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 dec...

 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)  Labour mobility: Functional mobility – It is the ability of the employer to assign different tasks or functions to an employee, regardless of the functions for which he/she was initially hired. (Art 39 WS) - Depending on your profession or specialization you will be asigned to a professional group. All the workers under this professional group they may have different tasks/roles/responsabilities according to the one they belong. - This tasked that you have been hired for can change during the labour relationship meaning that when you get a job and you are given certain tasks or roles they are not forever, they can change. They are called accidental changes when they do not afect the esential elements for the contract. - The decision of changing the task is unilateral, meaning the employer will be the one deciding that they are going to chance you task which can be temporary or permanent. This can also be an individual agreement between the worker and the employer (individual) or employer and work representatives (collective). 1. Horizontal (ordinary): within the same professional group. The company does not have to give a reason/justification for this change, it is within the workers professional group. Uniletaral decision of the employer to change the task known as ius variandi (power employer) This changes usually do not have many limits the only general limit is respect the workers dignity May never be contrary to good contractual faith 2. Vertical (extraordinary): change of workers task to another professional group. Ascendant (superior task) Descendant (inferior task) Only posible due to technical or organizational reasons and for a certain time For these changes to be made it must be comunicated to the workers repesentative Its subject to certain limits. There can be more limits if they are agreed by the parties. But always respecting the workers dignity. Limits of functional mobility – 1. Heteronomous limits: Generic limits - ▪ Professional group: determine the legal system of the labour relationship and stablish the content of work performed by the worker. We delimit the performance of the worker, the retribution, timing of the work performance and any legal circumstances. ▪ Professional rigths: has to be carried out according to the academic/professional qualification of the worker and always respecting the workers dignity. ▪ Preservation of the job: it may happen that you may have a supervining ineptitude that means that when they change you you may have a lack of adaptation to this new job, not being able to cary out that job. In this cases the worker doesn’t have skills or not prepared and therefore due to functional mobility and lack of adaptation/skills/incapacity can’t be a cause of objective dismissal. Specific limits – ▪ Based on business reasons: only can be for technical or organisational reasons that have to be justified and communicated to the companies representative. ▪ The duration: Temporary, not permanent. ▪ Control of company decisions: it is pressumed that the employer is changing you due to a real reason, so we assume the veracity of what they are saying. However a form of controling this decisions is communicating the change to the workers representative. ▪ Professional qualifications: maintains because it is imposible to change a worker that doesn’t have a certain degree of qualification to carry out the job/task. ▪ Economic rights: the worker has the right to receive the salary coresponding to the task the workers performing except you are going to perform inferior tasks, in this case they will pay you the same salary.  2. Autonomous limits: Contractual – they are the ones that the parties decide but always respecting the legal limits. It is bilateral. Conventional – they are the ones established in a general agreement. In both limits they can be negotiated but they have to respect the general limits established in Art 39 because they are mandatory nature. Types of functional mobility – Vertical ascendant: - 6 months in one year - 8 months in two years After that the worker can ask for promotion (ascenso) or request the position to be covered by other else. - The salary should be equivalent to the task the worker is carrying out - In the case they do not want to give you the promotion you can sue the company as you are doing a non-coresponding task Vertical descendant: - There is no time limits but it is understood that the necessary time. - The salary is maintained as it is an inferior task. Geographic mobility – In an employment contract one of the most important and substantial labour conditions is the workplace. That is the place the where the worker is going to perform his job. It can be an office, workshop, factory, store, theater… or it can be an intinerant workplace, such as that of a sales rep who, on behalf of the employer, performs his work in different places depending on where the customer is located. Geogrpahic mobility occurs when the jobplace is modified. Due to certain circumstance they can modify a change of residence or work place. This modification can be temporary or permanent and it can be a transfer or displacement. Displacement = desplazamiento Transfer = traslado Transfer (Art 40 WS) : this workers that where not hired to move around but be in the same workingplace but due to certain circumstances they have to be: economic, technical, organizational or production (ETOP) reasons to justify it. This will mean that the worker is moved to a diffeerent web center of the same company and it also will require a change of residence. When there is a transfer certain legal rights are established.  - To balance the workers life and company what happens is that the legislator is going to regulate the powers given to the employer so therefore more control and mechanism and compensation when the transfer is greater and the impact on daily life. - Permanent or period of time Types: Reassignment: imply a change of destination and that also means that the previous job and has been changes. Change differnet work center: always on the same company. Change of residence: can be national or aborad. Jurisprudence: If its more than 36km or takes more that 25% of the working day or 20% cost of the salary. Or its permanent or it has to be +12 months in 3 years if its less it’s a dispalcement not a transfer. The workers representatives have the priority to remain in their jobs. Also other groups in the company may have those priorities like: victims of gender violence, household help, disability, illness… Individual or collective ▪ Individual: it still can affect a certain number of workers, if it doesn’t affect the minimum required it is considered individual. If in a period of 90 days the decision of transfer affects less than 10 workers in a company less than 100 workers OR if the transfer afects less that 10% workers in a company between 100-300 workers OR less than 30 workers in a company with more than 300 workers. ▪ Collective: it will affect the entire workplace and there has to be more than 5 workers. If it doesn’t affcet the entire workplace it is also considered transfer if in a period of 90 days 10 or more workers and less than 100 workers OR 10% or more in a company between 100 and 300 OR 30 or more workers in a compay greater than 300 workers. Consultaion period, its when the workers representaties and company get together and have 15 days to discuss the measures, motives, avioding… If after the 15 days there is an agreement between the reps and the company then the transfer will happen. However, if one of the workers doesn’t agree with the transfer, he can challenge the company and take them to court (collective conflict). Displacement: a change of workplace to a different place from the one of the domicile of that person, change of work and residence. It is not the law who stablishes the distance, it’s the jurispruedence. It is an unusual measure and always take into acount the employment contracts, CBA… The companys decision has certain limits: It has to be justified Has to have ETOP reasons or anything that has to do with business activity  If its more than 3 months the worker has to be notified with 5 days in advanced The worker is entitled to the allowance and travel expenses For every 3 months that he works he is also entitles to leave 4 working days The workers rep has the right to remain in their jobs The worker has no option but if he doesn’t want to go he can resign but then he will get no compensation or unemployment benefits. Substantial mobility – This mobility is when there is substantial changes in the mobility. In the reform of 2012 they made changes regarding to the substantial mobility because they wanted to make it easier for the employer to adapt the working conditions to the changes in the workplace. Therefore the legislator gave more powers to the employers to be able to modify the working conditions; which included the salary system. Now a days its also posible to modify substantial changes in the contract or CBA or any conditions agreed between employer and employee which the employer can unilaterally change. The possibility of legal substantially modifying working conditions. The posibility of legal substantially modify working conditions is regulated by: (COPIAR DEL PPT) 1. They have to be ETOP reasons. Those modifications affecting the folowing items shall be considered as substantial modifications to working conditions (Art 41 WS): a) Working day b) Distribution of working time schedule c) Shift work system d) Remuneration system and salary amount e) Work and performance system f) Task, which exceed the limits set by Art 39 of functional mobility 2. Substantial modifications to working conditions may be individual or collective Worker can: Accept the change Not accept change if the worker terminates the contracts it will have the compensation of 20 days of salary per year up to 9 months. (ex: gets paid 1500€ 50 x 20 = 1000 * 10 (years worked) = 10000 (compensation) but it can’t be more than the working salary times 9 months so 1500 x 9 = 13500€) He can take them to court. If he takes them to court and the court gives him the centain in the favour then they will have to reasign to his previous conditions. If its of a collective nature, more complex procedure: - Consultator period - Possible mediator - Representative commision Company succession: Transfer of undertakings : The change of ownership of the company. It can be in a company, in a work center or independent production unit. An indpendent production units are services or assets owned by a company but they can continue/function separately from the company. (Ex: if a company owes a factory or