1. ROYAL LAW-DECREE 11/2013 OF 2 AUGUST ON THE PROTECTION OF PART
TIME EMPLOYEES AND OTHER URGENT MEASURES IN THE ECONOMIC AND SOCIAL
ORDER
Newsletter Number 94-July 2013
2. SOCIAL SECURITY OBLIGATIONS FOR WORK EXPERIENCE PLACEMENTS OF
UNIVERSITY STUDENTS
Resolution of the General Treasury of the Social Security of 19
August 2013 extending the terms periods to register, deregister and
settle social security contributions for university students on academic
work experience placements in line with the requirements of Royal Decree
1493/2011 of 24 October as a consequence of the decision of the Supreme
Court (“SC”)of 21 May 2013 declaring Royal
Decree 1707/2011 of 18 November void
In its decision, the SC did not deal with the merits of the lawsuit
filed by the claimants, who requested that the exclusion of
contributions for work experience placements be declared unlawful. Due
to a material defect in Royal Decree 1707/2011 of 18 November on
academic work experience placements of university students (“Royal
Decree 1707/2011”), the SC declared the regulation void with
retroactive effects to the moment the procedural defect occurred.
The defect was the failure to refer the First Additional Provision of
Royal Decree 1707/2011, which excluded contributions for academic work
experience placements of university students, to the State Council for
its opinion. After the SC decision, the State Council has yet to issue
an opinion on the contribution exclusion established in the regulation,
which is required in order to consider the development phase in
parliament as concluded.
Therefore, social security contributions must be paid for work
experience placements pursuant to Royal Decree 1493/2011 of 24 October
in the same terms and conditions as those who participate in training
programmes under the general contribution scheme of the Social Security.
When these activities entail any economic remuneration for students,
they must be registered under the general contribution scheme and the
corresponding contributions established therein must be settled when
they start their work placement.
As a result of this drastic change, the National General Treasury of
the Social Security issued a resolution on 19 August 2013 to limit the
temporary effects of the SC’s ruling. Therefore, in application of the
principle of legal certainty, the resolution establishes that
contributions must be paid for work experience placements in force on or
after 28 June 2013, the date on which the SC’s ruling was published.
The resolution of 19 August also extends the term to register and
settle contributions for university students already on work placements
on 28 June 2013. The registration has been extended until 30 September
2013 and contributions for the months of July and August 2013 can be
made until 30 October 2013.
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3. DOCUMENTATION OF COMPANY GROUPS IN COLLECTIVE DISMISSALS
Judgment of the Labour Chamber of the Supreme Court dated 27 May
2013
In an ordinary cassation appeal before the Supreme Court (“SC”)
a request was submitted for a collective dismissal to be declared void
or unfair. The collective measure was communicated to the employees’
representatives on 12 March 2012, following the publication of Royal
Decree-Law 3/2012 of 10 February on urgent measures to reform the
employment market.
The employees’ representatives alleged the existence of the following
defects in the collective dismissal procedure: (i) the absence of a list
of affected employees and the order of precedence in the collective
dismissal report; (ii) the absence of good faith in the collective
dismissal negotiations; and (iii) the failure to provide accounting
information for the whole company group.
Before addressing the underlying issue in the case, the SC clarified
which formal requirements were applicable when filing the collective
dismissal. The SC cited its finding of 20 March 2013, whereby Royal
Decree 801/2011 of 10 July regulating collective dismissal proceedings
and administrative proceedings in collective transfers (“Royal
Decree 801/2011”) remained partially applicable to any matters
not contrary to revised article 51 of the Statute of Workers (“SW”).
The SC rejected claim (i) on the basis of the procedural defect of
petitio principii (petición de principio): the claim
introduced false premises which differed from those of the decision
appealed.
With regard to the alleged absence of good faith during the
negotiation period, the SC stated that article 51.2 of the SW merely
referred to the obligation to negotiate, but not to reach an agreement.
In the case at hand, the SC determined that the company’s intention to
negotiate was evidenced given that offers and counteroffers had been
made.
Finally, the SC analysed the absence of financial documents for the
whole company group in light of article 6.4 of Royal Decree 801/2011. In
particular, the SC focused on the characteristic features of groups of
companies to decide on the question of the documents necessary to prove
the economic causes alleged.
The SC held that the characteristic features of company labour groups
are the same as those of other legal structures (legal independence of
their members and a single economic management), with the additional
element of joint liability.
By way of example, the SC referred to additional elements leading to
joint liability: (i) single functioning of the workforce of the
companies in the group; (ii) performing the same work; (iii) a single
group account; (iv) fraudulent use of legal personality; and (iv) abuse
of single management.
On that basis, the SC found that none of the additional elements was
present in the case at hand, and therefore rejected the joint liability
of the companies of the group.
The SC held that article 6 of Royal Decree 801/2011, regulating the
documentation necessary to justify an adopted measure, had been
correctly fulfilled. The SC held that, in the case at hand, there was no
obligation to provide consolidated accounts as there was no dominant
company and that the obligation to provide the accounts of other
companies of the group did not apply as no other company of the group in
Spain performed the same activity as that of the company that carried
out the collective dismissal.
