|
|
|
|
|
|
|
The information contained in this Newsletter is of a general nature and does not constitute legal advice |
|
|
|
|
Outsourcing. Construction industryLabour and Social Issues Commission, exercising full legislative power, approval of a bill to regulate outsourcing. Spanish Parliament Official Gazette of 31 May 2006 In the context of excessive outsourcing, especially in the construction industry, this bill establishes guarantees for subcontractors against the health and safety hazards they often face. The bill establishes various measures: First, it requires that third-level sub-contracting be based on objective criteria. Second, the bill establishes quality and reliability thresholds for construction companies. Third, it improves transparency at construction sites by means of documentary systems and reinforcing participation systems for employees of the various companies taking part in the construction. Finally, in order to assure the effectiveness of this regulation, the bill modifies the Revised Text of the Employment-Related Infractions and Sanctions Act, approved by Royal Legislative Decree 5/2000 of 4 August. Pensions. Initial agreement on pension systemInitial agreement reached on 30 May 2006 between the government and social agents to reform the Spanish pension regime This initial agreement was reached on 30 May 2006. Although the text is not definitive, it introduces some novelties in the pension regime. It sets forth, among others, provision of the widow’s pension to de facto partners and divorced couples. It also requires fifteen years of effective contribution (excluding special payments) to be entitled to a retirement pension. Employment. List of occupations with difficult coverage for the second quarter of 2006Resolution of 28 March 2006 of the Public Spanish Employment Service, which publishes the list of occupations with difficult coverage for the second quarter of 2006. Spanish Official Gazette of 30 May 2006 This resolution publishes a list of occupations with difficult coverage for the second quarter of 2006, prepared by the Spanish Public Employment Service according to information provided by the Public Employment Services of the Autonomous Regions, after consultation with the Tripartite Labour Commission on Immigration. This catalogue allows employers to request residency and work permits for foreign employees for occupations included in the list. Preventive Services. Health and safety at construction sitesRoyal Decree 604/2006 of 19 May, which modifies the Royal Decree 39/1997 of 17 January, on preventive services regulations, and Royal Decree 1627/1997 of 24 October, on minimum health and safety provisions at construction sites. Spanish Official Gazette of 29 May 2006 This Royal Decree establishes a set of measures to overcome the deficient incorporation of the new preventive model at construction sites. The Royal Decree modifies Royal Decree 39/1997 of 17 January, on preventive services regulations, and Royal Decree 1627/1997 of 24 October, on the minimum health and safety provisions at construction sites. It sets forth, among others, the duty of the employees and their representatives to contribute, collaborate on and carry out the complete integration of preventive activity. Furthermore, it develops provisions of Act 31/1995 of 8 November on prevention of occupational hazards, in relation to the nature and the minimum content of the occupational hazards prevention plan. Additionally, it introduces a new Article 22 bis in abovementioned Royal Decree 39/1997, which develops preventive resources, especially in order to specify dangerous activities or processes or special hazards. Moreover, it introduces, for the first time, a regulation on external audits, voluntary audits, and consulting with workers and their representatives. Finally, this Royal Decree develops the regulation on dangerous activities in other issues, in relation to the substantive obligations of coordination, and in relation to the application of the Employment-related Infractions and Sanctions Act. Partial unemployment. Cross-border workersDecision No. 205, of the Administrative Commission of the European Communities on Social Security for migrant workers, of 17 October 2005 on the scope of the notion of partial unemployment with regard to frontier workers. Official Gazette of the European Communities of 18 May 2006 The Administrative Commission of the European Communities establishes the scope of the notion of the partial unemployment with regard to cross-border workers, according to the paragraph 1.A of Article 71 of Council Regulation (EEC) No 1408/71 of 14 June 1971, and according to the rules of the Court of Justice of the European Communities. It sets forth that the determination of the nature of unemployment (that is to say partial or whole) shall depend on whether any contractual employment link exists or is maintained between the parties, and not on the duration of any temporary suspension of the worker’s activity. If a cross-border worker remains employed by an undertaking in a Member State other than that in whose territory he resides, but his activity is suspended although he can return to his post at any time, the said worker shall be regarded as partially unemployed, and the corresponding benefits shall be provided by the competent institution of the Member State of employment. Finally, if a cross-border worker, in the absence of any contractual employment link, no longer has any link with the Member State of employment (for example, because the employment contract link has been terminated or has expired), he shall be regarded as wholly unemployed, and benefits shall be provided by the institution of the place of residence at its own expense. Employment pension funds. Adaptation of the Spanish legislation to the System of Cross-Border ActivitiesAct 11/2006 of 16 May, on the adaptation of the Spanish legislation to the System of Cross-Border Activities regulated in Directive 2003/41/EC of the European Parliament and of the Council of 3 June 2003, which regulates the activities and the supervision of the employment pension funds. Spanish Official Gazette of 17 May 2006 The purpose of Directive 2003/41/EC is to guarantee the security and effective management of the pension systems through preventive and supervision rules and to set forth a system of cross-border activities of the employment pension funds to protect pension funds and, more generally, the economic and social progress of the European Union. Through preventive and supervisory