, (iv) being up-to-date with its
social security contributions and (v) the fulfilment of the basic
requirements on the prevention of occupational hazards.
The reduction may amount to up to 5% of
the contributions made by each company for occupational contingencies
corresponding to the prior observation period; or up to 10% if the
observation periods are consecutive and the company received the
incentive during the immediately preceding period, subject to the
limitations established in the Royal Decree.
3.
Legal basis to award the “Equality in the Company” sign
Order IGD/869/2010 of 30 March
provides the procedure to award the “Equality in the Company” sign for
2010 and establishes its legal basis.
The purpose of this sign is to
acknowledge and encourage companies that are committed to equality and
that stand out because they implement equal treatment and opportunity
policies as regards working conditions, organisation models and in other
areas such as services, products and corporate advertising.
Only companies in the Spanish territory
that prove that they meet certain general and other more specific
requirements, such as the implementation of an equality policy, can be
awarded the “Equality in the Company” sign.
4.
Criteria applicable to bank accounts held by mutual insurance companies
Order TIN/866/2010 of 5 April sets
out the criteria to be followed by mutual insurance companies for work-related
accidents and illnesses when opening bank accounts that they intend to
use for funds they collect in their capacity as entities that
collaborate with the Social Security system.
According to the Public Sector
Contracts Law, contracts between financial entities and mutual insurance
companies for work-related accidents and illnesses are private contracts,
although they must comply with certain conditions applicable to public
sector contracts. As such, the awarding of these contracts must comply
with the principles of publicity, competition, transparency,
confidentiality, equality and non-discrimination set out in the Public
Sector Contracts Law, although the financial entities do not need to
provide a guarantee to participate in the bidding process. In relation
to the principle of competition, the mutual insurance company must have
received at least three offers from different entities.
The maximum term of bank account
contracts is six years. They must stipulate (i) the criteria according
to which they are awarded (including the interest rate applicable to the
account); (ii) the fact that bids were requested from various financial
entities; (iii) the terms and conditions of the account; and (iv) a
clause in which the financial entity waives its right to setoff and
acknowledges that the account cannot be seized.
5. A
non-compete agreement remains valid if a contract is unilaterally
terminated by an employer during the probationary period
Judgment of the Labour Chamber of
the Supreme Court dated 6 February 2009
The Spanish Supreme Court (“SC”)
held that a contract has full effect during the probationary period as
if it had not been subject to any condition subsequent. If the condition
subsequent is satisfied, the contract may not produce any
post-contractual effects other than those specifically agreed in
connection with the period following the extinction of the contract,
such as a non-compete clause.
A non-compete agreement generates
expectations for both parties. The SC stated that these expectations can
be frustrated when the validity of an agreement depends solely on the
will of one party. The SC applied its doctrine on the nullity of a
clause according to which an employer may unilaterally cancel a
non-compete post contractual agreement.
6. Labour courts
have jurisdiction to hear disputes between trade unions irrespective of
the labour situation of its members (workers or civil servants)
Judgment of the Labour Chamber of
the Supreme Court dated 10 November 2009
In accordance with article 9.5 of the
Basic Law on the Judiciary and article 2.h of the Labour Procedure Law,
labour courts have jurisdiction to hear disputes between trade unions,
subject to the exceptions established in article 3.1 c) of the Labour
Procedure Law.
According to previous judgments in
which the Supreme Court (“SC”) indicated the “electoral issues”
that must be resolved under the special procedure, challenges against
matters relating to voting notice must be carried out under the ordinary
procedure (or under the special procedure for the protection of
fundamental rights, if appropriate) and not the electoral procedure in
consideration of the precise wording of article 76.2 of the Statute of
Workers.
The SC stated that claims regarding
electoral issues must follow the special procedure for “electoral
matters” under its two varieties: “appeal of arbitral awards” and
“appeal of administrative orders refusing registration”.
7. Collective
Bargaining Agreement for Department Stores affected by amendment to
breastfeeding leave period in the event of multiple birth
Judgment of the Labour Chamber of
the Supreme Court dated 11 November 2009.
