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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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EU citizens’ right to enter, move and reside freely in Spain
Royal Decree 240/2007 of 16 February sets out the rights of EU citizens and their family members to move and reside freely within the Spanish territory, and the administrative formalities required in order to obtain an EU residency card. (More information)
Agreement on collective bargaining for 2007
This agreement sets out the criteria for wages and the policies designed to increase the number and quality of jobs. The agreement has been signed by employer associations and trade unions in an attempt to adapt to the recent changes in the labour market and in the economy. (More information)
Reductions in social security contributions for research staff
Royal Decree 278/2007 of 23 February sets out new reductions in the social security contributions paid by companies for researchers. (More information)
Maternity and annual leave. Possibility of carrying over holiday leave
The Constitutional Court, in its judgment of 20 November 2006, stated the right of workers to take their annual leave after the year of its accrual. The appellant could not take her holidays during that period because she was on maternity leave. (More information)
Unlawful dismissal. Pregnant worker. Discrimination. Compensation for damages
The judgment of the Constitutional Court of 11 December 2006 declares that the dismissal of a pregnant worker violates her right to non-discrimination based on gender. In addition to the nullity of the dismissal, the Constitutional Court recognised her right to receive compensation for the resulting damages. (More information)
Working time reduction for legal guardianship. Employees’ right to determine the working day
The Constitutional Court judgment of 15 January 2007 states that the recognition of the employees’ right to reduce their working time due to legal guardianship and restructure the reduced working day, must be done so in light of the workers’ need to accommodate their family and professional life, and the possible costs to the company that may arise from the requested reduction. (More information)
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EU citizens. Right to enter, move and reside freely in Spain
Royal Decree 240/2007 of 16 February, which established the right of EU and the citizens of other member states of the European Economic Space to move and reside freely within the territory of Spain. Spanish Official Gazette of 28 February 2007
The former regulation on this matter was set out in Royal Decree 178/2003 of 14 February, which has now been repealed.
Royal Decree 240/2007 of 16 February (“RD 240/07”) transposed Directive 2004/38/EC and stated the conditions for the exercise of the right of entry and exit, free movement, residence, permanent residence, and the right of EU citizens or European Economic Space Member State and their families to work in Spain. RD 240/07 also set out the restrictions to the rights of entry and residence on grounds of public policy, public security or public health (including expulsion from the Spanish territory), the administrative formalities of application, procedure, issue and renewal of the registration certificates and the residency cards which will be granted by the relevant foreign office or, alternatively, by the relevant police station.
In any event, Fundamental Law 4/2000 of 11 January still applies to those aspects that may benefit the individuals mentioned above.
Agreement on collective bargaining for 2007
The General Employment Office resolution of 9 February 2007, which registered and published the State Agreement on Collective Bargaining for 2007. Spanish Official Gazette of 24 February 2007
The main objective of this agreement is to encourage the competitiveness of the Spanish economy in order to adapt to the economic changes resulting from EU enlargement, globalisation and the new developments in the economy and their effects on employment.
In connection with wage issues, the agreement establishes the criteria for controlling inflation, maintaining the increase of employment and increased investment, and the purchasing power of wages. Wage increases must be based on the government’s inflation rate for 2007 which amounts to 2%.
Regarding the creation of jobs, the agreement highlights the importance of promoting permanent contracts and the proper use of fixed-term contracting. In addition, collective bargaining agreements must encourage transparency of the contracting and subcontracting activities and compliance with the employers’ information and training duties in relation to the employee representatives. Finally, the agreement intends to promote equal opportunities, and programmes encouraging practices which eliminate both direct and indirect discrimination.
In connection with health and safety at work, the agreement’s objectives are to achieve a reduction in work accidents, to promote a preventive culture and to comply with the regulations of occupational hazards.
In addition, the agreement mentioned the EU Green Book which establishes the necessity of promoting a European framework for the social responsibility of companies in collective bargaining agreements. Finally, it proposes the development and promotion of telework regulations in accordance with the European Framework Agreement on Telework.
