Employment Law in CE PDF

 28.2 CE. The right of workers to strike in defense of their interests is recognized. The law regulating the exercise of this right shall establish the guarantees necessary to ensure the maintenance of essential community services. DISMISSAL UNIT 11  THE POWER OF THE EMPLO...

 28.2 CE. The right of workers to strike in defense of their interests is recognized. The law regulating the exercise of this right shall establish the guarantees necessary to ensure the maintenance of essential community services. DISMISSAL UNIT 11  THE POWER OF THE EMPLOYER Article 38 C:E. Free enterprise is recognized within the framework of a market economy. The public authorities shall guarantee and protect its exercise and the safeguarding of productivity in accordance with the demands of the economy in general and, as the case may be, of its planning. Art 1.1 WS Workers provide their services "within the scope of organization and management" of an employer. Art. 5.c WS It is a basic duty of the worker to "comply with the orders and instructions of the employer in the regular exercise of his managerial role." Art. 20.1 WS The worker will be obliged to perform the agreed work under the management of the employer or person delegated by the employer" THE POWER OF THE EMPLOYER MANAGEMENT POWER RULE-MAKING POWER CONTROL POWER DISCIPLINARY / SANCTIONING POWER POLICE POWER DISMISSAL COLLECTIVE DISSMISAL OBJECTIVE DISMISSAL DISCIPLINARY DISMISSAL  s COLLECTIVE DISMISSAL Causes o Economic o Technical o Organizational o Production When the termination decision of the employer affects a certain number of workers in a specific and legally established period of time.  OBJECTIVE DISMISSAL Art 52 WS - Ineptitude of the worker known or supervening subsequent to his effective placement in the company. - - Lack of adaptation of the worker to his job and to the necessary technical modifications. - Economic, Technical, Organizational or Production causes  DISCIPLINARY DISMISSAL Art 54 WS (a) Repeated and unjustified failure to attend work or to be on time b) Indiscipline or disobedience at work. c) Verbal or physical offenses against the employer or persons working in the company or family members living with them. d) The transgression of contractual good faith, as well as the abuse of trust in the performance of work. e) Continuous and voluntary decrease in the normal or agreed work performance. f) Regular drunkenness or drug addiction if they have a negative impact on the work. g) Harassment based on racial or ethnic origin, religion or beliefs, disability, age or sexual orientation and sexual harassment or harassment based on sex against the employer or persons working in the company. , No compensation , Yes dole.  CONCILATION ACT The act of conciliation is a prior and compulsory administrative procedure that takes place before the Mediation and Arbitration Service (SMAC) of the Ministry of Labour and Social Affairs. Its main objective is to help the worker and the company reach an amicable agreement to resolve a labour dispute, thus avoiding the need to go to court. The conciliation form is a document that is presented to the SMAC to request the holding of the conciliation proceedings. The worker must specify the facts that give rise to the claim and the specific claim that is requested  In which cases is an act of conciliation held? It is mandatory in the following cases: Dismissal: The worker must present the conciliation paper before being able to sue the company for unfair or null dismissal. Disputing sanctions: The worker must present the conciliation paper before being able to challenge a disciplinary sanction imposed by the company. Claim for payment: The worker must present the conciliation letter before being able to claim the payment of wages, overtime, compensation, etc. from the company. Recognition of rights: The worker must present the conciliation letter before being able to claim recognition of a right from the company, such as professional category or seniority, for example.  How does the conciliation procedure work? Presentation of the conciliation paper: The worker presents the conciliation paper to the SMAC Summons of the parties: The SMAC summons both parties, the worker and the company, to attend the conciliation proceedings on a specific day and at a specific time. Conduct of the proceedings: At the conciliation hearing, both parties have the opportunity to present their claims and to try to reach an agreement. The conciliator, who is an official of the SMAC, acts as a mediator between the parties and helps them to find a mutually satisfactory solution Outcome of the procedure: Settlement: The parties reach an agreement, The conciliation act is an enforceable document, which means that if the company does not comply with what has been agreed, the worker can go directly to enforcement proceedings to demand compliance. Non-agreement: If the parties do not reach an agreement, the employee can go to court.Absence of the company: If the company does not attend the act of conciliation, it is considered to have waived its right to conciliation and the worker can go directly to court.  EFFECTS OF A DISMISSAL FAIR UNFAIR NULL THE TERMINATION OF THE EMPLOYMENT RELATIONSHIP UNIT 10 THE TERMINATION OF THE EMPLOYMENT RELATIONSHIP End of the contract Extinction of the two main obligations : provision of the service and salary May happen at any time ART 49 AND SEQ OF THE WORKERS STATUTE  THE TERMINATION OF THE EMPLOYMENT RELATIONSHIP MUTUAL AGREEMENT OF THE PARTIES MUTUAL AGREEEMEENT PER SE CAUSES VALDILY CONSIGNED IN THE EMPLOYMENT CONTRACT EXPIRATION OF THE TIME GIVEN TO CARRY OUT A WORK OR SERVICE SUBJECT OF THE CONTRACT  THE TERMINATION OF THE EMPLOYMENT RELATIONSHIP WORKER´S UNILATERAL DECISION WITHOUT CAUSE: RESIGNATION : No compensation. No dole ABANDONMENT : No compensation No dole ( NOT IN THE WS :JURISPRUDENCE) WITH CAUSE: TRANSFER ( ART 40 WS) SUBSTANCIAL MODIFICACTIONS OF THE WORK CONDITIONS( ART 41 WS) VICTIM OF GENDER VIOLENCE EMPLOYERS UNFULLFILLMENT (ART 50 WS) THE TERMINATION OF THE EMPLOYMENT RELATIONSHIP EMPLOYER´S UNILATERAL DECISION WITH CAUSE: DISCIPLINARY DISMMISSAL ( ART 54 WS) OBJETIVE DISMMISSAL ( ART 52 WS) COLLECTIVE DISMISSAL (ART 51 ET) FORCE MAJEURE (ART 51 WS)  THE TERMINATION OF THE EMPLOYMENT RELATIONSHIP CAUSES