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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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European Public Limited Company. Employees’ involvementLaw 31/2006 of 18 October on the involvement of workers in public limited companies and European cooperatives. Spanish Official Gazette of 19 October 2006. This law includes a variety of measures that are aimed at recognizing the information and consultation rights of employees of a European public limited company (hereinafter “EPLC”), as well as the right to participate in its corporate bodies. In this regard, Directive 2001/86/EC forms part of Spanish legislation. This Directive was approved by the European Council of Ministers with the aim of achieving one of the objectives of the EU Treaty: establish a uniform legal framework in which companies from different Member States should be able to plan and carry out the reorganisation of their business at an EU level. The provisions of this law will apply to EPLCs that have or will have their registered address in Spain, to their subsidiaries and workplaces, as well as to the companies that participate in the incorporation of the EPLC and their subsidiaries and workplaces affected by the same, regardless of the Member State in which they are located. The purpose of the law is to promote the involvement of employees in EPLCs and to encourage the continuous dialogue between them. Under this pretext, title I of the law establishes that a negotiating committee shall be created in the companies, the purpose of which will be to negotiate with the EPLC the involvement of the workers therein. Furthermore, it will create the workers’ representative body. Title II regulates the provisions that are applicable to companies and workplaces located in Spain that form part of an EPLC that has its registered address in another Member State. Finally, the law amends the Consolidated Text of the Law on Labour Infringements and Sanctions approved by Royal Legislative Decree 5/2000 of 4 August and in Law 31/1995 of 8 November on the Prevention of Occupational Hazards. Subcontracting. Construction SectorLaw 32/2006 of 18 October, which regulates subcontracting within the Construction Sector. Spanish Official Gazette of 19 October 2006. Despite the construction sector having become one of the pillars on which economic growth in Spain is based, it cannot be ignored that it involves a number of risks that have made it notorious for work accidents, both in terms of numbers and seriousness. In acknowledgement of this, Law 32/2006 seeks to reverse this unfortunate situation by regulating the subcontracting of construction works and establishing measures with three main objectives: (i) firstly, a number of requirements are established so that works can only be subcontracted for a third time or more if there are objective grounds for doing so; (ii) secondly, the companies operating in this sector must comply with a series of quality and solvency requirements, as well as accredit the level of training in the prevention of occupational hazards of their personnel; and (iii) measures that ensure the transparency of construction works by requiring a series of documents are made available, and that reinforce the participation of employees from different companies that work on the same site. Lastly, this law modifies the Law on Labour Infringements and Sanctions by classifying certain infringements involving labour relations and the prevention of occupational hazards that could be committed by those responsible for subcontracting. Unemployment. Transfer of documents for benefits applications using telematics. Creation of the IT application Certific@2Order TAS/3261/2006 of 19 October regulates the communication of the content of the company certificate and other information relating to periods of employment of workers and the use of telematics in relation thereto. Spanish Official Gazette of 24 October 2006 The following has been considered in the drafting of this Order: article 38.9 and 59, the 18th additional provision of law 30/1992 of 26th December of the Public Authority Rules and the Common Administrative Procedure. The Order determines both the conditions and requirements to be met by employers regarding the communication of the documents they must provide for employees to be able to claim unemployment benefits. To this end, and pursuant to the authorization granted in the final provision of Royal Decree 625/1985 of 2 April, which develops Law 31/1984 of 2 August on unemployment benefit, the IT application Certific@2 is created for the receipt and storage of the information transferred by employers to the unemployment service. In this way, the order seeks to modernize, simplify and speed-up the process of paying unemployment benefits. Textile and Tailoring sector. Training and incentivesOrder TAS/3243/2006 of 19 October, which establishes the measures needed to develop the Agreement of the Council of Ministers of 9 June 2006 on certain financial and labour measures as part of the support plan for the textile and tailoring sector. Spanish Official Gazette of 21 October 2006. The scope of this Order includes those companies that carry out industrial activities in