Law 30/2015 of 9 September on professional training in the workplace substantially modifies the rules on professional training applicable throughout Spain.
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Law 31/2015 of 9 September amends and updates the regulation of self-employment and establishes measures to promote self-employment and the social economy. It standardises the existing incentives for self-employment and social economy entities and introduces new measures in order to promote their use.
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Royal Decree-Law 10/2015 of 11 September granting extraordinary funds and credit supplements in the state budget and implementing other public employment measures and stimulus packages, introduces amendments in the areas of the economy, public sector employment and the state budget.
Civil servants recovering part of their 2012 extra and additional salary payments is particularly noteworthy.
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A decision of the General Directorate of Social Security Organisation dated 15 September 2015 sets a period during which self-employed workers can opt to maintain or waive their right to a special unemployment benefit in 2015.
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The Court of Justice of the European Union has ruled that the key issue to determine if there is a transfer of undertaking is not that the same place of business is used by the transferor and the acquirer, but rather that the elements necessary to carry out a similar economic activity are transferred.
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The Court of Justice of the European Union has ruled that the working time of workers without a fixed or habitual workplace includes the time spent travelling between their homes and the premises of the first and last customers they visit each day. The reasoning behind this decision is that during this period the workers (i) are working, (ii) at their employer’s disposal, and (iii) carrying out their duties.
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The Constitutional Court has held that the quantification of a variable remuneration supplement paid to a full-time union representative based on the average amount paid for this item to other employees of the same category is legal.
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The Supreme Court has upheld the legality of an agreement reached between a company and its employees that deferred the payment of part of their statutory compensation for a collective redundancy and reduced the number of employees affected by the collective redundancy. The agreement was reached during the mandatory negotiation period for the collective redundancy.
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The Supreme Court has analysed criteria used to select the employees to be affected by a collective redundancy procedure that gave priority to active employees over employees on temporary leave for incapacity or personal reasons.
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The National Court has held that companies offering support services for dependent people must pay the additional holiday payment provided for in the applicable collective bargaining agreement to employees hired to work weekends. This decision is based on a literal interpretation of the collective bargaining agreement, which only excluded employees who are specifically hired to work on Sundays and public holidays from the payment.
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The High Court of Justice of the Basque Country has held that compensation for termination of a temporary contract at the end of the agreed term is not applicable to a special employment relationship where the employee is (i) a top cyclist and (ii) decides not to renew the contract.
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The High Court of Justice of Valencia has ruled that an employee’s workload is not a working condition and therefore its increase does not fall under the scope of article 41 of the Statute of Workers on substantial changes to working conditions.
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1. PROFESSIONAL TRAINING IN THE WORKPLACE
Law 30/2015 of 9 September on professional training in the workplace
This Law substantially modifies the scheme for professional training in the workplace applicable throughout Spain. The law regulates aspects such as (i) the planning and funding of the scheme, (ii) the planning and implementing of training initiatives, (iii) the supervising of training and the penalty system, (iv) the means for providing information about training activities, assessing them and their quality, and (v) the governance of the scheme.
The most significant measures to have been introduced by this Law (i) open up the possibility of reputable training providers managing funds allocated to finance training activities, (ii) impose penalties to prevent fraud, and (iii) increase the Central State Administration’s representation in the National On-The-Job Training Foundation (Fundación Estatal para la Formación en el Empleo).
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2. PROMOTION OF SELF-EMPLOYMENT AND THE SOCIAL ECONOMY
Law 31/2015 of 9 September, which amends and updates the regulation of self-employment and establishes measures in order to promote self-employment and the social economy
This Law introduces, among others, social security measures to promote self-employment and employment in the social economy. The most significant developments introduced by this legislation are (i) making the receipt of an unemployment benefit compatible with registration under the Special Scheme for Self-Employed Workers; (ii) extending the period during which an active self-employed person can preserve accumulated unemployment benefit rights to 60 months; (iii) introducing social security contribution discounts for members of social economy entities that provide services of economic interest; and (iv) reducing the social security contributions to be paid by protected self-employed workers for a five-year period.
Unemployment benefit can now be claimed at the same time as being registered as a self-employed worker for a maximum period of 270 days and must be requested within 15 days of beginning the self-employed activity. This possibility has been excluded for claimants who have already taken advantage of it, or whose last job was as a self-employed worker.