BEYOND THE PARTIES WILL DUE TO THE WORKER OR THE EMPLOYER DEATH PERMANENET INCAPACITY IN THE DEGREE OF TOTAL, ABSOLUTE OR SEVER DISABILITY RETIREMENT FORCE MAJEURE Art. 49 ET ". The employment contract will be terminated: a) By mutual agreement of the parties. b) For the reasons validly consigned in the contract unless they constitute a manifest abuse of rights on the part of the employer. c) By expiration of the agreed time or completion of the work or service subject of the contract. At the end of the contract, except in cases of substitution and training contract, the worker shall have the right to receive a compensation in an amount equivalent to the proportional part of the amount that would result from the payment of twelve days' salary per year of service, or the amount established as the case may be, in the specific regulations applicable. d) Due to the resignation of the worker , with the due advance notice that collective bargaining agreements or the local custom of the place indicate. e) Due to death, severe disability or total or absolute permanent disability of the employee. f) Due to retirement of the employee. Art. 49 ET ". The employment contract will be terminated: g) Due to death, retirement in the cases set forth in the Social Security system, or incapacity of the employer or due to the extinction of the legal personality of the contracting party. h) Due to force majeure that makes it impossible to perform the work i) Due to collective dismissal based on economic, technical, organizational or production causes. j) Due to the worker´s will, based on a breach of contract by the employer. k) Due to the worker´s dismissal l) Due to legally valid objective reasons m) By decision of the worker who is forced to leave her job permanently as a result of being a victim of violence. SUSPENSION OF THE EMPLOYMENT RELATIONSHIP : LEAVE OF ABSENCE UNIT 9  SUSPENSION OF THE EMPLOYMENT RELATIONSHIP Articles 45-48 WS. The suspension of the employment contract can be defined as the temporary release from the basic obligations to work and pay for the work, with the continuity of the legal bond.  EFFECTS OF SUSPENSION - Temporary nature of the situation. - No provision of work during it. - No remuneration. No right to salary. - Some of the suspensive situations are protected by Social Security. - Continuity and survival of the employment contract. The contract is not extinguished. - The employee's duties arising from the employment contract, such as the duty of good faith, the duty not to compete unfairly, etc., are maintained. - Time not worked counts for seniority purposes.  CAUSES OF SUSPENSION Article 45. 1. Work contracts may be suspended for the following reasons: a) Mutual agreement between the parties. b) Reasons validly reflected in the employment contract. c) Workers’ temporary incapacity. d) Birth, adoption, guardianship for adoption or foster care of minors under six years of age or minors over six years of age with disabilities or who, due to their personal circumstances and experiences or because they come from abroad, have special difficulties of social and family insertion duly accredited by the competent social services. e) Risk during pregnancy and risk during breastfeeding of a nine month minor. f) The exercise of a representative public office. g) The worker’s imprisonment, as long as there is no conviction. h) Suspension of salary and employment for disciplinary reasons. i) Temporary force majeure. j) Economic, technical, organization or production reasons. k) Forced leave. l) The right to strike. m) Legal closure of the company. n) Worker´s decision who is forced to leave her job as a result of being a victim of gender violence. o) Enjoyment of parental leave  CAUSES OF SUSPENSION 1. Agreements between employer and worker. -Mutual agreement or contractual suspensive clause. 2. For reasons of health, maternity, paternity or care of children or family members. -Health reasons: -for birth and care of a child. - Risk during pregnancy 3. Due to the impossibility of the worker to carry out the work. -Deprivation of freedom. Suspension as long s there is no condemnatory sentence and imprisonment. 4. Due to factual causes that make it difficult to perform the work. -Force majeure 5. By choice of one of the contracting parties. LEAVE OF ABSENCE (excedencias)  CAUSES OF SUSPENSION 2. FOR REASONS OF HEALTH, MATERNITY, PATERNITY OR CARE OF CHILDREN OR FAMILY MEMBERS. -Health reasons: WORKERS TEMPORARY INCAPACITY max 365 days extendable to 180 days + (180 days more)*. Permanent incapacity can be: -partial: not total but there is a reduction equal to or greater than 33% of his normal performance. -total : for the regular or usual profession -absolute: for all jobs - severe: for all jobs and need assistance from third parties for daily basic activity. -FOR THE BIRTH AND CARE OF A CHILD : Maternity leave now leave for birth and care of a child. For both parents 16 weeks which 6 weeks uninterrupted and immediately after childbirth rest distributed up to the first year. Includes adoption, guardianship and foster care and children born through surrogacy - FOR RISK DURING PREGNANCY and BREASTFEEDING - Due to labour conditions.  CAUSES OF SUSPENSION 3. DUE TO THE IMPOSSIBILITY OF THE WORKER TO PROVIDE THE SERVICE. -Deprivation of freedom. Suspension as long s there is no condemnatory sentence and imprisonment.(PRINCIPLE OF PRESUMPTION OF INNOCENCE) - If there is a conviction and jail the contract is terminated due to absence from work.( disciplinary dismissal) - If the worker is acquitted the suspension is ended. 4. DUE TO FACTUAL CAUSES THAT MAKE IT DIFFICULT TO PERFORM THE WORK. -Force majeure - ETOP reasons - Victim of gender violence  LEAVE OF ABSENCE (excedencias) 1.Forced leave of absence due to the employee's election or appointment to public office. - 2. Voluntary leave of absence. 3. Leave of absence to care for a dependent family member up to the second degree or for a child until the child reaches three years of age.  