Spanish Employment Law PDF

## 1. Historia del Derecho del Trabajo - **The employment contract is a recent contract from the 20th century, as previously labor relations were governed by other regulations.** - **In the Middle Ages, serfs were obliged to work the land for the feudal lord, in addition to whom they could be tran...

## 1. Historia del Derecho del Trabajo - **The employment contract is a recent contract from the 20th century, as previously labor relations were governed by other regulations.** - **In the Middle Ages, serfs were obliged to work the land for the feudal lord, in addition to whom they could be transferred along with the land.** - **It was not until the Industrial Revolution of the 18th and 19th centuries that the "service lease agreement" appeared in factories. This agreement would be signed freely between workers and employers. However, the content of this (civil) contract was completely open to what the parties decided, so that employers imposed working conditions that led to the exploitation of workers.** - For example, the first law that regulated child labor in Spain was the Benot Law of 1873, which prohibided work for children under the age of 10 and the maximum working day for children between 10 and 15 years old was 8 hours a day. - **At the end of the 19th century and beginning of the 20th Century, with the pressure of the labor movement, the state intervened in this employment relationship and decided to approve laws to protect the worker, who was considered the weaker party. This is how the employment contract was born, as a contract governed by law to protect the worker, but that also left a part of the contract open for the employer and the worker to decide its content.** - **This is why it's said that Employment Law has a public part (there are many laws that regulate the employment contract), but it also has a private part (companies and workers decide freely to sign and establish working conditions within the framework set by law).** ## 2. The employment relationship - **Not all jobs are an employment relationship, as there are requirements that must be met in order to constitute an employment relationship.** - **If any of these requirements are not met, the relationship will not be considered employment and will not be governed by Employment Law.** **Requirements for a contract of employment:** - **Personal work:** The worker must personally work, they cannot send anyone to work in their stead. - **Voluntary work:** No one is obligated to sign a contract of employment. It can also be resigned with prior notice. - **Remunerated work:** The aim is to obtain an economic benefit; work involves payments for the work, not through friendship or assistance to another person - **Dependent work:** The worker must obey the employer's instructions; the worker must be dependent and not an autonomous worker who makes their own decisions and takes responsibilities. - **Work on behalf of another:** The worker earns a fixed salary, regardless of whether the company makes a profit or loses money. **What relationships are excluded from employment?** - **Those that do not meet any of the above requirements, particularly:** - **Public sector employment (government),** as it's regulated by other administrative laws, like a teacher in a public high school. - **Personal services that are mandatory to perform,** such as participating in an election or a jury. - **Work based on friendship, good neighborliness, or benevolence, such as fixing a power outlet for a friend or a neighbor, or volunteering at an NGO, a union, or a political party, as long as it is not done regularly and only occasionally.** - **Family work**, unless it is proven that they have the status of a wage earner, since it is assumed that by belonging to a family one benefits that the company is doing well and there would be no separation. This family unit consists of relatives by blood and by marriage up to the second degree, with whom the company owner lives. - **Board members of companies (like SL, SA, etc.)** if they do not perform any other activity in the company and are only shareholders. - **Commercial agents** who assume the risk of the sale and who are therefore 100% commission-based and have no fixed salary. - **Self-employed workers** who are not dependent on anyone and are the employers who make the decisions. - **Note: from 12-8-21, delivery drivers who work organized through digital platforms are presumed to be employees and not self-employed (this was legislated based on the Supreme Court ruling of 25-9-2020 on Glovo riders).** ## **Family members of first and second degree?** <start_of_image> Diagrams show family relationships: * **Immediate family:** Grandparents (2nd degree), parents (1st degree), siblings (1st degree), spouse (0th degree), children (1st degree), grandchildren (2nd degree). * **Extended family:** Uncles, aunts, nieces, nephews (3rd or 4th degree), cousins (3rd or 4th degree). **Think about who in your family would be first and second degree relatives, and who would be third and fourth, so you understand who you could have a work relationship with, or not.** ## **Special employment relationships,** - **These relationships require special regulation. For example, professional athletes or artists.** - **They are not subject to a standard work schedule, they have their own regulations.** - **These are the categories of special employment relationships:** - Management personnel - Domestic staff - People with disabilities in special centres - Doctors in training - Lawyers in law firms - Retail representatives - People with disabilities in special centers - Minors in detention centers - Professional athletes - Artists in public performances ## **3. Sources of Employment Law** - In Employment Law the rights and obligations of employers and employees are regulated by laws made by the government and collective bargaining agreements (CBAs). - **The hierarchy of sources is as follows:** - **EU law:** Since Spain joined the EU in 1986, EU law is above even the Spanish constitution, meaning that the Spanish constitution should be amended to comply with EU regulation, as EU regulation is binding. - **EU Directives:** This type of law defines minimum standards for every EU country, but each country can improve on them. - **Directive's aim is to harmonize laws throughout EU countries, while giving some leeway to each nation to improve on the outlined standards. ** - **For example, the EU Directive on Occupational Health and Safety was passed in 1989. Each member state implemented the directive, with the result being the Spanish Occupational Risk Prevention Law of 1995. So the Directive became Spanish Law.