The objectives of Royal Decree 1529/2012 of 8 November are the
regulation of training and apprenticeship contracts and the
establishment of the bases of the dual training system.
Law 10/2012 of 20 November regulates the fees payable for filing
court proceedings and for the services of the National Toxicology and
Forensic Sciences Institute. It seeks to rationalise litigation by
establishing court fees for civil, contentious-administrative and labour
actions.
The National Court rejected the claim and considered a collective
dismissal totally justified on the basis that it failed to find the
procedural defects raised by the claimant and deemed that there were
sufficient economic and productive reasons for the dismissal.
An employee was entitled to decide whether to remain in his workplace,
or to leave it after filing a claim to terminate his employment
relationship with his employer for unpaid wages. By filing a claim to
terminate his employment relationship he was not compelled to remain in
the workplace until a judgment was issued. The employee could leave his
post while he awaited the outcome of the legal proceedings.
When temporary disability and holidays take place at the same time,
employees may postpone their holidays to a later date, regardless of the
date on which the temporary disability began.
A company’s failure to prove that a substantial modification of
working conditions meets any of the requirements under article 41 of the
Statute of Workers meant that the modification was unjustified.
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1. TRAINING AND APPRENTICESHIP CONTRACT REGULATION
AND THE ESTABLISHMENT OF THE BASES OF A DUAL TRAINING SYSTEM
Royal Decree 1529/2012 of 8 November on training and
apprenticeship contracts and the bases of a dual training system
Royal Decree 1529/2012 of 8 November regulates training and
apprenticeship contracts and establishes the bases of a dual training
system (“RD 1529/2012”).
RD 1529/2012 was created to develop Law 3/2012, which removed some
restrictions on training and apprenticeship contracts in order to
incentivise youth employment.
The purpose of RD 1529/2012 is twofold. Firstly, it regulates
training and apprenticeship contracts, established in article 11.2 of
the Statute of Workers (“SW”).
Secondly, it establishes the bases for the dual training system, which
includes training and employment initiatives to afford employees the
possibility of obtaining a professional qualification by alternating
between work activities in a company and training activities.
Those who enter into training and apprenticeship contracts must be
between 16 and 25 years of age and must not have the professional
qualification required to enter into an internship contract for that job.
The maximum legal age limit will not apply if the employee is disabled
or a person in a socially-excluded group. The contract will have a
minimum duration of one year and may not last more than three years. The
contract may not be part-time. In the first year, the effective working
time may not be more than 75% of the maximum working day established in
the applicable collective bargaining agreement or by law. In the second
year it may not exceed 85% of that amount. Excluding the situations
indicated in article 35.3 of the SW, employees may not work overtime.
The training activity under the contract must be, at least, that
required to obtain a professional training certificate or a professional
or academic certificate. The training provided must also be related to
the professional activity and may be carried out using face-to-face or
distance training formats, or a combination of the two. The educational
side can be carried out through face-to-face or distance learning
formats. Companies may fund the training costs through the reduction of
employer social security contributions. The employees’ remuneration will
be regulated by the corresponding collective bargaining agreement and
may not be less than the minimum legal wage in relation to effective
work time.
The second purpose of RD 1529/2012 is the establishment of the bases
to develop dual professional training systems involving collaborations
between companies and educational institutions. Dual professional
training has multiple objectives, including the following: increasing
the number of people with non-compulsory studies, increasing
employability by increasing contact with companies, and vitalising the
relationship between companies and educational institutions.
The specific dual training programme will be executed through an
agreement between the company and the educational institution. The
agreement will establish the activities to be carried out at both the
educational institution and the company, their length and evaluation
criteria. Therefore, the student will not enter into an employment
contract; however, pursuant to the learning plan, students may receive
grants. The dual training programme may last three years, during which
at least 33% of the programme time will involve the company’s
collaboration.
