Royal Decree 1171/2015 of 29 December sets the national minimum wage at EUR 655.20 per month or EUR 21.84 per day.
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Royal Decree 1065/2015 of 27 November on electronic communications in the judicial system within the territorial scope of the Ministry of Justice and the LexNET system, develops Law 18/2011 on the use of information technology and communications in the judicial system, regarding electronic communications and notifications, as well as the electronic filing of submissions, documents or other means of communication or instruments and the transfer of copies, within the competence of Ministry of Justice, notwithstanding the competences assumed by the autonomous regions.
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Following its previous doctrine, the Supreme Court has ruled that if a collective bargaining agreement signed before Law 3/2012 entered into force includes an clause to extend its validity (ultraactividad) indefinitely, that clause will be understood to fall within the meaning of the “unless otherwise agreed” exception set out in article 86.3 of the Statute of Workers.
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The Supreme Court clarifies its previous doctrine on a group of companies as an employer, holding that classification as a group of companies for employment law purposes (grupo patológico) should be reserved for cases in which the circumstances leading to joint liability involve concealment or fraud. Otherwise, the correct characterisation should be as a “company of a group” or “company-group”.
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The Supreme Court has held that if a company chooses to reinstate an employee after his or her unfair dismissal and duly requests him or her to return to work after the court’s decision, if the employee fails to do so, the right to back pay is forfeited and this period is not considered length of service for severance pay purposes.
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The Supreme Court has confirmed its doctrine that a post ceasing to exist is not a ground to terminate a temporary employment contract to cover a vacancy in that post until it is filled, or a “non-fixed” permanent contract into which the temporary contract is converted. The reason for this is that these types of contract are not subject to a resolutory condition, but to a term. As a result, a public authority wishing to terminate a contract of this type without having filled the post must fulfil the requirements in articles 51 and 52 of the Statute of Workers (applicable to collective redundancies).
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The National Court has ruled that a collective agreement that a company intended to apply nationally was null because it had been negotiated by the employee representative of just one of the company’s workplaces. As the representative’s capacity was limited to that one workplace, he was not authorised to negotiate a company-wide collective agreement to be applied throughout Spain.
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The High Court of Justice of Madrid has heard a case in which an employment contract was terminated on the grounds of a provision in a collective bargaining agreement that states that an unjustified absence from work for four or more days is a very serious offence. The employer argued that the employee should have justified his absence from work with a Statement of Fitness for Work instead of doctor’s notes. Nevertheless, the dismissal was held unfair as the collective bargaining agreement only states that referral letters must be provided.
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Labour Court 13 of Madrid has ruled that employees are entitled to timetable flexibility during the first hour of the start of their working day to take children to nursery school. The organisational difficulties caused to company by this situation do not prevail over the legal protection given to children under the Spanish Constitution.
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1. national minimum wage
Royal Decree 1171/2015 of 29 December establishes the national minimum wage
This regulation sets the national minimum wage at EUR 655.20 per month or EUR 21.84 per day, depending on when salary is paid. The increased minimum wage is justified on the general improvement of the Spanish economy.
This national minimum wage will be applied from 1 January to 31 December 2016.
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2. electronic communications in the JUDICIAL system using lexnet
Royal Decree 1065/2015 of 27 November on electronic communications in the judicial system within the territorial scope of the Ministry of Justice and the LexNET system
Royal Decree develops Law 18/2011 in three areas: (i) electronic communications and notifications, (ii) the electronic filing of submissions, documents or other instruments, and (iii) the transfer of copies, within the competence of the Ministry of Justice, notwithstanding the competences assumed by the autonomous regions.
According to this Royal Decree, all legal professionals, bodies and judicial authorities and public prosecutors must use the electronic systems of the judicial system to file submissions and documents, and to make and receive communications.
The LexNET system is also regulated. This system is a means of securely transferring information, by using cryptographic techniques, that ensures the filing of submissions and confirms the receipt of communications as well as the dates on which these are filed, made available and received or when they are accessed. The Royal Decree sets out the system’s features, running, availability and operation, as well as the procedure to follow if there are problems related to insufficient capacity due to the excess size of the files attached, or when it is used to carry out substitutions or grant authorisations.