Section V of article 41 of the
Collective Bargaining Agreement for Department Stores states as follows:
“Breastfeeding leave will be regulated by article 37.4 of the Statute
of Workers. Workers may choose to accumulate the enjoyment of the right
to reduced working hours, in fourteen calendar days, adding them to the
maternity leave period.” Article 37.4 of the Statute of Workers was
amended by Basic Law 3/2007 by including the following statement: “The
duration of the leave will be increased proportionally in the event of
multiple birth.”
The National Court (“NC”) held that the
workers to whom the Collective Bargaining Agreement for Department
Stores applies, have the right to take breastfeeding leave in proportion
to the number of children delivered. The NC stated that this is so,
regardless of whether the right is enjoyed on a daily basis or
accumulated as fourteen calendar days per child in the event of multiple
birth. These days would be added to the suspension period of the
employment contract due to maternity leave.
The Spanish Association of Large
Distribution Companies (“ANGED”) filed a cassation appeal against the
NC’s judgment. Even though ANGED accepted that the duration of the leave
in the event of multiple birth has to be proportionally increased, it
argued that the accumulation of working days must be carried out under
the conditions agreed in the collective negotiation and, therefore, with
a limit of fourteen calendar days.
The Supreme Court (“SC”) reversed the
NC’s judgment, and stated that the new provision has direct effect. In
order to determine its effect, two factors must be taken into
consideration: (i) the length of the maternity leave and (ii) the
accumulation in days of the available hours. Nevertheless, The SC stated
that this increase does not apply to the accumulation, which is not even
mandatory. Moreover, in the absence of an agreement, there is no right
to accumulate and, in accordance with the law, a collective bargaining
agreement could establish, based on the new wording of article 37.4 of
the Statute of Workers, a maximum term to accumulate.
8. A worker must
not interrupt his/her journey to and from work and must take the usual
route in order for an accident to be classed as a labour accident
Judgment of the Labour Chamber of
the Supreme Court dated 10 December 2009
The Labour Chamber of the Supreme Court
(“SC”) rejected an appeal for the unification of doctrine filed by a
worker who suffered a motorbike accident while going to the doctor’s for
an ordinary pregnancy check-up authorised by the employer. The worker
was seeking confirmation from the SC that it was a labour accident on
the way to and from work.
The SC stated that a labour accident on
the way to and from work is any accident that a worker suffers when he/she
is going to or returning from work. The main two issues to be taken into
account in this type of accidents are as follows: (i) the accident would
not have occurred if the worker had not gone to work, and (ii) the
journey was necessary to go to work. Therefore, in order to be
considered a labour accident on the way to and from work, the worker
must go directly to work and follow the usual route.
9. Non-statutory
collective bargaining agreements can be challenged through the procedure
regulated by the Statute of Workers
Judgment of the Labour Chamber of
the Supreme Court dated 26 January 2010
The procedure established in articles
161 to 164 of the Labour Procedure Law is applicable to extra-statutory
agreements and company-specific agreements, even though they do not have
to comply with other provisions of the Statute of Workers. Articles
161.3 and 163.1 of the Labour Procedure Law only refer to the
application of certain aspects of the procedure for resolving collective
disputes. This reference does not affect aspects of the procedure, such
as the determination of the parties, the requirements the claim must
meet, the trial or the judgment.
According to the Supreme Court, when
article 163.1 of the Labour Procedure Law refers to legal standing to
challenge a collective bargaining agreement, it states "whatever its
efficacy may be".
10. A compulsory
retirement age linked to the creation of 3,000 jobs complies with the
10th additional provision of the Statute of Workers
Judgment of the Labour Chamber of
the National Court dated 26 March 2010
The 10th additional provision of the
Statute of Workers authorises collective bargaining agreements to
establish compulsory retirement ages provided that, among other
requirements, the measure is linked to objectives that are in line with
the employment policy set out in the collective bargaining agreement.
This judgment focused on analysing the
meaning of the expression "should be linked to objectives consistent
with the employment policy regulated in the collective bargaining
agreement", and specifically the following three issues:
1. What are employment objectives?: the
10th Additional Provision does not set out a closed list of objectives.