shop). When there is a change, it does not extinguish/end the labour relationships and there is a new employer that will substitute the previous one in the labour obligations, relations, SS rights, pension comitments, in any type of labour relationship/obligation. From a legal point of view, it happens when the transfer is affecting the economic entity and the change of ownership can be partial or total. Changes of ownership can be: - By inter vivos: change of ownership because there has been a leasing of industry, judicial sale, mergers, takeover… when the previous owner is still alive. - By trasmision of mortis causa: due to the cause of death. The company will be transmited to the heirs (herederos). In this case, the transmision will be valid if the heir acceots the inheritance (Art 38 Constitution). Doctrine has established 2 elements that must happen to consider it a company succession: 1. Subjective: the one that says that there always must be the susbtitution of the entrepreneur by another one. It doesn’t matter if its legal or natural person. 2. Objective: Is that all the esesntial elements of the company should be transferred to continue the activity of the company. Subrogation effects – Employment relationship continue to be in force. The new employer is subrogated to the rights and obligations of the former employer:  ▪ Enployment rights and obligations ▪ Social Security rights ▪ Pension commitment The worker cannot oppose the succession, but the subrogation is not obligatory for him: can resign. Maintainance of representative bodies – When the company, work center or production unit its autonomy (WS does not specify): The mandate of the workers' representatives (same roles and conditions) is not extinguished. Applicable CBA – 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 obligation – 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). Content of the information : Date foreseen for the succession reasons, legal, economic, social 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 (they will be fined/they will have penalties). Does not affect the validity of the succession. Consultation period – When there is a company succession there should also be a consultation period. - When? When there has to be any adoptionof labour measures. It should be before the measures take place - Who? With workers rep or directly to workers Job liability – Liability of transferor and transferee intervivos - Regarding labour obligations before PRIOR to the succession and that have not satisfied and will last during the 3 years following the succession. - These labour obligations will include SS payments… - The new and the old employer will be both responsible for the obligation that will arise after the company succession when the transfer is declared a crime/fraud. (Ex: debt in SS…) Contracting and subcontracting (Outsourcing) : With the latest labour reform 2022, what they wanted to do is to modernize these types of contracting. Purpose: is to reduce cost. However, they wanted to avoid these types of contracts cause of the reduce of costs. With the reform they improved the conditions. These contracts are lawful practice and they are not only ruled under WS but also the Art 38 of the CE (constitution) regarding to freedom of enterprise. In these types of contracts there are: - Employer known as the main cia that for strategic, organization, economic reason is going to assign another company (contractor) to perform certain services that are related to his own business activity. This contractor can instruct another company (subcontractor) to perform the same services that where inicially contracted with the main company. In this contracts there is no transfer of workers. This contracts involve a variety of entrepreneur that will do certain services or tasks for the main company and therefore, there is a principal company and then auxiliar companies. It is important to know that the worker service corresponds to the companies own activity. There should be a subjective element there has to be 2 or more companies involves. There has to be a business element, performance or works and services by the auxiliar companies for the principal company. 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 in those 30 days the principle company is not liable for the previous steps that the companies had with the SS but he is still repsonsible for any debt during the contract but not the previous ones. Obligations of the principal company: duty of information – - They have the duty to inform - The inform the workers representatices and it is not indicated when they have to give the info. - Content: ▪ Identity ▪ Purpose ▪ Duration ▪ Place ▪ Nº of workers Obligations of 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 ▪ To the SS ▪ Workers rep - When to inform: ▪ To workers: prior to the strat of the provision services ▪ To the SS: identity of the main company  ▪ 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  l) The worker is victim of gender violence Mutual agreement of the parties – The mutual agreement per SE – it is an agreement at any time and there is no justification. It can be oral or in writing. The only limit is that there can’t be any abuse of rights by the compnay and the worker can’t waive his rights. Causes validity consigned in the employment contract - there was a condition in the contract and the conditions