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2. LABOUR COURT FEES
Law 10/2012 of 20 November, which regulates court fees and fees
charged by the National Toxicology and Forensic Sciences Institute
Law 10/2012 of 20 November, which regulates court fees and fees
charged by the National Toxicology and Forensic Institute (“Law
10/2012”), establishes the fees that must be paid to
file actions in the civil, contentious-administrative and labour courts.
The party who files the legal action must pay the fee. In the labour
courts, fees must be paid to lodge appeals in the high courts and the
Supreme Court. Fees are payable when the appeal is lodged and their
amount is calculated as follows:
- EUR 500 for appeals
filed in high courts.
- EUR 750 for appeals
filed in the Supreme Court.
- Up to under EUR
1,000,000: 0.5%.
- EUR 1,000,000 or
more: 0.25%.
- Maximum variable
amount: EUR 10,000.
If no amount is claimed, the variable fee will be calculated on the
basis of EUR 18,000.
Individuals who are entitled to legal aid are exempt from paying
these fees, and workers (employees and self-employed) are entitled to a
60% exemption for labour court fees. A discount of 10% will apply to all
claims that are filed online.
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3. ECONOMIC AND PRODUCTIVE REASONS IN COLLECTIVE
DISMISSALS
Judgment of the National Court dated 21 November 2012
The National Court (“NC”)
heard a claim by employees challenging a collective dismissal.
Firstly, the claimants argued that the negotiating committee was only
composed of employee´ representatives from the company’s Barcelona and
Madrid workplaces although the collective dismissal also affected
employees from the Sevilla and Valencia workplaces. In the opinion of
the NC, employee representatives of one workplace are entitled to
represent employees of other workplaces that have no employee
representatives. Moreover, the members of the negotiating committee
considered the collective dismissal as a global dismissal as from the
start of the negotiations.
Secondly, at the start of the negotiations, the employee
representatives were affected by collective dismissal and the claimants
considered this to be a coercive measure. The NC considered that the
company did not initially fulfil the employee representatives’ priority
right to employment. However, after the first meeting, the company
excluded employee´ representatives from the effects of collective
dismissal. Therefore, the NC rejected the claimants’ petition.
Thirdly, the claimants considered that the fact that the company had
chosen the employees to be dismissed revealed that it had no intention
of negotiating. However, the NC argued that setting out the criteria for
the dismissal and choosing the employees to be dismissed is insufficient
to presume the absence of intent to negotiate. Moreover, the company
proved its will to negotiate by proposing multiple severance payments
during the meetings.
Before assessing the subsidiary request, the NC carried out the
necessary functionality test of the objective dismissal, which requires
that there be a connection between the economic downturn or the changes
in demand for products and the employment relationship to be terminated
in accordance with article 4 of the International Labour Organisation
Convention no.158. The NC stated that the applicable law on collective
redundancies no longer requires that the measure contributes towards
future objectives, which was very difficult to determine for labour
courts. The current legislation establishes the obligation for the
company to prove the concurrence of the reason for the dismissal and the
superfluous nature of the employment contract from an economic
perspective. This test is necessary to enable the court to decide
whether the objective dismissal is legitimate.
The NC considered that the company’s business had decreased
dramatically. From 1 January 2009 to 31 March 2012, the company’s
balance experienced losses of EUR 18,817,475 thus proving the negative
economic situation, which is considered a sufficient economic reason for
collective dismissal. Moreover, the decrease in VAT invoicing entails a
productive reason, as the company’s inability to sell its products or
services in the market is evidenced. Consequently, the closure of 14 of
its 17 workplaces and the termination of 31 of its 80 employment
contracts is a reasonable and proportional measure in view of the
seriousness of the economic and productive situation faced by the
company. In light of this, the NC held that the collective dismissal was
totally justified.
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4. EMPLOYEE NOT COMPELLED TO REMAIN IN THE WORKPLACE
AFTER FILING CLAIM TO TERMINATE EMPLOYMENT CONTRACT
Judgment of the Labour Chamber of the Supreme Court dated 20
July 2012
The Supreme Court (“SC”)
rejected the appeal filed by the company against the judgment of the
High Court of Justice of Extremadura which had upheld the first instance
judgment.
