May
2010
LABOUR LAW
1. Creation of the Catalan Labour Inspection Authority
Law 11/2010 of 19 May has created the Catalan Labour Inspection
Authority, which is an autonomous administrative organisation, with it
own legal personality and full capacity to act. Its functions include
carrying labour inspections, ensuring compliance with the labour rules
and regulations, checking the contents of collective bargaining
agreements, giving technical assistance to businesses, workers and
public bodies, and investigating work accidents and industrial diseases.
(More information)
2. Reporting requirements for the opening of a workplace or the
resumption of activities
Order TIN/1071/2010 of 27 April, modifies Law 17/2009 on the free
access to service sector activities, and the exercise of such of
services. The order establishes the procedure and content of the
reporting requirements for the opening of a workplace or the resumption
of activities. (More information)
3. The dismissal of a new part-time employee on the basis of the
decease of the partially retired employee with whom he was work-sharing
is unfair
The judgment of the Labour Chamber of the Supreme Court dated 25
February 2010, held that the decease of a partially retired employee had
no bearing on the hand-over contract executed with another employee with
whom he was work-sharing. (More information)
4. The effects of a judgment annulling a part of or all a collective
bargaining agreement are ex tunc
The judgment of the Labour Chamber of the Supreme Court dated 15
March 2010 determined the timing of the effects of a judgment declaring
the nullity of part or all of a collective bargaining agreement.
(More information)
5. A salary reduction will not be applied if the published CPI is
lower than that forecasted in the collective bargaining agreement
In its judgment dated 5 April 2010, the Labour Chamber of the Supreme
Court upheld the judgment of the Labour Chamber of the National Court
dated 22 June 2009 which stated that a salary reduction will not be
applied if the published CPI is less than that forecasted in the
collective agreement. (More information)
6. Rejection of a claim against a law affecting a collective
bargaining agreement on the basis that it is not unconstitutional as its
purpose is to protect a constitutional right
The Labour Chamber of the National Court dated 10 May 2010 rejected
the collective dispute claim that requested that air traffic controllers
be reinstated in the relevant collective bargaining agreement that had
been modified by a law. The court held the change in the law to be
necessary, appropriate and proportional as its purpose was to protect a
constitutional right. (More information)
7. Working hours can be modified as many times as necessary to care
for a child
The judgment of the Labour Chamber of the High Court of Justice of
Castile-La Mancha dated 16 November 2009, resolved the doubt as to
whether a working mother who had previously requested a modification in
her working hours to care for her child and who therefore had been
awarded a reduction of her working hours, had the right to modify her
timetable and whether she had to work everyday or whether she could
choose the days herself. (More information)
8. A dismissal carried out around the time of union elections is not
discriminatory
The judgment of the Labour Chamber of the High Court of Justice of
Catalonia dated 15 December 2009 held that the dismissal of an employee
carried out around the date of the notice of the election process is not
sufficient to create reasonable suspicion that the dismissal was due to
the worker’s union activity, especially when it is not proved that prior
to the dismissal, the company was not aware of the worker’s union
affiliation or promotional activities in connection with the union
elections. (More information)
9. Freedom to decide on how to pay subsistence and travel allowances
The decision of the Labour Chamber of the High Court of Justice of
Castile and León dated 22 December 2009 held that a change in the method
of paying its employees’ subsistence and travel allowances did not
constitute a substantial change in their working conditions.
(More information)
10. An employee’s dismissal cannot be deemed null because she
intends to become pregnant
The judgment of the Labour Chamber of the High Court of Justice of
Andalusia dated 9 February 2010 held that an employee’s dismissal cannot
be considered null because she has the private and secret intention to
become pregnant and at the time of dismissal she is not pregnant, nor
has she even begun any steps towards an in vitro fertilisation process.
(More information)
Portuguese Labour Law Newsletter
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here to access to the Portuguese Labour Law Newsletter.
1.