has been fullfilled or not, and the contract is terminated. The limit is like mutual agreement per SE. This condition can’t go against the morals. Expiration of the time given to carry out a work or service subject of the contract – with the new law if the worker continues working after the expiration, the company hasn’t said anything what happens is that the contract is extended to indefinite contract. One of the parties must say the contract is terminated. Notified 15 days before the termination in contracts longer than a year. The worker has the right to recive compensation. Workers unilateral decision – Without cause: Resignation – You have to give an advanced notification regarding to CBA or local custom. - You can resign at anytime. - You have to communicate the decision. - No compensation. - No dole (unemployment benefits) Abandoment – If you do not notify the cia you just leave. With the same conditions as resignation. With cause: Transfer Substancial modification of the work conditions (Art 41 WS) – if the company changes any conditions substantial to work conditions you can quit but with a proof that they are against your dignity, damaging… You will get compensadet 20 days salary per year worked up to 9 months. Gender violence victim (WITH PROOF) – you are going to be protected by certain specific labour rights due to the condition. Women in this situation are protected by law but also improved by the CBA. ▪ If victim will be absent from work or will not arrive on time. In this case, these absence or delays are justified always if that victim can justify that this has been confirmed by Social services.  ▪ Reuqest reduction of working day, however it will entitile reduction of salary ▪ Has the right to rearrange working time (flexible timetable). Have posibility of changing work place due to protection. If there is no vacancy she can ask for suspension of employmnet relationship to a leave of absence with job reservation (up to 18 months stated by court ruling). ▪ Posibility to request termination of contract. ONLY case when you resign and have the right of employmenyt benefits. ONLY requirement prove contribution at least 1 year in the company. ▪ If the company fires a victim while she is entitled to these rights above, this dismissal is null and will be entitled to free legal assitance. ▪ Company that hire victims will obtain certain benefits from SS as well as they hire someone to replace someone that suffers gender violence. Examples: redutions in contributions of the SS. Employer fullfillment (Art 50) – non payment, continuous delays of salary payment and also includes breach of employers contractual modifications. Employers unilateral decision – Disciplinary dissmisal Objective dissmisal Collective dissmisal Force majeur Causes beyond the parties will – ▪ Due to the worker or employers death – - Worker: the money has to be passed to heir if the company has to give them something to the difunt. They have the right of compensation of 15 days (it is not very clear if its still applied). - Entrepreneur/ employer: unless his heirs continue, what will happen is that the employment relationship with terminate. In these cases the workers have the right of 1 month salary. If it’s a company that closes down then we have to treat it as collective/objective dismissal. ▪ Permanenet incapacity in the degree of total, absolute or sever – - Worker: JUST up to this year (2024) it will terminate the contract automatically if there is no possibility to continue the services BUT now the company has to try to adapt the working place to the disability. If the contract is terminated, you will be  entitled to certain benefits of the SS, you need certain regulations which establish the benefits regarding to the diability. - Entrepreneur/ employer: In this case, there must be a resonable time to close down the company and terminate the contract. In the moment he is declared discapacitated, there is a period of 10 months to close down the company. ▪ Retirement – - Worker: It is not mandatory, but in this case you terminate the contract regarding to the type of retirement, if it’s the total you receive a pension of the SS due to the retirement. - Entrepreneur/ employer: The business closes and the workers have the right of 1 month of salary as compensation. If the entrepreneur has partial retirement, he is getting a pension but has the ownership, there is no termination of employment relationship. If he retires and sells busines (company succesion), no termination of relationship. If he retires earlier, it will be considered as an objective dismissal. ▪ Force majeur Dismissal 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" Power of management: This is a power which the employer uses to organize and manage the company. Management power: Rule making power: power to give general instructions to manage a business and give especific orders to the workers. Example: when there is a functional mobility these powers are included OR when is a modification of conditions due to ETOP reasons. “Ius variandi”- right given to an employer to change things. Control power: Is a power of surveillance, has the right to make sure to take out your employment obligations (control the worker). This power has to be suitable, strictilly necessary and proportional. It always has to respect the workers dignity and privacy. Example: Art 20 WS – the