Royal Decree 1543/2011 of 31 October regulates training schemes in
companies or groups of companies that enter into agreements with the
public employment services. They are aimed at young people who have
problems finding work due to lack of work experience.
Royal Decree 1622/2011 of 14 November reforms the regulatory
framework applicable to mutual insurance companies and adapts their
performance to the amendment of article 32 of the Law 31/1995 on
prevention of occupational hazards.
Royal Decree 1620/2011 of 14 November regulates the employment
relationship of domestic workers.
Royal Decree 1621/2011 of 14 November amends specific assumptions and
forecasts relating to refunds, payments and income or voluntary
cooperation in the management of financial institutions, introducing
flexibility in the procedure related to the alienation of encumbered
assets.
The National Court held that a company cannot unilaterally impose the
holiday schedule without the agreement of the employee representatives.
The Supreme Court held that an indemnity deposit in connection with
an unlawful dismissal may be made to either the court corresponding to
the location where the services were rendered or that of the respondent’s
domicile, unless other proceedings on the same matter have already been
initiated.
The High Court of Madrid held that the audio and audiovisual
recording of an employer’s conversation regarding the employee’s work
performance and the decision to dismiss him/her did not violate the
right to secrecy of communications or the respondent’s right to honour
and personal privacy and was therefore admissible evidence.
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1. Youth training
schemes
Royal Decree 1543/2011 of 31 October,
regulating training schemes in companies (Official Spanish Gazette of 18
November)
Royal Decree 1543/2011 regulates training schemes in companies or
groups of companies that enter into agreements with the Spanish
employment services. They are aimed at young people who have problems
finding work due to lack of work experience. The training schemes do not
establish an employment relationship between the company and the
trainees.
Beneficiaries
The beneficiaries of the training schemes are young unemployed
persons registered with the job centre, aged between 18 and 25, with a
university degree, medium or higher-level vocational training in arts or
sports, or a professional training certificate. The beneficiaries must
not have had an employment relationship or professional experience in
the same business activity for more than three months.
External, curricular and extra-curricular academic training schemes
for university students, which are governed by specific regulations, are
excluded from the scope of this Royal Decree.
Content of the training schemes
The training schemes will be carried out in the workplace of the
company or of the group of companies, under the supervision of a tutor.
Their duration will range between three and nine months. Upon completion
of the training schemes, the companies will provide a certificate with
information about the training provided, the term and dates.
The agreement signed between the company and the person who will
carry out the training scheme will set out the specific terms of the
training, its duration, the hours and timetable, the workplace or
centres where they will take place, and the tutorials and certification
system. The company must inform the employee representatives and the
public employment services about the signing of these agreements.
Remuneration
The companies or groups of companies where the participants receive
training will provide them a grant amounting to a minimum of 80% of the
public revenue index (IPREM) applicable at the time. The beneficiaries
will be included in the Social Security in accordance with Royal Decree
1493/2011 of 24 October, which regulates the terms and conditions for
the inclusion of individuals participating in training programmes in the
Social Security general regime. This Royal Decree develops the
regulations of the third additional provision of Law 27/2011 of 1 August
on the updating, adequacy and modernisation of the Social Security.
Partnership agreements for the training schemes
Companies that offer training schemes must sign an agreement with the
relevant Public Employment Service. If the training schemes are carried
out in companies with centres in more than one autonomous region, the
agreement must be signed with the National Public Employment Service.
The agreements will expressly set out the procedure to monitor the
training scheme in order to ensure compliance with the applicable
requirements.
Any employment contracts signed after the participation in the
training schemes may benefit from the recruitment incentives existing
when the contract is signed.
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2. Reform of the
regulatory framework of mutual
insurance companies for work-related
accidents and occupational illnesses
Royal Decree 1622/2011 of 14 November,
amending the Regulation on the collaboration of Social Security mutual
insurance companies for work-related accidents and occupational
illnesses, approved by Royal Decree 1993/1995 of 7 December (Official
Spanish Gazette of 17 November)
Royal Decree 1622/2011 (“RD 1622/2011”) provides a
regulatory development to enable the reform introduced in the
Consolidated Text of the Social Security, which simplified the reserves
that mutual insurance companies had to create for professional
contingencies. One of the main objectives of RD 1622/2011 is to adapt
the performance of mutual insurance companies, as holders of the equity
of the relevant mutual insurance company, to the amendment of article 32
of the Law on the prevention of occupational hazards,
implemented by Law 32/2010 of 5 August, which establishes a protection
system for self-employed workers whose business activities have ceased.
