Employment Contract PDF

conditions or relationship, the reality of the situation takes precedence. Essentially, the actual work conditions or roles performed by an employee will override what is formally stated in the contract if the two conflict. - Principle of reasonableness: requires that decisions a...

conditions or relationship, the reality of the situation takes precedence. Essentially, the actual work conditions or roles performed by an employee will override what is formally stated in the contract if the two conflict. - Principle of reasonableness: requires that decisions and actions taken by both employers and employees must be fair, rational, and justifiable, considering the circumstances. It aims to balance the rights and obligations of both parties, ensuring that actions are not arbitrary, excessive, or unreasonable. Employment contract: Workers statute: Art 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 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 Employment Contract. The parties: worker and employer – Worker: relevant to labour law is: - Subject of an employment contract - Staff member - Affiliated to a union - Subject protected by SS 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: should be ruled under labour laws and the CBA. - Exchange: there is an exchange of interest between employer (profit) and employee (salary). - Onerous: economic advantage for both parties. - Consensual: because you have to give your consent. 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 absence the duration may not exceed: 6 months for qualified technicians and 2 months for the rest of the workers. - In companies less than 25 workers: max 3 months for workers who are not qualified technicians. - In temporary fixed term contract for max 6 months: max 1 month, unless otherwise provided for in the CBA. Advance or prior notice in employment contracts – Notice is a period of time within which one of the parties to the employment contract (the ocmpany 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… 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. Dismissal Notice Collective dismissal 15 days Objective dismissal 15 days Disciplinary dismissal Not mandatory Dismissal for force majeure No notice Classification – Depending on the duration of the employment contract: - Training contracts Training contracts to obtain professional practice Training contracts in alternation or alternaring contracts - Temporary contracts Due to production circumstances For the substitution of an employee - Indefenite contracts According to the type of working day: - Full – time contract the employees working day is full-time as provided in the applicable collective barganing agreement or, failing that, as provided in (Art, 12 WS). - Part – time contract The employee’s working time is less than the working time of comparable fulltime employee, or otherwise less than a full-time worker privded by the CBA or law. It may be entered into for an indefinite term for fixed term in those cases in which the use of this types of contracts is legally permitted. Art 12 WS: “The employment ontract shall be understood to be concluded on a part-time basis when it has been agreed to provice services for a number of hrs per day, per week, per month or per year, less than the working day of a comparable full time worker. 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. Temporary contract: Temporary contracts (Art 15 WS) - 1.1 Due to production circumstamces: - Unforeseeable max 6m – 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. 3 months Training contracts (Art 11 WS) – Internship agreement – - Doesn’t imply a labour relationship - It can be paid or not - Since 1/1/2024 the intern has to be registered in the SS Hand-over contract – - Contract linked to part-time contract due to partial retirement - Worked full-time - Contributed min 33 years - Worked in same compaby for the last 6 yrs - Be at least 63 - It can be definite or temporary Indefinite contract: It is the one that does not establish time limits in the provision of services, as for the duration of the contract. It may be verbal or written. As a general rule all contracts are indefinite unless proven otherwise. Types – - Full time, part time and permanent discontinuous contracts - Indefinite contract for family home workers - Indefinite contracts for diabled 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 – Particularity that the work activity is carried out intermittently over time. In other words, the is a discontinuity in the exercise of work. No work is performed throughout the year from Jan – Dec. Permanent construction contract – This type of contract is only for work or services related to construction, based on the activities defined in the General Agreement of the Construction Sector. When the job is done, the company must offer the worker another position. If needed, the company will pay for any training required for this new role. However, if there’s no other job available or the worker doesn’t want to accept the new position, the employment will end. In both cases, the worker will be eligible for unemployment benefits, according to changes in Article 267 of the General Social Security Law. Part-time contracts (after reform 2022) – Employment contract is understood to be part time when it is agreed to work for a