SUSPENSION OF THE EMPLOYMENT RELATIONSHIP : LEAVE OF ABSENCE 1. FORCED LEAVE OF ABSENCE due to the employee's election to public office a) Exercise of representative public office (art. 45.1.f) ET). - Appointment or election to a public office that makes attendance at work impossible b) (arts. 45.1 k and 46.1 ET). c) Exercise of trade union functions at provincial or higher level while holding a representative position (art. 46.4 ET). Art. 9.1.b) Organic Law on Freedom of Association (LOLS) attributes the effects of the forced leave of absence if the union is one of the most representative. d) Fulfillment of an inexcusable duty of a public and personal nature When it is impossible for the worker to perform the job for more than 20% of the working hours and for at least 3 months.  SUSPENSION OF THE EMPLOYMENT RELATIONSHIP : LEAVE OF ABSENCE EFFECTS Suspension of the employment contract -- Right to reserve the job position. - Calculation of the time on leave of absence for seniority purposes. Deadline for requesting reinstatement: 30 calendar days. If reinstatement is not requested: the contract is terminated due to abandonment of the employee's job (unilateral decision of the employee without prior notice). Lack of reinstatement attributable to the employer is considered as dismissal. Termination of the contract by unilateral decision of the employer. It will be considered unfair due to lack of cause and non-compliance with formal requirements.  SUSPENSION OF THE EMPLOYMENT RELATIONSHIP : LEAVE OF ABSENCE 2.-VOLUNTARY LEAVE OF ABSENCE. A minimum of one year's seniority in the company is required Duration: minimum 4 months and maximum 5 years. This right may only be exercised again by the same employee if four years have elapsed since the end of the previous voluntary leave. There is no right to reserve the position, but there is a preferential right to reinstatement when there is a vacancy in the same or a similar category.  SUSPENSION OF THE EMPLOYMENT RELATIONSHIP : LEAVE OF ABSENCE Effects: - Preferential right of reinstatement if there is a vacancy in the company in your professional category or similar. - - when to apply for reinstatement: before the end of the leave of absence or immediately thereafter. - Upon request for reinstatement: the employer cannot cancel the job if there is a vacancy in the company in the same or a similar professional category. - If there is an application and a vacancy: if the employer fails to comply, it is equivalent to dismissal. - If there is an application and a vacancy, but there is a delay in acceptance: the employee may bring an action for damages with the right to compensation equivalent to the wages lost. - If there is an application for reinstatement and no vacancy: the burden of proof is on the employer. - Seniority: time on voluntary leave is not calculated for seniority purposes. - No obligation to pay contributions. - It is not a situation protected by Social Security. SUSPENSION OF THE EMPLOYMENT RELATIONSHIP : LEAVE OF ABSENCE -3. LEAVE OF ABSENCE DUE TO CHILD CARE - Birth of a natural child - Adoption - Guardianship for the purpose of adoption - Permanent foster care Duration - Until the child turns 3 years. ( as from the date of birth or, from the date of judicial or administrative decision). It can be enjoyed in installments.  SUSPENSION OF THE EMPLOYMENT RELATIONSHIP : LEAVE OF ABSENCE Effects: - Reservation of the same job for 1 year,( or 15 months (general large family) or 18 months (special - large family: 5 or + 5 children, 4 children if 3 are by childbirth or adoption or multiple guardianship or foster care, 4 children if annual income is below a limit). - Reservation of a job in their professional group or equivalent professional category: during the 2nd or 3rd year. - Seniority: calculated for the entire period of leave. - Right to attend professional training courses: called by the employer. - Right to return to work under the same conditions as previously enjoyed. - No obligation to pay contributions.  SUSPENSION OF THE EMPLOYMENT RELATIONSHIP : LEAVE OF ABSENCE 3. LEAVE OF ABSENCE TO CARE FOR A FAMILY MEMBER. - - Care of a relative by consanguinity or affinity up to the 2nd degree who for reasons of age, accident, illness or disability and is unable to fend for him/herself and does not perform any paid activity. Duration: - 2 years ONLY extendable by collective agreement. To be counted from the time it is requested and can be taken in several periods SUSPENSION OF THE EMPLOYMENT RELATIONSHIP : LEAVE OF ABSENCE Effects: - During the first year, he/she shall be entitled to a job - reservation. After this period, the reservation shall be referred to a position in the same professional group or equivalent category. - The period during which the employee remains on leave of absence shall be computable for seniority purposes. - Right to attend professional training courses: convened by the employer. - No obligation to pay contributions.  3 NEW PERMITS FOR CHILD AND PARTNER CARE 2023 The Family Law is a new regulation promoted by the Government to improve the work-life balance of employees in Spain. RD Law 5/2023, of 28 June. To comply with EU Directive -2019/1158 1. 8-WEEK PARENTAL LEAVE FOR THE CARE OF CHILDREN. Employees are entitled to parental leave for the care of a son, daughter or foster child (in care for more than a year), until the child reaches the age of eight. Fathers and mothers can request eight weeks to care for their children, but they will not receive the salary corresponding to the days of leave. This leave can be continuous or discontinuous. With Royal Decree-Law 2/2024, this legislative amendment would comply with the requirement of a 2-week paid parental leave. For example, for the return to school to facilitate the adaptation of the youngest children or the care of children when you have nowhere to leave them while you are working.  3 NEW PERMITS FOR CHILD AND PARTNER CARE 2023 2. PAID LEAVE OF 5 DAYS TO CARE FOR SECOND-DEGREE FAMILY MEMBERS OR DE FACTO PARTNERS The employee may be absent from work with pay for 5 days due to accident or serious illness, - hospitalization or surgery without hospitalization requiring home rest of the employee's : Spouse. De facto partner. Relatives up to the second degree by consanguinity or affinity. Blood relatives of the de facto partner. Any person who lives with the worker in the same home and needs care. Does this leave have an annual limit in the case of Spain? No, there is no annual limit to enjoy this leave in our country. For example: This measure will allow working people to take care of their children at home, to accompany their partner to the doctor or to take care of an elderly person  3 NEW PERMITS FOR CHILD AND PARTNER CARE 2023 3. PAID LEAVE OF UP TO 4 DAYS FOR UNFORESEEABLE FAMILY EMERGENCIES. - The worker has the right to be absent from work for reasons of force majeure when necessary for urgent and unforeseeable family reasons, related to family members or persons living with them, in case of illness or accident that make their immediate presence indispensable. This leave may be used by the hour or by the day, up to a total of 4 days per year. While the employee takes this leave, the company is obliged to pay the employee's normal salary for the time he/she is absent.  