Creation of the Catalan Labour Inspection Authority
Law 11/2010 of 19 May on the Catalan
Labour Inspection Authority (DOGC 5638/2010 of 28 May 2010)
This new law has created the Catalan
Labour Inspection Authority, which is an autonomous administrative body
with its own legal personality and full capacity to act.
This body is in charge of labour
inspections on behalf the Generalitat of Catalonia. Its functions
include ensuring compliance with the labour rules and regulations,
checking the contents of collective bargaining agreements, giving
technical assistance to businesses, workers and public bodies, issuing
reports requested by judicial bodies, and investigating work accidents
and industrial diseases. It is also responsible for providing
reconciliation and mediation services in labour disputes and in
voluntary arbitration proceedings, reporting to the authorities lacunas
in the current legislation, and providing advice and technical support
on the prevention of occupational hazards to comply with health and
safety legislation.
2.
Reporting requirements for the opening of a workplace or the resumption
of activities
Order TIN/1071/2010 of 27 April on
the reporting requirements for the opening of a workplace or the
resumption of activities (BOE 1 May 2010)
This order establishes the procedure
employers should comply with, in order to notify the authorities of the
opening of a workplace or the resumption of an activity, and sets out
the deadlines and content to be included in these communications.
The order simplifies the administrative
steps required by the labour authorities in order to carry out
construction work.
The order also encourages the use of
electronic means to send the communication on the opening of workplaces
and supporting documentation.
3.
The dismissal of a new part-time employee on the basis of the decease of
the partially retired employee with whom he was work-sharing is unfair
Judgment of the Labour Chamber of
the Supreme Court dated 25 February 2010
This judgment analysed the consequences
of the decease of a partially retired employee on the hand-over contract
signed by another part-time employee, with whom he was work-sharing.
The Supreme Court stated that the
purpose of partial retirement was to harmonize the interests of all the
parties involved —the employer, the new part-time employee and the
partially retired employee— and maintain the same number of jobs in the
company. Therefore, the position affected by the hand-over contract of
the new part-time employee had to remain in force, at least, until the
partially retired employee were to fully retire.
In conclusion, the Supreme Court held
that the decease of the partially retired employee implied the
termination of his employment contract although this should have no
bearing on the new part-time employee’s contract.
4.
The effects of a judgment annulling a part of or all a collective
bargaining agreement are ex tunc
Judgment of the Labour Chamber of
the Supreme Court dated 15 March 2010
The Supreme Court held that judgments
declaring all or part of a collective bargaining agreement null have a
declarative nature and not a constitutive nature based on the fact that
they merely confirm a situation that already exists, specifically, the
nullity of the collective agreement. The judgment indicated that a
collective bargaining agreement cannot contradict a higher-ranking rule.
Article 85.1 of the Statute of Workers
states that collective bargaining agreements must abide by the law and
that the effects of a declarative judgment are ex tunc, i.e.,
“from the outset”, according to the legal maxim quod nullum est,
nullum producit efectum.
5. A
salary reduction will not be applied if the published CPI is lower than
that forecasted in the collective bargaining agreement
Judgment of the Labour Chamber of
the Supreme Court dated 5 April 2010
The Supreme Court upheld the judgment
of the National Court which stated that employees were entitled to the
increase percentages established in the collective bargaining agreement.
The judgment stated that employees have
the right to receive the salary increases established in the collective
bargaining agreement, even when the published annual CPI is lower than
that forecasted in the collective bargaining agreement.
The Supreme Court found that there was
no unjust enrichment by the employees and held that the final salary
could not be considered as either exorbitant or unaffordable for the
employer.
6.
Rejection of a claim against a law affecting a collective bargaining
agreement on the basis that it is not unconstitutional as its purpose is
to protect a constitutional right
Judgment of the Labour Chamber of
the National Court dated 10 May 2010
The National Court (“NC”) rejected the
collective dispute claim made by a trade union of air traffic
controllers.
