Suspension of Employment PDF

▪ Workers rep: prior to the strat 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...

▪ Workers rep: prior to the strat 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. Chages with the lñabour 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. Suspension of the employment relationship Art 45-48 WS: The suspension of the employment contract can be defined as the temporary relaease from basic obligations to work and pay the work,with the continuity of a legal bond. Effects of suspension –  Temporary nature of the situation which sometimes are covered by the SS that instead of the salary you get a subsidy. In theses cases they are protect by the SS. Once that susoension ends the worker can resturn to the job. There is a job reservation (in most of the cases). There are some suspensions of employment which are those that the parties have agreed or have been included in the contract, in this cases the job resevation doesn’t happen. To request a suspension you do not have to have any administrative authorisation and when there is a period of conusultation with the rep, the consultation is only for 15 days. There are certain duties that have to be maintained/complied and in most of the ocasions even if you are not working it will count for seniority pourposes (time you have worked in the company). Causes of suspension – Given in Art 45.1 : 1. Agreement between employer and worker Mutual agreement and they are going to decide the duration and effects. This always has to be written. The reinstatement/ reservation of job is not guaranteed because they may not agree. It can also be a clause in the contract (ex: catwalk model; in her contract is says if she gets pregnant, her job relationship will be suspended). The causes must be valid and canot contain any waivers of right = it cannot include causes that would force the worker to give up his fundamental rights. This will be an abusive position for the cia. 2. For reasons of health, maternity, paternity or child care of children or family members Helath reasons: this will happen when there is a temporary incapacity of the worker. ▪ Not only ruled by the WS but also the general law of SS. This situation happened when the worker can’t work due to an accident (labour or not). ▪ Also a women with very heavy periods can also request the suspension of employment due to temporary capacity. Abortion, miscarrige, pregnant women in the 39 week… are also included. You have to receive medical treatment of SS. ▪ In these cases, you will be given a subside during the time you are under this temporary incapacity. ▪ Maximum duration: 365 days and after that period there will be a medical tribunal which is going to assess if you are going to be  medically dischared (darte de alta) or its forseeable to get better and can extend 6 more months. If you do not get better they can declare you as a permanent capacity ▪ Temporary incapacities: Partial = equal or greater to 33% of normal performance OR total = not carry out usual profesion ▪ Termination: absolute = can’t work for anyone OR severe = not work and need help, you are dependant Birth of a child: 2019 reform was changed including the father as also a leave and both maternity and paternity are balanced (16 weeks). ▪ This right can’t be transferred. ▪ Not only for the birth but also for adoption, fostercare (acogida) and also if you have had through surogacy (vientre de alquiler). ▪ You will get a subsidy from the SS. ▪ With the latest reform, it is not only given to the biological mother, but also given to the pregnant transgender person. ▪ In some circumstances it can be extended (ex: premature birth with underweight) When the baby is more than 7 days in the hospital, the extention will be as many days the baby is in the hospital. Maximum: 13 aditional weeks. ▪ If the baby is disabled it increases for 1 week for each parent and when its multiple it will increase 1 week for each child for each parent. ▪ New reform, there was a sentence from the supreme court, a monoparental case which requested to have a leave of 26 weeks because it was not fair that since its unique, they should have more time. This was applied to civil servant workers. (ITS NOT IN THE LAW) ▪ You can start the leave: 4 weeks before date of delivery. With the total of 16 weeks - 6 weeks that have to be taken after the birth and can’t be interrupted - The 10 week left whenever you want in the 1st year of the baby. Risk durng pregnancy and breastfeeding: The working place isn’t safe for the women, due to job condition. ▪ Will end the day the baby is born OR when the risk disapears OR when they can give her another job compatible for her situation ▪ Regarding to the risk during breastfeeding, would end when the baby turns 9 months.  ▪ Included as a reason of suspension to try and balance work and family life. Principle to adapt work and person. 