slides labor law

LESSON 1

LABOUR LAW

INTRODUCTION. SCOPE

Branch of the Law which covers all the principles,rules and provisions governing industrial relations.

Divided into (main components):

Individual Labour Law: whose subjects are employerand employee (worker), and its basics institutions arethe contract of employment and individual employmentrelationship.

Collective Labour Law: legal regulation of trade unions,employers associations, workers representatives,collective bargaining and industrial disputes.

INTRODUCTION. SCOPE

Also includes other blocks of provisions, governing: The labour market and the placement on it (Derecho del Empleo)

State intervention in industrial relations (D Administrativo Laboral)

The legal procedure for labour cases (D Procesal Laboral)

The social security (can be considered an independent branch ornot)

Main Functions: To protect the rights of workers as the weaker party of the

contract of employment

To confirm the legitimacy of the subjects of industrial relations(workers and employers organizations)

To establish a balance between the interests of these subjects andthose of the rest of the community (regulation of scope andbounds of industrial conflict)

HISTORICAL DEVELOPMENT

Specific regulation of labour: recent phenomenon

ANTIQUITY AND MIDDLE AGES: Personal bonding systems (slavery and servitude) Emergence of artisans/craftsmen and guilds

INDUSTRIAL REVOLUTION (late 18th-early 19th): generalization of paid labour: Change in property of means of production and separation between

labour and capital Changes in the way or organizing work: from craftsman shop to factory

(principles of division of labour, specialization and hierarchy) Alienation of individual workers and radical transformation in structure of

working class Higher benefits for employers depends on lower costs (including

manpower cost): natural disputes of interest

In Spain, take-off period of industrial revolution, over the 1860s


Throughout 19th CENTURY: application of liberal ideology theindividualism/laissez-faire doctrines- to employmentrelationship: Application of basic liberal principles: freedom of work and the

autonomy of will Use of contract of lease of services: free agreement of wills between

two men formally free and equal, without state intervention

Organizations seen as interfering in workers freedom of work andmarkets freedom: in Spain, criminal prohibition (1848)

Effects: The employer, as owner, had full control of the work, the workplace

and the worker Freedom without equality: inequality, insecurity and lack of voice ->

exploitation and poverty of workers

Deep social unrest -> Emergence of workers social question (socialawareness) and labour movement -> General Associations Act 1887


LATE 19th-EARLY 20th: first modern labour lawenactments: State intervention caused by social justice reasons and

pressure of labour movement > limits to employers powerin the determination of the provision of work

Birth of unequal labour law: with an unequal treatment,unequal situations will be compensated/balanced -> isolatedrules preventing particularly odious exploiting conditions(work of women and minors, accidents)

Abandonment of contract of lease of services and legalregulation of contract of employment, but in a limited way:Cdigo de Trabajo 1926


SECOND REPUBLIC: culminates Labour Law creation (as aspecial branch of the Law, systematized and consistent, withcommon and congruent principles) through: Constitucin Espaola de 1931 and Ley de AsociacionesProfesionales de 1932: both recognize rights of association andunionization

Ley de Contrato de Trabajo de 1931: regulates contract ofemployment, collective bargaining, strike and lockout

FRANCO DICTATORSHIP (1939-1975): 1st phase: total abolition of democratic model of industrial

relations

2nd phase (from 50s on): timid opening: particular recognition ofsome collective rights


POLITICAL TRANSITION after Francos death: Process of institutional change (Ley de Reforma Poltica 1977). Begins

the restoration of industrial relations system based on democracy andparticipation of workers

Constitucin Espaola de 1978: sets up a Social and Democratic State ofLaw -> constitutional recognition of freedom of association, collectivebargaining, collective disputes

Major transformation of individual employment relationship: get rid ofinfluences of the autocratic system: Estatuto de los Trabajadores de 1980-> introduces limits to contractual freedom by establishing mandatoryterms from which the parties cannot deviate

Assumption of international labour standards in national laws

LATE 20th-EARLY 21st: evolution of Labour Law: Conditioned by the incidence of political, economical and social factors

Trends towards more flexibility and liberalism in labour relations


CURRENT SITUATION AND CHALLENGES: Redefinition of the purposes:

Analysis of effects of labour regulations on labour market, economic situationand competitiveness : to strike the right balance between employee protectionand economic efficiency -> flexicurity?? ->

Use of more flexible forms of work organization and management ofworkforce: business groups, outsourcing (contract and subcontract, companiesfor temporary work), telecommuting, flexibility within the employmentrelationship

New division of roles between law, collective agreements and contract ofemployment: although 20th Century was a period of continuous growth ofemployment legislation, the last decades are characterized by its crisis(1994 Reform and 2012-13 Reform)

Challenges: Reduction in rate of temporality and precariousness (part-time contracts,

contracts for training or for work practice) and rate of unemployment Migration Effects of economic globalization and incidence of EU provisions

2009

ESPAA: 25.4

FRANCIA: 14.3

ALEMANIA: 14.5

POLONIA: 26.5

SOURCE: EUROSTAT

2008 2007

ESPAA: 29.3 ESPAA: 31.7

FRANCIA: 14.9 FRANCIA: 15.1

ALEMANIA: 14.7 ALEMANIA: 14.6

POLONIA: 27.0 POLONIA: 28.2

2010

ESPAA: 24.9

FRANCIA: 15.0

ALEMANIA: 14.7

POLONIA: 27.3

2011

ESPAA: 25.3

FRANCIA: 15.2

ALEMANIA: 14.7

POLONIA: 26.9

2012 2013

ESPAA: 23.6 23.1

FRANCIA: 15.2 16.4

ALEMANIA: 13.9 13.4

POLONIA: 26.9 26.9

SOURCE: EUROSTAT

2008 to 2013

SOURCE: EUROSTAT

2007 to 2013

Encuesta de Poblacin Activa

(EPA)

Cuarto trimestre 2014

Current challenges?

Professor Rojo Torrecillas opinion, 2014:

A) Labour legislation should protect all working people, but principally those who are in difficult situation on the labour

market.

(B) The right to work has never been a brake to allow the development of entrepreneurial activity committed with a social, cooperative economy with the participation of the staff.

(C) To invest in training is one of the keys of any proposal to improve the situation, because only well-trained people are able to adapt to economic and social changes.

D) Searching for a model of company which does not abdicate the achievement of positive economic results but which

allows a better distribution of the benefits should be a basic reference point of a socially progressive policy.

(E) It is essential to bet on a model of "flexibility" in which the security of people who have a job should be properly combined with the protection of those who try to find it.

(F) To regulate social protection mechanisms that allow everyone to have a reasonably good life after retirement. Or to

write it in clearer language: decent retirement pensions.

(G) We must remember the origins of labour law to understand the importance of the preceding proposals.

(H) To foster or promote a labour law reform which does not bring unbalanced labour relations to the clear detriment of workers and their organizations. The best labour relations are those which are based on the agreement and social dialogue, and the best companies, and more socially responsible, are those having a well trained, motivated and

permanent staff.

I) Labour legislations contribution to economic growth and the improvement of the levels of employment and reduction of the levels of unemployment is less important than the economic reforms contribution.

LESSON 2

SOURCES OF LABOUR LAW

SOURCES OF LABOUR LAW

Art 3.1 ET: rights and duties relating to employment

relationship shall be governed:

By the laws and executive rules and regulations of the State

By collective agreements

By the will of the parties, shown in the contract of employment

By the local and professional habits and customs

It doesnt include a complete list:

Spanish Constitution, International Law, European Law, rules of the autonomous regions

1. SPANISH CONSTITUTION 1978

Source of sources:

It is a rule that orders the system of sources of the

Spanish legal system: it rules the rest of the sources

It is also a direct source of law: a rule of law that must

be respected by the other rules (it binds the legislature)

and has direct effect (it binds the judiciary)

Articles 1.1 and 9.2 SC: Welfare State: a concept

of government where the State plays a key role in

the protection and promotion of the economic and

social well-being of its citizens

SPANISH CONSTITUTION 1978

LABOR RIGHTS IN THE SC

FUNDAMENTAL RIGHTS AND PUBLIC LIBERTIES (Arts.

