Tema 3. Derecho Laboral (Employment Law) PDF

Tema 3. Derecho Laboral (Employment Law) Inglés jurídico y empresarial Introduction. First steps: Getting the job. To apply (postular) for a vacancy (vacante) you generally have to prepare and submit your C.V. /résumé and cover letter to the company and pass a round of interviews. The hiring manag...

Tema 3. Derecho Laboral (Employment Law) Inglés jurídico y empresarial Introduction. First steps: Getting the job. To apply (postular) for a vacancy (vacante) you generally have to prepare and submit your C.V. /résumé and cover letter to the company and pass a round of interviews. The hiring manager will assess your application and decide if they want to make a job offer (oferta de trabajo) and hire (contratar) you. The next step would be to draft an employment contract, which will regulate the engagement between both parties. This will include the term or duration, working hours, duties and responsibilities, remuneration or salary, probationary/trial period (periodo de prueba), among others. It may also include a non compete clause (pacto de no concurrencia) or even a minimum commitment agreement (pacto de permanencia). The longer you spend in a particular company, you will achieve seniority (antigüedad) and perhaps find opportunities for advancement or promotions (ascensos). Basic Rights of Workers - As foreseen under the Workers’ Statute (Estatuto de los Trabajadores) - Right to work and to freely choose one’s profession or trade - Right to unionise or union freedom (in Spain, the right to form and join unions; libertad sindical o a la libre sindicación). - Right to collective bargaining (dcho. a la negociación colectiva) - Right to strike (derecho de huelga) - Right to freedom of assembly (derecho de reunión) - Right to promotion and to vocational training in the workplace (Derecho a la promoción y formación profesional en el trabajo) - Right to freedom from discrimination based on one’s gender, marital status, age, social class, religious or political convictions, union or non-union membership…  Employment law. Key terms The basis of employment law comes from the relationship between two main parties: La persona trabajadora → The worker or employee; and Empleador → The employer The time you spend working on a particular day is known as a shift (jornada). The total staff within a certain workplace is known as the workforce (plantilla). If you don’t currently have a job you may be unemployed (desempleado, parado), or perhaps retired (jubilado).  Employment law. Key terms This may be on a full-time (a tiempo completo) or part-time (a tiempo parcial) basis. There are also different types of labour relations, such as: - Trainees or apprentices (trabajador en formación) o interns (trabajador en prácticas). → In the UK, internships are often called ‘work experience’. Depending on if you are working for yourself or for an employer, there are self-employed workers (trabajadores por cuenta propia) and employees (trabajadores por cuenta ajena). There are also temporary workers or workers on a ‘fixed-term’ contract (trabajadores temporales), seasonal workers (trabajadores estacionales) or permanent intermittent workers (trabajadores fijos discontinuos).  Conditions of employment: Workday and working hours At the moment, although it is currently under review, the maximum standard work week is set at 40 hours. If you occasionally work additional hours to what is included under your employment contract, this is called overtime (horas extraordinarias). - Paid overtime → Horas extraordinarias retribuidas - Compensatory time (in lieu of overtime) → Compensación por horas extraordinarias - ‘To work overtime’ / ‘to do overtime’ (hacer horas extras) Break → Descanso To sign in and out / to clock in and out / to punch your working times → Fichar Weekly rest period → Descanso semanal To take a day off → Tomar un día libre Annual holidays / vacation time → Vacaciones anuales - In slang terms, people often use ‘annual leave’ to refer to their paid holidays  Conditions of employment. Leaves of Absence To take time off work or a leave of absence (estar de baja o algún tipo de permiso). - ‘I am on sick leave’ (estoy de baja por enfermedad) - This can be both paid leave and unpaid leave Personal leave / Personal days → Día de permiso por motivos personales Bereavement leave → Permiso por fallecimiento de un familiar Parental leave (maternity/paternity) → Baja por maternidad/paternidad Medical leave / sick leave → Baja médica o por enfermedad Extended leave of absence → (Excedencias, no se hacen las mismas distinciones que en español) - Job-protected leave of absence (Excedencia con reserva del puesto) - Voluntary leave of absence (Excedencia voluntaria)  Conditions of employment. Salary and wages Your wages are the compensation for the work and services carried out for the employer. Your wages are often indicated in gross earnings (salario bruto), and then your take-home pay / net wages (salario neto), would be the result of deducting all taxes and social security contributions. Such remuneration must comply with the minimum wage (SMI) standard in each country. The payslip (nómina) will give an itemised description of your wages. If you wanted to ask for some money upfront from your next payment, you would ask for an advance (pedir un anticipo). Your total salary may also be increased by adding certain supplements or allowances (complementos, pluses), such as attendance (asistencia), language skills (idiomas), night shifts (nocturnidad), hazard pay or danger money (peligrosidad), hardship allowances (penosidad), for being on-call (de disponibilidad). Furthermore, if you regularly travel as part of your job, you may also be entitled to a ‘per diem allowance’ (dietas) or to be reimbursed for travel expenses (gastos de viaje) Conditions of employment. Salary and wages Back pay → Salarios atrasados (también