Directive 1/2006 of the Spanish Data Protection Agency, dated 8 November 2006, regulates the installation of video camera systems for surveillance purposes. Certain legal standards must be taken into account, and in order to comply with the principle of proportionality, other less intrusive methods on people’s privacy must be used if possible. (More information)
Occupational illnesses. Notification and registration requirements
Royal Decree 1299/2006 of 10 November, updates the list of occupational illnesses included in the Social Security and modifies the communication procedure which is currently in force, for the declaration, notification and communication of occupational illnesses. (More information)
Care of dependants
Law 39/2006 of 14 December, on the promotion of personal autonomy and care of dependants is intended to provide assistance, by means of a fixed set of resources and services, to the people who need assistance to carry out normal day to day activities due to old age, disease or other disabilities or limitations. (More information)
Emigrant workers. Statute for Spanish Citizens Abroad
Law 40/2006 of 14 December, encourages the cooperation of the public authorities to guarantee the remigration of Spanish emigrants. Furthermore, this Law guarantees Spanish residents abroad the exercise of their constitutional rights and obligations in the same conditions as Spanish citizens residing in Spain. (More information)
Foreign Workers. Quota for 2007
Agreement of the Council of Ministers, dated 22 December 2006, approving a quota of 180,000 non-EC workers in Spain for 2007. (More information)
Labour Law reform
Law 43/2006 of 29 December, to enhance growth and employment in Spain, tackles issues such as the disproportion in the work market, promotes employment, improves the operation of the employment market and aims to stabilise employment. (More information)
Dismissal. The 48-hour term to deposit severance payment is a procedural term. Non-working days not to be considered for this purpose
The judgment of the Labour Chamber of the Spanish Supreme Court, of 16 October 2006, declared that the 48-hour term for the employer to deposit the severance pay for unfair dismissal in the Labour Court is a procedural term. Therefore, non-working days do not count for this purpose. (More information)
The Labour Chamber of the Spanish Supreme Court, in a judgment dated 24 October 2006, held that the termination of an employment contract as a consequence of a collective dismissal procedure authorised by the public administration constituted an involuntary termination of the employment relationship, despite the fact the employee’s agreement was to be included in the collective dismissal procedure. (More information)
Directive 1/2006 dated 8 November 2006, of the Spanish Data Protection Agency, on the use of personal data for surveillance purposes by means of a video camera or camera system. Spanish Official Gazette of 12 December 2006
Directive 1/2006, dated 8 November (the “Directive”), provides that whenever video camera surveillance systems are installed, the legal standards that this measure intends to protect should be assessed, respecting the principle of proportionality at all times. In these cases, other less intrusive methods for people’s privacy must be considered beforehand. Based on the reasoning of Judgment 207/1996 of the Constitutional Court, this Directive provides that the proportionality of the measure must have been contemplated before installing the video cameras for surveillance purposes.
This Directive does not apply to data recorded for personal use nor to their processing by law enforcement bodies or agencies in the performance of their duties.
Similarly, the Directive regulates the duty to provide information as established in Article 5 of Basic Law 15/1999, dated 13 December, on the Protection of Personal Data (“LOPD”), the exercise of the rights contained in Article 15 et seq. and confirms the application of Articles 6.1, 6.2, 11.1 and 11.2 of the LOPD.
Furthermore, as established in the regulations on data protection, any party or entity intending to store video surveillance footage must notify the Spanish Data Protection Agency in advance.
Royal Decree 1299/2006 of 10 November, approving the list of occupational illnesses included in the Social Security and sets forth the criteria for their notification and registration. Spanish Official Gazette of December 19, 2006
The current law was based on Royal Decree 1995/1978, of 12 May, approving the -prior- list of occupational illnesses included in the Social Security, and on Royal Decree 3772/1972, of 23 December, approving the general regulation of the special agricultural regime of the Social Security.
This new Royal Decree follows the recommendation of the European Union in 2003, that emphasised the need to draft two lists: one enumerating occupational illnesses and the other containing illnesses that appear to be work related.
In addition, the new Royal Decree reforms the system of notification of occupational illnesses, with liability shifting from the employer to the mutual benefit societies and the managing entities. The aim is to reduce the locations from which notification can be made, thus speeding-up the process whilst making it more efficient as well as ensuring accurate information is provided from the outset.
