Royal Decree-Law 3/2013 of 22 February amends the fees payable for
filing court proceedings and the rules on access to the legal aid system.
The Royal Decree aims to:
lower very high fees in specific cases; and
(ii) adapt Law 1/1996 on legal aid to Law
10/2012 of 20 November, which, amongst other measures, regulates certain
fees payable for filing court proceedings.
Royal Decree-Law 4/2013 of 22 February on measures to support
entrepreneurs, stimulate growth and create employment, aims to continue
with the package of structural measures implemented by the Spanish
government. Its focus is to enhance flexibility in the labour market so
that salaries and other remuneration can be adjusted to make the Spanish
economy more competitive. Several measures have been implemented to
achieve this objective.
The Supreme Court has held that the application of the mechanism to
offset and absorb a personal salary supplement as a means of offsetting
increases of other salary items was unlawful, especially when the
supplement is payable under the applicable collective bargaining
The Supreme Court has held that an employee may simultaneously
receive compensation for an unfair dismissal and permanent disability
benefit. It also held that the company could not readmit the employee
rather than pay the compensation.
The Supreme Court addressed two issues in this case:
(i) whether the
requirement in a collective bargaining agreement stating that employees
must have worked for a period of time without interruption to be
entitled to a length of service salary supplement and bonus constitutes
discrimination between temporary and permanent employees, which is
forbidden by article 15.6 of the Statute of Workers; and
(ii) whether the judgment
under appeal breached the right to collective bargaining by stating that
the collective bargaining provisions were unlawful.
The failure of a company to personally notify a temporary employee of
the elimination of his post altogether is an unfair dismissal.
The Supreme Court held that the time between an employee signing in
and actually starting work is working time, provided that the employee
needs that time to correctly perform his or her tasks. As a result, a
heart attack suffered by an employee during that time period must be
considered a work accident.
1. Royal decree-law 3/2013 amending the rules on
fees for filing court proceedings and ACCESSING legal aid
Royal Decree-Law 3/2013 of 22 February amending the rules on
fees for filing court proceedings and accessing legal aid
Following the entry into force of Law 10/2012, and even though fees
should not hinder any right, the implementation of its provisions has
highlighted certain situations in which fees are too high.
Law 10/2012 has been amended to remedy the problem of excess fees.
These amendments are introduced by Royal Decree-Law 3/2013, which, at
the same time, keeps the fees payable for filing court proceedings in
line with some of the measures included in the Draft Legal Aid Bill.
Given that Law 10/2012 and the Draft Legal Aid Bill require different
parliamentary procedures, it became necessary to enact a legal provision
to prevent potential difficulties and contradictions when applying these
Royal Decree-Law 3/2013 amends Law 10/2012 in order to reduce fees in
certain cases and even do away with them in others, depending on the
nature of the proceedings.
The following measures must be highlighted:
- Only one fee will need to be paid when various actions are filed
in one claim under various legal rights.
- Several important amendments have been introduced in the
contentious-administrative jurisdiction, such as:
(i) fees will only be
payable for lodging contentious-administrative appeals, not the
civil servants acting in defence of their statutory rights will be
entitled to a 60% discount in their appeal fees; and
(iii) when contentious-administrative
appeals are lodged to challenge punitive resolutions, such fees cannot
exceed 50% of the sanction imposed.
- A specific scale is introduced for natural persons, which will be
lower than the rate applicable to legal persons.
- If the receipt of payment of a fee is not filed at each stage of
the proceedings, a ten-day term will be granted to remedy the omission.
The amendments made to Law 1/1996 on legal aid focus on:
(i) widening the range of
parties entitled to legal aid; and
replacing the national minimum wage with the national indicator of
earnings (IPREM) to establish the economic requirements to have access
to legal aid.