aplicable para el pago con efecto retroactivo de salarios de tramitación). Payment in kind → Pago en especie Deferred pay → Salario diferido Tax withholdings → Retenciones - Example: ‘From my last payslip, €250 were withheld from my wages towards tax’ Social security contributions → Cuotas a la seguridad social Personal income tax → IRPF Pay rise / Wage increase → Aumento salarial Pay cut / Wage reduction → Reducción salarial  Termination of Employment Contracts (Extinción del contrato laboral) Dismissal of an employee (Despido) Grounds for termination → Causas resolutorias There are many ways of saying this in English (both formal and informally). - To fire an employee (generic) - To dismiss or discharge an employee, or to terminate their employment contract (formal) - Examples: ‘You are hereby informed of the termination of your employment contract, effective as of 20 November 2023’; ‘He was dismissed from his job after repeated incidents of absenteeism’. - To sack an employee (UK, informal) (‘I was sacked yesterday from my job at the supermarket)  Termination of Employment Contracts (Extinción del contrato laboral) When somebody hands in their notice (‘ to hand in my notice’, dar su preaviso de baja voluntaria) it is common to provide the employee with a notice period, or if their contract was terminated, to give them notice or to pay the employee in lieu. The final payslip handed to the employee does not have a specific term (finiquito). The compensation paid to an employee under certain circumstances due to the termination of their employment is known as severance pay (indemnización por despido). Disciplinary dismissal → Despido disciplinario Dismissal based on objective grounds → Despido por causas objetivas Layoff / Collective redundancy / Collective dismissal → Despido colectivo Examples: ‘There were mass layoffs at my company since the recession began’ ‘I was made redundant last year after a workforce adjustment plan was put in place’  Dismissal proceedings - Procedimientos de despido Proceedings for a judicial determination of the lawfulness of the dismissal - Dismissal for cause / Fair dismissal → Despido procedente - Dismissal without cause / Unfair dismissal / Wrongful dismissal → Despido improcedente - Aunque muchas veces se utilizan de forma indistinta, en US/UK se distingue entre wrongful dismissal (when it is in breach of the employment contract) and unfair (when it affects statutory rights of the employee) - Void dismissal (in the case of Spain, on grounds of discrimination or a violation of fundamental rights) → es decir, Despido nulo If a dismissal is declared void or wrongful, the judge may order the reinstatement of the employee (readmisión) and the payment of backpay accrued (salarios de tramitación). Labour disputes Employee representation → Representación de los trabajadores - Union representative → Representante sindical. - Employee representative / workers’ representative → Delegado de personal - Works Council → Comité de empresa o intercentros Trade union (o simplement ‘union’) → Sindicato Employees who decide to join a union would be considered a member (union membership → afiliación sindical). Right to unionize or the right to form and join unions → Libertad sindical  Labour disputes A "strike" is defined the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to "work" in this definition includes overtime work, whether it is voluntary or compulsory (source: ILO) Some key terms: - To call a strike (llamar o declarar una huelga) - Sit-down or sit-in strike - Huelga de brazos caídos - General strike → Huelga general - Unlawful strike → Huelga ilegal - Picket or picketing → Piquetes - Lockout → Cierre patronal - Esquirol → Strikebreaker / Scab / Blackleg - Esquirolaje → Strikebreaking / Scabbing / Black-legging Labour disputes The procedure to resolve individual workplace conflicts is commonly known as a grievance procedure. Sometimes labour disputes may also be subject to voluntary or mandatory arbitration, in which a potential binding arbitral award (laudo) may be handed down. In Spain, it is common to initiate conciliation or settlement proceedings after cases of dismissal.  Occupation health and safety (Seguridad y salud en el trabajo) Health and safety at work encompasses a wide range of duties and responsibilities aimed at maintaining a safe working environment for employees. There are many relevant pieces of legislation and case law. Under ‘common law’, all employers have a duty of care which is an obligation to protect their employees. A term is implied into all employment contracts requiring employers to take care of their employees’ health and safety. For example, employers must (i) Provide a safe place of work, (ii) Provide a safe system of work, (iii) Provide adequate equipment, (iv) Recruit competent and safety conscious staff. If an employer fails to take reasonable care in any of these areas, an employee may be able to make a number of claims, including resigning (baja voluntaria) and claiming constructive unfair dismissal and personal injury. Employees, too, have responsibilities and should work with their employer to develop a safe place of work. Occupation health and safety (Seguridad y salud en el trabajo) Obligations of the employer (examples): Publish a health and safety policy and provide adequate safety training to address risks, as appropriate. Establish a health and safety committee if requested by a recognised trade union. Appoint a competent person to evaluate risks and hazards. Arrange periodic risk assessments. Inform staff of risks and steps taken to protect them. Establish procedures to be followed in the event of serious and imminent danger to persons working in the organisation. Occupational health and safety risks may include slips, trips and falls; lifting injuries; electrical hazards; chemical exposure; noise exposure; ergonomic hazards; fire hazards; among others.