3. Due to the imposibility of the workers to provide the service: because he is deprived of freedom = may be in jail or detained. You can’t be sanctioned of work if he is deprived of freedom because it is included as a cause of suspension of the work. Until they are not declared guilty or inocent it’s a suspension. It applies the principle of presumtion of innocence. If there is a conviction and jail the contract is terminated due to ansence from work (disciplinary dismisal). If the worker is declared inocent the suspension is ended. 4. Due to factual causes that makes it dificult to perform work Force majeure ETOP reasons Victim of gender violence max 9 months and can be extended another 3 months Leave of absense (excedencia) – 1. Forced leave of absence due to the employees election or apointment to public office a) Representative of a public office ▪ Will not receive salary and will not count in his settlement payment ▪ It is a situation where a worker isn’t registered in the SS, they are in a situation asiilacion a la alta as they will still have certain protection like paternity ▪ It does count for seniority purposes ▪ It has the right of reserved job ▪ Max: no duration established BUT when you want to come back you have to request readmision with a month of advancement ▪ The company is obliged of give then absence of leave b) Appointment or election to a public office that makes attendance at work imposible ▪ You have to be in a high position In a public office as representative of a costitutional position to justify. c) Exercise of a trade union funtions at provincial or higher levels holding a rep position  ▪ You can request the leave aspense but it has to be a high level (UGT, C.C.O.O.) d) Fullfilment of an inexcusable duty of a public or personal nature : impossible for worker to perform the job. ▪ If you can’t carry out more than 20% of the working hours and for at least 3 months ▪ Duration: the amount the time lasts ▪ Example: jurado publico in a criminal court How do you request these absenses? You hav to give al the reasons in wrtitting and give it to the company 2. Voluntary leave of absence A minimum of 1 year senirotity in the company is required. Duration: minimum 4 months and maximum 5 years, BUT it can be extended by the CBA The right may not be exercised again by the same employee of 4 years later since the end of the previous volountary leave. Condition: work for another cia under unfair competition, he has to be under good faith. There is no right to reserve the position, but there is a preferential right to reinstaitmnet when there is a vacancy in the same or a similar category. Characteristics: ▪ The WS doesn’t say nothing to how to regulate it but it is probably the CBA the one who will give you the procedure to follow. In any case, if the CBA doesn’t state anything it is preferable to inform the compnay in writing. ▪ The worker can’t unilaterally decide to leave. There has to be a company acceptance. If you leave with no permission there is an abandonment. ▪ If the compnay denies the leave you can demand the company because of damages. ▪ There is no obligatory advanced notice BUT it could be established in the CBA. Its advisable 15 days. ▪ In this doc it has to write all the circumdstances that can effect the relationship of employee and employer. This way there is a proof in any case. ▪ Once the company says yes the company can’t revoke it and the worker can’t request reincorporation before the leave of absence ends. ▪ If you do not comply with the principle of good faith you will be fired under disciplinary dismisal. Effects: ▪ Right of reincorporation within the same or similar catheogry. ▪ You have to apply before the leave of absence happens or imediatley after. ▪ When you ask for the reinstatement the employer can’t say the job poistion is no longer there, can’t cancel the job. ▪ If the employer doesn’t give you the job of the vacancy it is similar to a unfair dismisal. ▪ If there is a vacancy and the employer is delaying your reinstatemnet you have the right to claim a compensation fot the amount of salary you have not obtained due to the delay. ▪ If you ask for a reinstatement and there us no vacancy the employer has to prove it. ▪ The time on voluntary leave is not calculated for seniority purposes. It will not contibute in the pension and you are not protected by the SS. BUT it will keep the seniority in the company regarding to the job position. 