Lastly, the first additional provision of Royal Decree-Law 3/2013
regularises the situation created as a consequence of cancelling the
extraordinary pay of senior executives and public sector workers as
foreseen in Law 20/2012 of 13 July on measures to guarantee budgetary
stability and encourage competitiveness. The additional provision states
that their social security contributions for April 2013 will be reduced
by the same amount that was contributed in December 2012 for the
cancelled extraordinary pay.
2. Measures to support entrepreneurs, stimulate
growth and create Employment
Royal Decree-Law 4/2013 of 22 February on measures to support
entrepreneurs, stimulate growth and create employment
Measures have been implemented in Spain to deal with the economic and
financial imbalance of recent years. Since early 2012, there have been
several structural reforms designed to:
1.Regain macroeconomic stability.
2. Create solid and solvent financial institutions.
3. Enhance flexibility in the labour market so that salaries and
other remuneration can be adjusted to maximise competitiveness.
In order to reinforce the third of these objectives, Royal Decree-Law
4/2013 sets out several measures that develop the Entrepreneurship and
Employment of Young People Strategy.
This Strategy seeks to reduce unemployment among young people, either
by getting them into the labour market or encouraging them to become
self-employed. Its objectives include improving the employability of
young people, increasing the quality and stability of jobs, and
promoting entrepreneurship among young people, focusing on ensuring that
they have adequate basic education and training.
The first measure fosters entrepreneurship and self-employment among
workers under 30, and to this end amends the General Social Security Law
and Law 45/2002 of 12 December on urgent measures to reform the
unemployment protection system and improve employability as follows:
- Additional Provision 35 of the General Social Security Law allows
self-employed workers under 30 who are registered in the Special
Regime for Self-Employed Workers (“RETA”)
for the first time, or who have not been registered in the RETA during
the previous five years, to apply allowances and reductions to their
social security contributions for common contingencies (except for
temporary disability). These reductions range from 30% to 80% and the
shortfall will be made up from the budgets of the State Employment
Service and the General Treasury of the Social Security.
- Additional Provision 11 of Law 45/2002 similarly allows self-employed
workers under 35 with a degree of disability of 33% or more and who
are registered in the RETA for first time or have not been registered
in the RETA during the previous five years, to apply a reduction in
their social security contributions for common contingencies. This
reduction will be of 80% for the 12 months after their inclusion in
the RETA and a reduction of 50% for the subsequent four years. Again,
the shortfall will be made up from the budgets of the State Employment
Service and the General Treasury of the Social Security.
- Article 228.6 of the General Social Security Law establishes that
unemployed workers receiving unemployment benefits may continue to do
so while working if they start their own business as self-employed
workers. This will be possible for 270 days for workers under 30 who
have no employees working for them.
- Temporary Provision 4 of Law 45/2002 extends the possibility of
taking unemployment benefits as a lump sum payment to groups such as
claimants who wish to start their own business as self-employed
workers and do not suffer from a degree of disability of 33% or more,
as well as claimants under 30 who use the benefits to invest in the
share capital of a company.
The second measure, which is of a labour nature, aims to foster the
integration of young people in “social enterprises” (empresas de la
economía social) and incentivise the hiring of young unemployed
workers. These measures will be in force until unemployment levels in
Spain fall below 15% and include:
- Incentives to encourage part-time work including training.
Companies and self-employed workers that enter into training
employment contracts with unemployed workers under 30, subject to
certain requirements, may apply a reduction of between 75% and 100% in
the worker’s social security contributions for common contingencies.
In order to benefit from this measure, companies must not have
dismissed any employee unfairly during the six months prior to the
hiring, and must maintain existing levels of employment during a
period of time equivalent to the term of the employment contract
- Employment of young workers by self-employed workers and
microenterprises for an indefinite period of time. Companies and self-employed
workers with nine or less employees that hire an unemployed worker
under 30 under a permanent employment contract, whether on a full or
part time basis, may apply a reduction of 100% in the social security
contributions they must make for common contingencies during the first
12 months. To benefit from this measure, the worker cannot have
previously worked for the company and the company must not have
dismissed any worker unfairly during the six months prior to hiring
the new worker.
