Conciliation and Mediation Basics Quiz

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Questions and Answers

What is the primary objective of the conciliation process facilitated by the Mediation and Arbitration Service (SMAC)?

To assist the worker and company in reaching an amicable resolution, avoiding court. (correct)

To enforce legal sanctions against non-compliant parties.

To issue a binding judgment on labor disputes.

To formally document all labor disputes.

In which of the following scenarios is engaging in conciliation proceedings before the Mediation and Arbitration Service (SMAC) NOT mandatory?

When a worker is disputing their professional category.

When a worker is claiming harassment based on their ethnicity. (correct)

When a worker is contesting a disciplinary action imposed by the company.

When a worker is seeking the payment of outstanding wages.

What is the legal status of a conciliation act if a settlement is reached?

It's a preliminary agreement that must be ratified by a court.

It is an enforceable document allowing direct enforcement without needing a lawsuit. (correct)

It's an advisory document that carries no legal obligation.

It serves as a basis for future litigation proceedings.

What role does the conciliator play during the conciliation proceedings?

To serve as a mediator, helping the parties reach an agreement. Signup and view all the answers

Prior to what action must a worker file a conciliation paper in an unfair dismissal case?

Before being able to sue the company for unfair or null dismissal. Signup and view all the answers

In the reconciliation process, what is expected when the involved parties fail to comply with the reached agreement?

The worker can start enforcement proceedings directly. Signup and view all the answers

When initiating a conciliation procedure, what needs to be specified in the conciliation form?

The facts that give rise to the claim and the specific claim being requested. Signup and view all the answers

Which of the following is NOT a reason for a worker to be entitled to a leave of absence?

Training Signup and view all the answers

What element must be present for a relationship to be considered an employment contract?

Subordination of the employee to the employer Signup and view all the answers

Which of the following duties does NOT fall under employer obligations?

Providing tax benefits to workers Signup and view all the answers

What must be included in the occupational risk prevention plan according to the obligations presented?

Planning of the preventive activity Signup and view all the answers

Which of the following is considered a moral duty of an employer?

Creating healthy competition among employees Signup and view all the answers

What is the minimum seniority required for an employee to exercise their right to reinstatement after a leave of absence?

One year Signup and view all the answers

How long must an employee wait after a voluntary leave before they can exercise the right to take another leave?

Four years Signup and view all the answers

Which of the following is NOT a requirement for reinstatement after a leave of absence?

The employer must provide a new job title. Signup and view all the answers

What is the maximum duration of a leave of absence due to child care?

3 years Signup and view all the answers

In which situation does the burden of proof fall on the employer?

When there is no vacancy after an application for reinstatement. Signup and view all the answers

How is seniority affected during a voluntary leave of absence?

It is not calculated for seniority purposes. Signup and view all the answers

What is the maximum job reservation duration for employees with a special large family during child care leave?

18 months Signup and view all the answers

Which of the following rights is NOT granted during a leave of absence due to child care?

Right to a salary increase during leave. Signup and view all the answers

What equivalency is recognized if an employer fails to comply with the reinstatement application when a vacancy exists?

Equivalent to dismissal Signup and view all the answers

What is one condition that can lead to the suspension of a worker's employment according to mutual agreements?

Mutual agreement or contractual suspensive clause Signup and view all the answers

Temporary incapacity for workers can be extended to a maximum of how many days?

365 days Signup and view all the answers

Which of the following does not constitute a reason for suspension of employment due to health concerns?

Regular vacation leave Signup and view all the answers

What type of incapacity is defined as a reduction in performance but not total inability?

Partial incapacity Signup and view all the answers

Which situation would not lead to a leave of absence due to personal circumstances?

Requesting a personal vacation Signup and view all the answers

What is a valid reason for the suspension of a worker’s employment related to family care?

Care during a family member's illness Signup and view all the answers

Which of the following is covered by maternity leave?

Surrogacy births and care Signup and view all the answers

What defines 'force majeure' as a cause for suspension of work?

Natural disasters or unforeseen events Signup and view all the answers

Which condition is not associated with maternity or family reasons for suspension?

Risk in workplace conditions Signup and view all the answers

Based on the text, which of the following is NOT a limit associated with the possibility of modifying or varying an employee's functions?

The modification must be made in conjunction with the employee's union representative. Signup and view all the answers

What is the primary difference between 'horizontal' and 'vertical' functional mobility?

Horizontal mobility only applies to tasks within the same professional group, while vertical mobility allows for a change of professional group. Signup and view all the answers

Which of the following situations would qualify for the 'Paid Leave of Up to 4 Days for Unforeseeable Family Emergencies'?

