Conciliation and Mediation Basics Quiz

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.

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.