Furthermore, a new electronic system is to be implemented in the Social Security to allow for real-time information on occupational illnesses, provide virtual office services through the Internet and create different security profiles to protect the data contained in the system.
The purpose of Law 39/2006, of 14 December (“Law 39/2006”), is to regulate the basic conditions that guarantee equality in the exercise of the subjective right to promote personal autonomy and care of dependants.
In pursuit of this objective, a system for the autonomy and care of individuals in a situation of dependence will be created, with the collaboration and participation of the public authorities and the state administration’s assurance that all citizens will be guaranteed a minimum number of rights. The aim of this system is to guarantee minimum rights and the three tiers of protection established in Law 39/2006: the first tier, which is defined and funded by the state; the second tier, which will include a regime of financing and cooperation between the general state administration and the autonomous regions, by means of agreements for the application and development of further benefits and services set forth in Law 39/2006; and the third tier to be implemented by the autonomous regions, if they deem it appropriate.
In order to better the co-ordination between the autonomous regions and the general state administration, Law 39/2006 has created the so called Territorial Council of the System for Autonomy and Care of Dependants, which will create a framework for inter-administrative cooperation. In addition, it will develop the scope of the services included in the catalogue, the conditions and amount of economic benefits, the criteria for the beneficiaries’ involvement in the payment of services or the scale used to assess the situation of dependency, issues that must enable the expansion of the System into the autonomous regions by means of the relevant agreements.
The beneficiaries will gradually contribute to the financing of the services depending on their economic capacity, bearing in mind the cost and kind of services rendered for this purpose.
Law 39/2006 regulates the relief and the services provided, the degrees of dependency, the basic criteria for their assessment, as well as the procedure to be followed in order to qualify for such relief and the regulations on infringements and sanctions linked to the basic conditions to guarantee the rights of dependants.
The additional provisions of Law 39/2006 introduce amendments regarding Social Security issues of non-professional carers, on Income Tax Law, on regulations concerning disability, severe disability and the need of third party assistance. In addition, the essential modifications to regulate the private cover of persons in a dependence situation are established.
The aim of Law 39/2006 is to act as a channel for the collaboration and participation between the Public Authorities and to optimize the public and private resources available, becoming a new form of social protection that extends and complements the state and social security system.
Law 40/2006 of 14 December, approving the Statute for Spanish Citizens Abroad. Spanish Official Gazette of December 15, 2006
Law 40/2006, of 14 December (the “Statute”), was approved pursuant to Article 149.1.2 of the Spanish Constitution by virtue of which the state has exclusive competence as regards matters of emigration.
The Statute constitutes a legal framework that guarantees the exercise of constitutional rights and obligations by Spanish citizens living abroad, in the same terms as citizens living in Spain. Furthermore, the Statute aims to delimit the basic lines of State action in the protection of Spanish citizens living abroad, and to establish the framework of cooperation and coordination between the state and the autonomous regions.
Likewise, the Statute encourages movement of Spanish citizens abroad and develops actions concerning remigration.
The Statute sets forth a list of rights -recognized under Spanish law but in several lower ranking regulations- for Spanish citizens living abroad: (i) rights of participation; (ii) social rights and benefits; and (iii) rights related to education and culture.
The so called Spanish Remigration Office has also been created and assigned to the Ministry of Labour and Social Affairs, which will provide guidelines and advice to Spanish citizens that decide to remigrate.
The Statute sets forth cooperation, collaboration and coordination mechanisms for the different public authorities that are competent to handle these matters.
In addition, a web site is set up for Spanish citizens living abroad enabling them to access any relevant information regarding emigration.
The agreement of the Council of Ministers, dated 22 December 2006, approved the quota for non-European Community foreign workers in Spain for 2007. Spanish Official Gazette of January 9, 2007
The government, through the Ministry of Labour and Social Affairs, approved this agreement in accordance with the current legislation, which allows for the establishment of an annual quota of foreign workers linked to the unemployment rate, which is only applicable to foreign workers from outside the Spanish territory.
Approximately 180,000 foreign workers will be able to have access to employment next year by means of a system that allows for hiring from the country of origin, following the various procedures set forth under Spanish law. The 180,000 foreign workers shall be distributed as follows: (i) 27,034 for the quota, (ii) 92,000 for the general regime (individual hiring); and (iii) 61,000 for fixed term employment (seasonal).