A worker's spouse undergoes unexpected surgery and requires assistance with daily tasks. Signup and view all the answers

What is the employer's obligation during an employee's use of the 'Paid Leave of Up to 4 Days for Unforeseeable Family Emergencies'?

The employer must pay the employee's normal salary for the time they are absent. Signup and view all the answers

Which of the following factors is NOT mentioned in the text as a reason for allowing 'vertical' functional mobility?

Employee request Signup and view all the answers

What is the primary purpose of the 'Paid Leave of Up to 4 Days for Unforeseeable Family Emergencies'?

To ensure that workers can attend to unexpected family emergencies. Signup and view all the answers

What is the maximum duration of the 'Paid Leave of Up to 4 Days for Unforeseeable Family Emergencies' per year?

4 days Signup and view all the answers

What is the meaning of 'heteronomous limits' as used in the context of functional mobility?

Limits imposed by external sources, such as regulations or contracts. Signup and view all the answers

Which of the following statements is TRUE about the 'Paid Leave of Up to 4 Days for Unforeseeable Family Emergencies' according to the text?

The leave can be used by the hour or by the day. Signup and view all the answers

Which of the following describes the term 'functional mobility' as presented in the text?

The employer's ability to adjust the worker's job responsibilities. Signup and view all the answers

Study Notes

Alternative Dispute Resolutions (ADR)

ADR is a process for resolving disputes outside of court.
Labour conflicts can be resolved judicially or extrajudicially.
Extrajudicial methods include conciliation, mediation, and arbitration.

Means of Labour Pressure for Dispute Resolution

Article 28.2 CE recognizes the right to strike.
Laws regulating strikes should ensure the maintenance of essential community services.
A lock-out is the closing of the work center by the employer.
A lock-out can occur due to various circumstances such as damage to property, threats of violence, illegal occupation of the workspace, or extremely disruptive worker behaviours.

Workers' Representatives in Spain

The Spanish constitution guarantees workers' rights to organize and participate in trade unions.
Two types of employee representation exist in Spain:
Staff delegates: represent workers in companies with up to 50 employees.
Works councils: serve employers of companies with more than 50 workers.

Workers' Rights

Workers are entitled to be informed and consulted on issues affecting them and the company's situation, including economic and performance statistics.
Workers should be informed regarding employment conditions, accidents, occupational illnesses and equal opportunities.
Workers have the right to participate in CBA agreements and contribute to company conciliation initiatives.
They are entitled to due process regarding penalties or sanctions.
Workers have rights concerning restructuring and implementation of decisions by the company such as workforce reduction, work relocation and professional development programs.
Workers have right of monitoring compliance with social security and employment regulations.

Worker Guarantees

Workers are protected from discrimination.
They cannot be dismissed or penalized during the performance of their duty or for a year after the completion of their term without justification(except if proven otherwise in a dismissal or withdrawal case, or if they have committed serious misconduct).
Workers have the right to freely express their opinions and to have the credit of paid hours per month for their representation.

Dismissal

Article 38 CE: recognizes free enterprise within a market economy. Public authorities guarantee its exercise.
Workers provide services within the scope of organization and management of an employer.
It is a workers' basic duty to comply with employer orders and instructions.
Workers are also obliged to perform agreed work under employer management.
Employee dismissal can be classified as collective, objective, and disciplinary.

Collective Dismissal

Collective dismissal occurs when an employer's termination decision affects a significant number of workers within a specific period.

Objective Dismissal

Employee dismissal due to factors like worker's known or unexpected incompetence or lack of adaptation to job and necessary technical modifications.
Economic, technical, organizational, or production reasons.

Disciplinary Dismissal

Dismissal due to repeated or unjustified absence from work, indiscipline, or verbal/physical offence against employer or co-workers.
Violations of contractual duties or abuses of trust in work performance.
Continuous and voluntary decrease in work.
Regular drunkenness or drug addiction harming work performance.
Harassment based on protected characteristics (race, religion, sex, etc.).

Conciliation Act

Conciliation is a prior, compulsory administrative procedure before the Mediation and Arbitration Service (SMAC).
Its aim is to help workers and employers reach an amicable agreement to resolve disputes.
The conciliation form documents presented to SMAC for conciliation proceedings.
Specific facts and claims need to be included by the concerned party.

Cases requiring Conciliation

Dismissal: Conciliation before suing for unfair dismissal.
Disputing sanctions: Conciliation before challenging disciplinary sanctions.
Wage claims: Conciliation before claiming wages or compensation.
Rights recognition: Conciliation before claiming rights like seniority or professional status.

Conciliation Procedure

The worker presents the conciliation paper to the SMAC.
SMAC summons both parties for hearing.
Parties present their case, and a conciliator facilitates negotiations.
Outcome involves agreement or non-agreement.
Company absence waives right to conciliation and the worker may proceed to court.