LABOUR MOBILITY UNIT 8  Art. 39 WS: Functional The functional mobility of workers is the ability of the mobility employer to assign different tasks or functions to an employee, regardless of the functions for which he/she was initially hired. Professional groups ( art 22.2 WS) Unilateral decision made by the employer The possibility of modifying or varying functions has limits.  1. Horizontal (ordinary) : within the same professional group. According to the employee's professional group in relation to his or her academic qualification Respect the worker's dignity May never be contrary to good contractual faith. Types of 2. Vertical (extraordinary): Change of a worker’s task to functional another professional group. -Ascendant (superior tasks) mobility -Descendant (inferior tasks) Only possible due to technical or organizational reasons Only for a certain time Work reps must be informed.  1. Heteronomous limits: GENERIC LIMITS : Professional group / Professional rights/ Preservation of the job. Limits of SPECIFIC LIMITS: functional Based on business reasons/ the duration / control of company decisions/ professional qualifications/ economic mobility rights 2. Autonomous limits : CONTRACTUAL CONVENTIONAL  Vertical Ascendant If the task is carried out during: 6m in one year or 8m in a period of 2 years Types of The worker can ask for a promotion or request functional the position to be covered by other else. mobility Salary varies Vertical Descendant No time limits. Only the necessary. Salary stays the same  In an employment contract one of the most important and substantial labour conditions is the workplace. That is the place where the worker is going to perform his job. It can be an office, a workshop, a factory, a store, a theater... Geographical or it can be an itinerant workplace, such as that of a sales representative who, on mobility behalf of the employer, performs his work in different places depending on where the customer is located.  Art 40 WS 1. The transfer of workers who have not been specifically hired to render their services in companies with mobile or itinerant work centers to a different work center of the same company that requires changes of residence will Geographical require the existence of economic, technical, organizational or production mobility reasons that justify it. These will be considered to be those related to competitiveness, productivity or technical or work organization in the company, as well as hiring related to the business activity. OR  Art 40.6 WS 1. Displacement: Companies may temporarily move their employees, for economic, technical, organizational or Geographical production reasons, or for hiring related to the business activity, to mobility other work centers that require them to reside in a town other than their usual place of residence, provided that this period is less than twelve months in three years.  Due to mutual agreement : employee and employer. Due to employer decision: -Transfer ( art 40 WS) 1) Reassignment 2) Change different work center 3) Change of residence Types of 4) + 12m in 3 years geographical 5) Individual or collective -Displacement (art 40.6 WS) mobility 1) -12m in 3 years 2) Change of workplace 3) Change of residence 4) Temporary change  Legal framework for the modification of working conditions. The possibility of legally substantially modifying working conditions is regulated by: Workers' Statute: Title III, article 41 where the procedure to Substantial be followed is detailed. mobility. Collective bargaining agreement: where the general conditions are established. Modifications Employment contract: which sets out the initial conditions to working of the employment relationship. Law 36/2011 Regulating the Social Jurisdiction, Section 4°. conditions.  Art 41 WS 1. Where proven economic, technical, organizational or production reasons exist, the company management may resolve substantial modifications to working conditions. Those modifications affecting the following items shall be Substantial considered as substantial modifications to working conditions: mobility. a) Working day. Modifications b) Distribution of work time schedule. to working c) Shift work system d) Remuneration system and salary amount conditions. e) Work and performance system. f) Tasks, which exceed the limits set by Article 39 of functional mobility. 2. Substantial modifications to working conditions may be of individual or collective nature. CONTRACTING AND SUBCONTRACTING  CONCEPT Form of external management of services Decentralized production ( outsourcing ) Principal company and auxiliary company Work or service corresponding to the company's own activity Purpose: to reduce costs SUBCONTRACTING OF WORKS AND SERVICES Article 42. Subcontracting of works and services. 1. Entrepreneurs who contract or subcontract with others the performance of works or services corresponding to their own activity……  LIABILITY OF THE PRINCIPAL COMPANY Joint liability Salary obligations and social security With the contractor and subcontractor During the term of the contract Liability is maintained during the year following the end of the job (salary obligations) and the following 3 years (social security obligations). No joint liability: Construction or repair of the home of a private individual ( head of family) When the owner of the work or industry does not contract its execution as a business activity On Social Security obligations: when there is a negative certification, or the Social Security General Treasury does not reply.  