1. REFORM OF PROFESSIONAL TRAINING IN THE WORKPLACE
Royal decree law 4/2015 of 22 march on the urgent reform of professional training in the workplace
The main aim of Royal Decree-law 4/2015 (“RDL 4/2015”) is to guarantee a lifelong right to training and development for high quality employment.
The reform is the result of negotiations between social partners and the proposals they published on 29 July 2014 to consolidate economic growth and employment (Acuerdo de propuestas para la negociación tripartita para fortalecer el crecimiento económico y el empleo). The resulting agreement, which was signed by the social partners and the President of the Spanish Government, establishes a commitment to carry out several measures to transform professional training.
Against the back-drop of the current socio-economic situation, which provides an opportunity for change, RDL 4/2015 aims to achieve four strategic goals (article 2): (i) to guarantee the right of workers, both unemployed and employed and especially those who are most vulnerable, to lifelong training and development; (ii) to contribute to business productivity and competition; (iii) to strengthen the role of collective bargaining in adapting training programmes to the requirements of the production system, and to the efficient and transparent use of public resources; and (iv) to foster a culture of professional training that promotes the creation of stable, high quality employment.
The following are among the features introduced by RDL 4/2015: (i) the new professional training model applies at a national level and requires the coordinated action of the General State Administration, autonomous communities and social partners; (ii) collective bargaining and social dialogue must take a leading role in promoting the new model; (iii) article 26 of Law 56/2003 of 16 December on employment is modified to introduce the new legal framework for the professional training system (article 4); (iv) a new labour market monitoring system is introduced (article 5); (v) long-term strategic plans are to be put in place to ensure that the system responds to the current and future needs of both companies and workers (article 6); (vi) funding will be allocated to accredited training providers through a system of competitive bidding, a maximum of 25% of the funds assigned to a training initiative can be paid out in advance, and there is an option of providing a “training cheque” for unemployed workers (article 7); (vii) professional training may be undertaken through face-to-face learning, e-learning, or a combination of the two (article 12); (viii) three new transparency and quality control tools will be implemented - the so-called Training Account, which will record all the training a worker receives throughout his or her working life; the Training Specialities Catalogue, which will be the benchmark for all professional training offered; and the National Register of Professional Training Entities, in which audit results will be included (article 22); and (ix) a new system of sanctions will be established to ensure zero-tolerance against fraud in the management of training funds (chapter IV).
2. CONSTITUTIONAL COURT UPHOLDS THE CONSTITUTIONALITY OF THE ROYAL DECREE-LAW THAT CANCELLED THE 2012 STATE PENSION INCREASE
Judgment of the Constitutional Court of 5 March 2015
The Constitutional Court (“CC”) dismissed the appeal lodged by several parliamentary groups in relation to article 2.1 of Royal Decree-law 28/2012 (“RDL 28/2012”) on measures to consolidate and guarantee the social security system. Article 2.1 of RDL 28/2012 cancelled the 2012 state pension increase in line with the consumer price index (“CPI”) for the period between November 2011 and November 2012, which would have been 2.9%.
The appellants claimed that RDL 28/2012 establishes a retroactive measure that infringes article 9.3 of the Spanish Constitution (non-retroactivity of laws) and violates senior citizens’ right to receive “equitable and regularly updated pensions” to guarantee their purchasing power (pursuant to article 50 of the Spanish Constitution).
Article 48.1.2 of the Social Security Law and article 27.1 of the Law on State Pensioners (Ley de Clases Pasivas del Estado) also establish that all contributory social security pensions must be increased, except for minimum pensions and pensions of the derogated compulsory insurance scheme for the elderly and disabled. However, the CC held that those articles “do not establish that pensioners are automatically entitled to receive the difference betweenthe estimated and real CPI,but rather refer to the General Budget Law.”
On the grounds that when RDL 28/2012 was passed “pensioners did not have a current or exhausted right to the increase, butrather, a mere expectation”, the CC dismissed both the claim that the pensioners’ had been deprived of a consolidated right and that the principle prohibiting retroactive legislation had been breached.