Effects of Dismissal

The impact can be fair or unfair or the dismissal is null and void.

Termination of Employment Relationship

Termination occurs when the employment relationship ends.
Termination can occur by mutual agreement.
Causes for termination are valid and specified in the employment contract.
Term of the contract or service expires.
Termination by workers or employers in different circumstances.

Workers' Unilateral Decision/Termination

Resignation: no compensation
Abandonment: no compensation (absence of justification), no recourse to worker's statute.
Withdrawal: (in some circumstances). No compensation nor right to dole.

Employer's Unilateral Decision/Termination

Disciplinary dismissal
Objective dismissal (ineptitude, etc.)
Collective dismissal (economic, technical, etc.)
Force majeure
Death/disability of employee or employer.

Causes beyond Worker/Employer's Will

Death
Permanent incapacity
Disability
Retirement
Force majeure

Suspension of Employment Relationship / Leave of Absence

A temporary release from work obligations.
Contractual continuity is maintained.
Various causes for suspension (incapacity, birth/adoption, public service).
Specific effects of suspension (no work, no pay, some protected by social security).

Causes of Suspension

Mutual agreement
Valid reasons in contract
Worker's temporary incapacity
Childbirth/adoption/foster care of minors
Pregnancy and breastfeeding
Public office duties
Imprisonment without conviction
Force majeure
Economic/technical/organisational/production reasons
Forced leave
Legal closure of the company
Worker's decision due to gender violence
Parental leave

Leave of Absence (Types)

Forced leave: due to public office appointment
Voluntary leave: worker's choice
Childcare leave: care of a dependent family member

Effects of Suspension

Right to reserve the job during suspension.
Calculation of leave for seniority.
Deadline for reinstatement request.
Lack of reinstatement by employer (deemed dismissal)
Obligations to pay contributions to social security (in certain cases)
New permits for child and partner care.

Labour Mobility

Functional mobility: assigning different tasks/functions to an employee.
- Horizontal mobility: within the same professional group
- Vertical mobility: to a different professional group (promotion/demotion).
Geographical mobility: moving to a different work center or location.
- Transfer: by employer decision (due to business reasons, such as hiring, or competitiveness or work organization in the company).
- Displacement: (temporary relocation to a different work center).
Substantial modifications: changes impacting terms of employment (distribution, schedule, shift work, remuneration).

Contracting and Subcontracting

External management of services/decentralized production (outsourcing).
Principal company and auxiliary company; work/service corresponding to the company's own activity.
Purpose to reduce costs.
Subcontracting of works/services; entrepreneurs who contract with others for work/services corresponding to their activity.
Liability of the principal company: joint liability for salary obligations for a year after the job work and during 3 years of social security obligations with the contractor and subcontractor..

Liability of the principal company

Joint liability for salary obligations for one year after the completion of the job and for 3 years regarding social security obligations (involves both the contractor and subcontractor).
No joint liability in certain cases, such as construction or home repairs for individuals that are not part of the industry/business activity.

Obligations of the Principal Company; Duty of Information

Duty to inform workers' representatives(form, time, and content).
Information needed (company name, registered office, tax ID of the subcontracting company).
The contract's duration/ execution place and number of workers will need to be mentioned.

Obligations of the Contractor and Subcontractor; Duty of Information

Duty to inform the workers, SS, and workers' representatives.
Information content (main company name, company address and tax ID.
Purpose, duration and coordination measures should be stated.
Information should be given prior to the start of the services provision, to the start of contract execution.

Occupational Health Obligations

Cooperation between companies working in the same workspace for Occupational risk prevention.
Establishing coordination measures (prevention and protection).
Company with the work center evaluating workplaces and informing other companies.
Companies are required to inform about risks of accidents at work, prevention measures, protection measures, and emergency measure(s) in place.

Changes with Labor Reform 2022

Sector/Industrial collective agreement will always apply to the contractor or subcontractor companies.
Contractor companies are related to industrial collective bargaining agreements, applicable activity and sector-specific agreements (title III).
The sectoral collective agreement has priority over the company's agreement in the case of subcontracting companies with its own collective agreement.

Company Succession

Change of ownership, work center, or autonomous productive unit.
Inter vivos: company sale/lease/judicial sale mergers and takeovers.
Mortis causa: company transfer to heir.
Subjective and objective elements of a valid succession; transfer of essential company elements.

Subrogation Effects

The new employer(company) is subrogated to rights and obligations of the company involved in the previous stage (and/or its workers) .
The new employer assumes the employment rights and obligations (salary, power of direction, sanctioning power), social security rights/obligations, and pension commitments.
Workers cannot oppose the succession, but subrogation is not compulsory to their employment.