** - **Spanish Constitution:** This is Spain's primary internal legal framework and contains various articles that safeguard labor rights: - The right to strike and freedom of association; - The right to work and freely choose work; - The right to a decent wage; - The right to collective bargaining, and to enact strike measures during labor disputes; - The right to social security, employment policies, workplace safety and hygiene, work schedules with limits, and paid leave. - **International Treaties:** Spain signs and acknowledges these agreements, but they are not immediately part of Spanish law. They become law after ratification by Spain. - **The most relevant treaties are the ILO (International Labour Organization) conventions, which establish minimum standards for labor conditions and the rights of workers and employers globally.** - **Sometimes, these conventions might set minimal standards that are already enforced by other countries.** - **Spanish Law:** These laws expand on the constitution and the framework established by the EU. - **Other laws:** - **Organic Laws** define and protect fundamental rights from the Spanish Constitution, like the right to strike and the right to unionize. They require a majority vote of members of Parliament to be approved. - **Ordinary laws** expand upon other legal rights and require a majority vote of members of Parliament to be approved. - **Legislative Royal Decrees:** Consolidated laws are created by the government. - **For example: The Workers' Statute is a Legislative Royal Decree.** - **Royal Decree-Law:** The government may pass emergency laws if an urgent need arises, and these laws have to be approved by Parliament within a given time period. - **Regulations:** These are further clarifications of laws created by the government and administrative authorities. - **Collective Bargaining Agreements (CBAs)**: These agreements are negotiated between unions (workers) and employers or companies. CBAs are legally binding and establish the terms of employment for workers in those specific industries or companies. - **Employment Contracts**: Each employer and employee sign this document to legally establish their relationship and the specific terms of their employment. - **Customs:** Customary practices within a profession or community could influence labor relations. - **For example, the practice in the Canary Islands of having waiters wear a clean shave, or the practice of pay and location in the industry being determined by custom.** ## **4. Rights and responsibilities in employment** - **The Spanish Constitution and Workers' Statute set forth rights and responsibilities for employers and employees.** - **These rights are classified into two categories: Collective and Individual.** **Collective Rights:** - **Freedom of association:** Workers decide whether to join a union or not. - **Right to Strike:** Workers have the right to strike, although the right to strike is regulated by the constitution, expanding on the right to strike through labour law. - **Collective bargaining:** Workers have the right to negotiate collective bargaining agreements (CBAs) with employers. - **Procedures for labour disputes:** Workers have the right to engage in collective action. - **Right to assembly:** Workers have the right to assemble. - **Participation in the company:** Workers can participate in company decisions, through representatives like worker and company committees. **Individual Rights:** - **Freedom to choose a profession or trade:** Workers are free to choose their profession or trade. - **Effective employment:** Employers are obligated to provide work for the employee, and if they are unable to do this, the employee is still entitled to receive their full salary. - **This right protects workers against unemployment, and even allows them to terminate their employment contract.** - **Professional development (training and education):** - **Vocational Training:** Workers can request promotions based on the terms of their CBAs with the company. - **Training and education:** Workers have the right to spend time during the working day to attend mandatory training and education programs, with prior notice to the company. - **Work schedule flexibility:** Employees have the right to request changes in work schedules in order to attend training or educational programs, if this does not interfere with company operations. - **Non-discrimination:** Workers cannot be discriminated against because of their gender, race, religion, political beliefs, marital status, sexual orientation, or any other personal characteristic. - **This right ensures equal treatment and pay for the same work.** - **Safety and hygiene in the workplace:** Employers have the responsibility to provide a safe and healthy work environment and to ensure worker safety through the implementation of health and safety measures. - **Privacy and dignity:** Workers have the right to privacy and dignity in the workplace. - **This means that employers cannot make inappropriate comments, abuse, or engage in discrimination.** - **The right to privacy applies to the use of personal information by a company.** - **The right to privacy applies to the company monitoring workers' personal belongings and areas.** - **The right to privacy also applies to the company's use of surveillance systems, such as surveillance cameras in workspaces.** - **Rest:** Workers have the right to adequate time off, including paid vacations, breaks during the workday, and rest between work shifts. - **Payment:** Workers have the right to receive timely and full payment for their work. - **If payment is delayed, workers can terminate their employment contract.