This Royal Decree will enter into force on 1 January 2016 for judicial bodies and authorities, public prosecutors and legal professionals. However, for individuals who are not assisted by these professionals and who use electronic means to communicate with the judicial system, either by their own choice or because they are obligated by law, it will enter into force on 1 January 2017.
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3. Clause TO INDEFINITELY EXTEND THE VALIDITY OF A COLLECTIVE BARGAINING AGREEMENT SIGNED BEFORE LAW 3/2012 IS VALID
Judgement of the Labour Chamber of the Supreme Court dated 17 November 2015
The Supreme Court (“SC”) dismissed the appeal and ratified the ruling of the National Court in a collective dismissal procedure.
The judgment defined the limits on extending the validity of collective bargaining agreements (ultraactividad) following the modification of article 86.3 of the Statute of Workers (“SW”) by Law 3/2012. This provision states as follows: “in the absence of a new collective bargaining agreement or arbitral award within one year following the expiry of a collective bargaining agreement, that agreement will become unenforceable, unless otherwise agreed by the parties, and an applicable collective bargaining agreement with a wider scope, if any, will be apply”.
The issue requiring interpretation, which the SC has already resolved, was at which point does this express agreement to extend validity need to be made. The SC followed its previous doctrine on grounds of legal certainty, and ruled that if a collective bargaining agreement signed before Law 3/2012 includes a clause extending its scope (ultraactividad) indefinitely, that clause will be understood to fall within the meaning of the “unless otherwise agreed” exception set out in article 86.3 of the SW.
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4. EXISTENCE of fraudULENT intent is NECESSARY FOR A GROUP OF companies TO BE FOUND jointLY LIABLE
Judgment of the Labour Chamber of the Supreme Court dated 20 October 2015
The Spanish Supreme Court (“SC”) upheld the appeal lodged by the State Lawyer on behalf of TRAGSA and TRAGSATEC against the National Court’s judgment in a case on a collective dismissal.
The SC’s analysis of the concept of a “group of companies for labour purposes” is particularly interesting in that it clarifies its previous doctrine. The SC states that the classification as a group of companies for employment law purposes should be reserved for cases in which the circumstances leading to joint liability involve concealment or fraud. In other cases, the appropriate classification is as a “company of a group” or “company-group”.
In this case, as the elements resulting in joint liability (i.e. single functioning of the workforce of the companies in the group, commingling of assets, a single group account, fraudulent use of legal personality and abuse of single management) were not present, the SC determined that there was no pathological group. Moreover, the SC declared that the documentation filed in support of the collective dismissal was sufficient, the reasons justifying the dismissal were well-defined and there were no flaws in the criterion used for selecting affected employees. As a consequence, the SC held that the dismissal was fair.
Two judges dissented.
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5. Length of service to CALCULATe SEVERANCE PAY FOR UNFAIR dismissal DOES not EXTEND TO the PERIOD after the court’S decision if the employee IS REQUESTED TO RETURN TO WORK, BUT FAILS TO DO SO
Judgment of the Labour Chamber of the Supreme Court dated 20 October
The Supreme Court (the “SC”) heard an appeal brought by both the company and the employee.
The first instance court held that the employee’s dismissal was unfair. The company then chose to reinstate the employee, but the employee failed to return to work during the procedural stage. On appeal, the first instance decision was upheld, but the company did not send a second notification of reinstatement. As a result, the employee alleged that he was unaware the offer for him or her to return to work still stood.
The company appealed again, requesting that the SC declare a second notification unnecessary after the first judgment had become final and binding. This claim was rejected. The request for the employee to return to work should have been made again on the grounds of good faith. As the company failed to do so, the court’s decision was enforced.
The employee alleged that length of service to calculate severance pay for dismissal starts from the beginning of the employment relationship until its termination due to the company’s failure to reinstate him or him or to his or her irregular reinstatement.
The SC partially supported this appeal. It distinguished between two periods of time: (i) the period from the judgment holding the dismissal to be unfair until the termination of the contract because the employee is not reinstated; and (ii) the period from the dismissal until the judgment. During the first period, since the reason why the employee was not reinstated was not down to the company, but to the employee him/herself, the period should not be considered length of service to calculate severance pay. However, if the company chooses to reinstate the employee in the second period, this is considered part of the employment relationship and the reason why the employee is not back to work is the employee’s earlier dismissal and the company’s failure to reinstate him or her,. Therefore, this period must be taken into account to calculate length of service.