rules, this Act adds a new paragraph 5 to Article 24 of the Revised Text of the Act on regulation of the pension plans and funds, approved by Royal Legislative Decree 1/2002 of 29 November, which establishes the administrative supervision of the relations between the pension funds and their managing companies, which impact the financial situation or have importance for effective supervision, according to Article 13.b) and d) of Directive 2003/41/EC. Additionally, to date, the Spanish regulation on pension plans and funds did not regulate the cross-border activities of employment pension funds. The other issues regulated by Directive 2003/41/EC had been already incorporated in the Spanish legislation. As a consequence, this Act transposes to the internal legislation the dispositions of the Directive 2003/41/EC on frontier activities. Specifically, this Act adds a new Chapter X in the Revised Text of the Act on regulation of the pension plans and funds, approved by Royal Decree 1/2002 of 29 November. This new Chapter X includes three sections: the first section, on general provisions; the second section, on the activity of the Spanish employment pension funds in other Member States (development of company plans established in other Member States); and the third section, on the activity in Spain of the employment pension funds of other Member States (development of undertaking plans established in Spain). Furthermore, the activity in Spain of other Member States’ funds should be emphasized. The Act entitles the integration of the employment pension plans under Spanish regulation in other Member States’ funds. The third section of this Act lists a set of articles of the Revised Text of the Act on regulation of the pension plans and funds in force, which apply to pension plans of companies established in Spain, and which have to be observed if these plans are ascribed to other Member States’ pension funds. Finally, the Act modifies the second transitory provision of the Revised Text of the Act on regulation of the pension plans and funds. Those pension funds that on 1 January 2002 integrated associated and individual employment pension plans are entitled to maintain that situation, although they may only access cross-border activity if they limit their activity to employment pension plans, with the subsequent transfer to other funds of the plans which do not belong to the employment system. Labour reform. Agreement for the improvement of growth and employmentAgreement for the improvement of growth and employment signed by the government, business organizations and trade union confederations, on 9 May 2006 (approved by Royal Decree-Law of the Council of Ministers of 9 June 2006, on the reform of the employment market) The Agreement aims to improve employment stability by promoting higher-quality employment, which is necessary for higher productivity and competitiveness. This Agreement has three chapters. The first impels and supports permanent employment and conversion from temporary to permanent work. It sets forth, among other measures, the spurring of contracts to promote permanent hiring, a new bonus program, and an “Extraordinary plan” for the conversion of temporary into permanent employment. In relation to the conversion of temporary into permanent employment, the Agreement establishes that the companies may convert temporary contracts entered into before 31 December 2007 into so-called permanent-employment development contracts, whose main feature is severance payment for unfair objective dismissal of thirty-three (rather than forty-five) days of salary per year of service. If the temporary employment contracts entered into before 1 June 2006 are converted into permanent employment contracts before 1 January 2007, they will have a bonus of EUR 800 per year for 3 years. With the exception of the “Extraordinary plan” and some temporary employment contracts, the Agreement eliminates the bonuses for the conversion of temporary employment contracts into indefinite contracts. Consequently, only initial direct indefinite hiring will generally result in bonuses. Thus initial permanent hiring will be rewarded with fixed annual bonuses, which will substitute the current percentage-based bonuses, and with an increased period of bonus application. Additionally, the Agreement reduces the company’s required unemployment contributions by fifty basis points as well as the current contribution rate to the Salary Guarantee Fund (Fondo de Garantía Salarial or FOGASA). The Agreement also ends unemployment contribution penalties for full time employment contracts at temporary employment companies. The second chapter of the Agreement sets forth measures to improve the use of temporary hiring, eliminating “back to work” insertion contracts and modifying the maximum limits for training contracts. Furthermore, bearing in mind the succession of temporary employment contracts, the Agreement establishes that workers hired for more than twenty-four months in a thirty-month period, with or without interruption, in the same place and with the same company, with two or more temporary employment contracts, either directly or by means of a temporary employment contract, or with the same or different temporary contractual modalities, will be recognized as permanent contracts. Likewise, the Agreement establishes some measures related to subcontracting and illegal termination of workers. Among these measures, the Agreement sets forth a definition of illegal transfer of workers in accordance with current case law. In relation to outsourcing, the Agreement establishes some provisions in the event that the contractor and the subcontractor share the same work centre on a continuous basis. Additionally, the Agreement reinforces the Labour Inspectorate by means of increasing the staff and the involvement of the social negotiators. The third chapter of the Agreement contains some measures focused on promoting the intervention capacity of the National Employment System and on improving the protection of the employees in relation to unemployment and FOGASA benefits. Social Security. Application of the Social Security Agreement entered into between Spain and the Federative Republic of BrazilAdministrative Agreement for the application of the Social Security Agreement entered into between Spain and the Federative Republic of Brazil. Spanish Official Gazette of 9 May 2006 This Administrative Agreement establishes the linking bodies and the competent institutions in relation to both States. Likewise, the Agreement