The trade union requested that air
traffic controllers be reinstated in the relevant collective bargaining
agreement by arguing that Law 9/2010 and Royal Decree 10/2010 have an
effect on the contents of such agreement. However, the NC held that
these regulations did not infringe the rights of association, strike and
collective bargaining and that the change in the law was necessary,
appropriate and proportionate. In short, the NC considered that the
regulations gave rise to a minimum sacrifice for the workers affected
and that they were introduced to ensure the safety and continuity of air
traffic. Moreover, the decision clarified that a law can modify a
collective bargaining agreement.
7.
Working hours can be modified as many times as necessary to care for a
child
Judgment of the Labour Chamber of
the High Court of Justice of Castile-La Mancha dated 16 November 2009
This case related to whether a working
mother had the right to modify her working hours in order to take care
of her child. The employee had requested from her employer that she have
Saturdays off so that she could care for her daughter, given that her
husband worked on that day of the week, and she did not have anyone who
could help her with child care.
The court considered that working hours
could be modified as many times as necessary to care for a child
provided that this does not negatively affect the employer. In addition,
the court referred to the doctrine of the Constitutional Court which
establishes that all measures that facilitate the compatibility of an
employee’s work and family life, both from the perspective of protection
against sexual discrimination and child and family protection, must
prevail.
Therefore, as the employee’s request
was the most appropriate for her daughter’s interests and her employer
had no reason to reject her request, her employer had to agree to it.
8. A
dismissal carried out around the time of union elections is not
discriminatory
Judgment of the Labour Chamber of
the High Court of Justice of Catalonia dated 15 December 2009
The judgment examined the
classification of the dismissal of an employee without cause based on
his trade union membership and preparatory actions in connection with
the union elections.
The dismissed employee argued that the
dismissal should be considered null and not unfair as the sole purpose
of the dismissal was to punish him for his affiliation with and
promotion of union elections.
The High Court of Justice held that the
fact that the dismissal letter did not justify the dismissal could not
be considered as evidence of discrimination and that failure to produce
such evidence made this dismissal without cause unfair and not null.
Therefore, as no anti-union and therefore discriminatory evidence was
proven and the company was not aware of the worker’s union affiliation
or his preparatory activities in connection with the union elections,
the dismissal could only be qualified as unfair.
9.
Freedom to decide on how to pay subsistence and travel allowances
Judgment of the Labour Chamber of
the High Court of Justice of Castile and León (Valladolid) dated
December 2009
The High Court of Justice of Castile
and León held that a company’s change in the method of paying its
employees’ subsistence and travel allowances did not constitute a
substantial change in their working conditions.
In this case, the company had always
living and overnight expenses by directly paying its employees the
amounts established in the collective bargaining agreement. However, the
company decided to change the method of payment by reimbursing only the
actual expenses incurred by the employees.
The court stated that both methods of
payment are provided in the collective bargaining agreement and that
this modification is merely an example of the employer’s right to amend
the terms and conditions of employment during the course of the
employment contract and thus does not alter the fundamental aspects of
the employment relationship.
10.
An employee’s dismissal cannot be deemed null because she intends to
become pregnant
Judgment of the Labour
Chamber of the High Court of Justice of Andalusia (Seville) dated 9
February 2010
An employee’s dismissal cannot be
considered null because she has the private and secret intention to
become pregnant and at the time of dismissal she is not pregnant, nor
has she even begun any steps towards an in vitro fertilisation process.
For reasons of legal certainty, the
judge held that the legal protection awarded to a pregnant employee may
not be awarded to an employee whose embryo transfer to the uterus has
not yet taken place at the time of her dismissal.
The judgment made reference to the fact
that the European Court of Justice has also taken a strict approach
towards pregnancy as it does not protect employees who are undergoing in
vitro fertilisation where the ovum has not yet been introduced into the
uterus.