** **Responsibilities of workers in the workplace:** - **Duty of good faith:** This means that workers should act honestly and with integrity, respecting confidentiality, and avoiding conflicts of interest. - **This includes being punctual, respectful, and avoiding any actions that could harm the company.** - **Duty of diligence:** Workers should work diligently and with due care, striving to fulfill their responsibilities to the best of their abilities. - **Duty to contribute to productivity:** Workers should strive to improve the quality and quantity of their work for the benefit of the company. - **No unfair competition:** Workers, even when self-employed, cannot compete with the company they work for by working in the same industry or field. - **Taking precautions against workplace risks:** Workers should comply with company safety protocols regarding workplace risks, properly use safety equipment, promptly alert the company to hazards, and ensure compliance with health and safety procedures. - **Following orders and instructions:** Workers are required to follow the orders and instructions of their employers, as long as these orders are legal and do not pose any unreasonable risk to their health, dignity, or personal safety. **What does the company do if an employee does not meet any of these responsibilities?<br/>** - The company can punish the worker or even dismiss them. - **These penalties can be: a verbal warning, a written warning, suspension from work and wages, or dismissal.** ## **5. The company's power to direct and discipline** - Companies have the right to oversee workers and ensure that they adhere to company guidelines. - **This right is essential to ensure that workers comply with their duties, preventing harmful actions and guaranteeing efficient operations.** **There are different ways in which companies can exercise this right, each with its own limitations:** ### **A) Power to direct and supervise** - **Oversight and supervision:** Companies can instruct workers on how to carry out their duties, ensuring that they understand their responsibilities and perform tasks correctly. - **Company monitoring:** Companies can monitor their employees to ensure they are complying with company policies and procedures, for example, checking work performance or attendance. - **Company surveillance:** Companies can use technology to monitor the activity of their employees, such as surveillance cameras, monitoring their use of company equipment and Internet access. - **This control must be justified and reasonable. It should not be an arbitrary or excessive invasion of the worker's privacy.** ### **B) Disciplinary Power** - **Disciplinary action:** Companies are legally authorized to act when employees violate company rules or labor regulations. - **Types of misconduct:** The seriousness of misconduct is generally classified into three categories: - **Minor offenses:** Punctuality, dress code violations, using company equipment for personal use, etc. - **Serious offenses:** Repeated violations of company regulations, theft, fraud, etc. - **Very serious offenses:** Involving severe damage or risk to the company, such as violence, sabotage, or breach of secrecy. - **Disciplinary sanctions:** Depending on the severity of the offense, companies may apply sanctions, such as verbal warnings, written warnings, suspension from work and pay, or termination of the employment contract. - **Time limits:** It is important to note that disciplinary actions have a time limit. - **For example, minor offences are subject to a limitation period of 10 days, serious offenses 20 days, and very serious offenses 60 days from the time the employer becomes aware of the offense.** ## **6. Labor courts** - **These courts are designed to resolve disputes between employees, employers, and government agencies related to employment and labor law.** - **The process of litigation involves the following**: - **Workplace Trial Courts (Juzgado de lo Social):** First instances for cases related to labor law at the provincial level. - **Regional Labour Courts (Tribunal Superior de Justicia, TSJ):** Appeals and decisions from Workplace Trial Courts, as well as some issues pertaining to unions. - **National Appeals Court (Audiencia Nacional):** Handles appeals from Regional Labor Courts and cases concerning union matters and mass lay-offs, among others. - **Supreme Labor Court (Tribunal Supremo):** As the final court of appeal, it resolves disputes from the National Appeals Court and sets precedent for the interpretation of labor-related rulings. - **Constitutional Court (Tribunal Constitucional):** The court reviews the constitutionality of laws, including those related to labor law. ### **7. The employment contract** - **The employment contract is a key legal document that details rights and responsibilities between a worker and an employer.** - **It's essential for ensuring fairness and transparency in the employment relationship, and the content of the contract can be reviewed to prove the terms of the working relationship.** - **To be legally binding, the contract must meet certain requirements and must be signed by both parties.** - **It should include:** - **Identification and contact info for both parties.** - **Job description, including responsibilities and duties.** - **Location of the workplace.** - **Work schedule (hours, days, and shifts).** - **Duration of employment.** - **Compensation (salary, benefits, bonuses).** - **Vacation time.** - **Notice period for terminating employment.** - **Applicable collective bargaining agreement (CBA).** - **Provisions for probationary periods.** - **Conditions for termination.