14 to 29: Part I, Chapter II, Section 1)

Specifics: 25.1 (only for inmates), 28.1, 28.2

Non specifics

Features:

Direct applicability: its recognition binds the public powers

Organic Law

Summary and preferential appeal before ordinary Courts

Individual appeal for protection (recurso de amparo)

before Constitutional Court


RIGHTS AND DUTIES OF CITIZENS (Arts. 30 to 38:

Part I, Chapter II, Section 2)

About Labor: 35.1, 37.1, 37.2

About Capital: 33.1, 38

Features:

Direct applicability: its recognition binds the public

powers

Ordinary legislation

Ordinary protection


PRINCIPLES GOVERNING ECONOMIC AND

SOCIAL POLICIES (Arts. 39 to 52: Part I, Chapter III)

Features:

Many are mandates to legislature, containing programmatic rules (set up purpose but not means)

Need a minimum legal development for application: Ordinary legislation

Ordinary protection (but can only be applied in accordance with the provisions set forth in their legal development)

2. INTERNATIONAL SOURCES

At international level, three sources of production

of labor rules:

Direct negotiation between States: treaties or bilateral

and multilateral conventions

The action of international or regional organizations

(UN, ILO, Council of Europe)

The action of supranational organizations (EU)

INTERNATIONAL LAW

International regulation of labor is a necessary

condition for the existence and development of

national labor laws:

Is a means of equalizing burdens and reducing

inequalities between States: application of identical rules

when possible

It has happened because of the participation of working

class: Pressure of workers organizations: During WWI,

trade unions insisted on being heard at the time of the

settlement of peace (Part XIII of the Treaty of Versailles

1919: Constitution of the ILO)

A) INTERNATIONAL LABOUR

ORGANIZATION (ILO)

Aims and purposes (Philadelphia Declaration

1944):

Labor is not a commodity

Freedom of expression and association are essential tosustained progress

Poverty constitutes a danger to prosperity everywhere

War against want requires to be carried on within eachnation and by continuous and concerted internationaleffort in which representatives of workers and employersand governments join them in free discussion anddemocratic decision with a view to the promotion of thecommon welfare

INTERNATIONAL LABOUR

ORGANIZATION (ILO)

Characteristics:

Specialized agency associated with the UN since 1946

Tripartite:

ILO

Workers Representatives

Governments

Employers representatives


ORGANIZATION (ILO)

ILO has maintained and developed a system of international laborstandards (ILS)

INTERNATIONAL LABOUR STANDARDS BY SUBJECT

Purpose: To promote balanced economic and social progress

Sometimes, ILS prevent Governments from adopting retrograde measures,particularly in times of crisis

Can serve as a general guide and as a source of inspiration toGovernments by virtue of their authority as texts adopted by a tripartiteassembly of nearly all countries of the world.

Where and how? Through Conventions and Recommendations

ILO Declaration on Fundamental Principles and Rights at Work 1998: allmember countries have an obligation to respect fundamental principles,whether or not they have ratified relevant conventions Key document -Declaracin de la OIT relativa a los principios y derechosfundamentales en el trabajo de 1998


ORGANIZATION (ILO)

ILO sources of international law:

CONVENTIONS: instruments designed to create

international obligations for the States which ratify

them. Specific features:

Are adopted within an institutional framework

A two-thirds majority is sufficient for their adoption

Governments should submit the Convention to their

competent authorities for ratification (in accordance with its

internal procedures for adoption of international treaties

art. 94.1 SC)

RECOMMENDATIONS: instruments that serve to guide

government action, but its application is not mandatory


ORGANIZATION (ILO)

Core Conventions:

Freedom of association and collective bargaining

(Conventions nos. 87 and 98)

Forced Labour (Conventions nos. 29 and 105)

Non-discrimination in employment (Conventions Nos.

100 and 111)

Child labor (Conventions nos. 138 y 182)

B) UNITED NATIONS INSTRUMENTS

General scope:

Universal Declaration of Human Rights 1948: Arts. 4, 20, 22,23, 25, 28

International Covenant on Economic, Social and Cultural Rights1966: Art. 22

International Covenant on Civil and Political Rights 1966: Arts6-9

Legally binding conventions concerning labor matters:

Convention on the elimination of all forms of racialdiscrimination 1969

Elimination of all forms of Discrimination against Women 1979

Rights of the Child 1989

C) REGIONAL INSTRUMENTS

At the European level, a number of regional

organizations created after the end of II WW haveadopted legal instruments on labor matters:

Council of Europe (1949):

European Convention for the Protection of Human Rights andFundamental Freedom 1950: recognizes the right not to berequired to perform forced or compulsory labor and the rightto create trade unions -> ECHR

European Social Charter 1961 (revised in 1988): recognizesthe right to collective action in case of conflicts of interest,including the right to strike -> ECSR

European Convention on the Legal Status of Migrant Workers1977

3. EUROPEAN UNION

TREATY OF ROME1957 (EEC)

Single European Act 1961

Maastricht Treaty 1993 (TREATY ON

EUROPEAN UNION) + Social Policy

Agreement

Amsterdam Treaty 1997

Treaty of Nice 2001 + Charter of

Fundamental Rights

Treaty of Lisbon 2007: TREATY ON THE FUNCTIONING OF THE EUROPEAN

UNION

MOST IMPORTANT EU PRIMARY LAW

Treaty on the EU:

http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:201

0:083:0013:0046:ES:PDF

Treaty on the Functioning of the EU:

http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:201

0:083:0047:0200:es:PDF

EUROPEAN UNION LABOUR LAW

How does it work?

The role of the European Union (EU) is to support and complement the activities of

the Member States in the area of social policy:

The EU adopts legislation defining minimum requirements at EU level in the fields of

working and employment conditions and the information and consultation of workers.

The Member States then transpose the Community law into their national law and

implement it, guaranteeing a similar level of protection of rights and obligations

throughout the EU

National authorities, including courts, are responsible for the enforcement of the

national transposition measures

The European Court of Justice (ECJ) plays an important role in settling disputes and

providing legal advice to questions formulated by national courts on the

interpretation of the law

Early cases in the ECJ established the supremacy of European

Union Law over national law.

EU SECONDARY LAW

Main instruments:

Regulations: tend to be of a broad nature and are directly

applicable in all Member States

Free movement of workers, social security and other measures for migrants, creation of European

Social Fund, vocational training and employment policy

Directives: legislative instruments that require a Member State to

translate (transpose) the contents of the Directive into national law

within a certain period. Purpose: harmonization on working

conditions: are binding as to the results to be achieved Equal treatment, maternity protection, collective redundancies, transfer of workers, insolvency, safety

and health, working hours, parental leave, temporary work and part-time work

Decisions: must be followed only by those to whom they are

addressed (Member States, individuals or companies)

4. NATIONAL LEGISLATION

LAWS (ACTS):

Enacted by Parliament: Organic and Ordinary Laws

Differ because of the subject and the passing procedure

Approved by the Government:

Royal Law-Decree in case of extraordinary and urgent

need (art. 86 SC)

Royal Legislative Decree, after Delegation by the

Parliament of the power to give rules with the force of an

act of the legislature (art. 82 SC):

Through establishing the basic outlines of the enactment

Through authorizing the Executive to recast several acts in one

text

5. NATIONAL LEGISLATION

EXECUTIVE RULES AND REGULATIONS:

Rules approved by the Government:

Decree (Council of Ministers) and Ministerial Order

(Minister)

In labor issues, limited role: only development and

technical implementation of the Law

Material or formal reserve of law: principle of monopoly

of formal act

Art. 3.2 Estatuto de los Trabajadores (ET)

6. REGIONAL LEGISLATION

Very limited role in labor issues

Why? Art. 149.1.VII Spanish Constitution:

The state holds exclusive competence over the following matters: VII. Labour legislation without prejudice to its execution by the bodies of the Autonomous Communities

AC have no original, transferred or delegated power to legislate in labor matters: labor law is the same and unchanging, with no regional differences

Only execution: implementation of State laws and regulations :

competence to develop rules of economic or social content but without direct effect in the regulation of the employment relationship:

employment policy (subsidies), creation of administrative organs which perform executive functions

7. COLLECTIVE AGREEMENTS

Constitutional recognition: art. 37.1 SC

CONCEPT: an arrangement or agreement between:

in one hand, a Company or one or more employers

organizations and,

on the other hand, a collective representation of workers

(trade unions or workers representatives)

In order to regulate for a certain sphere the content

of the contracts of employment the working

conditions-, and also the rights and duties of the

signing parties.