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4. OBJECTIVE DISMISSAL AT THE END OF A CONTRACT DEEMED FAIR
Judgment of the Supreme Court dated 26 April 2013
The Supreme Court (“SC”) analysed the fairness of
the termination of the employment contract of a concierge who had been
rendering services on a full-time basis with the working hours shared
between two different part-time contracts. At the end of one of the two
contracts, the employer offered him the possibility of rendering
services on a part-time basis under the other which remained in force,
but the employee refused the offer.
The SC held that the loss or reduction in demand for services
following the end of a contractual term is a valid ground related to
productivity upon which to justify a termination, provided that the
situation does not also involve additional aspects such as the
concurrence of vacancies or new job posts.
In the case at hand, the SC held that the productive grounds for
dismissal were applicable, even when only one of the contracts under
which the employee rendered services had ended, since the company could
not force the employee to accept the conversion of his full-time
employment contract into a part-time one and there were no vacancies for
the other half of his working hours.
5. RESPONSIBILITY FOR THE PAYMENT OF A PARTIAL RETIREMENT BENEFIT
FOR FAILURE TO SUBSTITUTE A DISMISSED REPLACEMENT WORKER
Judgment of the Supreme Court dated 22 April 2013
The Supreme Court (the “SC”) upheld a ruling of the
High Court of Justice of Valencia (“HCJV”) holding that
a company was liable for the payment of a partial retirement benefit,
given that the replacement worker was also dismissed and had not been
replaced.
By upholding the ruling, the SC determined that the simultaneous
dismissal of the partially-retired employee and the replacement worker
did not justify a failure to comply with the obligation of maintaining
the job post of the replacement employee until the partially-retired
employee stopped receiving the corresponding benefit, as established in
the second additional disposition of Royal Decree 1131/2002 of 31
October regulating the social security of part time employees and
partially-retired employees.
The SC explained that this did not represent a sanction for the
employer, but rather a mere managerial process carried out in connection
with the claim for an amount owed due to the fact that the partially-retired
employee did not satisfy all the necessary conditions to continue
receiving the partial retirement benefit. On that basis, the SC held
that the company had to pay the partial retirement benefit from the
moment of the replacement employee’s dismissal until the benefits of the
partially-retired employee came to an end.
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6. IRREGULAR DISTRIBUTION OF WORKING HOURS MUST RELATE TO A TWELVE-MONTH
PERIOD
Judgment of the National Court dated 24 May 2013
In this case the National Court (“NC”) ruled on a
collective dispute claim filed by one of the unions that was a signatory
to the National Meat Industry Collective Bargaining Agreement (“CBA”).
Before considering the merits of the claim, the NC held that the union
had standing to file the claim and to be a party to the proceedings,
despite having signed the CBA.
The collective dispute concerned the regulation of the irregular
distribution of working hours in schedule 2 of the CBA. It establishes
that if on 31 December of any given year a worker has worked more or
less than the maximum number of working hours, the difference could be
offset during the first three months of the next year.
The NC held that schedule 2 of the CBA breaches the legal rules that
govern working hours given that the irregular distribution of working
days can only be regulated on an annual basis, as is clearly stated in
article 34 of the SW and can be inferred from the fact that ordinary
working days are always determined annually.
7. SMOKING IN A COMPANY’S LOCKER ROOM WARRANTS A FAIR DISCIPLINARY
DISMISSAL
Judgment of the High Court of Justice of Murcia dated 1 July 2013
In the case at hand, the court of first instance found that the
employee had been smoking in the company’s locker room, which had
numerous posters and notices on the walls indicating that smoking was
forbidden by law.
The dismissal was declared unfair by the court of first instance even
though the facts described in the dismissal letter were declared to have
been proved and the company had been applying the Collective Bargaining
Agreement for the Canned Vegetable Processing Industry (“CBA”).
Article 59.2 of the CBA states that smoking in prohibited areas is a
very serious infringement for hygiene and safety reasons.
The High Court of Justice of Murcia (“HC”)
considered that the dismissal was fair since the employee’s conduct fell
under the wording of article 52.9 of the CBA. Furthermore, the court
considered that the employee’s conduct was unhygienic since it breached
environmental cleanliness standards, contaminated the air, and was a
security risk given that inflammable garments were kept in the locker
rooms.
The other determining factor in the HC’s decision was that the
workplace had numerous posters and notices on its walls indicating that
smoking was prohibited in the workplace and that compliance with Law
28/2005 of 26 December on health measures against smoking and the
regulations on the sale, supply, consumption and advertisement of
smoking products was mandatory.
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1.
ROYAL LAW-DECREE 11/2013 OF 2 AUGUST ON THE PROTECTION OF PART TIME
EMPLOYEES AND OTHER URGENT MEASURES IN THE ECONOMIC AND SOCIAL ORDER