sets forth procedures for the implementation of the different benefits regulated in the Social Security Agreement entered into by Spain and the Federative Republic of Brazil. Indemnity guarantee. Infringement of the right to judicial protection. Discrimination evidenced by denial of salary increase as reprisal for judicial and extrajudicial claims against companyJudgment 120/2006 of the Constitutional Court dated 24 April 2006 The claimant focused her claim on two issues: (i) the material protection provided by the indemnity guarantee; and (ii) the application of the constitutional doctrine on the burden of proof in labour procedure to those cases where that guarantee is endangered. The Constitutional Court held that effective judicial protection is infringed not only when there are irregularities in the proceedings that breach the procedural guarantees, but also when there are perverse consequences on the person in his/her public or private relations after exercising that right, or after carrying out prior procedures in order to achieve it. The Constitutional Court recognized that evidence of reprisal by the company does not depend on the outcome of previous proceedings that the worker had initiated. Thus, in this judgment, the Constitutional Court held that the claimant brought forward the necessary evidence in order to shift the burden of proof to the company. The Constitutional Court concluded that the judicial courts infringed the right to judicial protection as a consequence of rejecting the evidence that the claimant had brought forward without analyzing the temporal connection and other concurrent circumstances and omitting, consequently, examination of the evidence the company had to bring forward. As a consequence of the foregoing, the Constitutional Court reverses the appealed judgements and remands to the courts for examination of company’s evidence in order to conclude whether the company infringed the indemnity guarantee of the claimant. Orphan allowance. Infringement of the right to judicial protection. Second judgment of the Labour Court diverging from the scope of nullity of proceedings raised while case is on appealJudgment 87/2006 of the Constitutional Court dated 27 March 2006 In this decision, the Constitutional Court analysed whether the judgment of the Labour Court, and the subsequent judgments confirming it, breached the right to judicial protection of the claimant by disregarding res judicata and the prohibition against modifying and making worse a prior judgment uncontested by the opposing party. Although the prohibition of making a prior judgment worse is not expressly recognised in the Spanish Constitution, that prohibition has a constitutional scope according to the constitutional doctrine because it is a constitutional principle which belongs to the right to judicial protection, which comes from the constitutional prohibition of defencelessness. Thus, the Constitutional Court argued that any worsening of the initial situation of the appellant is contrary to Article 24 of the Spanish Constitution if that worsening is due only to the appellant’s appeal without being contested by the other party, with the exception of those cases where the application of public order rules is imperative. In this case, as the judgment of the Labour Court was reversed in its entirety, although some provisions of the repealed judgment had not been refuted by the other party, the Labour Court modified it and made the prior judgment worse. As a result, the Constitutional Court repealed the second judgment of the Labour Court because that judgment had infringed the right of the claimant to judicial protection. Fundamental right to equality. Collective agreement abolishing some salary bonuses, maintaining them as “personal guarantee or bonus” for those employees then working for a companyJudgment of the Labour Chamber of the Supreme Court dated 14 March 2006 The Supreme Court analysed the legality of an agreement contained in the company’s XVII Collective Bargaining Agreement after its contestation by the Catalonian Metal Federation of Comisiones Obreras by the trade-union syndicate of Comisiones Obreras of the company and by the General Work Confederation of Catalonia. The XVII Collective Bargaining Agreement had been contested for violating the fundamental right of equality by denying certain bonuses to those employees who joined the company after the said agreement. It should be noted that the refuted agreement had precedent in some collective agreements entered into between the representation of the company and the members of the Committee of the different work centres of the company. After considering various motives for factual revision provided by the company, the Supreme Court, conforming with the constitutional doctrine of equality, understood that the company was suffering from a grave business crisis when the collective bargaining agreement was signed and so the desire to maintain employment stability objectively and reasonably outweighed the justice of proportionality. Consequently, the Supreme Court accepted the company’s appeal that different salary treatment was not an infringement of the fundamental right to equality. Sexual discrimination. Void dismissal when made during worker’s breast-feeding period. Failure by worker to request breast-feeding leaveJudgement of the Labour Chamber of the High Court of Justice of Cantabria dated 22 February 2006 This decision analyses whether a dismissal is void because it was made while the employee was on vacation immediately following her being on maternity leave. The High Court of Justice of Cantabria held that the employee brought forward sufficient evidence of presumptive infringement of the right against sexual discrimination. Consequently, the High Court of Justice of Cantabria shifted the burden of proof to the company. The court considered that the company had not proved that the dismissal was justified, which would have removed the appearance of sexual discrimination. The High Court of Justice of Cantabria concluded that because the employee was in the term during which she had the right to request breast-feeding leave, she had to be protected as if she had requested breast-feeding leave. As a consequence, although the employee had not requested breast-feeding leave when she was on vacation after her maternity leave, the High Court of Justice of Cantabria deemed the dismissal was void.
The information contained in this Newsletter is of a general nature and does not constitute legal advice |
|