workers have right to the privacy of digital disconnection. However, the employer has the right to use cameras or mics (can’t be at the same time installed) in the office BUT always respecting the laws regarding to the protection of personal data and guarantee digital rights. Disciplinary/ sanctioning power: in the case the worker doesn’t comply with the obligations he will be sanctioned regarding to the CBA or law. Police power: when the employer has the power to do searches on the worker like locker, belonggings, desk… ONLY when its strictly necessary like a robery or event that leads to this situation. Another worker has to be present during these searches. Jurispruedence allows that if you have a closed envolop it is allowed to be opened. They can search you car ONLY if its in the parking lot and working hours, if they open el maletero and there is a box, you can’t open it. Limits of these powers – it can be only carried out in the labour relationship. However, if the behaviour is out of the scope and could affect the reputation then it could be used. There are heteronomous limits provided by constitutions and legislations the law has established that companies between more than 151 have the duty to creat equal plans for both genders. Autonomous limits that are the ones arrising from the employment contract and CBA. Types of dismissals – 1. Collective dismissal → regarding a group of workers, it can be for bjectve causes 2. Objective dismissal → can be for 1 worker or for a collective group of workers 3. Disciplinary dismissal Collective dismissal – ○ = When the termination decision of the employer affects a certain number of workers in a specific and legally established period of time ○ End of the employment contract based on ETOP reasons (economic, technical, organizational or production)  ○ Affects a group of workers in a certain period of time → it is considered a collective dismissal based on this: in a period of 90 days, it will affect 10 workers in companies of less than 100 workers, OR 10% of workers in companies between 100 and 300 workers, OR 30 workers in companies of more than 300 workers ○ For the WS, it is considered that a collective dismissal is for: Economic reasons when the company is showing a negative economic situation e.g., losses, persistent loss in the company Technical → changes in the tools e.g., automation of the task performed thus no need for manpower anymore Organizational → they change the systems or methods of work e.g., a retail store switches to e-commerce Production → when there are less orders / clients and thus company doesn’t need such an amount of workers ○ Procedure to be followed to carry out a collective dismissal: Before starting the procedure, the company management have to inform the workers that they are going to start this collective dismissal procedure Once this decision is communicated, the workers reps have between 7-15 days to set up a committee The opening of the consultation period has t be in writing and sent to the workers reps , and this has to be notified to the labor authorities (explaining the reasons for the collective dismissal, and provide all evidence etc., ) Consultation period can’t last more than 30 days, or more than 15 days if it’s a company with less than 50 workers Labor authorities to be informed of the result of this consultation period, then labor authorities will obtain a report from the SS inspectorate regarding the conclusion of this consultation period ○ Written communication → carta de despido → indicating the reason of the collective dismissal ○ Provide the compensation of 20 days per year worked with a maximum of 12 months ○ Notice period of 15 days from the moment employees get the letter to the end of the contract ○ Difference between ERE and ERTE 1. ERE’S → dismissal + compensation 2. ERTE’S → suspension + unemployment Objective dismissal - ○ Termination of the employment with a reason justified by the company ○ These reasons are established in Art 52 WS  Ineptitude of the worker known or supervening (causas conocidas o sobrevenidas) up his effective placement in the company e.g.m worker loses the qualification that he had to practice that job Lack of adaptation of the workers to his job and to the necessary technical modifications → BUT when there is a functional mobility and you can’t adapt to the new job you have been assigned, they can't fire you ETOP reasons → most are for ETOP reasons ○ Written communication (carta de despido) + compensation → if you sign it it doesn’t mean that you agree → you have 20 days to challenge it after you sign it ○ If company is firing you because of economic reasons, its possible that you won’t get this legal compensation —> if this is the case, the employer must mention it in the letter (that they won’t pay you the compensation because they don’t have money) → but worker still has the right to reclamar the payment ○ If company declares itself in bankruptcy, then the payment will be done by FOGASA (takes care of the compensations of the workers e.g., Spanair) ○ Notice period of 15 days from the moment you receive the letter to the moment the contract terminates Disciplinary dismissal - ○ Based on a serious and accountable breach by the worker ○ Art 54 WS ○ Reasons that would be penalised with a disciplinary dismissal: 1. Misconduct of the worker a. Indiscipline or disobedience at work b. Verbal or physical offenses against the employer or persons working in the company or family members living with them c. Breach of good faith → The transgression of contractual good faith, as well as the abuse of trust in the performance of work e.g., when a worker is not working due to disability but is working somewhere else, or when worker accepts bribes, stealing, doesn’t respect professional secrecy d. Regular drunkenness or drug addiction if they have a negative impact on the work 2. Breaches in performance of work a. Repeated and unjustified failure to attend work or to be on time → exception are victims of gender violence b. Continuous and voluntary decrease in work performance c. 