|
|
|
|
The information
contained in this Newsletter is of a general nature and does not constitute
legal advice |
|
|
|
Reform of
labour law. Approval
Resolution
of the Spanish Congress dated June 29, 2006 ordering the publication of the
Approval Agreement of Royal Decree 5/2006 dated June 9, 2006, on growth and
employment (see the special release of our Labour Law Newsletter of June
2006). Spanish Official Gazette of July 5, 2006 Through
the approval of Royal Decree-law 5/2006 dated June 9, 2006, on growth and
employment, article 86.2 of the Spanish Constitution is complied with, which
provides that the Congress must decide whether to approve or repeal
Decree-laws within 30 days following their publication. State Public
Employment Service. List of positions that were difficult to fill during the
second quarter of 2006
Resolution
of May 5, 2006 of the State Public Employment Service, announces the
extension of the list of positions that were difficult to fill during the
second quarter of 2006. Spanish Official Gazette of June 1, 2006 This list
extends the occupations already contained in the Resolution of March 28,
2006, in relation to which the Spanish Public Employment Service finds it
most difficult to fill vacant positions advertised by employers. In addition,
inclusion in this list means that employers can request work and residence
permits for foreign employees in the event that the job vacancies include
positions that are on the list. Working
time. Paid holiday. Salary
Judgment
of January 31, 2006 of courtroom number four of the Spanish Supreme Court Courtroom
number four of the Spanish Supreme Court considered in its judgment of
January 31, 2006 that the remuneration corresponding to “holiday” is salary
for all purposes. The Supreme Court found that, although no actual work is
done during the holiday period, it is a necessary rest period. The
judgment rejects the appeal filed against the ruling that ordered the company
to pay the employee the amount claimed for holiday pay. The Court found that
remuneration that corresponds to holiday “is salary for all purposes, and
specifically for the purposes of article 42.2 of the Statute of Workers”. The court
also noted that article 26 of the Statute of Workers establishes that “salary
is the total amount of economic remuneration paid to employees, in cash or in
kind, for the personal rendering of labour-related services, either as compensation
for the actual work done or for periods that can be assimilated to work”, as
well as that article 38 defines holiday leave as “paid annual holiday
leave”, and that, therefore, it must be paid as working time “even
though this period is not actual working time, but necessary rest” Dismissal.
Breach of fundamental rights. Judicial and out-of-court claims against the
company. Null due to evidence of retaliation
Judgment
138/2006 of May 8, passed by Courtroom number one of the Spanish Constitutional
Court Judgment
138/2006 of May 8 of Courtroom number one of the Spanish Constitutional Court
declared the dismissal of an employee null and void on the grounds that it
was a retaliatory measure taken against the employee for the judicial and
out-of-court claims that he had filed against the company. The Court also
considered that there had been a breach of the right to due process and
freedom of association. The
Court found that there was a major legal dispute between the employee and the
company, which had seen various claims being filed during the period
immediately prior to the dismissal. Likewise, the decision to dismiss the
employee came about following a series of disciplinary sanctions, which were
all appealed by the employee before the Labour Courts. The
Court considered that the employee gave sufficient evidence of the
possibility that the company’s actions were aimed at punishing the employee
for the repeated claims before the Labour courts, and found that there was a
certain animosity between the parties that could affect the right not to be
retaliated against (which is part of the right to due process). Therefore, the Court found that
this right had been breached as far as the company should have given precise
and conclusive evidence that the dismissal was based on grounds that are
totally unrelated to the alleged breach of fundamental rights, and that such
grounds were important enough to justify the decision to dismiss the
employee; this being the only way to counteract the suggestion of a breach
that was created by the evidence. Likewise,
the Court also found that, in relation to the alleged breach of the
employee’s right to freedom of association, and in particular his position as
Secretary General of CC.OO. (one of Spain’s largest
trade unions), the same criteria as those used regarding the breach of the
right to due process must be applied. Therefore, the Court considers that,
from the analysis of the proven facts, it can be inferred that the evidence
brought by the employee was sufficient to prove the actions taken by the
company were aimed at sanctioning the employee. The Court found that the
company had not adequately proven that its decision to dismiss the employee
was based on grounds that did not amount to a breach of fundamental rights. Dismissal.
Organisational and production grounds. Outsourcing of services
Judgment
of courtroom number four of the Spanish Supreme Court, of May 10, 2006,
unifying case law. The
judgment of courtroom number four of the Spanish Supreme Court of May 10,
2006, which unifies case law, considered that the difficulties that hinder
the correct functioning of a company in an outsourcing situation do not need
to be so serious as to put the future viability of the company or the
employees of the same at risk. The Court considered that the difficulties
need only hinder the correct functioning of the company (be this the ability
to meet demand, or to maintain the company’s competitive position within the
market). The Court
analyzes the fairness of a dismissal carried out as a consequence of the
outsourcing, through a subcontract of the activity carried out by the
employee. Both the Labour Court and the High Court of Justice had considered
the dismissal unfair as the company did not evidence the “difficulties
that hinder the correct functioning of the company”. The
Supreme Court held that the company’s decision to outsource its production
activities must be considered in terms of whether the measure adopted is
plausible or reasonable from a company management point of view; that is to
say, that the measure meets the standard of conduct expected from a good
businessman. In this
case, the Supreme Court found that such standard was met, since the
outsourcing of the logistics of the distribution of its products to a
specialized company, owing to the difficulties that the company faced
carrying out these activities itself, could without doubt be considered a
reasonable or plausible conduct that falls within the scope of the conduct of
a good businessman. Health and
safety at work. Hydrocarbons. Recognition of cancer as an occupational illness
Judgment
of May 22, 2006, of the Labour Court of Ceuta. In
this ruling, the Labour Court judge rejected a claim filed by a company and its
mutual insurance society and confirmed the appealed decision in which the
lung cancer suffered by an employee was acknowledged as being an occupational
illness, and that his death was caused by contact with hydrocarbon
by-products. While the
company argued that lung cancer was not classed as an occupational illness,
the judge held that such concept includes those illnesses caused by chemical
agents such as benzene, xylene, toluene and other
comparable chemical agents, such as those used in activities in which benzene
and other comparable chemical agents are handled. The judge considered that
these circumstances were present in the case at hand. The
company argued that there was no causal link between the employee’s contact
with the hydrocarbons and the development of the illness on the grounds that
medical textbooks class benzene as a cause of leukaemia, but not of lung
cancer. The Labour Court held that such assertion was insufficient to
counteract the medical report issued by the doctors who treated the employee.
The information contained in
this Newsletter is of a general nature and does not constitute legal advice |