3. Leave of ansence to childcare To take care of a child of your own, adoption and fostercare. It can be taken by both parents. It can be at the same time or one after the other (simultaneously of succesively) Duration: Maximum period until the child turns 3 years old. Can be enjoyed by installments or fractions, no need to be consequent. Effects: ▪ The worker has the right to attend profesional trainning courses. The employer must inform the employee about the trainning programs, specifically when the employee has requested the reinstalment so the worker doesn’t miss any profesional skills. ▪ In the 1st year the worker is in the leave of absense the job position is reserved. Then they can apply to a similar or same cathegory job position. ▪ You have 1 month before the reinstatement to request it. ▪ If the employer refuses to reinstate the employer you it must be treated as a dismisal BUT when you refuse because there is no vacancy or any other reason, it is not really a dismisall because the worker has the right of reinstatement and therefore he could claim compensation for damages and salariues not earned until he is reinstated. - Back pay (salarios de tramitacion): has to vail a claim against the company and they either get in an agreement or it goes to court. All that time from the  moment of the request until it is reinstated or the judge gives the sentence, all those salaries not earned the company has to be paid back ▪ When the worker is part of a large family (3 or more) the extention of reservation of the job is 15 months or 18 months for special large family (5 or more). In this cases, the reservation of the job is 2nd and 3rd year too. ▪ The seniority is calcualted for pupose of pensions… ▪ No obligations to pay contributions. ▪ If you have another baby in this time you can’t exercise another leave of absence for 2 or more child at the same time. Not accumulateable. ▪ You can work tjroughout this leave if the new job provides childcare in the new facilites. 4. Leave of ansence to take care of a family member Duration: no more than 2 years and no minimum period. It is a relative by consanguinity or afinity (parents in law, brothers/sister in law) for reasons of age, accident, illness or diability and are not carrying out a paid activity. You can take it in installments/fractions. Effects: ▪ The 1st year the worker has the right to resrve the job place (same one) and after the reservation would be a reservation in the same job category. ▪ Have to apply 1 month before it ends and if they don’t reinstate you because of lack of vacancy or other reason its considered dismisal and will get a back pay salary process. ▪ The senoritytime is calculated. ▪ No need to pay contributions but not registered in the SS but still get some benefits. Situation: This leave of absence is not for children ov er 3 years old because there was a case trhat the supreme court 2021 said that this leave if absence did not include children +3 years old. There was a worker that requested his child 9 years old for his studies. There was a report stating he needed support. It was considered that this situation can’t be considered to not take care of itself. New permits – 1. Since 2023 – they passed a family law is to balance the working life and the family life and this law has to comply with the EU directive 2019. Now a days, the governemnt has not 100% transposed the directive. One of they have transposed is the 8 week care for their child, from 1-8 years old you can request this leave. The days you are  not working will not be paid. This leave can be continuous or discontinuous. The regulations are not complied if its not paid. - The directive states the days not worked must be paid. However, you can claim this payment. When would you use this? If the kid is coming back to school, no person to take care of the child. 2. Paid leave of 5 days to care a second degree family member or de facto parteners. It is 5 working days not calendar days. When there is an accident, serious illness, hospital stay or when the family member have to go under surgery and they do not have to stay in the hospital but yes at home for rest. There is no annual limit. Relatives: - Spouse - Facto parteners - Relatives to 2nd degree - Blood relatives of de facto partners - For those people that live with you at home and need care (not specified if they are family members) 3. Paid leave of up to 4 days for unforseeable fmaily emergencies. These are cases of force majeur. It is something urgent of non forseeable of a family member or companion of habitat. If they need your presence and its indispensable. These 4 days can be per hour, day and its up to the total of 4 days per year. Termination of the employment relationship The termination of the employment relationship is the end of the employment, ending work and salary and can happen at any time. This termination has certain legal effects for the worker and company BUT some formalities have to take place for this for happen. Art 49 WS and seq are the ones that mention the causes for termination. It will terminated when: a) Mutual agreement b) Validity consigned in the contract c) Time of the working contract has ended d) Resignation of worker e) Death, severe disability or retirement f) Employer retires or dies g) Force majeure h) ETOP reasons i) The employer has reached the contract j) Worker has been fired k) Objective reasons