It is an hybrid: with soul of law but body of contract

COLLECTIVE BARGAINING SYSTEM

A) COLLECTIVE AUTONOMY

Material Source

B) COLLECTIVE BARGAINING

Process

C) COLLECTIVE AGREEMENT

Formal Source

COLLECTIVE AGREEMENTS

Types of collective agreements in Spanish legal system:

Statutory (regulated in ET): with normative force and general

effectiveness

Automatic application

Mandatory application

Under principles of publicity, hierarchy, iura novit curia,

modernity in succession

Extra-statutory (do not derive from ET rules or do not pay

attention to its formalities and proceedings): with contractual

force and limited effectiveness

Company agreements: in the absence of statutory agreements

and more informal

8. OTHER SOURCES

LOCAL AND PROFESSIONAL CUSTOM: art. 3.1ET:

uses and customs in a reduced area and for a

particular type of work

Custom emanates from constant and accepted

application of a rule, neither formally enacted nor

contained in a collective agreement

Requirements:

Not contrary to morals or to public order

Duly proved

Application: subsidiary (if there is no legal rule applicable) or

when specific call to custom

LESSON 3

SOURCES OF LABOR LAW: APPLICATION

THE SYSTEM OF SOURCES OF LABOR

LAW

COMPLEX FRAMEWORK OF SOURCES OF LABOR

LAW:

Abundance

Constant mobility/change

Different nature and origin

Different scope

GENERAL CRITERIA FOR SYSTEMATIC

ORGANIZATION:

Principle of hierarchy of norms

Principle of succession of norms

APPLICATION OF SOURCES:

CONCURRENCE OF NORMS

CONCURRENCE OF NORMS: a plurality of legal rules impinges simultaneously on a particular relationship tending to regulate it.

If it is problematic, we must use the:

General principle of hierarchy:

WRITTEN LAW

CUSTOM

GENERAL PRINCIPLES OF LAW



HIERARCHY AMONG THE WRITTEN LAW:

SC and EU Law

International Treaties and Conventions

Laws and other provisions with the force of law

Executive regulations

Collective agreements

Contract of employment

PECULIARITY: EXISTENCE OF MINIMAL RULES:

Certain labor rules, despite their higher rank and due to their status as minimum rules in front of others of lower rank, allow the application of the latter when they are more favorable for workers

NATURE OF NATIONAL RULES

MANDATORY RULES OR RULES OF NECESSARY LAW:

ABSOLUTE: no modification allowed in any way

RELATIVE: rule modifiable only in one sense

MINIMUM: provision can be improved for the benefit of

workers

MAXIMUM: provision does not support improvement but

worsening

NON MANDATORY LAW:

Modification allowed in any way, to get better or worse

regulation

Allowed to collective agreement or contract of employment



RELATIONSHIP BETWEEN RULES:

National and International/supranational legislation :

principle of primacy/supremacy (unless minimal)

National rules: Laws and Executive regulations : art. 3.2

ET

National rules and Collective Agreements : depends on

nature of national rules

Between Collective Agreements : art. 84 ET

Contract of Employment and National rules / Collective

Agreements : art. 3.1.c) ET

DURATION AND REPLACEMENT OF

LABOUR LAW RULES

SUCCESSION OF NORMS:

Labor rules come into force on the date they establish

They are immediately effective: applicable to future

relationships but also to those already created, about

their subsequent effects

Succession over time cannot be problematic because:

Subsequent laws repeal the previous laws

After a collective agreement comes into force, the previous

one ceases to apply (forfeits its legal force)

But new law or new agreement may be more or less

favorable-> labor rules are reversible in peius

THE ROLE OF THE CONTRACT OF

EMPLOYMENT (REGULATORY ROLE)

Individual autonomy (the will of the parties) plays a

regulatory role in employment relationship ->

parties to the contract of employment may stipulate

working conditions relating to their relationship

Relation between individual autonomy and sources

of labor law: art. 3.1.c) ET

Aim: to ensure employees acquisition of rights foreseen by

compulsory law

Contract can only provide more favorable conditions than

the legal, regulatory or conventional minimum



THE PRINCIPLE OF THE MOST BENEFICIAL CONTRACTUAL CONDITIONS (MBCC): art. 3.1.c) ET and jurisprudence

MBCC are unaffected by the employer and remain even if rules under which they were born change

Requirements:

Conditions arising from the contract (express or implicit way) =>voluntary and unilateral concession of the employer (not mere tolerance)

Conditions: permissible and not less favorable or contrary to the law and collective agreements.

If so, they are null and void and replaced automatically by appropriate legal provisions

MBCC:

Duration:

Its effective and endures as the parties otherwise agree

It cant be unilaterally removed by employer without a cause

Modification and suppression:

By agreement of the parties

By the way of substantial change in working conditions at

the request of the employer (art. 41 ET)

By the play of compensation and absorption



THE INTERPRETATION OF LABOR LAW

Criteria for the interpretation of Labor Law: art. 3.1

Civil Code:

Literal

Systematic

Historical

Purposive or teleological

General principle: In dubio, pro worker

Subsidiary nature: only if the meaning is not clear

under the general interpretative criteria

CASE LAW

Courts dont have the power to legislate but to resolve disputes

according to specific rules or sources of objective Law.

Its role is purely to judge and to execute judgements (art. 117 SC)

The Court decision only binds the parties.

The Jurisprudence (legal doctrine of Supreme Court included in the ratio

decidendi of its decisions, not in obiter dicta) is not a source of law.

But the Supreme Court interpretation of the Law is added to the

law as an indivisible whole, creating the expectation that future

cases will be decided by each Court according to this

interpretation.

Principle of Equality art. 14 SC

Violations of this Jurisprudence allow us to appeal against decisions of Social

Courts before the Supreme Court, asking for a conviction to be quashed or

annulled.

LESSON 4

THE WORKER

THE CONTRACT OF EMPLOYMENT:

CONCEPT

What is a contract of employment?

The contract of employment is the contract

that rules the relation between an employer

and a worker/employee

It is an agreement between 2 people, through which

one of them (the worker/employee) agrees to do

subordinate work and the other (the employer) to

pay a guaranteed wage => art. 1.1 WS

Cause: exchange between work and remuneration


OBJECT

SPECIFIC TYPE OF WORK

PERSONAL OBLIGATION

CONSENT OR WILLINGNESS

REMUNERATIONAJENIDAD

SUBORDINATION


ELEMENTS OR FEATURES

Consent or willingness

Object

Cause

Personal obligation

Remuneration

Consent (no forced labor)

Object

Cause

Personal obligation

Remuneration

Ajenidad

Subordination

ELEMENTS OF A CIVIL CONTRACT OF

LEASE OF SERVICES (art. 1261 and

1544 Civil Code)

ELEMENTS OF A CONTRACT OF EMPLOYMENT (art. 1.1 WS)


SPECIFIC ELEMENTS

AJENIDAD: the employee is alien to/separated from:

the means of production,

the results of his/her work,

the economic benefits or profits,

the risks

and/or the market

SUBORDINATION: Subordination to the employers powers of direction and discipline. The employee works within the area of organization and direction of the employer.

Its degree depends on the characteristics of the activity and the kind of workplace occupied.

PROBLEMS OF LEGAL SPECIFICATION:

DUE TO

Very little precision of the basic elements or features:

Subordination: depends on characteristics activity and kind of workplace

Ajenidad: problems to identify it when working on commission basis,

performance-related payments, profit-sharing compensations

Coexistence of similar contracts (contratos vecinos):

contract of society, execution of work, lease of

services...