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3. Special labour
relationship. Domestic workers
Royal Decree 1620/2011 of 14 November,
regulating the special nature of the labour relationship of domestic
workers (Official Spanish Gazette of 17 November)
After the approval of Law 27/2011 of 1 August, which included the
special Social Security regime for domestic workers in the general
Social Security regime, new regulations are necessary for individuals
engaged in household employment. Royal Decree 1620/2011 (“RD
1620/2011”) has been implemented to dignify their working
conditions and to establish increased and improved rights.
The employment relationship between a homeowner and a worker who
provides remunerated services in the family home on a dependent basis
and who is paid by the homeowner, is classified as labour relationship
of a special nature.
The employment contract may be formalised either in writing or orally,
although it may have to be set out in writing according to certain legal
provisions and, in any event, if executed for a fixed-term of four
weeks or over. If not executed in writing, the employment contract is
presumed to have an indefinite term and be a full-time contract when its
duration exceeds four weeks, unless there is evidence to the contrary.
The employer will be considered to have notified the National Public
Employment Service within the required term by informing the General
Treasury of the Social Security about registration and deregistration
with the Social Security.
The minimum professional wage will apply to these contracts. This
minimum wage comprises the entire working day, and when benefits in kind
are provided, such as accommodation or maintenance, the percentage
agreed by the parties may be discounted for these items, provided that
payment in cash of, at least, the monthly minimum wage is guaranteed.
The aggregate amount of the different items cannot exceed 30% of the
total salary.
The working week must involve a maximum of 40 hours of actual work,
notwithstanding the hours that may be agreed between the parties during
which the employee’s presence is required. The amount of time that the
employee must be physically present must not exceed 20 hours per week on
average over a period of reference of one month and the remuneration
will be the same as for a normal working hour. The worker will be
entitled to weekly rest of thirty-six consecutive hours, which will
include, as a general rule, Saturday afternoons or Monday mornings and
Sundays. The worker will also be entitled to 30 calendar days of holiday
leave per year.
The contract can be terminated, among other causes, for disciplinary
reasons or for no reason by the employer unilaterally. In the latter
case, the employer must notify the domestic worker in writing 20 or 7
days in advance, depending on whether the term of the contract exceeds
one year. Moreover, the worker will be entitled to a compensation of 12
days of salary per year worked, with a maximum limit of six months. The
notice may be substituted for compensation equivalent to the wages that
would be due during the same period, which will be paid fully in cash.
RD 1620/2011 applies to contracts in force when the law became
effective on 18 November, except for the amount of compensation to be
paid upon the unilateral termination of the contract by the employer.
This compensation only applies to contracts executed after the entry
into force of RD 1620/2011.
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4. Social Security.
Collection procedure
Royal Decree 1621/2011 of 14 November
amending the general regulations on the social security collection
procedure, approved by Royal Decree 1415/2004 of 11 June (Official
Spanish Gazette of 17 November)
Royal Decree 1621/2011 (the “Royal Decree”) amends
the general regulations on the social security collection procedure and
makes other modifications to accommodate them to the current conditions
and new requirements arising from the Social Security’s collection
mechanism.
Notifications in connection with the collection procedure must be
made through the Social Security’s digital headquarters and will be
considered as having been communicated when access to its content in the
digital headquarters is made, provided that this takes place within 10
calendar days of receipt of the notification.
This also applies to individuals who have outstanding debts with the
Social Security but who are not obligated to voluntarily adhere to the
system of electronic transfer of data, and to mutual insurance
companies for occupational accidents and illnesses recognised
by the Social Security.
For individuals who choose not to be notified by electronic means,
notifications must be made to the address expressly indicated by the
interested party and, failing that, to the address registered with the
Social Security.
The Royal Decree introduces the novel measure of allowing financial
institutions to assist the Social Security with its obligations as
collaborators in the collection system.
Other important changes include the amendment of article 14 of Royal
Decree 1415/2004 on secondary liability with the purpose of bringing the
regulations on the opening of proceedings and on the issue of the debt
claim in line with current regulations on joint and several liabilities.