- Incentives to encourage employment in projects for young
entrepreneurs. Self-employed workers under 30 who have no employees
and who hire an unemployed worker over 45 for the first time after the
entry into force of this Law will be entitled to apply a reduction of
100% in the company’s social security contributions for common
contingencies. The new worker must be employed for at least 18 months
Finally, measures to improve recruitment are also foreseen to make
access to job vacancies easier. To this end, the Public Employment
Service will have to register every job offer and application, and
ensure that all interested parties are informed of them.
3. THE MECHANISM TO OFFSET OR ABSORB SALARY
SUPPLEMENTS DOES NOT APPLY WHEN THEY HAVE BEEN AGREED INDIVIDUALLY AND
ARE PROTECTED BY THE APPLICABLE COLLECTIVE BARGAINING AGREEMENT BECAUSE
THEY ENTAIL A MORE BENEFICIAL CONDITION
Judgment of the Labour Chamber of the Supreme Court dated 19
The Supreme Court (“SC”)
analysed the use of the mechanism to offset and absorb salary increases
as a means for companies to neutralise increases of other salary items
imposed by the applicable collective bargaining agreement.
In this case, apart from the salary items established under the
collective bargaining agreement, the claimants received a “personal
salary supplement” pursuant to individual agreements with their employer.
This supplement, which by law is considered a more beneficial condition,
was being systematically reduced by the company as the employees earned
other salary supplements, such as increases for length of service or
promotion. It was thus necessary to decide whether such reduction
through the mechanism to offset and absorb salary items was lawful.
The SC held that the purpose of the mechanism to offset and absorb
salary items is to prevent an overlap of salary increases under various
regulations, and thus the mechanism can only be applied to similar
Therefore, the SC concluded that the company had unlawfully used the
mechanism to offset and absorb salary items because the personal salary
supplement was not sufficiently similar to the length of service and
4. AN EMPLOYEE WHO IS FOUND TO HAVE A PERMANENT
DISABILITY AFTER BEING DISMISSED IS ENTITLED TO RECEIVE COMPENSATION FOR
BOTH CONCEPTS AND CANNOT BE READMITTED BY THE COMPANY
Judgment of the Labour Chamber of the Supreme Court dated 20
An employee challenged the legality of his dismissal and in an appeal
judgment issued on 13 November 2007 the dismissal was held unfair. On 14
November the employee began to receive permanent disability benefit.
This judgment was upheld on appeal in cassation and the case was
remitted to the first instance court for enforcement of the judgment.
The first instance judge required the company to deposit the total
compensation due. The company lodged an appeal against this requirement,
later arguing that it had opted to readmit the employee instead of
making the severance payment; both appeals were rejected.
The company lodged an appeal in cassation against the ruling
rejecting the previous appeal, arguing that:
(i) the employee was not entitled to
compensation for unfair dismissal as he had been declared permanently
disabled; and (ii)
compensation for the termination of a contract is only due when the
termination is attributable to the employer; this was not the case at
With regard to the compatibility of the two payments, the Supreme
Court (“SC”) held that as
they do not relate to the same damage, there is no legal obstacle to the
simultaneous receipt of both of them.
In relation to the possibility of the company readmitting the
employee, the SC held that, while the judgments were not contradictory,
meaning that the appeal in cassation could not succeed, readmission was
impossible as the employee was no longer able to work for the company in
the same conditions as he had previously.
5. COLLECTIVE BARGAINING AGREEMENT PROVISION
REQUIRING THE UNINTERRUPTED PROVISION OF SERVICES FOR EMPLOYEES TO
ACCRUE SALARY SUPPLEMENTS DOES NOT CONSTITUTE DISCRIMINATION BETWEEN
TEMPORARY AND PERMANENT EMPLOYEES
Judgment of the Labour Chamber of the Supreme Court dated 25
The judgment of the Supreme Court (“SC”)
refers to a company practice, established in the applicable collective
bargaining agreement, which consisted in only taking into account
uninterrupted periods of work for the company to calculate a length of
service supplement and bonus. Some employees claimed their right to have
their length of service calculated from the moment they started working
for the company, regardless of whether there were any interruptions.
