June 2006

NEWSLETTER


The information contained in this Newsletter is of a general nature and does not constitute legal advice



LABOUR LAW

 


Reform of labour law. Approval

The 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), was published in the Spanish Official Gazette of July 5, 2006. (More Information)

State Public Employment Service. List of positions that were difficult to fill during the second quarter of 2006

The 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. (More Information)

Working time. Paid holiday. Salary

Courtroom number four of the Spanish Supreme Court considers in its judgment of January 31, 2006 that the payment 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 in fact a necessary rest period. (More Information)

Dismissal. Breach of fundamental rights. Judicial and out-of-court claims against the company. Null due to evidence of retaliation

Judgment 138/2006 dated May 8, 2006 of courtroom number one of the Spanish Constitutional Court declared the dismissal of an employee as null and void owing to the fact it was a response to the judicial and out-of-court claims that he had filed against the company. The Court also found there was a breach of the right to due process and freedom of association. (More Information)

Dismissal. Organisational and production grounds. Outsourcing of services

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 the event it out-sources certain activities do not need to be so serious as to put the future viability of the company or its employees at risk. The Court considers that the difficulties need only hinder the correct functioning of the company (be this in relation to meeting demand, or the company’s position in the market). (More Information)

Health and safety at work. Hydrocarbons. Recognition of cancer as an occupational illness

Judgment 154/2006 of the First Instance Labour Court of Ceuta held that the cancer suffered by an employee was an occupational illness, as his death was caused by contact with hydrocarbon by-products. (More Information)


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