The work licenses granted will be valid for at least one year.
In addition, procedural regulations for seasonal workers are also established. Initially, the one year limitation will not apply to these workers.
Seasonal employment offers are made to cater for temporary needs for a maximum term of 9 months, within a period of 12 months, or for works or services, provided that, in the latter case, the duration of the agreement does not exceed one year.
Both permanent and temporary employment offers can be made on a generic or personal basis, in accordance with the corresponding requirements established.
However, the agreement includes an initial 455 visas approximately for the search of household service staff, as well as an initial 500 visas for the trial programme through which visas will be granted to children and grandchildren of Spanish migrants. The workers who qualify for this programme must find a job within a maximum term of three months.
Law 43/2006 of 29 December, to enhance growth and employment. Spanish Official Gazette of December 30, 2006
The agreement to enhance growth and employment ( the “Agreement”) executed on 9 May, 2006 by the government, the employer organizations CEOE and CEPYME and the trade unions CCOO and UGT led to Royal Decree-Law 5/2006, of 9 June, which has also given rise to this Law 43/2006, of 29 December, derives (“Law 43/2006”).
Therefore, apart from certain provisions for bettering the employment conditions of handicapped people, Law 43/2006 reiterates the content of Royal Decree-Law 5/2006 almost entirely. Therefore, it will be this Law -as from its coming into force - and not the Royal Decree, that will regulate these issues.
Dismissal. The 48-hour term to deposit severance payment is a procedural term. Non-working days not to be considered for this purpose
Judgment of the Labour Chamber of the Spanish Supreme Court of October 16, 2006
This judgment analysed whether the judicial deposit of severance compensation by a company on April 14, 2004, having dismissed an employee on April 8, 2004 through a letter in which the unfairness of the dismissal was accepted, released the company from the obligation to pay the so called back-pay accrued during the period between 8 and 14 April 2004.
The 9, 10, 11 and 12 of April were non-working days since they included Good Friday, Saturday, Sunday and Easter Monday. Contrary to the opinion of the Labour Chamber of the High Court of Catalonia, which considered that it was a substantive term, the Spanish Supreme Court (“SC”) stated that it was a procedural term. Consequently, non-working days should not to be taken into account, otherwise, this could lead to an absurd situation whereby the employer would be unable to make the relevant deposit of back-pay, thus breaching its obligation in accordance with Article 56, simply because the Labour Courts are closed (for instance, on Saturdays or Sundays).
In this case, the SC confirmed that the deposit was correctly executed on April 14, which was, the second working day after the date of the dismissal.
In this case, the National Institute of the Social Security (“INSS”) applied an 8% reduction of the applicant’s contribution base to the early retirement benefit, since he voluntarily signed up for the scheme of early retirement established in the collective dismissal procedure of the company for which he worked. The INSS alleged that the employee had voluntarily, rather than involuntarily, terminated the employment relationship.
However, the SC stated that in this case, the employment relationship had not been voluntarily terminated by the employee, because he/she had decided to terminate his/her labour relationship in accordance with the collective dismissal procedure. Moreover, the SC pointed out that the agreement had been terminated by a cause other than the employee’s will; more specifically, for economic, technical, organizational or productive reasons, as verified by the Administration before authorising the collective dismissal. The SC accepted that the employee’s decision to retire early was voluntary, which does not necessarily imply that the termination was so too.
The SC stated that, the collective dismissal regime includes a process whereby the affected workers may be determined: (i) directly and personally in the administrative resolution; (ii) by the employer, without the employee’s prior acceptance; and (iii) by the employer, with the employee’s prior acceptance, benefiting from some compensations established in the social plan. In any of these cases the termination is involuntary for the employee. The SC established that although this conclusion was obvious in the first two scenarios, it also applied to the third scenario, since the only difference is that the employee’s will is taken into account when specifying the cause of the termination of a particular employee’s contract. There may be intentionality when deciding which employment contracts to terminate, but not when specifying the cause of the termination. Had the claimant rejected the early retirement option, he/she or another employee would have been dismissed in order to implement the authorised number of terminations.
This judgment constitutes a significant change in the approach of the SC in this subject area.