April 2007

NEWSLETTER

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



LABOUR LAW

 


Vocational Training

Royal Decree 395/2007 of 23 March regulates the system of vocational training for employment. This regulation incorporates the two existing types of vocational training: occupational and continuous. (More information)

Modification of labour conditions established in a collective bargaining agreement

The judgment of the Labour Chamber of the Supreme Court of 28 February 2007 held that the unilateral modification by an employer of working conditions established in a collective bargaining agreement is void. It is irrelevant that the modification affects a small number of employees. (More information)

Ban on smoking in outdoor areas of a workplace

The judgment of the Labour Chamber of the High Court of Justice of Cantabria of 5 December 2006 held that an employer is entitled to forbid smoking even in outdoor areas of a workplace, and although smoking was previously permitted in those areas. (More information)

Disciplinary dismissal. Unfairness. Private use of IT equipment

The judgment of the Labour Chamber of the High Court of Justice of Madrid of 10 October 2006 held that the use of the internet for private purposes by an employee during working time that does not affect performance levels or the company’s finances cannot be considered a fair ground for dismissal. (More information)

Employment contract. Termination for economic reasons. Effectiveness of an agreement, approved by a judge, between employees’ representatives and insolvency practitioners

The judgment of the Labour Chamber of the High Court of Justice of the Basque Country of 12 September 2006 held that an agreement between employees’ representatives and insolvency practitioners that had been approved by a judge of a commercial court was valid, even though compensation payments had been agreed that were above the legal minimum. (More information)

Collective redundancy plan. Procedural standing

The judgment of the Contentious-Administrative Chamber of the Supreme Court of 21 November 2006 held that the employees affected by a collective redundancy plan are not entitled to appear before the courts individually. Only the employees’ representatives have standing to take part in such proceedings. (More information)

Collective redundancy plan. Distribution of powers between the labour courts and the contentious-administrative courts

The judgment of the Contentious-Administrative Chamber of the Supreme Court of 12 June 2006 clarified the division of competences between the labour courts and the contentious-administrative courts in relation to several issues that may arise during collective redundancy plan proceedings. (More information)


Vocational Training

Royal Decree 395/2007 of 23 March, which regulates the system of vocational training for employment. Spanish Official Gazette of 11 April 2007

RD 395/2007 incorporates the two existing types of vocational training in Spain: occupational training, which is aimed at unemployed people; and continuous training, which is aimed at workers.

The aim of this new integrated model is to encourage unemployed people and those currently in work to participate in vocational training. The courses will continue to be funded by the State and therefore are free for the participants.

There are three types of training:

a)          Training based on demand - which is based on the specific needs of companies and their employees.

b)          Training based on supply - which gives priority to employees and the unemployed. It aims to provide the unemployed with a training programme that gives them access to employment and employees with further training in their profession.

c)          Training and employment - which consists of working and receiving training at the same time. Theory training must take up at least 15% of the working day established in the collective bargaining agreement or else that set by law. The training is not given in the place of work and must be provided for in the employment contract. The training is accommodated to the characteristics of the job and the duration of the contract. Companies may finance the cost of theory training by applying discounts to the social security contributions it pays.

Companies, depending on their size, will have a credit for the training of their employees that will fully or partially pay for the training costs.

Companies must inform employees’ representatives of all the training that they propose to offer. The latter must then issue a report within fifteen days. If there are any discrepancies between the company and the employees’ representatives, RD 395/2007 establishes a procedure that must be followed. If there are no employees’ representatives in the company, the employees must agree to the training themselves.

Modification of labour conditions established in a collective bargaining agreement

Judgment of the Labour Chamber of the Supreme Court of 28 February 2007

In this case a trade union considered that the unilateral modification by a company of the working time of several employees was in breach of article 41 of the Statute of Workers (“SW”). The High Court of Madrid rejected the trade union’s claim on a procedural point. The trade union appealed the decision to the Constitutional Court, which ordered that a new judgment be issued on the merits of the claim.