OBLIGATIONS OF THE PRINCIPAL COMPANY: DUTY OF INFORMATION Duty to inform: workers' representatives Form: not indicated When: not indicated Content of the information: subcontracting provisions Identity of the subcontracting company (name or company name, registered office and tax identification number). This makes it possible to know who to hold accountable. Purpose of the contract: identify the job. Duration of the contract. To know the period of time during which liability can be claimed. Place of execution of the contract. Not always clear Number of workers to be employed by the contractor and/or subcontractor at the prncipal company's place of business. It is NOT necessary to identify them with their names  OBLIGATIONS OF THE CONTRACTOR AND SUBCONTRACTOR: DUTY OF INFORMATION Duty of information to: The workers ,the SS and the Workers' representatives Content of the information: - To the workers: Identity of the main company (name or company name, registered office and tax identification number). - To the SS: Identity of the main company. - to the workers' representatives: identity, purpose, duration and coordination measures. When to inform? - to the workers: prior to the start of the provision of services - to the SS: not indicated - to the workers' representatives: prior to the start of the contract execution.  OCCUPATIONAL HEALTH OBLIGATIONS When the workers of the principal company and those of the contractor company and, if applicable, those of the subcontractor company work in the same work center. All companies must cooperate for the application of occupational risk prevention regulations. All companies must establish coordination measures: on prevention and protection. The company owning the work center must: 1- Evaluate the workplaces 2- Inform the other companies - risks of accidents at work - prevention measures - protection measures - emergency measures 3- Ensure and monitor compliance with occupational risk prevention regulations.  CHANGES WITH THE LABOUR REFORM 2022 A SECTOR/ INDUSTRIAL COLLECTIVE AGREEMENT WILL ALWAYS APPLY It is guaranteed that there will always be a sector collective agreement applicable to the contractor or subcontractor company, either the one corresponding to that company by collective bargaining, in accordance with the rules of the WS or the one corresponding to the activity carried out in the principal company. Contractor companies will be subject to the industry collective bargaining agreement applicable to the activity carried out under the contractor agreement, or any other sector- specific agreement applicable under Title III (art. 84.2 of the Workers Statute). And if the subcontracting company has its own collective agreement, the same will apply, but the sectorial collective agreement, has priority over the company's agreement. COMPANY SUCCESSION Art 44 WS ◦ Change of ownership of company, work center or autonomous productive unit. By inter vivos : sale of the company, leasing of industry, judicial sale, mergers and takeovers. ◦ By transmission mortis causa : RIP entrepreneur and incorporation of the company in the patrimony of the heir via succession. The heir expresses the will to continue the operation (freedom of enterprise). ◦ Doctrine ◦ Subjective element: There must be the substitution of an entrepreneur by another one ( natural or legal persons) ◦ Objective element: All the essential elements of the company must be transferred to guarantee the continuity of the activity , ◦ Subrogation effects Employment relationships continue to be in force ◦ The new employer is subrogated to the rights and obligations of the former employer: ◦ Employment rights and obligations (salary, power of direction, sanctioning power...). ◦ Social security rights and obligations. ◦ Pension commitments. ◦ The worker cannot oppose the succession, but the subrogation is not obligatory for him: can resign Maintenance of representative bodies ◦ When the company, work center or production unit retains its autonomy (WS does not specify ): ◦ The mandate of the workers' representatives (same roles and conditions) is not extinguished. Applicable collective bargaining agreement Unless otherwise agreed the collective bargaining agreement that applied to the company at the time of the transfer will continue..Until: ◦ The date of termination of the collective bargaining agreement. ◦ The entry into force of a new collective bargaining agreement. In the future, the transferred company must comply with the collective bargaining agreement of the new employer.  Information obligations Information duties are strengthened. ◦ Inter vivos succession ◦ To whom inform: to the workers' representatives (if there are none, to the workers affected by the succession). COMPANY Content of the information : Date foreseen for the succession reasons, legal, economic, social SUCCESSION consequences for the workers and measures to be taken). When to inform : in good time. ◦ For the transferor: before the transfer is carried out. ◦ For the transferee: before the workers are affected in their employment and working conditions. In case of non-compliance: serious administrative breach. Does not affect the validity of the succession.  Consultation period COMPANY ◦ In which cases? if labour measures for workers SUCCESSION are expected. ◦ With whom? with workers' representatives or with workers directly (if no worker´s reps). ◦ When? before the measures are adopted.  Joint liability ◦ Liability of transferor and transferee ◦ intervivos ◦ Of labour obligations arising PRIOR to the succession and not COMPANY satisfied during the 3 years following the succession. ◦ Without prejudice to the provisions of Social Security legislation, SUCCESSION the transferor and the transferee, in inter vivos transfers, shall be jointly and severally liable for three years for labor obligations LIABILITIES arising prior to the transfer and which have not been paid. ◦ The transferor and the transferee shall also be jointly and severally liable for the obligations arising AFTER the transfer, when the transfer is declared a crime. (For example, it may be debts for unpaid salaries or compensation, debts in Social Security matters.)  WORKING DAY    ILO Conventions Nos. 1 (1919), 4 (1919), 6 (1919), 20 (1925), 30 (1930), 31 (1931), 46 (1935), 79 (1946), 89 (1948), 90 (1948), 109 (1958), 153 (1979).  Council Directive 93/104/EC of November 23, 2003.  