August 2010
LABOUR LAW
1. Unemployment benefits for self-employed
workers
Law 32/2010 of 5 August establishes an
unemployment benefits system for self-employed workers. (More
information)
2. Imposing both criminal and
administrative sanctions is not contrary to the “non bis in idem”
principle if there is no unity of the parties
According to the judgment of the
Administrative Chamber of the Supreme Court dated 31 March 2010, the “non
bis in idem” principle (one cannot be punished twice for the same
offence) is not breached when an individual is held criminally
responsible for an offence against the rights of workers and for
recklessly causing injuries, and a company is held administratively
liable for non-compliance with regulations on the prevention of
occupational hazards in relation to the same work accident. (More
information)
3. Employment contract. Disciplinary
dismissal. Payment of additional compensation
According to the Labour Chamber of the
Supreme Court, an agreement to pay additional compensation to the
statutory severance payment for unfair dismissal is not applicable when
the dismissal, even if it was unfair, was based on the employee’s
misconduct. (More information)
4. Provisional wage rises not a
vested right
According to the Labour Chamber of the
Supreme Court in its judgment of 12 May 2010, the provisional wage rises
agreed by the Government of the Basque Country, pending the approval of
the collective bargaining agreement applicable to its employees, cannot
be considered to be vested. (More information)
5. Disciplinary sanctions.
Calculation of “dies a quo”
The deadline to object to a
disciplinary sanction is calculated from the date on which the sanction
was communicated to the employee. (More information)
6. Agreement to pay compensation to
a secretary non-member to a board of directors is legitimate
The Civil Chamber of the Supreme Court
confirmed that an agreement to compensate a secretary non-member to the
board of directors and general secretary of a group of companies was
legitimate because he was not a director and thus the corporate law
prohibitions regarding the validity of this type of agreements did not
apply. (More information)
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1. Unemployment benefits for self-employed
workers
Law 32/2010 of 5 August establishes
an unemployment benefits system for self-employed workers
Pursuant to the Fourth Additional
Provision of Law 20/2007 of 11 July on the Self-Employed Workers Statute,
Law 32/2010 establishes a series of unemployment benefits for self-employed
workers. The Law will come into effect on 5 November, except for those
workers included in the Special System for Self-Employed Agricultural
Workers, for whom the Law will enter into force once the appropriate
legislation has been passed to adapt the specific situation of these
workers to the new regulation (which must be done within 12 months).
Chapter I regulates general aspects of
the system. It applies to all self-employed workers included in the
Special Scheme for Self-Employed Workers who are covered for work-related
injuries and occupational illnesses, including workers included in the
Special System for Self-Employed Agricultural Workers or in the Special
Scheme for Sea Workers. To be entitled to the benefits offered by the
system, the workers must meet certain requirements established in Law
32/2010, and their unemployment situation must be involuntary. The
assistance offered by the system consists of: (i) an economic benefit
for the temporary or permanent cessation of all activity; (ii) the
payment of the self-employed worker’s social security contributions for
common contingencies; and (iii) training, career guidance and business
promotion.
Chapter II sets out the rules on
applying for and entitlement to the benefit. The duration and amount of
the economic benefit received are in proportion to the social security
contributions that the self-employed worker has made. It also regulates
the situations in which the economic benefit is suspended or terminated,
incompatibilities, and the simultaneous occurrence of the cessation of
activity and temporary disability, maternity or paternity leave.
Chapter III provides that the system is
funded from the contributions made by self-employed workers, which are
to be set each year in the State Budget Law. The system will be
administered by mutual accident and occupational illnesses societies.
The regional employment services and, where appropriate, the Social
Marine Institute, are responsible for managing the training, career
guidance and business promotion activities.
Finally, Chapter IV regulates
obligations, infringements and penalties, and gives the labour courts
jurisdiction to resolve disputes arising in connection with this new
benefit.
2. Imposing both criminal and
administrative sanctions is not contrary to the “non bis in idem”
principle if there is no unity of the parties
Judgment of the Administrative
Chamber of the Supreme Court dated 31 March 2010
Pursuant to Supreme Court (“SC”)
case law, in order for the principle of “non bis in idem” (one
cannot be punished twice for the same offence) to be breached there must
be a unity of parties, of the cause of action and of the subject-matter.