the textile and tailoring sector and to which the General Agreement of the Textile and Tailoring Industry (Convenio General de la Industria Textil y de la Confección) applies, and those that fall under paragraphs 17, 18.1 and 2 of the National Code of Economic Activities. The Order creates a series of credits for companies that offer retraining to employees following a change in their production process, the introduction of new organizational measures or new technology, and training that will facilitate their re-employment in the case of collective redundancies. Another series of incentives (through rebates) are established. These are principally aimed at encouraging companies to continue to employ workers over the age of 55 and to take on skilled workers in the textile/tailoring sector that are currently unemployed. The order also introduces measures that are aimed at improving the employability and the reallocation of the surplus employees belonging to the sector through professional guidance and professional training. Finally, the order establishes that employees over the age of 52 that were receiving unemployment benefit may continue to receive 50% of the same once employed, with the company paying the remainder of the employee’s wage. Dismissal. Pregnant employee. Unfair but not void dismissalJudgment of the Labour Chamber of the Supreme Court of 19 July 2006 This controversial judgment of the Supreme Court (“SC”) analyses a case in which on 16 July 2004, an employee was notified of her dismissal for disciplinary reasons. In the notification the unfairness of the dismissal was acknowledged and compensation was offered and deposited with the courts. On 18 July 2004, that is, two days after the dismissal, the employee took a pregnancy test, the result of which was positive; at no time did she notify the company of her pregnancy. The judgment of Labour Court no. 1 of Santander declared the dismissal void, and on appeal to the Labour Chamber of the High Court of Justice of Cantabria, this decision was upheld on the grounds that the dismissal should was void since the claimant was pregnant, it being irrelevant whether or not the company was aware of this. This decision concerned a subsequent appeal that was lodged seeking the unification of case law as to the interpretation that must be given to article 55.5.b) of the Statute of Workers (“SW”) on the dismissal of pregnant women. More specifically, confirmation was sought of whether it is necessary for a dismissal to be classed as void for the employer to know that the employee is pregnant. The judgment of the Labour Chamber of the High Court of Justice of Madrid of 16 December 2003 was alleged to be contrary to the judgment in the present case. The SC considers that the wording of Law 39/1999 of 5th November regarding the conciliation of family and work life of employees detailed in article 55.5.b) SW requires “the employer’s knowledge of the employee’s pregnancy” for the dismissal of a pregnant woman to be void. Specifically, this is a discriminatory dismissal, that is, one that infringes fundamental rights, in which the infringed right is that of not being discriminated against on the grounds of gender or family responsibilities. The SC also argues that the requirement that the employer have “knowledge of the employee’s pregnancy is entirely compatible with the principle of the rule of law as established in article 9.3 of the Spanish Constitution, given that the main ingredient of the rule of law is legal certainty. The SC finds support for its decision in a number of decisions of the Constitutional Court, which have adopted the same approach as that taken in this judgment, namely, that the company’s knowledge of the pregnancy is a requirement to be met for there to be discriminatory conduct (Judgment 41/2002 of 25 February and judgment 17/2003 of 23 January). In any case, it is highlighted that the Spanish legal system does not require the employee to inform her employer of her pregnancy, as the basic requirement that the employer is aware of the pregnancy can be met in two ways: because a pregnancy is clear to the eye or because the pregnancy is a known fact in the workplace. Furthermore, it is the employee who must prove that the employer knew of her pregnancy, something which did not happen in this case. On the basis of the foregoing, the SC upheld the appeal for the unification of case law and declared the dismissal to be unfair. However, eight judges of the SC submitted a dissenting opinion on the grounds that they consider that the Spanish legislator wanted the fact the employer’s decision to dismiss the employee may or may not be based on discriminatory reasons to be irrelevant when a woman is pregnant, since this would result in a classification of objective nullity based on article 55.5.b of the SW deriving from the pregnancy, and not subjective nullity, for no account would be taken of the reasons leading to this decision. Dismissal. Salary during the procedure. Suspension of accrual when deposit evidencedJudgment of the Labour Chamber of the Supreme Court of 30 May 2006 In the case in question, the employee was dismissed on 14 May 2004 for economic reasons, and the same day the company deposited with the Labour Court the