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  ** FOR A DISCIPLINARY DISMISSAL, NO COMPENSATION, BUT YES DOLE (PARO)** ** IN ALL TYPES OF DISMISSALS, YOU WILL GET THE SEVERE OR SETTLEMENT PAYMENT (FINIQUITO) ** ○ Formal procedure: Written communication (standard for all types of dismissal) Employer has to state the facts that motivated that dismissal and the day on which it will take place Offence has an expiring date → worker can’t be waiting forever for a company to sanction him → depending on the infraction, each infraction has a different expiring date Minor infractions → offence expires in 10 days Severe → offence expires in 20 days Very serious → offence expires in 60 days Worker has the right to a prior hearing Letter has to be delivered to the worker Conciliation Act - ○ When a worker is fired, and they disagree with the reasons, they can take the company to court. BUT in certain situations, it is mandatory to go through a conciliation act before taking the company to court ○ Act of conciliation is a prior and compulsory admin procedure that takes palace before the Mediation and Arbitration Service (SMAC) of the Ministry of Labour and SOcial Affairs ○ Main Aim = to help the worker and the bs reach an amicable agreement to resolve a about dispute, thus avoiding the need to go to court ○ In which cases is an act of conciliation mandatory? 1. Dismissal 2. Disputing sanctions 3. Claim for payment 4. Recognition of rights ○ How does the conciliation procedure work? Presentation of the conciliation paper → worker presents conciliation paper to SMAC → SMAC summons both parties, worker and bs, to attend the conciliation proceedings n a specific day at a specific time Conduct of the proceedings → at the conciliation healing, both parties have the opportunity to present their claims and to try to reach an agreement → the conciliator (SMAC official) acts as an mediator between the parties and helps them find a mutually satisfactory solution Outcome of the procedure  Settlement → parties reach an agreement OR Non-agreement OR Absence of the company → go directly to court ○ Going to court. Then effects of a dismissal can be: 1. Fair → judge declares fair because the employer has proved that the reasons why he has fired the worker were the correct ones 2. Unfair → employer couldn’t prove reason of dismissal is fair or he did not provide with one of the formalities that he must comply with then dismissing e.g., written communication, sending letter to workers reps, etc. a. After this ruling, employer has 5 days to reinstate the worker or pay him a compensation → compensation is 33 days salary per year worked with a maximum of 2 years b. If employer doesn’t say anything in these 5 days, it is understood that they are going to reinstate the worker 3. Null and void → the employer has to reinstate the worker and CAN’T be replaced by compensation → cases where there has been discrimination, violation of workers rights, etc.; when workers are in suspension of their contracts due to maturity, risk during pregnancy, breastfeeding, childbirth, adoption, etc. and they are fired, it will be null and void; also applied to victims of gender violence who are fired; when you have finished the employment suspension due to maternity leave and you come back to work, they can’t fire you until your child turns 1 y/o → BUT if company can prove that dismissal is not related to any of these cases, it wouldn’t be null and void BUT its very difficult to prove this in these situations Alternative dispute resolutions (ADR) Lawsuit culture: We sew for any reason, which makes the legal system/courts overloaded. ADR’s started in the USA which tried to find ways to not make everyone go to court. Resolution of labour conflicts – Judicial = In court Extrajudicial = Out of court They are applied in any law. However, in labour law there are lots of situations that are conflictive as parties are different, contracts… and there are different ways to solve these problems. Art 24 WS : everyone has the right to judicial protection (Fundamental rights BUT NOT a duty). o Mediation: 2 parties in conflict and the third party which is the mediator. In this case, he also brings the 2 parties together and he proposes 1 or more solutions to the parties. The solutions are not binding. o Negotiation: when 2 parties establish certain clauses where if they have disagreements, they will try to negotiate the solution before going to court. o Conciliation: there are the 2 parties and a neutral person that is known as a conciliator. The conciliator calls the parties and request negotiate the conflict between them. His role is to improve communication amongst them but NOT offer solutions. o Arbitration: A