Maintenance of Representative Bodies

When the company, work center, or production unit retains its autonomy, the mandate of workers' representatives remains valid.

Applicable Collective bargaining agreement

The collective bargaining agreement that applies at the time of transfer continues, unless specified otherwise.
The agreement's duration, a new agreement taking effect, or the company satisfying the collective agreement of the new employer.

Information Obligations

Strengthened information duties.
Information to workers' representatives, specifying the date of succession and reasons for the action and its consequences to the concerned workers/labor body).
Information should be given in good time to the people transferring the company and to the people whom their employment and working conditions will be affected.

Consultation period

When labour measures for workers are anticipated, consultation with workers' representatives or workers is required;
Consultation must occur prior to the implementation of measures.

Company Succession Liabilities

Joint liability of transferor and transferee (inter-vivos).
Labour obligations before the succession and not satisfied during the 3 years following the succession.
Joint and several liability for 3 years of labour obligations unmet before the transfer and liabilities arising after the transfer (when this is considered a crime).

Work Hours, Holidays, Overtime and Salary

Essential condition of labour relationship.
Working days are limited by agreement among the employer and the employee. (maximum hours per day/week).
Employees have the right to protection in respect of weekly rest, number of hours of working day, overtime and night work, breaks during the working day, etc
Overtime and night work: only under specific circumstances permitted by law.
Types of overtime (voluntary vs. compulsory).
Prohibitions on overtime (minors, pregnant/breastfeeding, etc.)
Vacations: length (minimum 30 days).
Payment schedule.
Public holidays: maximum 14 annual paid and non-recoverable holidays.

Regulations

ILO Conventions on working hours.
Council Directives on working hours.
Laws on special public holidays and rights of workers.
Collective agreements/company agreements.

Salary

Worker's financial compensation for work performed (cash or kind).
Total compensation, encompassing all forms of income.
Limit on salary in kind (30%).
Minimum interprofessional wage regulations.

Salary Guarantees

Salary as privileged credit: workers' compensation is prioritized over other debts (subject to execution).
Unseizable salary: amount equivalent to the minimum wage, compensation, and work tools, exempt from confiscation (except for obligations to spouse/children).
Wage Guarantee Fund (FOGASA): protects worker's pay if the employer is bankrupt.

Payroll Processing

Salary management; equitable and fair salary structures.
Planning strategies and policies for internal equity and competitive advantage in retention of employee talent.

Types of Remuneration

Direct remuneration: base salary, incentives (variable).
Indirect remuneration: benefits (insurance, car).
Non-financial remuneration: work satisfaction and environment.

Remuneration Systems

Techniques for establishing and fixing salary levels (job-based, expertise-based, performance-based).

Workers' Rights and Obligations

Workers have rights and obligations in the workplace.
Fundamental rights of workers, including employment and professional choice.
Workers' obligations include compliance with employer orders, improving productivity, respecting good faith, and work safely/hygienically.

Employer's Duties

Training workers (advantages: fill gaps, increase talent, enhance retention).
Prevent occupational hazards (Occupational Risk Prevention plan, preventive activity organization, resources for preventative activity).
Create a positive work environment: employee listening, promoting training, encouraging competition, and implementing social responsibility projects.

Employment Contract Introduction

Overview of employment contracts.
Essential elements of an employment contract including: voluntary undertaking, personal nature of the services, subordination/dependency, remuneration, and employer/employee status.

Classification of Employment Contracts

Training contracts (to gain professional practice, or alternating work/training)
Temporary contracts (production/substitution)
Indefinite contracts (no fixed duration). -Permanent discontinuous contracts (intermittent over time)
Permanent construction contracts (specific to the industry, with aspects of the location and employee handover at the end of a given work).
Part-time contracts (after 2022 labor reform)
Distance work (telework), its features according to the law, mandatory minimum content, responsibilities of all parties including inventory of equipment, and the duration/length of the agreement.

Probation Period

Defined agreement period; both parties can terminate without prior notice or compensation.
Maximum duration regulated differently depending on the characteristics of the contract (e.g., qualification of worker, company size, etc).

Advance or Prior Notice in Employment Contracts

Period for one party to notify the other of contract termination or modifications.
Reasons for giving notice (termination, changes in conditions, dismissals, etc.).
Purposes of notice periods: to mitigate the impacts/consequences related to the termination or modification of the contract.

Different classifications of employment contracts, with characteristics depending on the contract form.

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Description

Test your knowledge about the conciliation process facilitated by the Mediation and Arbitration Service (SMAC). This quiz covers objectives, legal status, roles, and requirements related to conciliation proceedings as well as employment-related queries. Prepare to identify key concepts and practices in the field of mediation and arbitration.