Malicious will of the parties, seeking to hide the

existence of a contract of employment


CRITERIA TO OVERCOME

Irrelevance of the job description made by the parties

SYSTEM OF EVIDENCE or SIGNS/HINTS: about the

presence of the basic elements of the contract of

employment: they preferably act in a positive sense

A) Personal nature of the services provided:

Whether or not replacement is allowed

B) Ajenidad (hints):

Fixed and regular remuneration (amount and manner); non-

participation in loss or expenses; failure to provide the means or

instruments of work; the non-appropriation of the result of the

work; etc.


CRITERIA TO OVERCOME

C) Subordination (hints):

Regular attendance to a workplace; submission to working

hours or timetable; existence of orders and instructions of the

employer; exclusivity or frequency; uniform in the presence

of costumers; the need to tell the employer about the work

carried out; the exercise of disciplinary power, etc.

Article 8 WS: Presumption of Workability

Extralegal factors: public opinion pressure, peer

pressure

EXCLUDED RELATIONS: TWO TYPE OF

EXCLUSIONS (art. 1.3 WS)

DECLARATIVE

When one of the basic

elements of the contract

of employment is

missing: art. 1.3 WS

Absence of any of the

basic elements: DF 1

WS: self-employment

(Act 20/2007, July 1st)

CONSTITUTIVE

They are real labour

relations -with all basic

elements of the contract

of employment-, but

legally excluded (due to

reasons of legal policy):

art. 1.3 WS (exhaustive

list)

WHO IS NOT A WORKER FOR THE WS?

ART. 1.3 WS

a) Civil servants, as well as employees of the State, local

corporations and autonomous public entities when regulated by

administrative or statutory norms.

b) Compulsory personal services.

c) Advisors or members of administrative organs of

corporations:

Those whose activity is limited to holding the office of advisor.

What happens when they carry out additional tasks?

d) Friendly workers (work carried out for friendship, goodwill or

neighborly relationship reasons)

The friendly character must be demonstrated

Independent of the profitable or altruistic nature of the employer


ART. 1.3 WS

e) Family workers,

Rebuttable presumption: unless a condition of wage-earning can be

proven.

Concept of relative

f) The activity of people who take part in commercial

transactions on behalf of one or more employers, whenever

they assume the risks of it:

Distinction from Trade Representative with special employment

relationship.

Agency contract Law (Act 12/1992): distinguishing features: own

organization and absence of dependent work

g) Final Clause + Carriers: open list


ART. 1.3 WS

The work of Carriers (transportistas): Art. 1.3 g)

WS:

This is not an absolute exclusion, it does not affect all

providers of transport services but only those who make

the service complying with 3 features:

They hold appropriate administrative authorization (shuttle

service)

They must be the owners of the vehicle, or have direct

disposal of it;

It must be a commercial vehicle of public service

SPECIAL LABOUR RELATIONS. ART. 2 WS

Despite the presence of basic elements, they have a

specific legal regime, different than that provided

by WS.

Open list where any other work expressly declared

by law as special labour relation could be added.

List of art. 2 WS:

a) Senior management: RD 1382/1985, August 1st.

b) Domestic employees: RD 1620/2011, November

14th.

c) Prisoners in penal institutions: RD 782/2001, July

6th.

SPECIAL LABOUR RELATIONS. ART. 2 WS

d) Professional athletes: RD 1006/1985, June 26th

e) Performing artists: RD 1435/1985, of August 1st

f) Subordinate trade representatives: RD 1438/1985, of

August 1st

g) Disabled people who work in special employment

centers: RD 1368/1985, of July 17th

h) Dock workers

i) Others: Doctors in residence (RD 1146/2006), lawyers

in law firms (RD 1331/2006), inmates in juvenile

detention centers

TO SUM UP: CONTRACT OF EMPLOYMENT:

SUBJECTS

THE WORKER / EMPLOYEE:

Art. 1.1 WS + art. 2 WS art. 1.3 WS

Person who voluntarily provides their services for another person (the

employer), within the area of organization and direction of the latter

in exchange for payment, or who has been explicitly included among

the special labour relations on article 2 ET, and who has not been

subject to a statutory exclusion

THE EMPLOYER:

Article 1.2 WS in relation to 1.1 WS

The person or entity, or community of assets, receiving the services of

employees as well as of those hired by a TWA (Temporary Work

Agency) to be placed on a temporary basis at the disposal of an

other company

LESSON 5

THE EMPLOYER

THE EMPLOYER - CONCEPT

ART. 1.2 WS: The person or entity, or community of assets,

receiving the services of workers, including workersrecruited by a TWA (Temporary Work Agency ETT inSpanish) to be placed on a temporary basis at thedisposal of an other company: The employer supervises organization and direction and

has the control and capacity of decision over resources ofthe company

Whether there is a direct relationship with the employee orthrough a TWA

The notion of employer for Labour Lawand Commercial Law is different

The distinction between company,

workplace or autonomous productive unit

COMPANY

No definition in WS, but frequent references with differentmeanings: Subjective sense: employer, as one of the parties of the contract of

employment (arts. 22.1; 39.4; 40.4 WS)

Objective sense: a place, an organization of material and humanresources directed by the employer in order to obtain an end, that is, theprovision of goods or services (art. 1.1 WS)

WORKPLACE (ART. 1.5 WS)

Technical unit of production (differ from workshops, warehouses)

Specific organization within the general organization of thecompany

Registered within the Labour Authority: formal requirement

AUTONOMOUS PRODUCTIVE UNIT (ART. 44 WS) Problematic identification

Problems for the identification of the

Employer and distribution of liabilities

Why it is important to determine who is the Employer?

SOLUTIONS:

A) Jurisprudence answers: Business groups

Legislative responses:

B) Contract and subcontract of works and services: Art. 42 WS

C) Prohibition of illegal transfer of workers: art. 43 WS

D) The transfer of Businesses: art. 44 WS

A) BUSINESS GROUPS

Characteristics: Two or more formally independent companies that exchange work in a coordinate way and adopt joint

decisions

which can have a unitary organization and management

but they lack legal personality as a group

Types of BG: Horizontal coordination: coordination criteria

Vertical coordination: subordination criteria: one entity has a dominant position over the others

Problem:

Who assumes liability for workers rights, when a company fails to meet its obligations with its workers? Only the company that is the signatory party of the contract of employment or also the others?

JURISPRUDENCE ON BUSINESS GROUPS

General idea: every company acts like an independent

company and assumes all responsibilities that derive

from contracts of employment

But in order to guarantee more protection to workers:

Sometimes, joint and several liability of group members

Why? considering the group as a sole employer

Premise and/or consequence: worker can address any

member of the group or all of them to demand the

observance of the contract of employment

When? Doctrine of lifting the veil of legal personality

JURISPRUDENCE ON BUSINESS GROUPS:

SHARING LIABILITIES

When? (vid. STS 10 June 2008, RJ\2008\4446)

In case of confusion of activities and corporate assets:

Lack of economic independence: financial grouping of assets

A sole employer who owns the results of the work done by employees

In case of confusion of workers (joint staff)

Workers develop their services in various companies of the group

If action of Company managers resembles that of a sole employer

If they act under a semblance of unity or like a sole company

Companies receive the same orders, directions or criteria

B) CONTRACT AND SUBCONTRACT OF WORKS

AND SERVICES

Concept of contract and subcontract: Art. 42 WS

MAIN COMPANY

(COMITENTE)

CONTRACTOR

COMPANY

(CONTRATISTA)

WORKER

CONTRACT

FOR

EXECUTION

OF WORKS

AND

SERVICES

CONTRACT

OF

EMPLOYME

NT

CONTRACT AND SUBCONTRACT OF WORKS

AND SERVICES

Company liabilities in art. 42 WS:

Scope of art. 42: own activity of the main

company

Criterion of Essential:

Activity that must necessarily be performed, by contractor

or by main company -> it includes additional tasks

Criterion of inherent in:

Activity that is inherent in the productive process: set of

normal operations which are entirely necessary to get a

result


AND SERVICES

Liability regime of art. 42 WS: Scope:

Type of responsibility: joint and several liability (arts. 1137 ff. CC): the main company is responsible for certain obligations of the contractor to its employees

REMEMBER: Only in case of own activity

Type of obligations to which it extends: wages (not extra-salary complements) and social security (art. 42.2 in fine)

For how long can this liability be required? Limits

Exclusion of liability (art. 42.2 2nd): declarative exclusion

Its a responsibility in chain: STS 9 July 2002


AND SERVICES

Exoneration of responsibilities: art. 42.1 WS (social

security obligations)

Other responsibilities:

Subsidiaria in social security: art. 127.1 LGSS

Administrative liability in risk prevention: arts. 24.3 LPRL and 42.3 LISOS

Duties of information and consultation:

Main Company: art. 42.4 WS

Contractor or subcontractor: art. 42.3 and 42.5 WS

Subcontracting in Construction Sector: special rules

Law 32/2006 and RD 1109/2007: limits in the chain

C) ILLEGAL TRANSFER OF WORKERS

Concept of transfer: Placing workers under contract with the object of hiring them

out on a temporary basis to other companies in order to cope with the needs of the market

Traditionally has been prohibited by labor legislation: art. 43 WS: hiring workers and transferring them to other company

It is only permitted to Temporary Work Agencies (Law 14/1994 LETT-)

Cases of illegal transfer: Through TWA:

In forbidden cases (arts. 6 and 8 LETT)

Through contract between assignor (cedente) and assignee(cesionario): Art. 43.1 WS Existence of an apparent employer (vid. STS 2 October 2007)

Direct and exclusive transfer of workforce

ILLEGAL TRANSFER OF WORKERS

Consequences of illegal transfer:

Work-related: art. 43 WS

Art. 43.3 WS: Joint and several liability between assignor

and assignee

SCOPE: Work duties (not only wages) and Social Security duties

Art. 43.4 WS: Right of workers to be recognized as

permanent (non fixed term) workers of assignor company

or assignee

Administrative: art. 8.2 LISOS: very serious

misdemeanor of both companies: fine

Criminal: art. 312.1 CP: workforce trafficking

LEGAL TRANSFER: TEMPORARY WORK

AGENCIES

TWA: Concept:

An enterprise whose activity consists in hiring out to a user

enterprise on a temporary basis, workers with whom it has

concluded a contract. Only temporary work agencies duly

authorized in the terms of this Act may conclude contracts with

workers in order to hire them out on a temporary basis to

another enterprise.

Legal regime: Law 14/94 and RD 216/99, amended by Law

3/2012 and RDL 4/2013

Main feature:

Triangular relation between TWA, User Company and worker

a) BETWEEN TWA AND USER COMPANY

Contract for placing a worker at the disposal of

another company

Cases in which it is allowed: art. 6 Law 14/94

Forbidden cases: art. 8 Law 14/94

Form and length: art. 6.3 and 7 Law 14/94

Obligations and Liability: art. 16 Law 14/94

Joint and several liability: cases

Subsidiaria:

Wages and compensation for dismissal

Social Security obligations

b) BETWEEN TWA AND THE WORKER

TWA: Two types of workers, all of them with a

contract of employment:

Workers providing services for the TWA: art. 14

Workers hired to be transferred

Form and length of the contract: art. 10 Law 14/94

OEC (unusual)

FTC

TWA AND THE WORKER

Workers rights: TWA workers have equal essential employment

conditions as User Companys workers (art. 11 Law 14/1994) including: Wages

Working hours

Rest days, night work, holidays

Measures against discrimination in employment or working conditions on the grounds of sex.

TWA workers have the right to a Severance Pay(termination of a fixed-term contract: 12 days' wages per year of service. )

TWA AND THE WORKER

Duties of the TWA: Wages and Social Securitys responsibility with its

workers (art. 12.1 Law 14/94)

Training: professional and health (art. 12.2 and 3 Law 14/94)

Vigilance of health and Security Measures (art 3.4 RD 216/1999)

Any clause in the temporary work contract obliging theworker to pay to the temporary work agency any sum inrespect of selection costs, training or receiving a contractshall be null and void.

c) BETWEEN USER COMPANY AND THE

WORKER

User Company:

Management and control (art. 15)

Exercise of organization and disciplinary powers

Health protection

Duty to inform on security

Responsibility for security in the company

Workers rights:

Presentation of claims by workers representatives of the User company

Use of facilities and transport

Information about the posts that are vacant

D) TRANSFER OF BUSINESSES

Concept:

Changes in the ownership of a company or transfer of the

status of employer

Art. 44 WS regulates it in order to protect the workers

and to ensure that their rights are safeguarded: it

provides for the maintenance of contracts (subrogation)

Object: total or partial transfer of the company (entire

company, a workplace or an autonomous productive unit)

In the case of partial transfer, the economic entity should retain

its identity (as an organized group of resources which has the

objective of pursuing an economic activity)

Not included: transmission of shares or stocks (unless merger)

TRANSFER OF BUSINESSES

When? Transfer procedures: different consequences By acts inter vivos: sale, lease, merger, foreclose, exchange

Sale and lease (several transfers):

Of a Company

Of premises: not applicable art. 44 WS

Contracts of works and services or administrative concessions:

Regime provided in collective agreement or administrative schedule of conditions (specifications)

Non transparent changes

By acts mortis causa (death, disappearance or incapacity): Cause for the termination of the contracts of employment, unless the

heirs continue with the activity (directly or transmitting the company to a third party)

Disappearance of legal personality:

When activity doesnt continue -> art. 51 WS: collective dismissals

When activity continues (i.e. case of merger)-> art. 44 WS


Effects:

Employers subrogation: art. 44.1 WS:

The transfer itself doesnt produce the termination of contracts

The assignors rights and duties arising from the contract of

employment existing on the date of the transfer, shall be

transferred to the assignee.

Furthermore, liability regime: art. 44.3 WS

Joint and several liability for 3 years related to obligations

which arose from the contract of employment before the date of

transfer

Joint and several liability about obligations arisen after the date

of transfer, in case the transfer was declared a crime


More effects:

Maintenance of applicable collective agreement (art.

44.4 WS)

Maintenance of workers representatives (art. 44.5

WS)

Duties of information and consultation (art. 44.6 to 10

WS)

CONTRACT OF EMPLOYMENT:

ENGAGEMENT

LESSON 7

1. CAPACITY

The validity of the contract of employment depends

on the fact that the person who signs it has the

capacity to enter into a contract as a worker,

capacity that sometimes is limited due to the

workers age (a)

But even in the case that the worker has capacity to

enter into a contract, his ability to work may be

limited because of some reasons (age, nationality,

qualifications) (b)

(a) Capacity to enter into a contract:

Limits

Limitation because of AGE: art. 7 WS

Full capacity: art. 7.a)

People over 18 years old who are not incapable

People under 18 years old emancipated by marriage (from 16 on)

People aged between 16 and 18 years old who live on their own with their parents or tutors consent

Limited capacity: art. 7.b)

People aged between 16 and 18 years old and not married or emancipated

They need prior authorization of their legal representatives (parents or guardian)

(b) Ability to work: Limits

Limitation because of AGE: art. 6 WS

ABSOLUTE PROHIBITION:

For children under 16 years old

Exception: work in public shows or entertainments-> art. 6.4 WS:

Work cannot be hazardous to their health or professional and personal

training

It must be authorized by labor authority, in writing and for certain acts

RELATIVE PROHIBITIONS: affecting minors of 18 years old

Night work (art. 6.2 WS)

Laborious, harmful, unhealthy or hazardous activities (art. 6.2 WS)

Specific protection related to working time (arts. 6.3 and 34.3 and 4

WS or 37.1 WS: overtime, maximum working hours, minimum weekly

rest)


Limitation because of NATIONALITY:

Art. 7 WS: Reference to specific legislation on the subject

Art. 35 SC: recognition of the right to work only to the Spanish

LOEX 4/2000 (amended by LO 8/2000 and LO 14/2003) and developed by RD 557/2011 of 20th April: only applicable to non-EU foreigners

EU foreigners and Swiss Citizens:

Enjoy freedom to live and work in the EU Member States, according to Regulation 492/2011 of 5 April 2011 on freedom of movement for workers within the EU + Directive 2004/38.