Directive 2003/1988/EC of 4 November 2003 of the European Parliament and of the Council: 48 hours (7 days) including overtime. REGULATIONS  Art. 40.2 CE  Arts. 34-38 WS: Common or ordinary employment relationship.  RD 1561/1995, of September 21, 1995 on Special Working Days.  Collective bargaining agreements  Company agreements  Employment contracts  Individual agreements between the employer and the employee.  WORKING DAY       WORKING DAY     PROTECTION OF UNDER 18 YEARS OF AGE         BREAKS DURING THE WORKING DAY        REST Art. 37 WS   REST      NIGHT TIME WORK  NIGHT TIME WORK         SHIFT WORK   OVERTIME  TYPES OF OVERTIME      OVERTIME    VACATIONS       PUBLIC HOLIDAYS        SALARY    SALARY  SALARY Lew 3/2023, of the 28th of February )  SALARY        SALARY GUARANTEES      SALARY GUARANTEES    The Wage Guarantee Fund (FOGASA) art. 33 WS   PAYROLL PROCESSING    PAYROLL PROCESSING       TYPES OF REMUNERATION        REMUNERATION SYSTEMS          Right to employment and free choice of profession and trade. Right to free association. WORKERS RIGHTS Right Ato N collective D bargaining. O Right BLIG to A T I Ocollective adopt NS conflictive measures. Right to strike. UNIT 6 Right of assembly/ meetings. Right to information , consultation and participation in the company.  OTHER RIGHTS: Right to actual employment Right to promotion and training at work Right not to be discriminated directly or in directly for employment. W O Right R K EtoR receive S R I GtheH Tagreed S payment on time Right Ato N physical D integrity and privacy OBLIGATIONS Constitutional rights applicable to Labour law: UNIT 6 Freedom of movement Freedom of ideology Freedom of religion Right to honour Right to own image Right to effective judicial protection  Duty to comply with the employer's orders ( art 5c WS) (art 20.1 WS) Duty to contribute to the improvement of productivity. WORKERS RIGHTS Duty to contractual good faith and diligence. AND Duty O not B L to I Gcompete ATION with S the activity of the company.( art 5 d) and 21 WS). Duty to observe the safety and hygiene measures. UNIT 6 Art. 29 Occupational Health and Safety Law (LPRL).  Leave of absence ( permisos) workers are entitiled: MARRIAGE PREGNANCY WMATERNITY ORKERS RIGHTS ADOPTION AND FOSTER CARE DEATH AND OBLIGATIONS BREASTFEEDING LEGAL GUARDIANSHIP MINOR UNDER 12 OR DISABLED PERSON MOVING PERSONAL OR PUBLIC DUTY UNIT 6 STAFF REP DUTIES EXAMS PERSONAL MATTERS LOOK FOR A JOB IF DISMISSED FOR OBJECTIVE REASONS  EMPLOYER´S DUTIES DUTY TO TRAIN WORKERS DUTY TO TRAIN IN THE PREVENTION OF Advantages : OCCUPATIONAL HAZARDS Fill positions with in-house talent Increase internal growth options Occupational risk prevention plan Talent retention and workers satisfaction W O Rstaff Prepares K EtoRface S R I Gchallenges new HTS Planning of the preventive activity AND Improves productivity Organization of resources for preventive activity Tax benefits OBLIGATIONS MORAL DUTY TO ADOPT POSITIVE WORKING ENVIROMENT MEASURES UNIT 6 Make employee feel listened Promote training Encourage healthy competition Welcome social responsability projects  Unit 3 EMPLOYMENT CONTRACT INTRODUCTION  EMPLOYMENT CONTRACT WORKER´S STATUTE ART. 1 1. This law shall apply to workers who voluntarily render their paid services for the account of others and within the scope of organization and management of another person, natural or legal, called employer or entrepreneur.  ELEMENTS OF THE EMPLOYMENT CONTRACT Voluntarily undertaken The personal nature of the services performed by the employee. The subordination/ dependency relationship of the employee to the employer. On behalf of others ( alienness) The remuneration received by the worker. If any of these elements are missing it isn’t an EC. THE PARTIES: WORKER AND EMPLOYER WORKER: relevant to Labour law because is: - subject of an employment contract - staff member -affiliated to a union -subject protected by Social Security EMPLOYER: art 1.2 WS …shall be physical or legal persons, that receive the provision of services from the persons referred to in art 1.1 WS, and persons hired by legally constituted temporary employment agencies.  NATURE Art 8. WS 1. The work contract may be in writing or verbally. It shall be presumed to exist between anyone rendering a service on behalf of and within the scope of the organisation and management of another, and the person receiving it in exchange for a compensation paid to the former. Standard Exchange Onerous Consensual  COLLECTIVE BARGAINING AGREEMENTS “CBA” The CBA is an agreement where the working conditions and productivity are drawn up after the collective negotiation between the entrepreneurs and the worker´s reps. The CBA is binding for both parties It rules the economic and labour aspects of work. Must be in writing  COLLECTIVE BARGAINING AGREEMENTS CLASSIFICATION: 1) According to how they have been concluded: STATUTORY EXTRA- STATUTORY 2) According to their scope of application: SECTORAL: cover a specific sector of the economic activity : such as of a geographical scope - National - Autonomic -Provincial - Local b) COMPANY COLLLECTIVE AGREEMENT: only affects a certain company. With the 2022 Labour reform sectoral CBA has priority over the Company one. PROBATION PERIOD It is an agreement between the parties that stipulates the period of time during which both the employer and the employee may terminate their employment contract without prior notice or any right to compensation between the parties. Maximum duration : CBA In the absence the duration may not exceed: -6 months for qualified technicians. -2 months for the rest of the workers. In companies with less than 25 workers: –Max 3 months for workers who are not qualified technicians. In temporary fixed-term contracts of max. 6 months: -Max. 1 month, unless otherwise provided for in the CBA.  ADVANCE OR PRIOR NOTICE IN EMPLOYEMENT CONTRACTS Notice is a period of time within which one of the parties to the employment contract (the company or the employee) must inform the other party in advance of an event affecting the contract, such as its termination, changes in conditions, dismissal, voluntary resignation, etc. The purpose of the notice is to reduce the damage that may be caused and to give the other party a margin of time to be able to act.  