The company filed a collective dispute claim before the labour courts
requesting: (i) that its
practice of only taking into account uninterrupted periods of work be
declared lawful; and
that the appealed judgment be declared in breach of the right to
collective bargaining. The claim was rejected by the court of first
instance and the court of appeal confirmed the former’s judgment. The
company then filed a cassation appeal against the court of appeal’s
Article 15.6 of the Statute of Workers prohibits any unjustified
discriminatory treatment between permanent and temporary employees. The
company claimed that the appealed judgment had violated this article
because no discrimination had taken place.
The SC held that although discriminatory treatment between temporary
and permanent employees is prohibited, due to the different nature of
their employment contracts, one cannot assume that temporary and
permanent employees should have equal rights because the different
contracting regulations prevent it.
The SC held that there was no discriminatory treatment, since the
period of uninterrupted work was required of both permanent and
temporary employees. In other words, if the employment relationship is
interrupted, temporary and permanent employees are treated equally.
The second issue under discussion concerned the alleged breach of the
right to collective bargaining in the judgment under appeal. The SC
stated that this issue cannot be decided through a collective dispute
claim. The SC held that the employees’ interests regarding company
practice were not in any way general. The “general interest” requirement
was not fulfilled and therefore a collective dispute claim was not the
appropriate procedure to be followed to settle this matter.
6. NOTIFICATION TO AN EMPLOYEE WITH AN INTERIM
EMPLOYMENT CONTRACT OF THE ELIMINATION OF THE UNDERLYING POST
Judgment of the Labour Chamber of the Supreme Court dated 27
The Supreme Court (“SC”) analysed
whether an interim employment contract is terminated automatically upon
the elimination of the post it covers or if, on the contrary, each of
the temporary employees must be individually notified for their interim
employment contracts to be terminated.
The SC analysed article 49.1.c) of the Statute of Workers and its
secondary legislation, which require one party to give prior notice of
the termination of fixed-term contracts. Article 49 does not require
that the notice be given in writing; any means may be used.
On the grounds that the company failed to individually notify the
temporary employee that the post he occupied was to be eliminated, the
SC held the dismissal to be unfair.
7. A HEART ATTACK SUFFERED BY AN EMPLOYEE IN HIS
WORKPLACE, BEFORE COMMENCING WORK AND AFTER SIGNING IN, IS A WORK
ACCIDENT IF THE TIME BETWEEN SIGNING IN AND ACTUALLY COMMENCING WORK IS
ESSENTIAL FOR THE EMPLOYEE TO BE ABLE TO WORK PROPERLY
Judgment of the Labour Chamber of the Supreme Court dated 4
The issue addressed by the Supreme Court (“SC”)
was whether or not the time before an employee actually starts working
each day should be considered as working time. It analysed its doctrine
on what should be considered as working time and applied it to the
specific circumstances of this case.
In the past the SC had held that accidents suffered in the workplace
prior to the start of the working day were not a work accident. However,
that doctrine was based on situations in which the worker who had the
accident had not signed in at the workplace before the accident took
place. As a consequence, it was held that this doctrine could be
modified according to the specific circumstances of any given case.
Taking into consideration this doctrine, the SC found that there were
three essential circumstances in this case that meant that the heart
attack should be deemed a work accident: (i) the heart attack took place
after the employee had signed in at the workplace; (ii) the employee was
in the locker room collecting the personal protective equipment he
needed to perform his tasks properly; and (iii) the employee received a
bonus for punctuality, so he had to equip himself with the appropriate
equipment before commencing work.
Consequently, the employee had to spend time equipping himself with
the appropriate personal protective equipment and, for that reason, this
period had to be considered as working time. As he had the heart attack
during working time and in the workplace, it must be considered a work