Right to use same employment services than nationals

Right to equal treatment in access to employment

Limits: a) work in public administration (art. 57 EBEP); b) reasons of health or public policy


Non-EU foreigners:

Right to engage in gainful employment (self employment or not) and to access social security under the terms of the law

Ability to work is subject to obtaining official authorization, besides having a residence permit (art. 36.1 LOEX)

Legal situations and legal status of work:

Status of Stay: stay in Spanish territory for a period not longer than 90 days. Work is not allowed.

Temporary Resident Status:

Authorizes residence for a period exceeding 90 days and less than 5

years.

A work permit is needed when hiring services from 90 days to 5 years

Long duration Resident Status:

Right to live in Spain indefinitely and matched to the Spanish, after 5 years of residence in Spain

They do not need work permit


Consequences of the absence of work permit:

Art. 36.5 LOEX: related to the contract, it cant be void

with regards to foreigners rights (art. 9.2 WS), including

the right to obtain social security benefits in case of

professional contingencies (Covenant 19 ILO), but not

including unemployment benefits

Administrative responsibilities (fine or even expulsion)

Serious misdemeanor of the worker

Very serious misdemeanor of the employer


Limitation because of QUALIFICATIONS:

The level of studies is a limit when the job post

demands a certain degree

Also the obligation of professional membership in some

activities: lawyers

2. CAPACITY TO CONTRACT AS

EMPLOYER

There are not specific rules at this regard, but:

Employers incapacity may determine the termination of

the contract (art. 49.1.g) WS)

Employers who are self-employed and do not come

from EU Member States need a work authorization

(arts. 35 and 36 LOEX)

3. FORM OF THE CONTRACT OF

EMPLOYMENT

The principle of FREEDOM OF FORM: art. 8.1 WS

Exceptions: art. 8.2 WS: mandatory written form:

When required by a legal provision: interim contracts, contracts with TWA

Contracts for work practice and training, part-time contracts, contracts for an indefinite period of a permanent but discontinuous nature, contracts for replacement, contracts for telecommuting, contracts for a work task or particular service, and temporary contracts exceeding 4 weeks.

When requested by any of the signatories (art. 8.4 WS)

Consequences of the lack of writing:

The contract is presumed as held for an indefinite period and full-time, but this is a rebuttable presumption

FORM OF THE CONTRACT OF

EMPLOYMENT

RIGHTS/DUTIES OF INFORMATION:

Within 10 days from the signing, the employer is obliged to give the workers representatives a copy of every written contract, with the basic data of the contract (art. 8.3 WS)

Employer is obliged to inform the worker about the essential elements of the contract when it lasts more than 4 weeks (art. 8.5 WS)

Within 10 days after the employee is hired, the employer is obliged to notify to SEPE (Servicio Pblico de Empleo) the content of the contract of employment (written or not) and its extensions (art. 16.1 WS)

4. INEFFICIENCY OF THE CONTRACT

It means the lack of consequences at least, the usual consequences- arising from the normal conclusion of a contract of employment.

Causes:

Absence or vitiated presence of one of the basic elements of the contract (capacity, consent, form, object or cause)

Infringement of mandatory rules

Effects: art. 9 WS:

Partial nullity: art. 9.1 WS: null and void clause will be replaced by the appropriate legal provision

Total nullity: art. 9.2 WS: right to wages for days of work

5. THE PLACEMENT PROCEDURE

The application for a job can be directly made to/by

the employer or by means of:

Public Employment Agencies (SEPE included)

Optional registration of the worker, unless the contract is subsidized or the worker is receiving unemployment benefits

Private Employment Agencies, which may be non-profit entities or profit-making entities (since Law 35/2010).

Since Law 18/2014 they dont need to be authorized by the Public Administration

Services they provide must be paid by employers, not by workers

TWA have been recognized as Employment Agencies by RDL 3/2012

6. SELECTION PROCEDURES

Proficiency tests, interviews, training courses:

Purpose: to verify candidates skills

They can be established by collective agreements

Fundamental rights of workers must be respected

Effects of the employers failure to comply with the results:

Worker cannot sue for dismissal but only for damages

Job vacancies and job listing:

Can be stated by collective agreements

Mandatory for employers

LIMITS ON THE SELECTION OF

WORKER

Non discrimination rules

In placement procedures, Employment Agencies (public or

private) must guarantee the principle of equality with

regards to the access to jobs

In the hiring procedures:

Employers cannot use discriminatory criteria in the selection and

hiring

The proof of the absence of discrimination lies upon the

employer (when the worker demonstrates the existence of hints

of discriminatory treatment)

Consequence: the payment of damages (civil procedure). Not

the hiring.

7. THE PROBATIONARY PERIOD

PURPOSE: personal and professional knowledge of

both parties to the contract

OPTIONAL: such an agreement is optional

So if it is agreed, it should be clearly specified in the

contract

FORM:

Mandatory, WRITTEN form

MAIN FEATURE:

Termination without cause, notice and compensation

THE PROBATIONARY PERIOD

DURATION: Art. 14.1 WS

Collective agreement or, failing that, the legal length

Legal length:

Depending on technical difficulty of the job

Depending on the company size

Depending on the duration of the contract (up to 6 months)

Singularities:

Contract for work practice (art. 11.1.d) WS)

Contract for entrepreneurs (art. 4 Ley 3/2012)

LIMITS

Previous work in the same company with the same functions (art. 14.1 in fine)

THE PROBATIONARY PERIOD

WORKERS RIGHTS: Art. 14.2 and 3 WS

Working conditions: Equivalent, unless termination

Seniority

Suspension of the contract during probationary period:

depends on the agreement of the parties

THE LABOUR HIRING

Lesson 8 (I)

Type of contracts: criteria

1. Duration

1. Open Ended Contracts (contratos indefinidos)

2. Fixed term and Temporary Contracts (contratos temporales)

2. Working hours

1. Full time contracts

2. Part time contract

3. Objectives or Purposes

1. Ordinary contracts

2. Training contracts

4. Employment promotion

1. OEC (general rule)

2. FTC (special subjects)

Type of contracts in the Spanish

labour law system (duration)

1. OPEN ENDED CONTRACTS (OEC)

1. Ordinary Contract

2. Contract for the Support of Entrepreneurs

2. FIXED TERM AND TEMPORARY CONTRACTS (FTC)

1. Types of contracts

1. The circumstantial temporary hiring

1. The temporary contract for the promotion of employment2. The structural temporary hiring (due to the kind of job)

1. Contract for the performance of a work task or particular service

2. Contract due to production needs (temporary increase in workload)

3. Interim contract (replacement of workers)

2. Common Provisions for temporary contracts

3. Law Fraud and irregularities in the temporary hiring

3. TEMPORARY WORK IN THE CIVIL SERVICE

ORDINARY OEC

NEW OEC FOR THE SUPPORT OF ENTREPRENEURS

OPEN ENDED CONTRACTS


1. The "ordinary" OEC One in which its length is unbounded in advance (no fixed

term nor termination date) It can be done full time or part time Preference for permanent hiring -> presumptions (mostly

iuris tantum or rebuttable) If nothing is said: OEC If the contract is not in writing and it should be: OEC If there is no reason for FTC: converted into OEC If there is a repeated renewal of certain FTC with or without cause

above the temporal limits: converted into OEC Illegal transfer of workers Failure to comply with the responsibility of submitting workers

affiliation to the Social Security System


2. Contract for the support of entrepreneurs

Legal regime: art. 4 Law 3/2012, 6th July

Main characteristics:

Only for companies with less than 50 employees (including self-

employed with 0 employees)

Full time or partial time contract (RDL 16/2013) and for an indefinite

period of time

Official model

Probationary period: one year (for qualified technicians or not, and

unrelated to the number of workers less than 25 or not-)

Tax incentives and discounts for Social Security contributions, when

applicable (paragraphs 4, 5 and 7)

Forbidden for companies under certain circumstances (unfair objective

dismissal and collective dismissal)