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3. public sector employment MEASURES
Royal Decree-Law 10/2015 of 11 September granting extraordinary funds and credit supplements in the state budget and adopting other public sector employment measures and stimulus packages
This piece of legislation introduces measures concerning the state budget, economy and public sector employment.
Civil servants are to recover part of the extra and additional payments they are owed for 2012. Before the end of 2015, public authorities will pay civil servants a lump sum equal to 48 days or 26.23 per cent of the amounts that were not paid in 2012.
The Civil Servants Basic Statute has also been amended to allow public authorities to increase leave for personal affairs and length of service-based holidays.
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4. Special unemployment benefits for selF-employed workers
Decision of the General Directorate of Social Security Organisation dated 15 September 2015, which sets a period during which self-employed workers can opt to maintain or waive their right to a special unemployment benefit in 2015.
Under this decision, if a self-employed worker notified his or her decision to waive the right to a special unemployment benefit on or before 30 September 2015, the waiver will take effect on the first day of the month after the waiver. Any waiver that is issued after 30 September 2015 will take effect on 1 January 2016.
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5. the court of justice of the european union REINFORCES THE CONCEPT OF TRANSFER OF place of business
Judgment of the Court of Justice of the European Union dated 9 September 2015
The winding up of Air Atlantis, S.A. (the “Company”), a charter airline, led to the collective redundancy of its entire staff. Its main shareholder (TAP) subsequently started operating charter flights (i) for which it used some of the Company’s material resources such as aircraft, buildings and office equipment, (ii) on routes previously flown by the Company, (iii) assuming obligations arising from leasing contracts entered into by the Company, and (iv) contracting some of the Company’s former staff. In this context, the former employees of the Company claimed that there had been a transfer of undertaking.
The Portuguese Supreme Court (“PSC”) rejected the employees’ claim on the basis that even though the Company’s commercial activity had been continued, the same place of business was not used. The PSC’s ruling was based on the fact that the Company’s place of business was linked to an air transport licence which was non-transferable.
Nevertheless, the Court of Justice of the European Union (“CJEU”) was of the view that TAP had substituted the Company as the staff’s employer because the key issue in a transfer of undertaking is the transfer to the acquirer of the elements necessary to carry out an economic activity similar to the one carried out by the transferor and that there is a “functional link” between those elements. In this case, the CJEU considered that the relevant elements were the staff and the subrogation to the aircraft leasing agreements and contracts for charter flights. For these reasons, the CJEU ruled that it was irrelevant that the transferor and the acquirer structured the transferred elements in different ways.
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6. Journeys made by workers without fixed or habitual WORKplace between their homes and the first and last customer of the day constitute working time
Judgment of the Court of Justice of the European Union dated 10 September 2015
The subject matter of these proceedings was determining whether in the case of workers without a fixed or habitual workplace, the time spent travelling between their homes and the premises of the first and last customers they visit each day could be considered as working time according to Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (the “Directive”).
The CJEU declared that the concept of working time should be construed, in contrast with rest periods, as a time period in which workers (i) are working, (ii) at their employer’s disposal, and (iii) carrying out their duties.
Therefore, after analysing the facts, the CJEU ruled that travelling time between their homes and the premises of their first and last customers is included within the concept of working time set out in the Directive because the three requisites mentioned above are met.
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7. quantification of VARIABLE remuneration supplements of a full-time union representative
Judgment of the Constitutional Court dated 6 July 2015
The Constitutional Court (“CC”) has determined if a public authority’s criterion to quantify variable remuneration supplements paid to a full-time union representative violated his trade union freedoms. The criterion used was the average amount paid for that item to other employees within the same category.
The starting point of the CC’s reasoning is the variable nature of the remuneration supplements in question, which implied that their payment and amount were uncertain. Based on that uncertainty, the CC stated that, in the specific case, it was not appropriate to hypothesise about the amount that would have been paid to the full-time union representative if he did not hold that post.
The CC held that the criterion used by the public authority is legal given that it is based on an objective and reasonable fact and therefore does not contravene the guarantee given to union representatives that they will not be treated differently for salary purposes because of their trade union activities.