Reductions in social security contributions for research staff
Royal Decree 278/2007 of 23 February which sets out reductions in the social security contributions for research staff. Spanish Official Gazette of 24 February 2007
Royal Decree 278/2007 of 28 November (“RD 278/07”) develops the provisions of Law 35/2006 of 28 November which regulates the personal income tax and partially modifies the laws on corporate income tax, non-residents income tax and wealth taxes, establishing a reduction equivalent to 40% of the employers’ social security contributions paid for the research staff in relation to common contingencies.
In addition, RD 278/07 sets out that only those employees who provide their services exclusively for research and technological innovation activities will be considered as research staff and determines the concept of these research activities for the purposes of a reduction in social security contributions.
The companies will be entitled to choose between applying a tax reduction for research activities in accordance with the corporate income tax law or applying a reduction on the social security contributions paid for research staff, and they will communicate their choice to the tax administration. The companies who choose a reduction in their social security contributions will identify their research staff before the General Treasury of the Social Security.
Maternity and annual leave. Possibility of carrying over holiday leave
Judgment of the Constitutional Court no. 324/2006 of 20 November
In accordance with the case law of the European Court of Justice, the Constitutional Court (“CT”) considered that any worker must be entitled to take her annual leave outside the period of her maternity leave, even if the year of accrual for holidays has elapsed.
The appellant was off work due to illness during July and August 2002 until she gave birth to her child. Following this, she took her maternity leave until 15 January 2003. As she could not take her annual leave in 2002, she applied to take her holidays from 15 January 2003. The employer refused her request.
The CT concluded that the employer’s refusal constitutes direct sexual discrimination in light of the fact that the appellant lost her annual leave entitlement due to her maternity.
Unlawful dismissal. Pregnant employee. Discrimination. Compensation for damages
Judgment of the Constitutional Court no 342/2006 of 11 December
The preliminary ruling considered that the dismissal of the appellant was unrelated to her pregnancy, but was linked to the irregularities which were detected in the department where she was employed. However, as the employer could not prove that the appellant was part of those irregularities and she was pregnant, the labour court qualified the dismissal as null and void (re-employment was mandatory) in accordance with article 55.5 b) of the Statute of Workers.
The CT held that the employer’s knowledge of the pregnancy does not qualify as evidence of sexual discrimination. However, the fact that she was promoted before she communicated her pregnancy to the employer constitutes sufficient evidence of sexual discrimination. As a consequence, the dismissal was declared void for discrimination reasons and the appellant was not only entitled to re-employment but to request compensation for the damages caused by the violation of her right to non-discrimination based on gender.
Working time reduction for legal guardianship. Employee’s right to determine the working day
Judgment of the Constitutional Court no. 3/2007 of 15 January
In this judgment, the CT set out the circumstances that must be taken into account when assessing the employees’ right to determine a reduction in their working hours for guardianship purposes.
The preliminary ruling considered that the irregular distribution of the working hours requested by the appellant was beyond the limit of her ordinary period of work. Her previous ordinary working hours were performed from Monday to Saturday on rotational morning and evening shifts, and she requested reduced working hours from Monday to Wednesday on the evening shift. Therefore, her request implied missing several working days and being excluded from the morning shift.
The labour court considered that the appellant did not request a reduction in her period of work but its entire revision. Consequently, her claim was rejected without taking into account the need to accommodate the appellant’s family and professional life, or the potential costs that may arise for the company from the reduction in the working time.
However, according to the CT, the labour courts must determine if a company’s refusal to a reduction requested by a worker constitutes an obstacle to the accommodation of their family and professional life, in light of their right to non-discrimination based on gender.
The CT continued by stating that the refusal to allow the appellant’s request without analysing the above factors, or the potential costs that may arise for the company from the reduction of working time, was an unjustified obstacle to her right to work and constituted sexual discrimination.
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The information contained in this Newsletter is of a general nature and does not constitute legal advice