A dissenting vote was issued by two judges and adopted by a further two judges. These judges stated that RDL 28/2012 should have been declared unconstitutional on the basis of the infringement of the principle prohibiting retroactive legislation. In their opinion, the mere expectation of a right becomes a vested right when the conditions established for the pension increase are met (that is, when the real CPI exceeds the estimated CPI). Once this condition is fulfilled, the right to receive an increased pension applies to the period between 1 January and 31 December.
3. CONSTITUTIONAL COURT NULLIFIES TWO ARTICLES OF ROYAL DECREE-LAW 11/2013 ON THE PROTECTION OF PART-TIME EMPLOYEES
Judgment of the Constitutional Court dated 19 February 2015
The Constitutional Court (the “CC”) upheld an appeal on the grounds of unconstitutionality lodged by the Generalitat de Catalunya challenging articles 7 and 8.5 of Royal Decree-law 11/2013 of 2 August on the protection of part-time workers and other urgent measures concerning the economic and social order. The CC declared the challenged provisions unconstitutional and null.
The challenged provisions had reformed the Employment Law (concerning the enrolment of recipients of social security benefits as job seekers and their participation in active labour market policies) and the Law on Labour Offences and Sanctions (regarding the assignment of powers to the Spanish Public Employment Service to sanction specific offences related to unemployment benefits).
The Generalitat de Catalunya first alleged that no extraordinary and urgent situation existed that would allow laws to be enacted through a royal decree-law, as required by article 86.1 of the Spanish Constitution. Secondly, the Generalitat de Catalunya challenged the unlawful delegation of sanctioning powers to the Spanish Public Employment Service (Servicio Público de Empleo Estatal) on the grounds that the delegation would mean the Generalitat de Catalunya could not exercise those same powers as it is entitled to do under articles 165.1.a) and 170.1.h) of the Regional Statute of Catalonia.
The CC concluded that “nothing has been alleged in support of the need for urgent action such as that taken to pass the challenged law in a shorter period of time than that required in the parliamentary process for passing laws” since a generic justification does not suffice to corroborate the urgency of the situation. Therefore, “no extraordinary and urgent situation has been specified” that would justify the use of a royal decree-law.
Consequently, the CC held that the failure to meet the requirements to pass the challenged measures through a royal decree-law meant that they must be declared null on the basis of an infringement of article 86.1 of the Spanish Constitution.
4. TERMINATION OF A TEMPORARY CONTRACT COVERING PARTIAL RETIREMENT ON THE AGREED DATE IS VALID
Judgment of the Supreme Court dated 19 January 2015
The Supreme Court (“SC”) dismissed the appeal filed by a replacement worker and confirmed the judgment of the High Court of Justice of Catalonia dated 3 October 2013, which held that the termination of his temporary contract (contrato de relevo) was valid.
The appellant, who worked in a container terminal, had initially signed a training contract for six months that was subsequently renewed. Then, following the partial retirement of another employee, the company rehired the appellant under a temporary contract to cover the hours not worked by the partially-retired employee (from 21 April 2008 to 17 August 2012).
However, the partially-retired employee worked all his contracted hours in the first nine months following the signing of the temporary contract, after which he ceased to work for the company.
When the temporary contract was terminated on the agreed date, the replacement worker filed a claim against the company for unfair dismissal. Labour Court number 2 of Barcelona held that the contract termination was unfair. The company appealed this judgment before the Labour Chamber of the High Court of Justice of Catalonia (“HCJC”), which upheld the appeal.
The replacement worker then appealed this decision before the Labour Chamber of the SC, which confirmed the judgment of the HCJC and held that the contract termination was valid.
The SC based its decision on the following grounds: (i) although the concentration of working hours is not expressly regulated (article 65.3 of the general regulation on social security contributions and other social security obligations only provides that temporary workers may reach an agreement with their employers to perform their total annual working hours during certain periods), it is not unlawful pursuant to the principle of freedom of contract set out in article 1255 of the Civil Code; (ii) the concentration of working hours does not affect the temporary nature of the contract since it is intended to benefit the partially-retired employee, who agreed with the company to “waive his rights to a progressive reduction in hours by concentrating all his working hours in nine months”; and (iii) the obligations to keep the contract in force and pay the social security contributions of both the partially-retired employee and the replacement worker were fulfilled while the temporary contract was in force.