TEMPORARY CONTRACT FOR THE PROMOTION OF EMPLOYMENT

CONTRACT FOR THE PERFORMANCE OF A WORK TASK OR PARTICULAR SERVICE

CONTRACT DUE TO PRODUCTION NEEDS

INTERIM CONTRACT

Fixed Term or Temporary Contracts

(FTC):

FIXED TERM OR TEMPORARY

CONTRACTS (FTC)

TYPES OF TEMPORARY CONTRACTS:

I. Circumstantial temporary hiring The temporary contract for the promotion of employment of:

Disabled people (first AD Law 43/2006); Youth (Ley 11/2013)

Employment in Work Integration Social Enterprises(Act 44/2007)

II. Structural temporary hiring: due to the temporary nature of the job1. Contract for a work task or particular service2. Contract of temporary nature due to circumstances of

production (temporary increase in workload)3. Interim contract (replacement of a worker)

III. Training contracts (remission)

IV. Indirect temporary hiring by means of a Temporary Work Agency

FTC I: Circumstantial temporary hiring for

disabled people (1st AD Law 43/2006)

Purpose To promote employment of disabled people Incentive: FTC without a cause related to the job but rather to

the person

Group to be targeted Disabled people: concept DA 1 Law 43/2006 (with 33 % of

disability or more/ pensioners with total, absolute or great incapacity)

Contract features Writing form Duration and extensions (min. 12 months max. 3 years) Compensation at the end of contract: 12 days Exception: this contract cannot be used when, during the previous

six months, the company has made unfair dismissals or redundancies.

FTC I: Circumstantial temporary hiring

for young people (art. 12 Ley 11/2013) Purpose

To promote employment of young people (Primer empleo joven) Incentive: FTC without a cause related to the job but rather to the person

Group to be targeted Young people: concept art. 12.1: unemployed younger of 30 year old, without

any labor experience or shorter than 3 months

Contract features Writing form in official model Duration and extensions (min. 3 months max. 6 months unless otherwise

agreed by collective agreement) It can be part-time contract (min 75 % of working time of comparable worker) Compensation at the end of contract: same as that of contracts due to

production needs? Exception: this contract cannot be used when, during the previous six months

(after RDL entered into force), the company has made unfair dismissals or redundancies and wants to replace them.

FTC II: Structural temporary hiring:

general questions

Legal regime

Article 15 ET and RD 2720/1998, 18th

December

Types of FTC:

Contract for the performance of a specific task or service =

contrato de obra

Contract due to production needs (temporary increase in

workload) = contrato eventual por circunstancias de la

produccin

Interim contract (replacement of workers) = contrato de

interinidad

1. CONTRACT FOR A SPECIFIC TASK

OR SERVICE

Contract established for the execution of a specific work or the provision of a determined service, With autonomy and own identity

Within the activity of the company, or not

Its execution could be planned for a fixed term (but not defined)although it finishes with the total completion of the work.

Collective agreements could determine tasks or jobs within the normal activity of the company that can be developed with this contract Unsuitable for the opening of a new workplace nor for the launching

of a new line or activity

Jurisprudence allows Contractor companies to use them in connection with the contract for works and services signed with a Principal or main company

Formalities

The contract should be made in writing, and

establishing in a precise and clear way the type of

contract and identifying the hired work or service:

Art. 2.2 RD 2720/1998.

The absence of written formality or the absence of

precise identification of the task or service will suppose

that the contract is presumed as held for an indefinite

period of time, unless proof against its temporary

nature:

Art. 8.2 WS.

Length and extinction

New wording of art. 15.1 WS (after the reform by Law 35/2010): These contracts have a maximum duration of 3 years, although they can be

extended by up to 12 months by sector collective agreement

The contract will only terminate because of the completion of the hired work or service. If not, dismissal. It does not end if the work is not finished -> conversion in OEC

Gradual extinction is possible: in case of gradual completion of the work

The termination of the contract of works or services extinguishes it, if the work or service has finished

Not if it terminated by mere will of the contractor or by agreement of the parties

Not if there is succession of contracts with the same contractor or a new company if art. 44 ET is applicable or it is established in specifications or agreement

Duty of the employer: To give the worker a document recognizing his condition as a permanent worker, in

the 10 following days to the compliance of the 3 years or the term extended by collective agreement, when the work or service doesnt finish during it.

2. CONTRACT DUE TO PRODUCTIONS

NEEDS

Cause: These contracts are specifically made in order to

attend the circumstantial exigencies of the market,

accumulation of tasks or excess of orders, even if they

were part of the normal activity of the company:

Art. 15.1.b) WS.

The increase of the activity which justifies the eventual

hiring must be circumstantial and not repeated

periodically, because in this case we would be talking

about a contract for fixed discontinuous workers.

Example: agriculture, hotel and catering business, etc.

Limits

Collective agreements can determine the activities in which

it is possible to use this contract

Collective agreements can determine the maximum

percentage of these contracts with relation to the total staff,

then those provisions will act as limits to the eventual hiring:

Art. 15.1.b) WS.

Length

The maximum length for this contract will be 6 monthswithin a reference period of 12 months: total andabsolute limit for a worker performing same tasks

Art. 15.1.b) WS.

The contract can be extended only once.

Both terms can be modified by a sector collectiveagreement with national scope or, in its absence, with alower scope.

Maximum lengths: 12 months-18 months, respectively

When the contract lasts more than this, Jurisprudenceconsiders that eventuality turns into normality

Formalities

The contract must be done in writing when it lasts more than

4 weeks:

art. 3.2.a RD 2720/1998.

If both parties agree, they could add a sole extension in

writing and without exceeding the maximum length:

art 3.2.d RD 2720/1998.

The extensions must be communicated to the Public

Employment Agency and the workers representatives in the

10 following days since its signing:

art. 64.4 WS 6.3 RD 2720/1998.

Termination

The eventual contract due to production needs will

terminate when the fixed term arrives, with previous

communication at this regard of one of the parties: art.

8.1.b) RD 2720/1998.

If the contract is not denounced and the provision of work

continues, it will be implicitly extended until its

maximum term, and if it has been exceeded, it will be

extended for an undefined period of time, except proof

against its temporal nature.

3. INTERIM CONTRACT

Cause:

- The worker is hired in order to replace other worker who is absent for special causes (art. 45 WS, suspension; reduction of working hours) and who has the right to reserve his/her job.

- The worker is hired to temporarily fill a job during the process of selection of the worker who is going to occupy it.

It should be done on a full-time basis unless:

- The previous worker was part-time

- The position is intended to be finally occupied with a part-time contract

- The interim contract is intended to complement the working time of another worker who has a reduced working day in order to care for relatives.

Features

Duration: the same as granted to the worker who is

entitled to a reserve of his post, or that of the selection

process (max. 3 months)

Termination:

Because of the return of the replaced worker or the

course of the term of reserve without return of the worker

Because of the arrival of the new worker or the course of

the maximum duration of the selection process or the

elimination of the vacant

COMMON PROVISIONS FOR FTC

WRITTEN FORM: mandatory, unless in case of contracts due to production needs for full time jobs which last less than 4 weeks, or special contracts which dont have this formality:

art 8.2 WS and art. 6.1. RD 2720/1998.

Companies are obliged to communicate to the Public Employment Agency the signing of these contracts (and its extension) sending a copy in the following 10 days from its signature:

arts 8.3 and 16.1. WS ; art. 6.3. RD 2720/1998.

Temporal workers will have the same rights as workers with an open ended contract:

art. 15.6 WS


Holidays:

An economic compensation is allowed when, due to the fact that thecontract lasts less than one year, it is impossible to enjoy the right toholidays.

Salaries and extraordinary payments:

Equality with permanent workers : art. 15.6 WS

Seniority:

It will be counted with the same criteria for all the workers,independently of the type of contract: art. 15.6. WS.

Related to the calculation of the time of services, it cannot be addedunless the transformation into a contract for an indefinite period of timeoccurs immediately, without interruption

Suspension of the employment relationship:

The causes of suspension or leaves of absences (arts. 45 and 46 WS)dont extend the temporary contract (art. 7 RD 2720/1998).