ADVANCE OR PRIOR NOTICE IN EMPLOYEMENT CONTRACTS DISMISSAL NOTICE? COLLECTIVE 15 DAYS DISMISSAL OBJECTIVE DISMISSAL 15 DAYS DISCIPLINARY THE NOTICE ISNT DISMISSAL MANADATORY DISMISSAL FOR NO NOTICE FORCE MAJEURE  CLASSIFICATION Depending on the duration of the employment contract: -Training contracts. - Temporary contracts ( fixed term): the start date and the end date of the contract or the circumstance that will terminate the contract are known. - Indefinite contracts: the start date of the contract is known but not the end date. According to the type of working day: - Full-time - Part-time A) Type of employment contract according to its working day 1. FULL-TIME CONTRACTS The employee's working day is full-time as provided in the applicable collective bargaining agreement or, failing that, as provided in (art. 12 WS).  B) Type of employment contract according to its working day 2. PART-TIME CONTRACTS The employee's working time is less than the working time of comparable fulltime employee, or otherwise less than the full-time working time provided by the collective agreement or by law. The part-time contract may be entered into for an indefinite term for a fixed term in those cases in which the use of this type of contract is legally permitted. Article 12. WS Part-time contract.1. The employment contract shall be understood to be concluded on a part-time basis when it has been agreed to provide services for a number of hours per day, per week, per month or per year, less than the working day of a comparable full time worker for the purposes of the provisions of the preceding paragraph, “comparable full time worker” shall mean a full-time worker in the same company and workplace, with the same type of employment contract and performing identical or similar work. If there is No comparable full-time worker in the company, the full-time working day provided for In the applicable collective bargaining agreement or, failing that, the maximum legal working day shall be considered.  Type of employment contract according to its duration: 3. INDEFINITE CONTRACTS THE EMPLOYMENT CONTRACT IS PRESUMED TO BE FOR AN INDEFINITE TERM. NOVELTY WITHIN THE DISCONTINUOUS PERMANENT CONTRACT  Type of employment contract according to its duration: 1. TRAINING CONTRACTS (art. 11 WS) 1.1. TRAINING CONTRACTS TO OBTAIN PROFESSIONAL PRACTICE (contrato de formación para la obtención de la práctica profesional ex Contrato en prácticas ) 1.2. TRAINING CONTRACTS IN ALTERNATION OR ALTERNATING CONTRACTS (contrato de formación en alternancia con el trabajo retribuido ) 2. TEMPORARY CONTRACTS (art. 15 WS) 2.1. DUE TO PRODUCTION CIRCUMSTANCES 2.2. FOR THE SUBSTITUTION OF AN EMPLOYEE  Distance work (telework) Law 10/2021 defines regular remote work where, within a reference period of 3 months, accounts for at least 30% of the working day, or the equivalent proportional percentage depending on the duration of the employment contract. The remote working agreement shall be in writing, voluntary and reversible for the employee and the company, and may be signed at the beginning of the employment relationship or later on. Mandatory minimum required content of each remote working agreement is: Inventory of equipment and tools provided. Expenses that remote working may cause. Working hours and availability periods. Percentage and distribution between on site and remote working hours. Corresponding workplace. Designated remote working place. Reversibility advance notice period. Means of exercising corporate control. Procedure to be followed in the event of technical difficulties preventing remote working. Company instructions (participated by workers representatives) on data protection. Company instructions (after informing workers representatives) on information security. Length of the remote working agreement.  UNIT 4 TEMPORARY CONTRACTS TEMPORARY CONTRACTS 1. TEMPORARY CONTRACTS Art. 15 WS 1.1. DUE TO PRODUCTION CIRCUMSTANCES - Unforeseeable Max. of 6m to 12m Foreseeable Max 90 days in the calendar year 1.2. BY SUBSTITUTION FOR AN EMPLOYEE - Due to substitution worker with a reserved right to their job or to complete the reduced working day of another worker. - Cover a job during a selection or promotion process. Max. of 3m  TRAINING CONTRACTS 2. TRAINING CONTRACTS (art. 11 WS) 2.1. TRAINING CONTRACTS TO OBTAIN PROFESSIONAL PRACTICE 2.2. TRAINING CONTRACTS IN ALTERNATION OR ALTERNATING CONTRACTS  TRAINING CONTRACTS TYPES ALTERNATING CONTRACTS CONTRACTS TO OBTAIN PROFESSIONAL PRACTICE NORM ART 11.2 WS ART 11.3 WS USE To combine paid work activity with the To obtain the professional practice appropriate to corresponding educational processes in the corresponding level of studies. It is done for an vocational training, university studies or occupation directly related to their education. This the Catalog of Training Specialties of the way, the worker can obtain the necessary National Employment System.. professional practice to complement their education. PROFILE OF PERSONS -Persons lacking professional - For university graduates, higher technical or TO BE HIRED qualification , it is aimed at young people middle-level vocational training graduates.(FP) who do not have the studies required to -No age limit but the contract must be entered perform the profession. They will receive within 3 years (or 5 years if disabled person) after theoretical and practical training to the completion of the corresponding studies. perform it. If they have another degree -The contract may not be signed with a person but has nothing to do with the position, who has obtained professional experience or has they can be hired because he/she will be been training in the same activity within the instructed in an occupation for which they company for more than 3 months (not counting do not have previous studies. for these purposes the periods of training or - Up to 30 years of age.(registered as internships that are part of the curriculum unemployed) required to obtain the degree that enables this -The same person may not be hired in the hiring). same company if he/she has worked in the activity or position before under any modality for more than 6 months.  