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The information contained in this Newsletter is of a general nature and does not constitute legal advice |
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Prevention of occupational hazards. Exposure to asbestosRoyal Decree 396/2006 of 31March, on the protection of workers’ health and safety from the risks related to exposure to asbestos at work. Spanish Official Gazette, 31 March 2006 This provision adapts the Spanish regulations on asbestos to European standards (Directive 2003/18/EC of the Parliament and of the Council of 27 March 2003) and consolidates all the Spanish regulations on asbestos in a single statute. This Royal Decree is applicable to all situations and activities in which the employees are exposed or might be exposed to asbestos. Finally, all companies that are to carry out activities which fall within the scope of said Royal Decree must be registered at the Registry of hazardous companies due to asbestos. Prevention of occupational hazards. Exposure to artificial optical radiation. European UnionDirective 2006/25/EC of the Parliament and of the Council of 5 April 2006, on the minimum health and safety requirements regarding the exposure of workers to risks arising from physical agents (artificial optical radiation). European Community Official Gazette of 27 April 2006 This Directive establishes the minimum measures to be taken in order to guarantee the health and safety of employees against the hazardous exposure to artificial optical radiation; providing the limits to exposure in its annex. Said Directive sets forth the following duties for the employer: (i) assessing the levels of exposure to optical radiation; (ii) preparing a risk evaluation programme; and (iii) if there is a possibility of the maximum rate of exposure being exceeded, the employer should prepare and implement an action plan including technical and organizational measures. Additionally, in accordance with the Directive, Member States are obliged to adopt the necessary measures to set up and update the medical record of each employee. Hence, whenever exposure exceeds the maximum threshold established, the employee will be entitled to undergo a medical test in accordance with the applicable legislation and standard practice. The Directive also sets forth that, every five years, Member States shall submit a report on the compliance with the provisions of the Directive, together with the opinion of the social agents. Member States shall adapt their legislation to the provisions of the Directive by no later than 27 May 2010. Labour and Social Security Inspectorate. Inspection LogResolution of 11 April 2006, of the Labour and Social Security Inspectorate, on the Inspection log of the Labour and Social Security Inspectorate. Spanish Official Gazette, 18 April 2006 The purpose of this resolution is to adapt the Inspection Log model of the Labour and Social Security Inspectorate to the provisions set forth in Law 42/1997 of the Labour and Social Security Inspectorate and Law 31/1995 on prevention of occupational hazards. This resolution establishes that the use of an electronic Inspection Log could be authorised by the Labour and Social Security Inspectorate. The applicant should apply for said authorization before the Provincial Labour and Social Security Inspectorate corresponding to the province where the registered office of the company is located, which will cover all or certain workplaces of the company regardless of the province in which they are in. Additionally, this Resolution updates the Inspection Log model by introducing the concept of “qualified technicians” (“técnicos habilitados”) by means of Law 54/2003 of 12 December. This regulation sets forth the provisions on the inclusion of reports in the Inspection Log: (i) the civil servant shall provide his/her identity, the authority where he/she is based and other data contained in the official model of the Log; (ii) the report shall be drafted for every visit or assessment, including all the issues examined and any other incidents (iii) the report shall include a reference to any collaboration provided by the employee representatives; and (iv) the report need not include any references to investigations by the inspectorate for breaches or settlements. Finally, the Inspection Log model is annexed to the Resolution which sets forth that the Inspection Logs of the Labour and Social Security Inspectorate authorised prior to the enforcement of this Resolution will be in force as of 1 June 2006. Free movement of workers. European CommissionCommission Regulation (EC) No 635/2006 of April 25, repealing Regulation (EEC) No 1251/70 on the right of workers to remain in the territory of a Member State. Official Gazette of the European Communities of 26 April 2006 This Regulation takes into consideration the fact that Directive 2004/38/EC of the Parliament and of the Council of 29 April 2004, on the right of citizens of the Union and their family members to move and reside freely within the territory of a Member State, consolidates in a single statute all the provisions on the right of citizens to move freely within the European Union. More specifically, Article 17 of the Directive comprises and modifies the most important provisions of Regulation (EEC) No 1251/70 on the right of workers to remain in the territory of a Member States, establishing a more privileged status, the right of permanent residence. As a consequence of the above, the present Regulation repeals Regulation (EEC) No 1251/70, in force