Termination:

In order to terminate the relationship, a previous communication or notice by the employer must be given at least 15 days before the end of the contract for contracts which last more than 1 year (unless in interim contracts):

Art. 8.3 RD 2720/1998.

The breach of the term of notice by the company will be compensated with a sum of money equivalent to the salary of the days for which notice was not given:

Art. 8.3 RD 2720/1998.


Severance pay:

According to art. 49.1.c) WS, upon termination of a fixed

term contract by expiration of the term or the work, the

worker is entitled to a payment of 12 days salary per year

of service.

This provision does not apply to termination of contracts

concluded for training purposes or to interim contracts:

Art. 49.1.c) WS.

Law 35/2010 amended art. 49.1.c) WS by increasing

compensation on a yearly basis from 8 days' wages to

12 days' wages in 2015 (see DT 13 ET)

CONSEQUENCES OF THE IRREGULAR

TEMPORARY CONTRACTS

a) Formal defects:

No cause, no register within Social Security, extension which exceeds the maximum duration

The contract is presumed as held for an indefinite period and full-time, but this is a rebuttable presumption:

Art. 8.2 WS

b) Fraudulently made Contract:

When apparently the temporary hiring is legally done, but its purpose is illegal

The contract is presumed as held for an indefinite period of time, and this is a presumption iuris et de iure:

art. 15.3 WS; art. 9.3. RD 2720/1998.

THE LABOUR HIRING

Lesson 8 (II).

OTHER TYPES OF CONTRACT OF

EMPLOYMENT

TRAINING CONTRACTS

Work-practice contract

Contract for training and apprenticeship

PART-TIME CONTRACTS

Part-time contract

Contract for replacement and contract to replace early

retired workers

SEASONAL WORK

Work repeated in the same dates: part-time

Work not repeated in the same dates

1. TRAINING CONTRACTS

TYPES OF TRAINING CONTRACTS

Work-practice contract (contrato en prcticas)

Qualified people

Contract for training and apprenticeship (contrato para la formacin y aprendizaje)

Non qualified workers

LEGAL REGULATION

Art. 11 WS and art. 13 Law 11/2013 (for people with less than 30 years old)

RD 488/1998 (work-practice) and RD 1529/2012 (training and apprenticeship)

a) WORK-PRACTICE CONTRACT

PURPOSE:

Job insertion for qualified people

OBJECT: Work and practical training that fits in with the level of studies or

training

PEOPLE TO BE ENGAGED: Qualifications requirements (arts. 11.1 WS; 1 RD; 13 Law 11/2013

applicable until unemployment rate below 15 %-)

Limits: art. 11.1.c) WS

FIXED-TERM CONTRACT: Art. 11.1.b) WS: Minimum duration: 6 months; maximum 2 years

TRIAL PERIOD: Art. 11.1.d) and f) WS

REMUNERATION: Art. 11.1.e) WS:

Lower than that of a worker in same or equivalent job post/position

b) CONTRACT FOR TRAINING

INITIAL PURPOSE: Job insertion for non qualified young people

OBJECT: Work and training (theoretical and practical)

PEOPLE TO BE ENGAGED: Age requirements (art. 11.2.a WS and 6 RD):

Older than 16 and with less than 25 years old (30 until unemployment rate under 15% -> DT 9 Law 3/2012)

Maximum age not applicable to disabled or people in situation of social exclusion)

Qualifications requirements (arts 11.2.a WS)

Exclusions (arts. 11.2.c WS)

TRIAL PERIOD: Art. 10.1RD: reference to art 14 WS

CONTRACT FOR TRAINING

FIXED-TERM CONTRACT: Art. 11.2.c) WS

Minimum length: 1 year; maximum 3 years

Role of the collective agreement

Some situations interrupt its duration (11.2.b) in fine)

PART-TIME ? Not possible: Art. 12.2 WS

Overtime, night work and shift work: forbidden: art. 8.4 RD

SOCIAL SECURITY PROTECTION: art. 11.2.h)

Improvements after Law 35/2010

REMUNERATION: Art. 11.2.g) WS

It is proportional to real time of work (not lower than SMI in

proportion to real time of work)

CONTRACT FOR TRAINING

Object and exemption: art. 11.2.d) and e) WS and 16 RD

Related to the activity carried out by the worker

In order to obtain certificado de profesionalidad or a professional training certificate (medium or superior degree)

Must be authorized by SEPE (16.7 RD)

Tutorials (art. 20 RD)

Effects of its inobservance: art. 14 RD: PRESUMPTIONS?

Adequate activity: art.

11.2.d) WS:

75% (1st year) or 85%

(2nd and 3rd) of

maximum working hours

TRAINING ACTIVITY LABOUR ACTIVITY

2. PART-TIME CONTRACTS

CONCEPT OF PART-TIME WORK: art. 12.1 WS

PRINCIPLES:

Voluntarism: art. 12.4.e WS

Non discrimination (equal treatment): art. 12.4.d WS

Pro rata temporis principle: art. 12.4.d WS

A) PART-TIME CONTRACT

Length: art.12.2: for an indefinite period or temporary

Formal requirements: art. 12.4.a):

Written contract which must include working hours per day, week, month or year, and their distribution

Overtime:

New regulation in art. 12.4.c) WS since RDL16/2013: forbidden

The so called horas complementarias: art. 12.5 WS

Only when they are agreed in writing (voluntary for workers), provided that working time lasts not less than 10 hours per week on a yearly basis

Remuneration: art. 12.5.j) WS: principle of equality

Possibility of ending the agreements validity: art. 12.5.e) WS

Mandatory written agreement

Number: limited with relation to normal working hours (30%) , unless collective agreement -till 60%- (12.5.c) WS)

Notice to worker 3 days (RDL 16/2013) before its execution, unless: 12.5.d)

B) JOB SHARING SITUATIONS

PARTIAL RETIREMENT AND

LEGAL REGULATION: art. 12.6 and 12.7 WS (totally amended by RDL 5/2013, 15th March); art. 166 LGSS (also amended); DA 1st and 2nd RD 1131/2002

CONSEQUENCES: partial-work and pension compatibility

CONDITIONS FOR PARTIAL RETIREMENT:

Only full time workers: art. 166 LGSS ->novation into part-time contract

Sometimes a contract for replacement is needed

Requirements for partial retired worker:

Those of art. 161 LGSS: without contract for replacement

Age below that required for regular retirement / 6 years of seniority/ 33 or more years of SS contributions: with contract for replacement

Reduction of working time and wage (replaced by pension):

Between 25%-50%

Until 75% if contract for replacement is full time and indefinite

TERMINATION: when total retirement is reached (art. 12.6)

JOB SHARING SITUATIONS

CONTRAT FOR REPLACEMENT: art. 12.6 and .7 WS Compulsory -or not- (art. 166.1 and 166.2 LGSS)

Subject: unemployed worker or with a temporary contract in the same company

Object: replace, at least, vacant working hours of a partial retired worker (art. 12.6 and 12.7.c)

Working hours: complimentary or simultaneously (art. 12.7.c)

Post: could be the same, or not, as the one partially vacant (art. 12.7.d)

Duration: Fixed term (until the partial retired reaches the normal retirement

age or when it may occur if prolonged beyond the ordinary age for retirement)

Indefinite (art. 12.7.b) WS)

3. SEASONAL WORK

WORK REPEATED IN THE SAME DATES (fijo peridico) Same rules as those applying to indefinite part-time contracts

(art. 12.3 WS). (i.e. schools /hotel business/ tax campaign)

WORK NOT REPEATED IN THE SAME DATES (fijodiscontinuo) Concept: contract for an indefinite period of time but for

discontinuous work (with periods of inactivity) It responds to a cyclical but permanent need of workforce

The start and length of the activity depends on variable factors (weather)

Legal regulation: art. 15.8 WS Calling or Llamamiento in the order and form established by collective

agreement: Status of intermittent permanent workers

Written model

If there is no call: comparable to a dismissal

slides labor law

Documents

labour market

labour lawintroduction

individual labour law

collective labour law

modern labour lawenactments

generalization of paid

industrial disputes

workers representatives