TRAINING CONTRACTS TYPES ALTERNATING CONTRACTS CONTRACTS TO OBTAIN PROFESSIONAL PRACTICE DURATION --Minimum of 3 months and a Minimum 6 months maximum 1 year; maximum of 2 years. however, the CBA may regulate within -No probation period allowed. these limits. -Working day cannot be more than The probation period in no case may it 65% the 1st year or more than 85% exceed 1 month, except as provided for in the 2nd year. the CBA. REMUNERATION The amount established in the CBA The amount established in the CBA for for these contracts. Otherwise, it these contracts or professional group and may not be less than 60% in the 1st remuneration level corresponding to the year or 75% in the 2nd year, with job performed. In no case less than the respect to that fixed in the CBA for minimum remuneration of the contract for the professional group and pay level alternating training or the minimum corresponding to the job interprofessional wage in proportion to performed, in proportion to the the effective working time. effective working time. - In no case may it be less than the minimum wage in proportion to the effective working time. -  TRAINING CONTRACTS TYPES ALTERNATING CONTRACTS CONTRACTS TO OBTAIN PROFESSIONAL PRACTICE OVERTIME AND No overtime or additional hours may be No overtime except for reasons of force majeure ADDITIONAL HOURS worked except for reasons of force majeure. They may not perform night work or shift work either (exception article 11.2.k) 2nd paragraph) OTHERS Training centers must draw up individual No person may be hired in the same or different training plans with training content, company for a longer period than the maximum schedule and activities and mentoring established by virtue of the same degree. Nor requirements for the fulfillment of their may a person be hired , in training in the same objectives. company for the same job for a longer period Both the company and the training center than the maximum established , even if it is a must appoint a mentor and ensure the different degree.. coordination of both mentors, who have The company must draw up the individual the appropriate training or experience. training plan and assign a tutor. "same degree or professional certificate", bachelor's, master's and PhD degrees of university studies will not be considered the same degree, unless the worker was already in possession of the higher degree when hired for the first time under this type of contract.  SUMMING UP : TYPES ALTERNATING CONTRACTS CONTRACTS TO OBTAIN PROFESSIONAL PRACTICE Between 16 to 30 years old 3 years haven’t gone by since No additional hours, no overtime ,no the end of the workers degree shifts or night work or 5 years if the worker has a No probation period disability Can't be concluded if the worker has Prohibition of having obtained carried out any activity or position in professional experience or the same company for more than 6 carried out a formative activity month or had an indefinite contract in the same cia for more than 3 in the 3 months before being hired months. Minim of 3 months max of 2 years. Minimum 6 months maximum 1 year. Internship Agreement ( Convenio de prácticas) Within the framework of the educational cooperation agreements signed by the universities with collaborating entities. Doesn´t imply a labour relationship. It can be paid or not. Since 1st January 2024 the intern has to be registered with the Social Securty. HAND-OVER CONTRACT - Contract linked to part-time contract due to partial retirement. -Worked full-time -Contributed minimum 33 years -Worked in same company for the last 6 years - Be at least 62 ½ years old.* - It can be of indefinite or temporary duration  INDEFINITE CONTRACTS UNIT 5 INDEFINITE CONTRACT INDEFINITE CONTRACT It is one that does. not establish time limits in the provision of services, as for the duration of the contract. The indefinite employment contract may be verbal or written. As a general rule all contracts are indefinite unless proven otherwise.  Type of indefinite contracts Full-time, part –time and permanent discontinuous contracts ( art 16 WS) Indefinite contract for family home workers Indefinite contracts for disabled individuals. Indefinite contracts in special employment centers Indefinite contracts for socially excluded individuals Indefinite contracts for individuals over 52 years old Indefinite contracts for victims of gender violence  PERMANENT DISCONTINUOUS CONTRACTS A type of Indefinite term employment contract which has the particularity that the work activity is carried out intermittently over time. In other words, there is a discontinuity in the exercise of work. No work is performed throughout the year from January to December.  Permanent construction contract ( contrato fijo de obra del sector de la construcción) This type of contract may only be made for work or services whose purpose is linked to construction works, taking into account the activities established in the functional scope of the General Agreement of the Construction Sector. Thus, at the end of the work for which the worker has been hired, the company is obliged to make a proposal for relocation, following the development, if necessary, of a training process, the cost of which will always be borne by the company. However, in the event that there is no possibility of relocation or the employee does not wish to accept it, this would be cause for termination of the employment relationship with the right to unemployment in both cases, by virtue of the amendment made to Article 267 of the General Social Security Law.  PART- TIME CONTRACTS ( after the 2022 labour reform) -Alternating contracts may be part time -Permanent discontinuous contracts may ne part-time if agreed by CBA. -Continuous o split working day -No overtime except force majeure -Yes,additional hours only by agreement in working days of more than 10 h per week on an annual basis. Not exceeding 30% of ordinary working hours. -Application of principle of equality with full time workers ( with some exceptions).  CONVERSION OF TEMPORARY CONTRACTS IN INDEFINITE CONTRACTS 1. Workers who in a period of 24 months have been hired for a period of more than 18 months (continuous or discontinuous) for the same or a different job with the company or groups of companies by means of 2 or more contracts due to production circumstances either directly or through ETT. Also, in case of company succession. 2. There is fraud of law: when the legal requirements are not complied with the provisions of Art. 15 WS. 3. There is a lack of registration with the Social Security beyond the probation period.