Therefore, although this is an “unusual case”, the temporary contract signed was valid and therefore the termination of the replacement worker’s employment was lawful and fair.
5. SUPREME COURT issues TWO JUDGMENTS on THE collective REDUNDANCY OF MORE THAN 3,000 iberia EMPLOYEES IN 2013
Judgments of the Supreme Court of 27 and 28 January 2015
The Supreme Court (“SC”) issued its first judgment, dated 27 January 2015, in response to the appeals lodged by CESHA, a baggage handlers’ union (Coordinadora Estatal del Sector de Handling y Aéreo) and STAVLA, a Spanish cabin crew union (Sindicato de Tripulantes Auxiliares de Vuelo de Líneas Aéreas), against the judgment of the National Court (“NC”) of 17 July 2013. The appellants had challenged the mediation agreement reached during the consultation period of the collective redundancy and signed by 81.8% of the workforce representatives.
The mediation agreement established various steps to be taken to restructure the company, including terminating at least 3,141 employment contracts, wage adjustments (including wage freezes between 2013 and 2015) for workers who kept their posts, and the workers’ waiver of their contractual right to a salary review and increase in line with the real consumer price index for 2012.
However, during the trial, the motion to set aside the judgment was limited to the agreement to waive the salary review and increase clause.
Owing to a procedural issue (the fact that the key aspects of an agreement reached during a consultation period must be challenged through the collective redundancy dismissal procedure, and not through the special legal procedure for industrial disputes), the SC ruled that it would not go into the details of the merits of the case and declared the judgment of the NC null but did not close the file “so that the appellants could seek judicial protection under the correct procedure”.
In the second judgment of 28 January 2015, the SC dismissed the appeal initially lodged by the CGT union, SEPLA, the Spanish Airline Pilots’ Union, and Iberia’s Pilots Union (“SEPLAIB”) against the judgment of the NC of 4 July 2013, which held the collective redundancy to be lawful.
SEPLA and SEPLAIB both subsequently withdrew their appeals before the SC. Given that the CGT joined the appeal that had been lodged by SEPLA and its appeal was “entirely subject to SEPLA’s appeal”, there was an ex post lack of cause, which resulted in the SC dismissing the appeal lodged by the CGT.
6. SUPREME COURT REJECTS REVIEW OF DISCIPLINARY DISMISSAL FOR IMPROPER USE OF COMPANY CREDIT CARDS
Judgment of the Supreme Court dated 27 January 2015
The appellant, who worked for a cooperative society, had been given two credit cards by the company to pay for expenses relating to his job. After being dismissed for using the credit cards to pay for personal expenses, the employee filed a claim for unfair dismissal. Labour Court number 34 of Madrid dismissed the claim. The employee subsequently challenged this ruling before the High Court of Justice of Madrid, which dismissed the appeal.
In the meantime, the employee was charged with misappropriation of funds for the alleged misuse of the credit cards. He was found not guilty by the Provincial Court of Guipuzcoa because the prosecutor failed to prove the facts beyond reasonable doubt.
The employee lodged an appeal for review before the Supreme Court (“SC”) against the two judgments that had deemed his dismissal fair.
The SC categorically stated that an appeal for review can only be filed when the defendant is acquitted because no crime is found to have been committed or the defendant is found not to have taken part in the alleged crime. The SC held that the failure to prove the crime or the application of the in dubio pro reo principle (if in doubt, for the accused) are not sufficient grounds to proceed with the review because there are differences between “criminal and labour laws: they are based on different types of guilt and handle evidence differently, even when judging the same conduct”.
Given that the not guilty verdict was a result of the prosecutor’s failure to prove that the defendant was aware that the credit cards were for professional use only, leave for review was not granted.