The employee filed a claim to terminate his employment relationship
alleging that the company had failed to make certain salary payments. He
left his post before the labour court had issued a decision. In the
company’s opinion, the termination only becomes effective with the court
judgment and thus the employment relationship subsists until a final
judgment is issued. Consequently, the company claimed that the employee’s
behaviour should be construed as a voluntary resignation.
The SC held that the employee could not be compelled to work under
employment conditions that may cause financial damage or the loss of
professional opportunities. The employee could decide whether to
continue working or to leave his post after filing the claim to
terminate his employment relationship, thus accepting the outcome of the
proceedings.
The SC accepted the appeal and ruled that the employee’s departure
from the company after filing a claim to terminate the employment
relationship did not cancel the effects of the claim.
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5. EMPLOYEES MAY TAKE HOLIDAYS AT A LATER DATE WHEN
TEMPORARY DISABILITY AND HOLIDAYS COINCIDE
Judgment of the Labour Chamber of the Supreme Court dated 3
October 2012
This case involved a collective labour dispute in which the claimants
sought to enforce the employees’ right to take holidays at a later date
if they go on temporary disability leave during their holidays. The
dispute arose from the interpretation of article 37 of the collective
bargaining agreement for department stores.
From the defendant’s point of view, if an employee is on temporary
disability leave during to his/her holidays, he/she loses his/her right
to these holidays. However, the National Court (“NC”)
declared that employees are entitled to postpone their holiday period if
it coincides with their temporary disability leave that started during
the holiday period.
The defendant appealed the NC’s decision. The Supreme Court (“SC”)
referred to the judgment of the Court of Justice of the European Union
of 21 June 2012, which stated that legal systems that deny the right of
employees to postpone their holiday period if it coincides with a
temporary disability that starts during the holiday period are in breach
of Article 7 of European Directive 2003/08.
The SC held that as the temporary disability leave started during a
holiday period, the employee was entitled to postpone his/her holidays.
The SC stated that this applies whenever temporary disability leave and
holidays coincide, regardless of when the temporary disability started.
However, if there is evidence of fraud, the temporary disability leave
that started before the holiday period could be treated differently.
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6. SUBSTANTIAL MODIFICATION OF WORKING CONDITIONS
NOT JUSTIFIED IF IT DOES NOT IMPROVE A COMPANY’S COMPETITIVENESS
Judgment of the High Court of Madrid dated 13 November 2012
In this judgment, the Labour Chamber of the High Court of Madrid (“HC”)
analysed a collective labour dispute concerning a company’s substantial
modification of working conditions.
After the negotiation period, the company informed its employees of
its decision to redistribute the working hours from Monday to Sunday and
to modify the shift pattern. In the company’s opinion, this modification
of working conditions was justified by Law 2/2012 of 12 June on
encouraging commercial activity in the Community of Madrid (“Law
2/2012”) and by its results which revealed an economic
downturn.
The claimant employees argued that the substantial modification of
working conditions should be declared null or unjustified. They claimed
it was null because they had been represented by the joint works council
during the negotiations. From their point of view, only the relevant
trade union branch and union delegates were entitled to negotiate on
their behalf. The HC rejected this claim, finding that the joint works
council was a valid representative body for the negotiation process if
it affects employees from various workplaces.
However, the HC upheld the subsidiary petition that the modification
be declared unjustified. It found that neither the general economic
crisis nor Law 2/2012 were valid grounds to justify the substantial
modification of working conditions adopted by the company. Therefore,
the substantial modification of working conditions did not meet any of
the requirements under article 41 of the Statute of Workers.
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1. TRAINING AND APPRENTICESHIP CONTRACT REGULATION AND THE
ESTABLISHMENT OF THE BASES OF A DUAL TRAINING SYSTEM