The company appealed the new judgment of the High Court of Madrid to the Supreme Court on the grounds that article 41 SW had not been breached for the following reasons: (i) the employees’ right to trade union representation had not been infringed as the applicable collective bargaining agreement only requires that an agreement be reached with the employees’ representatives when the modification affects the working day (as opposed to the working timetable, as in this case), (ii) the modification did not have to be agreed with the trade union representatives as the number of employees affected did not exceed the limits established in article 41.2 SW, and (iii) the modification was not “substantial” since it only involved changing the timetable of a small number of employees.

However, the Supreme Court (“SC”) rejected the three arguments because (i) at no point does the collective bargaining agreement state that the company is authorised to unilaterally modify the working time, (ii) any modification of a collective bargaining agreement will always be collective and therefore requires an agreement between the employees’ representatives and the company, and (iii) the modification of the timetable was in this case substantial because the new working time is more burdensome and changes basic aspects of the employment relationship.

Ban on smoking in outdoor areas of a workplace

Judgment of the Labour Chamber of the High Court of Justice of Cantabria of 5 December 2006

This judgment analyzed whether the decision of a company to prohibit smoking in outdoor areas of its workplace, including outdoor areas where smoking had previously been allowed, is disproportionate or consistent with the aims of Law 28/ 2005 of 26 December on the prevention of tobacco dependency.

Law 28/2005 states that smoking is forbidden in any area stipulated by the Law itself, any other rule, or according to a decision of the owner of the area in question. Thus, an employer can prohibit smoking in outdoor areas even if the employees have previously been allowed to smoke in such areas. The judgment also states, in accordance with Law 28/2005, that an employer is not obliged to establish smoking areas in areas where smoking is not forbidden pursuant to law, but may create such areas at its discretion.

Disciplinary dismissal. Unfairness. Private use of IT equipment

Judgment of the Labour Chamber of the High Court of Justice of Madrid of 10 October, 2006

In this case the court of instance considered that the dismissal of an employee was fair as he had been using the internet for personal reasons during working hours. However, the High Court of Justice of Madrid considered that using a company’s IT equipment in order to surf the internet, without the authorization of the company and during working hours, was not a fair reason to dismiss an employee because (i) the employee did not spend a considerable part of his working day doing so, (ii) he carried out his tasks, (iii) he did not cause any financial damage to the company, and (iv) the collective bargaining agreement applicable to him did not contain specific rules on the limitation of the use of the internet that would justify his dismissal.

Employment contract. Termination for economic reasons. Effectiveness of an agreement, approved by a judge, between employees’ representatives and insolvency practitioners

Judgment of the Labour Chamber of the High Court of Justice of the Basque Country of 12 September 2006

In voluntary insolvency proceedings a judge of a commercial court approved an agreement that had been reached between the employees’ representatives and the three insolvency practitioners of a company whereby the employees would be made redundant and receive compensation equivalent to 33 days of salary for each year worked up to a maximum of 27 monthly payments (statutory severance for this type of termination amounts to 20 days of salary up to a maximum of 12 monthly payments).

The General Treasury of the Social Security System did not agree with the compensation agreed and filed an appeal before the High Court of Justice of the Basque Country, which rejected the appeal, holding that the judge of the commercial court was competent to approve the agreement in his capacity as maximum authority on labour matters in the insolvency proceedings.

Collective redundancy plan. Procedural standing

Judgment of the Contentious-Administrative Chamber of the Supreme Court of 21 November 2006

This judgment held that an employee was not entitled to take part in a collective redundancy plan, upholding a previous decision of the relevant authorities.

The SC held that all interventions, actions and notifications in collective redundancy proceedings must be carried out through employees’ representatives. Thus, no employee has standing to appear on his/her own behalf and must therefore be represented by the employees’ representatives.

Collective redundancy plan. Distribution of powers between the labour courts and the contentious-administrative courts

Judgment of the Contentious-Administrative Chamber of the Supreme Court of 12 June 2006

This judgment of the SC clarified the distribution of competences relating to collective redundancy plans between the labour courts and the contentious-administrative courts.

The SC held that the labour courts are competent to decide whether there are any flaws in an agreement reached during a collective redundancy plan.

On the other hand, the contentious-administrative courts are competent to review all administrative aspects and the decision of the authorities on collective redundancy plans.


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