The legislator should be understood as having made a general reference
to the maintenance or creation of employment.
2. How should objectives that are
consistent with an employment policy be expressed?: there must be a
reasonable, proportionate and justified balance between the individual
sacrifice that the compulsory retirement implies and the collective
benefit offered by the employment policy.
3.Where must these objectives be set
out?: the employment measures must be expressly referred to in the
collective bargaining agreement; they cannot be set out in a different
document. Moreover, the text must specify the connection between the
compulsory retirement age and the employment measures.
In the collective bargaining agreement
for savings banks, the specific measure to be adopted to counteract the
effects of the compulsory retirement age is the creation of 3,000 jobs.
According to the Labour Chamber, these jobs are connected to one of the
objectives in the 10th additional provision of the Statute of Workers.
This measure is considered to be a "coherent employment policy"
since the recruitment of new workers objectively favours the quality of
employment in the sector.
11. “Calculated”
plan to be dismissed by verbally abusing colleagues and superiors
Judgment of the Labour Chamber of
the High Court of Justice of the Basque Region dated 3 March 2009
In this decision, the High Court of
Justice of the Basque Region confirmed the first instance decision to
reject the claim of a worker that rendered services as a senior manager,
who filed a claim for unfair dismissal.
According to the High Court of Justice,
he was correctly classified as a manager with a special labour
relationship and the labour regime of application depends on the worker’s
everyday faculties and powers.
A dismissal on disciplinary grounds
requires a serious and, normally, guilty breach by the worker, and
requires the specification of one of the causes set out in article 54.2
of the Statute of Workers (which is not a closed list). These causes
must be applied on a case-by-case basis, taking into consideration the
professional category and the role occupied by the worker. In this case,
according to the court, this was not an isolated case of unreasonable
behaviour or rage, but a premeditated plan by the worker to end his
employment relationship intentionally by means of his conduct.
12. The labour
jurisdiction is competent to hear claims for disciplinary dismissals
even when the company is declared insolvent
Judgment of the Labour Chamber of
the High Court of Galicia dated 29 January 2010
According to the decision of the Labour
Chamber of the High Court of Galicia, the competent jurisdiction is
subject to the content of articles 8 and 64 of the Bankruptcy Law,
regardless of whether there has been a declaration of insolvency or a
request to terminate employment contracts. On this issue, the National
Court confirmed that the labour courts are still competent to hear
disciplinary dismissals within a company declared insolvent.
Article 8 of the Bankruptcy Law states
that commercial courts are solely and exclusively competent in the field
of labour claims regarding redundancies, modification, or termination of
employment contracts of a collective nature. Article 64.10 of the
Bankruptcy Law extends their competence to claims filed on the basis of
article 50.1.b) of the Statute of Workers, which will be considered of a
collective nature for this purpose.
13. There is no
illegal transfer of workers within a group of companies when there are
no services contracts between them
Judgment of the Labour Chamber of
the High Court of Justice of Aragon dated 19 April 2010
This judgment analysed whether there
had been an illegal transfer of workers between three companies of the
same group. In particular, between the parent company and its two
subsidiaries, all of which carried out computer service activities.
Moreover, these companies all had the same management, confusion of
assets and workers, who rendered their services to any of the three
companies on an indistinguishable basis. They also had a joint
prevention service, a consolidated tax regime and shared the same
workplace in Zaragoza. Therefore, only one real company existed, which
organised and distributed the work among the group based on
specialisation and effective management criteria.
The doctrine that interprets article
43.2 of the Statute of Workers repeatedly refers to the business
performed under the contract, which is the key element to consider
whether an illegal transfer of workers exists, along with the business
organisation, the outsourcing of services and the supply of workforce.
In this case, the court deemed that there was no contract between the
parties and, therefore, no illegal transfer of workers since they
rendered their services to any of the companies of the group in order to
achieve a common result.
Likewise, the court considered that
there was no proof of the businesses’ intention to circumvent and
infringe the workers’ rights. The employer was the group itself, and
therefore all the companies forming part of it were jointly and
severally liable against the workers, which in turn made the precept for
an illegal transfer of workers unnecessary.