In this judgment, the SC reversed the
decision of the High Court of Justice of Valencia because it considered
that the latter had not applied the right doctrine since, although there
was unity of the cause and of the subject-matter, there was no unity of
parties. Three individuals (the head architect, the technical architect
in charge of the works where the accident took place and the head of
security) were held criminally responsible for an offence against the
rights of workers and for recklessly causing injuries. Separately, the
company was held administratively liable for failing to adopt safety
measures at work. Therefore, given that the threefold condition was not
met in this case (as there was no unity of parties), the SC concluded
that the principle of “non bis in idem” was not breached.
3. Employment contract. Disciplinary
dismissal. Payment of additional compensation
Judgment of the Labour Chamber of
the Supreme Court dated 18 June 2010
In this case, the SC rejected the
appeal filed by an employee who was dismissed because she used a company
credit card to pay for personal expenses during her holidays.
The employee claimed payment of
additional compensation to the statutory severance payment for unfair
dismissal that she had negotiated with the company.
Under the arrangement reached with the
company, if it unilaterally terminated he employment contract by the
company, the employee would be compensated with twice her total annual
remuneration, unless the termination was based on disciplinary reasons.
The SC stated that although the
dismissal was declared unfair, it was evidenced that the employee had
used the company credit card to pay for personal expenses. Therefore,
even though the facts alleged were not sufficient to justify a
disciplinary dismissal, there were grounds for dismissal and evidence
employee misconduct. As a result, the SC held that the additional
compensation was not payable.
4. Provisional wage rises not a
vested right
Judgment of the Labour Chamber of
the Supreme Court dated 12 May 2010
The Chamber held that the wage rises
agreed by the Basque Country Government prior to their publication in
the applicable collective bargaining agreement are provisional, and paid
on account of the rises to be applied retroactively pursuant to the
collective bargaining agreement. These provisional amounts cannot be
considered to be vested or form a consolidated part of the employees’
salary, as to do so would mean the employees would receive a second rise
upon the entry into force of the collective bargaining agreement.
5. Disciplinary sanctions.
Calculation of “dies a quo"
Judgment of the Labour Chamber of
the Supreme Court dated 17 May 2010
On 3 May 2007, an employee who worked
as a cleaner was notified that she was to be suspended without pay for
committing a very serious offence.
On 3 July, the employee received
another notification which stated that the sanction would be effective
from 8 to 23 August 2007. On 14 August, the employee filed a
conciliation request. The conciliation meeting was held on 26 August and
on 3 September the employee filed a claim before the labour courts.
The Labour Court upheld the company’s
objection that the claim was time-barred. The High Court of Justice of
Catalonia (“HCJC”) dismissed the employee’s subsequent appeal on the
grounds that the term to challenge the sanction had expired because the
20-day term to file a claim starts on the day the company communicates
the sanction to the employee, regardless of when the company
communicates the enforcement of the sanction.
The Supreme Court concurred with the
HCJC and dismissed the appeal holding that the rules to establish the “dies
a quo” (the day from which a time-limit runs) to bring an action in
dismissal proceedings cannot be applied to the term to challenge
sanctions.
The judgment stated that the effects of
enforcing a dismissal decision are very different from those of
enforcing a sanction. In a dismissal, the employment relationship is
terminated and the reciprocal obligations between the parties are
cancelled. By contrast, when a sanction is imposed, the employment
relationship prevails regardless of whether or not the sanction is
enforced and when the enforcement is carried out.
Consequently, the calculation of the
term to challenge a sanction is dependant upon the moment from which
such action could have been disputed. Therefore, in this case, the term
started on the day the employer communicated the sanction to the
employee.
6. Agreement to pay compensation to
a secretary non-member to a board of directors is legitimate
Judgment of the Civil Chamber of the
Supreme Court dated 24 June 2010
This appeal decision concerned the
termination of a services contract entered into by a company and an
individual for the performance of the functions of secretary non-member
to the company’s board of directors and of general secretary to the
company’s group. The services contract provided that a severance payment
would be paid if the company unilaterally terminated the contract.
The SC stated that the prohibition on
compensating directors according to corporate law and to its judgment of
30 December 1992 (Huarte case) exclusively refers to directors
and is only applicable to the functions and duties of such a post in
order to prevent abusive situations that restrict the freedom of the
board of directors to remove directors that it appoints. Since the
severance payment claimed did not derive from the dismissal of a
director, the SC saw no reason to render the agreement null.
Moreover, the SC held that the
agreement was a standard one rather than a penalty clause, thus it could
not reduce the payment pursuant to article 1,154 of the Spanish Civil
Code.