One judge dissented.
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6. COLLECTIVE REDUNDANCY PROCEDURE MUST BE FOLLOWED to terminate TEMPORARY employment contracts TO COVER vacancIES DURING RECRUITMENT PROCESSES AND “NON-FIXED” PERMANENT CONTRACTS
Judgment of the Labour Chamber of the Supreme Court dated 7 July 2015
In this judgment the Supreme Court (“SC”) dismissed an appeal brought by the Xunta de Galicia (regional government) against a judgment declaring a dismissal null.
The SC reiterates its doctrine that both in the case of temporary contracts to cover a vacancy during a recruitment process and “non-fixed” permanent contracts for civil servants, the fact the post held will cease to exist is not a ground to terminate the contracts, since they are not subject to a resolutory condition but to a term. Thus, the employer, in this case the Xunta de Galicia, should have followed the procedure set out in articles 51 and 52 of the Statute of Workers (applicable to collective redundancies) to terminate the contracts without first having filled the posts permanently.
The SC also held that the employee’s right to compensation was breached as prior to her dismissal she had applied to be made a permanent employee. It was clear that the Xunta’s decision could be seen as a retaliatory measure and therefore it should have proved that it had a different reason for dismissing her. By failing to do so, the Xunta was found to have breached her right to compensation, which the SC considered was another reason for declaring her dismissal null.
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7. a national COMPANY-WIDE collective agreement negotiated by THE REPRESENTATIVE OF a single workplace is null
Judgment of the Labour Chamber of the National Court dated 23 March 2015
The National Court ruled that a company’s collective agreement was null because it was not validly negotiated.
The collective agreement was negotiated by the employee representative from just one of the company’s workplaces. According to the judgment, citing articles 87 to 89 of the Statute of Workers, for the agreement to be valid, the scope of the capacity of the parties negotiating the agreement must correspond to the scope of the agreement (i.e. the workplaces to which it will be applied). As a result, the collective agreement was declared null.
These defects could not be remedied and the parties were not interested in limiting the scope of the agreement to the employee representative’s workplace.
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8. employee’s dismissal for submitting doctor’s notes instead of a statement of fitness for work to justify absences is declared unfair
Judgment of the Labour Chamber of the High Court of Justice of Madrid dated 8 October 2015
The High Court of Justice of Madrid (“HCJ”) dismissed an appeal by an employer against a judgment that declared the dismissal of one of its employees to be unfair.
According to the applicable collective bargaining agreement, an unjustified absence from work for four or more days per month is considered a very serious offence. Article 18 of the collective bargaining agreement states that all absences due to sickness must be justified with a referral letter. However, the employer argued that as the employee’s absence from work had not been adequately justified with a Statement of Fitness for Work, the employee had seriously breached his contract and his contract could therefore be terminated.
However, the HCJ considered that the applicable collective bargaining agreement does not require absences due to illness to be justified purely through Statements of Fitness for Work as the term referral letter is sufficiently generic to be understood as any type of certificate issued by a medical practitioner. The HJC held that if the intention behind the collective bargaining agreement was to require only Statements of Fitness for Work, it should specifically stipulate so as it does in cases of temporary incapacity. Consequently, it upheld the first instance decision and declared the dismissal to be unfair.
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9. EMPLOYEES’ RIGHT TO TIMETABLE FLEXIBILITY AT THE START OF THE WORKING DAY TO TAKE CHILDREN TO NURSERY SCHOOL
Judgment of Labour Court 13 of Madrid dated 22 October 2015
This case concerned an employee’s request for one hour timetable flexibility in the mornings on weekdays to allow him to take his child to nursery school.
The Labour Court held that he was entitled to timetable flexibility but only to allow him to take his child to nursery school. The court explained that there was no change of shift nor a significant change to the way the company offers its services, since the impact of the timetable flexibility was minimal. Any organisational difficulties caused to the company cannot prevail over the legal protection given to children under article 39 of the Spanish Constitution.
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1. national minimum wage