** ### **8. The employment contract's validity** - **For the contract to be valid, the following conditions must be met:** - **Mutual Agreement:** Both parties must agree to the terms of the contract, without pressure or coercion. - **Legal Objectivity:** The contract's purpose must be legal and legitimate. - **Real Cause:** The contract must be genuinely intended to set in motion a working relationship in exchange for compensation, not for fraudulent or illegal purposes. ### **8.1. The worker's legal capacity to sign a contract** - **Age:** The worker must be at least 18 years of age. - **Emancipated minors (those under 18 who are legally allowed to act independently)** are also permitted to sign contracts, under the conditions established by law. - **Minors between the ages of 16 and 18:** can sign contracts with parental or legal guardian permission, except in cases of night work, hazardous work, or work that might jeopardize their physical or mental wellbeing. - **Minors under 16 years of age:** can only work in certain specific situations, such as public performances, with parental permission and authorization from labor authorities, and if the work does not compromise their health or education. - **Nationality:** Citizens of EU countries can freely seek employment in any EU member state without needing a work permit for their country of origin. - **Non-EU citizens need a residence permit and a work permit to legally work in Spain.** ### **8.2. The employer's legal capacity to sign a contract** - **Age:** Employers must be at least 18 years of age. - **Legal status:** The employer can be an individual, a company or a cooperative entity. ### **9. The types of employment contract** - **Employment contracts can fall under various categories, each with its own conditions and duration.** - **The main categories are:** #### **A) Training Contracts** - **Focus:** These contracts aim to provide on-the-job training to individuals seeking to gain work experience and qualifications. - **Target audience:** They are intended for individuals who lack professional qualifications or the necessary work experience. - **Duration:** Typically last for a set period of time. - **Terms:** There are specific terms and conditions that apply to these types of contracts, such as the length of the training period. - **Types:** There are different types of training contracts, such as: - **Contracts for Alternating Work and Training:** These involve a combination of working hours with attending training courses. - **Contracts for obtaining professional experience:** These allow individuals to gain practical experience after completing their training. - **Contracts for Specific Tasks:** Typically in circumstances where a specific skill set or training is required. #### **B) Temporary Contracts** - **Focus:** Employed for a limited duration to address temporary needs for tasks, projects, or work schedules. - **Duration:** Limited to a specific period, with a maximum duration of 6 months for a single contract, and 90 days for numerous contracts in one year. - **Types:** There are different types of fixed-term contracts: - **Seasonal and temporary contracts:** Usually for seasonal work, such as agricultural tasks or tourism jobs. These contracts often have a longer duration than other temporary contracts. - **Work and service contracts:** Specifically for temporary work related to a project or a specific task. - **Internship contracts:** Intended for filling temporary absences of workers on leave or for specific tasks. - **Contracts for relief:** Employed for a specific period to replace a worker who is permanently absent due to long-term leave or medical condition. - **Layoff contracts:** Used for temporary layoffs to address specific needs and are governed by special regulations. #### **C) Indefinite Contracts** - **Focus:** The most common type of contract, with no specific end date. This means the employment relationship will continue unless terminated by the worker or the employer. - **Types:** There are different types of indefinite contracts, including: - **Standard Indefinite Contracts:** The most common, with no special conditions or requirements. - **Fixed-Term Discontinuous Contracts:** Usually in industries with seasonal or cyclical needs. - **Contracts for Partial Workload:** The worker performs their job part-time, working fewer hours per week than a full-time employee. #### **D) Partial Workload Contracts** - **Focus:** These contracts specify a shorter workday than the standard workday defined by the CBA. - **Types:** - **Common partial workload contracts:** Employees work a set number of hours per week or month. - **Relief contracts:** Employees take over the duties of another worker who is temporarily away. - **Contracts for specific activities:** Employees work a certain number of hours for specific tasks or projects. ### **10. Additional Considerations:** - **Probationary period:** Most employment contracts include a probationary period, which allows both the employer and the employee to evaluate if the relationship is a good fit. - **During this time, either party can terminate the contract without justification, but it is generally limited to a specific time period.** - **Termination of the contract:** Laws and CBAs establish different procedures for terminating contracts, depending on the type of contract and the reason for termination. - **There are typically specific requirements for employers to follow, especially in case of dismissal or contract modification, to avoid legal disputes.** - **Safety and hygiene:** Employers are legally obliged to ensure worker safety and health in the workplace. - **Equal treatment:** Employers cannot discriminate against workers based on their gender, race, disability, religion, or any other personal characteristic. ### **11. Additional Aspects of Employment Law** - **Labor unions:** They play an important role in protecting workers' rights, negotiating collective bargaining agreements, and overseeing legal compliance. - **The Inspection of Labor and Social Security (Inspectorat de Treball i Seguretat Social):** It carries out inspections to ensure compliance with labor laws and regulations in diverse aspects of the workplace, primarily focusing on labor contracts, workplace safety, pay, and working conditions. - **The Ministry of Labor and Social Economy (Ministerio de Trabajo y Economía Social):** It plays a central role in developing and overseeing employment laws, promoting employment, and managing social security programs.