since 30 April 2006. Social Security. European UnionRegulation (EC) No 629/2006 of the Parliament and the Council of 5 April 2006, amending Council Regulation (EEC) No 1408/71 on the application of social security schemes to employees, to self-employed persons and to members of their families moving within and Council Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71. European Communities Official Gazette of 2 April 2006 Regulation (EC) No 631/2004, of March 31, 2004, had simplified the procedures for obtaining in-kind illness benefits during a temporary stay in another Member State. Regulation (EC) No 629/2006 expands these simplified procedures to work-related accident and professional illness accident benefits. In this regard, Regulation (EC) No 629/2006 modifies Regulations (EEC) Nos. 1408/71 and 574/72. Specifically, annexes I, II, III, IV and VI of Regulation 1408/71 are modified. Additionally, the affected provisions of annex III will be applied retroactively back to 1 May 2004, in order to guarantee legal certainty and the legitimate expectations of the interested parties. Likewise, Section 62, among others, of Regulation 574/72 is modified, establishing that, in order to obtain in-kind benefits, the employee and the self-employed worker shall file with the assistance officer a document, issued by the relevant office, certifying that the applicant is entitled to in-kind benefits. Should the interested party not be able to file said document, he/she should apply to the office of the place of residence, which shall request, from the relevant office, a certificate proving that the interested party is entitled to in-kind benefits. Holidays. Compensation for unused minimum annual holiday leaveJudgment of the European Communities Court of Justice dated 6 April 2006 This decision resolves a preliminary question brought by a Dutch court in which the European Court of Justice (“ECJ”) was asked about the compatibility of Article 7.2 of Directive 93/104/EC and a Member State provision establishing the possibility of an agreement to substitute unused minimum annual holidays with economic compensation. The Dutch provision established that, while the employment contract is in force, the employee may not renounce to his holidays in exchange of an economic compensation. Nevertheless, the same provision established that an employee, who had accrued a right to holiday leave exceeding the statutory minimum, could renounce, by written agreement, those excess holidays in exchange for economic compensation. The ECJ stated that the Community harmonization of the working time is aimed at guaranteeing a greater protection of worker health and safety. Therefore, Directive 93/104/EC establishes that only when the employment ends may an employee substitute his right to annual vacation for economic compensation. The ECJ argued that holidays enjoyed in subsequent years may also contribute to employee health and safety and, consequently, these holidays will be governed by Directive 93/104/EC. Additionally, the possibility of exchanging the minimum annual holidays transferred from previous years could cause, contrary to the aims of the Directive, the employee to renounce or be incited to renounce his/her resting time. As a consequence of the foregoing, the ECJ opposes any national provision that allows, during the life of a labour contract, employee substitution of unused minimum annual holidays with economic compensation in a subsequent year. Equality of treatment between men and women in matters of social security. Member State denial of equality of pension between transsexuals and women of the same ageJudgment of the European Communities Court of Justice dated 27 April 2006 This decision resolves a preliminary question brought by a United Kingdom court in which the European Court of Justice (ECJ) was inquired whether the refusal to award a pension to a transsexual, in the same terms as they are awarded to women, breaches Directive 79/7/EC on the progressive implementation of the principle of equal treatment between men and women in matters of social security. The United Kingdom legislation establishes that, for social security purposes, the relevant sex of a person is that which appears in the birth certificate. It also establishes that transsexuals who have undergone a sex-change operation, may not change the sex appearing on their birth certificate. In the United Kingdom, men are entitled to a retirement pension at the age of 65 and women at the age of 60. The claimant was recorded as male at birth. Subsequently, he underwent a sex-change operation and requested his retirement pension at the age of 60 (i.e., the age at which this pension is awarded to women). The pension was denied because the sex appearing in the birth certificate is male, and the claimant was consequently required to wait until the age of 65 to request the pension. The ECJ first established that the right against sex discrimination constitutes a fundamental human right which respect the ECJ must guarantee. It also established that the Directive should apply equally to discrimination resulting from a sex change. The ECJ recognised that, according to the national legislation, the claimant is not able to meet the age required to obtain the retirement pension. Nevertheless, because the different treatment is based on the change of sex, it must be considered as a discrimination which is forbidden by the Directive. In conclusion, the ECJ declared that the Directive opposes legislation that does not grant a retirement pension to a person