number of hours per day, week or month and are less than a comparative full-time work. - With who do we compare? Needs to be Same company, same workplace, same type of employment contract and same/similar tasks/job position - If there is nobody to compare to, we will apply what it says in the CBA - If there is no CBA, we will compare it with the maximum legal working day e.g., 40 hours So part-time does not mean it is half of full time (After the 2022 labour reform) From October 1st 2023, there was a change, even if a worker is working part-time contract, regarding their contributions to SS, will be equal to those of a full time contract Changes after labour reform: - Alternating contracts (training contracts) may be part time - Permanent discontinuous contracts can also be part time  this is not automatic like the alternating contracts, because these contracts will only be able to be part time if it says it in the CBA - Continuous or split working day In a split working day there can only be 1 interruption - No overtime work except force majeure (accident, unexpected event…) - Part-time workers can do additional hours (horas complementarias) in working days of more than 10h per week on an annual basis  when company and worker agree on additional hours, the distribution and number of hours have to be mentioned in writing, if these are not mentioned, then the contract will be considered full-time Company and worker agree to add additional hours to the ordinary hours Additional hours can only be given tothose part-time workers that work +10 hours per week on an annual basis and not exceed 30% of the ordinary working hours But CBA may establish another maximum that can’t exceed 60% of ordinary working hours and not less than 30% Additional hours are paid as ordinary hours, but sometimes worker may negotiate with the bs that instead of paying you with money, they replace it with breaks e.g., holidays When additional hours exceed the maximum, it becomes overtime part-time workers can’t do overtime and thus the contract would have to be reviewed and the conditions would have to be changed Business has to tell worker 3 days in advance that they will start the additional hours  - Principle of equality is applied workers have the same rights as a full-time worker Some companies may think that because the worker works less hours, they have less rights, but NO Difference between principle of quality and principle of proportionality - Principle of equality = doesn’t matter how many hours you work during the day, you have the same rights - Principle of proportionality = the number of hours worked during the day matter Examples: Right to vacations: part-time workers are entitled to annual vacations  30 days, like normal full-time workers Right to transportation to commute to work Paid leave: e.g., job training paid leave,  we have to check the different rulings of the courts principle of proportionality or principle of equality may apply When calculating the salary of the worker, we apply the principle of proportionality you get paid according to the hours worked during the day Criteria of the quality of the work performed e.g., how a worker performs their activity principle of quality (this is because the quality and how you perform your job has nothing to do with the time you spend) Right to rewards, we apply principle of equality when bs is going to reward you if you reached your targets Workers training/qualifications/languages principle of equality as it doesn’t depend on the length of the working day Seniority of a position in a company e.g., if they promote you from manager to vice president, it will not depend on the length of the time worked during the day, so principle of equality Conversion of temporary contracts in indefinite contracts - Indefinite contracts can be agreed by the parties or imposed by law imposed by law happens when there has been a breach or when the company has exceeded the time limit of a temporary contract - Company has to provide worker with a document in writing that says that this contract is an indefinite contract within 10 days that the change form temporary to indefinite has happened in practice this doesn’t really happened and the worker has dto claim the condition of indefinite worker - There is no fraud law when the legal requirements are not complied with the provisions of Art 15 WS  Work hours, holidays, overtime and salary: Working day – Essential condition of the labour relationship. It is a limit of the work performance. It obliges the worker to: - Remain a number of hours performing the work service - To be at the employers disposal for a certain number of hours Purpose of the norms that regulate the working days: - To protect the workers health - The fixed salary according to the working time The duration of the working day shall be that agreed in the collective agreement or employment contracts, the maximum duration of the ordinary working day being 40hrs/week of effective work on average in the computation of 1 year. - Ordinary working day: overtime is not included - Agreed: collective agreement or employment contract - Max duration: 40hr/week - Purpose: unequal distribution of working hrs throughout the year - Maximum hrs: 9hrs/day (The maximum can be extended by collective agrrement or company agreement.) - Always respecting minimum breaks between workdays : 12 hrs other than exceptional cases. Protection of -18 – - They cannot work more than 8hr/day - Ordinary hours: time dedicated to training have to be included - Including hrs worked for each employer (in case of moonlighting) - Irregular distribution of the working day is nor allowed - The number of hrs can be reduced - Cannot work overtime - They may not work at night (between 10pm and 6am) - Weekly rest: 2 uninterputed days Breaks during the working day – ONLY for continuous working days - Workers +18: if the daily working day is continuous and exceeds 6 hrs -> minimum rest period is 15min  - Workers -18: the workday is cotinuous and exceed 4,5 hrs -< minimum duration of 30min Collective agreement or employment contract: - Effective working time: paid and does not have to be recovered - Not effective working time: it must be recovered Rest – - Relative rule of mandatory law: minimum rest, may be extended, but not reduced - Cummulative weekly rest: 1 and ½ in a period of 14 days - Sunday: can be changed for another day of the week by any agreement but according to CC -> no absolute rule of law. The worker does not have the right to choose the day. Night time work – Prohibitions: - Minors under age - Workers hired by training alternating contracts - Pregnants women - Women who are breastfeeding The night worker may not work overtime. Exceptions: - Due to force majeure - Irregularities in the change of shift Shift work – Teamwork: the different workers fill in the same position at different times over a period of days or weeks. Overtime – Art 35.1 WS : “Those working hrs that are performed over the max duration of the ordinary working days, in acordance with the previous article, shall be considered as overtime” Types: - Common overtime: Voluntary Compulsory ▪ By collective agreement ▪ By employment contract ▪ By individual agreement - Force majeure: to prevent or repair accidents or other extraordinary or urgent damages. Prohibitions: - Minors of 18 - Night workers - Reduced working hours Vacations – - Duration: agreed individually or collectively. Neverless than 30 calendar days - Dates: To be set by agreement between employer and business. - The vacation calnder will be set by each comoany - Employers shall know the dates AT LEAST 2 months before start of vacations - Vacations are not replaced by financial compensation Public holidays – - Set annualy - Paid and non-recoverable - May not exceed 14/year Salary – Salary as the total economic compensation received by workers, either in cash or in kind, for professional services rendered. It includes payment for actual work or periods considered as work. However, it specifies that salary paid in kind must not exceed 30% of the worker's total salary. - In cash: may be paid in cash (legal tender) by cheque or bank transfer. - In kind: as it is a subject of abuse, it is limited by law, prohibiting the totality of the salary to be paid in king. LIMIT: 30% of the total salary. The minimum interprofesional wage the gov will regulate annually, after consultation with the trade unions and business associations, considering the consumer price index (IPC), average national productivity, national income and general economic situation. In 2024 the Royal decree established: - Daily min wage: 37,8€ - Min monthly wage: 1134€ - Min annual salary: 15,876€ (14 payments) - SMI household workers: 8,87€/hr - SMI temporary and seasonal workers: 53,71€/day If business doesn’t pay you in one month you can ask 10% interest per day. You can ask an advanced payment you can ask for the money you have worked for. Salary guarantees – A) Salary as a privileged credit: - The workers salary has preference over other debts. - If the business can’t pay in salary the employer have the right to seeze the objects in the business (ex: car dealer -> car) B) Unseazable - Salary is an amount equivalent to min wage, compensation in an amount equivalent to the min wage and work tools are not subject to confiscation. The wage guarantee fund (FOGASA) – Autonomus body ascribed to the ministry of employment and SS with legal personality and capacity to act for the fullfillment of its purposes that guarantees workers the recipt of wages. Payroll processing – Salary management can be defined as the set of rules and procedures aimed at establishing or maintaining equitable and fair salary structure. Through the salary management system, it is possible to plan strategies, policies needed by business for guarantee internal salary. Basic principals: - Internal pay equity : equal payment - External salary equity : market salaries  - Individual equity : results - Management of the renumerations system: transparency Types of remuneration – - Direct remuneration Base salary (fixed) + incentives (variable) - Indirect remuneration Service or benefits which is not usually paid directly to the worker. EX: car, helath insurance… - Non financial remuneration Satisfaction that the worker experiences and is derived from, the work itself Remuneration systems – Techniques that make it possible to establish salary levels. Types: - Job based - Expertise - Performance based The most systems pay ranges are established according to the individual performance. To set min and max values have 2 steps: 1) Job evaluation determined internal equity 2) The different jobs are evaluated by external equity (salary surveys)