correct amount of redundancy pay and a document in which it acknowledged the dismissal was unfair; nevertheless, the company did not notify the employee of this, who eventually found out about it on 27 May 2004 by means of a communication from the court. The conciliation act was to be held on 9 June 2004. Labour Court number 9 of Bilbao ordered the company to pay the employee her salary until the date of the conciliation act. The employee appealed to the High Court of Justice of the Basque Country, which upheld her appeal and ordered the company to pay her salary until the date of the notification of the judgment, which was 8 March 2005. The company disagreed with the ruling and lodged an appeal seeking the unification of case law citing the decision of the High Court of Justice of Andalusia of 15 January 2004 as the contradictory judgment. The SC therefore had to rule on whether salary should continue to accrue after the date the employee is notified of his/her dismissal and until a court rules on the fairness of the same if the employee is not informed of the employer’s acknowledgement of the unfairness of the dismissal and the deposit of his/her compensation with the court. The SC points out that the purpose of this communication is to provide the employee with sufficient information regarding the company’s actions. This communication to the employee is one of the requirements that must be met for the accrual of salary to be paralysed, although the law does not specify how this communication should be done. Furthermore, the Court notes that the legislation provides that the communication should be done “between the date of the dismissal and the date of the conciliation act”. In this case, the communication was carried out through the court in terms that left no room for doubt as to its reality or its content. The communication was carried out prior to the conciliation act and therefore within the period established by law. The Supreme Court therefore concludes that for these reasons it must uphold the appeal lodged by the company such that it should not have to pay the employee any back pay. Dismissal. Deadline. Breach of article 24.1 Spanish Constitution. Appeal to the Constitutional CourtJudgment of the Constitutional Court 265/2006 of 11 September The applicant in this case claimed her fundamental rights to the effective protection of the judges and the courts (article 24.1, Spanish Constitution), to a public trial with full guarantees (article 24.2), and to the presumptions of innocence (article 24.2) had been breached by a decision of the High Court of Justice of Madrid and the Labour Chamber of the SC. The applicant had been informed of her dismissal by means of a communication dated 3 June 2002; a second communication was sent to her on June 10. The High Court of Justice of Madrid held that the second communication of 10 June could not serve to prove the dismissal, nor to correct the same since it was basically an extension of the dismissal letter that exceeded the limits of article 55.2 of the SW. As such, her dismissal took effect on 3 June. It is on these grounds that the Constitutional Court holds that the claim challenging the dismissal had been filed after the deadline for doing so and as such it overturns the previous decision upholding the applicant’s claims. The Constitutional Court does not find any infringement of article 24.2 of the Constitution but it does find the right to effective protection from the judges and the courts pursuant to article 24.1 was breached in terms of access to the courts in that the courts could not decide on the merits of the case owing to the late filing of the claim. The Constitutional Court understands that it is clear that the result of the company’s defective amendment of the first notification of dismissal could never be to deprive the employee of her right to challenge the dismissal, since this bears no relation to the objectives sought by article 55.2 of the SW and, generally, all the regulations on the formal guarantees applicable to dismissals (one of which is the obligation to determine the date that the dismissal shall take effect (article 55.1 SW)) that ensure the employee can contest it within the applicable deadline. Having analyzed the content of the letter of 10 July, the Court considered it logical and reasonable that the employee brought her claim in response to this second letter, considering that the first had been rendered ineffective. Consequently, the interpretation that gives greatest effect to the right to effective protection from the judges and the courts would be to consider that it was in response to the second letter (and not the first which the company itself had rendered ineffective) that the employee should file her claim against the dismissal - and therefore within the corresponding deadline. For this reason the Constitutional Court upholds the employee’s claim that her right to the protection of the courts and the judges had been breached and orders that the claim is returned to the High Court of Justice of Madrid for it to issue a new decision.
The information contained in this Newsletter is of a general nature and does not constitute legal advice |
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