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8. agreement To defer part of the minimum STATUTORY compensation for a collective redundancy DEEMED LAWFUL
Judgment of the Labour Chamber of the Supreme Court dated 22 July 2015
During the collective redundancy process in a construction firm initiated on production grounds, the company and the employee representatives agreed that the number of employees to be made redundant would be reduced from 131 to 116. The compensation to be paid to these employees was also increased above the statutory minimum, and the payment of part of the compensation was deferred.
This agreement was challenged before the courts by 12 of the employees affected by the redundancy on the basis of their understanding that it infringed article 53 of the Statute of Workers. This article states that the compensation must be made available simultaneously with the delivery of the dismissal letter.
The Supreme Court (“SC”) held that the collective agreement was legal. The SC based its decision on the specific circumstances of the case: (i) the measure was adopted under a collective agreement reached following the mandatory collective redundancy negotiation period; (ii) the number of employees made redundant was reduced; (iii) the compensation being offered was increased significantly; (iv) the company’s clear lack of liquidity; (v) the full amount of the statutory minimum compensation was paid when the first instance judgment was handed down; and (vi) the agreement was challenged by only 12 of the 116 employees affected. The SC held that the combination of these facts was sufficient to find that the agreement was legal.
In this particular case, the SC stated that a judgment finding that the agreement was unlawful would breach the principle of solidarity that must apply to any collective bargaining process.
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9. priority given to active employees over those on leave FOR temporary INCAPACITY or personal REASONS in a collective redundancy PROCEDURE
Judgment of the Labour Chamber of the Supreme Court dated 20 May 2015
The key issue in this judgment was whether the criterion a company used to select the employees it would make redundant was discriminatory. The criterion gave priority to active employees over employees on leave for temporary incapacity or personal reasons.
The SC held this criterion to be valid as (i) there is a difference between disability and temporary incapacity, (ii) the union that filed the claim had not evidenced that the employees on leave for personal reasons were mothers who had requested the leave to take care of their children, and (iii) leave for personal reasons and temporary incapacity are not listed as direct or indirect causes of discrimination in article 17.1 of the Statute of Workers.
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10. COMPANIES MUST PAY ADDITIONAL PUBLIC HOLIDAY PAYMENT TO EMPLOYEES HIRED TO WORK WEEKENDS
Judgment of the National Court dated 22 July 2015
The National Court (“NC”) analysed a collective action brought by workers in the support and care services for dependent people sector. The central issue in this case was to decide whether employees hired to work weekends are entitled to the additional public holiday payment provided for in the applicable collective bargaining agreement.
Based on a literal interpretation of the collective bargaining agreement, only employees hired specifically to work on Sundays and public holidays are excluded from the public holiday payment. As the agreement does not refer to employees hired to work weekends, the NC held that they are entitled to this additional payment.
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11. TOP cyclists who can choose TO renew their contract or change team do not have the right to compensation when their contract is terminatED
Judgment of the High Court of Justice of the Basque Country dated 26 May 2015
The High Court of Justice of the Basque Country (“HCJBC”) analysed the compatibility of compensation for termination of a temporary contract under article 49.1 c) of the Statute of Workers with the special employment relationship of top cyclists.
The HCJBC confirmed that, in general, compensation can be paid upon the termination of special employment relationships, but denied the right to compensation in this particular case.
Following a judgment of the SC dated 26 March 2004 (appeal number 61/2003), the HCJBC held that this particular case is an exception to the general rule of compatibility because (i) the employee is a top cyclist and not merely a professional cyclist and, therefore, he was in a strong position to decide whether to renew his contract or to change to another team, and (ii) the employee was the one who decided not to renew his temporary employment contract with the team.
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12. AN increase in workload is not a change in working conditions unless SPECIFIC performance LEVELS ARE agreed
Judgment of the High Court of Justice of Valencia dated 26 May 2015
The CGT trade union claimed that the Spanish Postal Service’s decision to shut down some of its departments substantially changed its employees’ working conditions and was therefore void. The CGT based its claim on the fact that the workload of the departments that had been shut-down would be divided between the remaining departments.
The High Court of Justice of Valencia dismissed the CGT’s claim as it considered that (i) there was no proof that the workload of the remaining departments would increase, (ii) any increase in workload would not substantially change any of the conditions set out under article 41 of the Statute of Workers, and (iii) workload is not a working condition unless specific performance levels are agreed.
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1. PROFESSIONAL TRAINING IN THE WORKPLACE