7. SUPREME COURT DISMISSES AN APPEAL LODGED AGAINST THE COLLECTIVE REDUNDANCY OF 35 EMPLOYEES OF BINTER CANARIAS
Judgment of the Supreme Court of 29 December 2014
The Supreme Court (“SC”) has upheld the judgment of the High Court of Justice of the Canary Islands dated 16 September 2013, which dismissed the appeal lodged by the Spanish Airline Pilots’ Union (SEPLA) and the Airline Cabin Crew Union (STAVLA) against the collective redundancy of 35 employees of Binter Canarias, S.A. (18 of whom were pilots and the other 17 were cabin crew).
The collective redundancy procedure commenced on 4 April 2012 and was based on economic grounds (persistent decline in revenue). During the consultation period, SEPLA claimed it had the right to negotiate a separate agreement establishing different conditions for its members (acuerdo de franja), and that their right to freedom of association and to collective bargaining was being infringed. The consultation period finalised on 9 May 2012 with an agreement with most of the works councils, which SEPLA and STAVLA voted against.
The appellants challenged the court judgment on several grounds, which included the following: (i) that there was a group of companies for labour purposes - of which Binter Canarias was the parent company - and that it was the group that had reached the agreement that ended the consultation period; (ii) the decision to make the pilots redundant was discriminatory (the salary rates established in the agreement reached between the company and the works councils regarding the cabin crew and the pilots were to the detriment of the pilots); (iii) there had been a fraudulent transfer of undertakings; and (iv) the company had failed to prove the economic grounds on which the collective redundancy was based.
The SC rejected these grounds and ruled that: (i) there was insufficient proof that the parent company or the other parties that had reached the agreement had acted fraudulently, and while a group of companies did exist it could not be deemed a single employer for labour purposes and therefore the corporate veil doctrine would not apply either; (ii) the fact that different salary rates for the cabin crew and the pilots were proposed by the company and subsequently accepted by the works councils was not evidence of discrimination; (iii) there was no fraudulent transfer of undertakings since the activity and finances of each of the companies were separate; and (iv) the alleged economic grounds had been proved by the persistent decline in revenue and because the collective redundancy was carried out to ease the company’s negative economic situation.
8. NATIONAL COURT UPHOLDS THE REFUSAL TO ESTABLISH A “CIVIL GUARD UNIFIED UNION”
Judgment of the National Court dated 11 March 2015
The National Court (“NC”) recently upheld the Ministry of Employment and Social Security’s decision of 22 October 2014 that closed the case file concerning the setting up of the “Civil Guard Unified Union” (Sindicato Unificado de Guardias Civiles).
The judgment concerns the interpretation of article 28.1 of the Spanish Constitution, which allows the legislature to limit the rights to freely join and set up a trade union, and to withhold that right from members of the armed forces and armed police forces.
In line with that article, the rights to join and set up a trade union were withheld from the armed forces and armed police forces in the Labour Union Freedom Law (article 1.3) and the Security Forces Law (article 15.2). The Law on the Rights and Duties of the Civil Guard provides that the Civil Guard is an armed body of a military nature(article 9.b) and withholds from its members the rights to freely join and set up a trade union (article 9.5), although it does acknowledge their right of association.
The appellants cited two judgments of the European Court of Human Rights dated 2 October 2014 in the Matelly v. France case (concerning a French Gendarmerie officer) and the Adefdromil v. France case (concerning a member of the French army and a French Gendarmerie officer). Pursuant to Article 11 of the European Convention of Human Rights (“ECHR”), both judgments held that the right to freely join or set up a trade union may not be withheld (but may be limited) from the armed (police) forces.
When Spain ratified the ECHR, it lodged a reservation with regard to the application of Article 11 of the ECHR to the extent that it was incompatible with articles 28 and 127 of the Spanish Constitution.
The NC dismissed the appeal since “the fundamental rights of Civil Guards are more limited in that they must coexist with their constitutional rights and roles and the special relationship of dependence to which they are subject”. This means that Civil Guards have an absolute duty of neutrality and therefore must refrain from participating in both trade union and political activities.