The procedure for the alienation of encumbered property is more
comprehensively regulated and allows direct awards. Articles 113 and
120.7 have been redrafted and two new articles have been introduced:
articles 113 bis and 123 bis.
Finally, the Royal Decree amends the general regulations on the
financial management of the Social Security, approved by Royal Decree
1391/1995 of 4 August and the general regulations on contributions and
other social security payments, approved by Royal Decree 2064/1995 of 22
December.
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5. Holiday periods.
Unilateral imposition without the approval of the employee
representatives
Judgment of the National Court dated 22
June 2011
The basis of the dispute was whether a company’s general requirement
that holidays be taken in August violates article 38.2 of the Statute of
Workers (the “SW”) in relation to article 26 of the
corresponding collective bargaining agreement.
The National Court stated that the standard way of establishing
holiday periods under article 38.2 of the SW is the agreement between
the employer and the worker, subject to the provisions on holiday
planning established in the corresponding collective bargaining
agreement, which must meet the workers’ needs for rest, as guaranteed by
Article 40.2 Spanish Constitution and the company’s production needs,
enshrined in Article 38 of the Spanish Constitution.
In this case, the National Court held that the company had been
unilaterally imposing the holiday calendar and therefore voided the
company’s holiday instructions and imposed mandatory negotiations in
accordance with the provisions of article 38.2 of the SW.
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6. Compensation
deposit. Appropriate court
Judgment of the National Court dated 30
June 2011
The National Court (the “NC”) analysed whether the
appropriate court to make the compensation deposit for unlawful
dismissal is that corresponding to the place where the services are
rendered or that of the respondent’s domicile.
The NC held that its seems more rational to consider valid the
deposit made before the labour court of the address of the company
rather than only the deposit made before the court which will hear the
claim for dismissal because the worker decided to file the claim with
the court of the workplace where he renders his/her services. Article
10.1 of the Labour Procedure Law establishes that dismissal claims can
be heard in two alternative jurisdictions, at the claimant’s discretion,
and that a deposit made in either one is valid under article 56.2 of the
Statute of Workers. The NC stated that any other ruling would limit the
validity of the deposit to the sole discretion of the claimant, because
it would be sufficient to initiate proceedings in the respondent’s
domicile in order to compromise the validity of payments made in the
place where services are rendered, or vice versa.
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7. Evidence.
Admissibility of audio and audiovisual recordings of conversations
between an employer and a third party
Judgment of the High Court of Justice of
Madrid dated 8 July 2011
The claimant alleged that the fundamental right to make use of the
means of evidence established by law had been violated as the lower
court judge did not admit the audiovisual recordings brought to court
and then declared that the facts of the case had not been duly proven.
At the trial, the claimant submitted evidence consisting of audio and
audiovisual recordings, which were not admitted by the judge on the
grounds that the recordings were obtained “without the consent of the
person being recorded”. The claimant argued that this was the only means
of evidence available to try to prove the higher base salary that he/she
was claiming in connection with his/her dismissal. The claimant
justified resorting to this evidence on the basis of the difficulty of
proving facts involving non-payroll payments made in cash, which cannot
be confirmed through accounting or banking information.
The High Court of Justice of Madrid (“HCJM”) stated that evidence
obtained illegally or in violation of fundamental and civil rights lacks
probative value, as provided for all types of judicial proceedings in
article 11.1 of the Basic Law on the judiciary.
The High Court of Justice of Madrid sought to clarify whether both
recordings(audio and audiovisual) presented by the employee in trial
violated a fundamental right of the employer, going beyond the mere
assertion that a violation took place because there was no consent to
the recordings. Therefore, the question is whether the recordings
violate the right to the secrecy of communications enshrined in article
18.3 of the Spanish Constitution or the right to honour, privacy and the
right of image under article 18.1.
Following the doctrine of the Constitutional Court, the High Court of
Justice of Madrid held that the recording of the words of the employer
on the employee’s work performance and his/her decision to dismiss the
employee were admissible because they did not violate the secrecy of
communications or the employer’s right to honour and personal privacy.
The HCJM also considered that the requirements of proportionality and
necessity laid down by the Constitutional Court had been satisfied. The
proportionality principle was satisfied given that it is very difficult
to prove the employer’s actions by conventional means of evidence. The
necessity principle was also satisfied given its essential nature to
establish what actually happened.
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1.
Youth training schemes