who changes his sex to female, when the same person would be entitled to this pension at the age of 60 years had the national law considered this person a woman. Collective dismissal. Annulment of the authorization. Compensation for damages equivalent to the salary accruing from termination of employment until enforcement of judgment voiding the authorizationJudgment of the Labour Chamber of the Supreme Court dated 24 January 2006 The Supreme Court (“SC”) analysed whether a company must compensate for lost salary after the termination of employment by means of an administrative resolution when a subsequent judgment voids the resolution. The labour contract of the claimant, who was on maternity leave, was cancelled by means of an administrative decision authorising a collective dismissal. The decision was challenged before the Contentious-Administrative Court, which voided the collective dismissal procedure. The employee therefore sought damages equal to lost salary before the Labour Courts. The Labour Court and the High Court had held that the employee was entitled to those damages. Appeal to the SC was dismissed on the argument that the employer must bear with the consequences of the enforcement and subsequent nullity of the administrative authorization of a collective dismissal. The SC reasoned that a previous authorization does not discharge the company from the duty to compensate the employee during the proceedings, when the administrative authorization is rendered void. In summary, the SC dictates a doctrine of employee compensation, principally in the payment for lost time equal to lost salary, in response to the nullity of the authorising administrative resolution. The SC suggests this compensation is similar to the compensation awarded when other firings are declared null or unfair because the SC considers the fault of the company to be included in the unlawfulness of the collective dismissal, once it has been judicially declared. Holidays. No acquired right. Employer entitled to change holiday dates at its discretionJudgment of the Labour Chamber of the Supreme Court dated 30 January 2006 Factory workers had enjoyed their holidays in July and August for at least seven years. The company then declared that these workers should enjoy their holidays in July, August, and September for organizational reasons. Employee representatives challenged the decision of the company by means of a labour dispute claiming that the decision infringed upon a right acquired under the doctrine of most beneficial conditions. The Supreme Court (“SC”) analysed whether the doctrine of most beneficial conditions applied, and determined that there are three prerequisites for such an acquired right to arise: (i) a subjective requirement, consisting of the company’s will to grant this right followed by the employee’s will to receive it, with the intention that it be included in and regulated by the contract; (ii) an objective requirement, consisting of an effective and real offer and acceptance; and finally (iii) a temporal requirement consisting of a future consolidation of the right. The SC concluded that there is not an acquired right under the doctrine of most beneficial conditions, given that the agreement between the employee representatives and the company is made in March and April of every year, in accordance with Article 38.2 of the Statute of Workers, which governs collective bargaining agreements. The SC declared that this case relates to temporary agreements and therefore, they do not impliedly incorporate repeated concessions. Consequently, the company’s decision was held to be lawful. Trade union freedom. More representative trade unions have the right to call elections in companies of six to ten workersJudgment 70/2006 of the Constitutional Court dated 13 March 2006 This decision analyses whether there is a breach of the right to trade union freedom when a more representative trade union is denied its capacity to promote elections to employee representatives in companies between six and ten employees, as recognized in Article 67.1 of the Statute of Workers and Article 6.3 of the Substantive Law on Trade Union Freedom, and exclusively recognizes the employees’ right to promote elections, by virtue of Article 62.1 of the Statute of Workers. The Constitutional Court (“CC”) argued that union elections are part of the additional content of union freedom, and that the harmonization of Article 6.3.e of the Substantive Law on Trade Union Freedom and Articles 67.1 and 62.1 of the Statute of Workers provides that the calling of elections by more representative unions in workplaces of six to ten employees always demands a majority decision of such employees. Nevertheless, this majority decision may occur before or after the election, and no specific formality is required. Thus, the majority decision of the employees could be express or implied, and a majority participation of the employees in the voting constitutes an implied decision. In this case, the company had ten employees and six of them voted for the elected candidate. The CC concluded that there was an implied majority decision to elect an employee representative, and that the aim of Article 62.1, which establishes that an employee representative may not be imposed on the employees, had been achieved. The Judgment of the CC dated 13 March 2006 reached the same conclusion as in this case.
The information contained in this Newsletter is of a general nature and does not constitute legal advice |
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