group of persons that are neutral experts. The solution that the arbitrator offers is binding, the parties MUST follow the solution. It is always a win-win solution (both parties win). The solution is known as an award. Res judicata: The matter has been solved. There is not a possibility to appeal ONLY if there is a defect in the procedure. They can be: - Statutory origin: those established by the law the state intervenes by providing rules. - Conventional origin: the rules are established in the CBA or Cia agreements. Means of labour pressure for resolution of disputes – Strike (Art 28.2): A way to express disagreement by disrupting work and to put pressure on the company or employer to achieve a solution. Usually, it happens when other negotiations have failed (last resource). The reasons must be legitimate, EXCEPT the law is going to affect your professional interest. It’s illegal to strike to modify an agreed solution and when it violates the provisions of law. When you want to start a strike, you have to request an authorization including: date, reason, name a strike committee and must inform the company between 5-10 days before and guarantee minimum service. If these requirements are not complied its considered wild strike. Solidary strike: when a same sector strikes and you decide to strike. What happens if a group of workers go to strike: - If he goes to strike, he can’t be penalized or dismissed because it is a fundamental right. - BUT the employment contract is suspended for the time in strike and therefore you can’t get the salary for the days or month in strike. - In SS, you will obtain certain benefits and other you will not. - When a strike happens not everyone has to go to strike. Lock out (cierre patronal): It consists of the closing of the company requested by the worker in the case of strike or any regularity that may endanger; the workplace, production process, other workers, employers… there must be a danger that threats the company. - There will be a suspension of contract - It is not a strike of the employers because they are not protesting, it is a measure of defense against this illegal danger that could be caused due to a strike. Example: Piquets that are violent protestants that want to destroy everything, the employer can do a lockout. - It is not a fundamental right like a strike, BUT it is also a right. - The employers can only carry it out when there is a conflict. - It can be exercised by 1 or more employer and can affect some part or all of the company. - It is temporary. - The most important consequence is that the worker can’t access the company and therefore they can’t work or meet. NOT USE the right of assembly. The law established when the lock out can happen: - Autourius danger/damage to the company or persons in it - Illegal occupation of the workplace the workers have forced the entrance and refused to leave. - When the volume of absentees or irregularities are affecting the production process. - The employer doesn’t need authorization BUT they must communicate to the labour authority. - They have 12 hours to inform from the moment it starts. - The communication is NECESSARY because since there is not a time or amount of time that is given by the law established on the duration, with this notification what the labour authorities do is establish the reason of the lock out is justified or not and if NOT they will request the immediate opening of the company. Legal lockout: - The contract is suspended for everyone = no salary - The workers during the lockout can’t be sanction except they have committed a crime through the lockout. - They are under SS benefits (some). - No right of unemployment (el paro) during the lock out. - There is no right to temporary diability BUT yes to health. Illegal lock out: - The company is going to be fined. - The workers are entitled to the salary that they didn’t get when the lock out. - The special registration of SS is also given. If the workers disagree with the lock-out they can bring the cia to court and the cia can counter claim if they believe to have justification. Workers representatives – The Constitution states the workers have the right to participate in the company. This right is also seen in the WS and in other trade unions. Worker representative: person that defends workers rights regarding negotiation process, agreements in the CBA… Types: - Staff delegates: When a cia is up to 50. - Workers councils (comite de empresa): When the cia has more than 50 workers. - Trade unions: National level, defending workers interest in cases like labour reform Rights: - Informed and consulted on issues affecting workers. Situation of the company and evolution of the employment in the company - Quarterly informed on the general evolution of the economic sector of the company, economic situation of the company, production and sales, new contracts are of absenteeism’s, work - Accidents, occupational illnesses, studies o f work environment and prevention mechanisms  - Informed on the company’s application of the equal treatment and opportunities between men and women - Knowledge of the balance sheet, profit and loss accounts, annual report and sanctions imposed to workers for very serious misconduct - Right to issue are portprior to execution of decisions adopted by the company such as ; restructuring of the workforce, reduction of working hours, relocation, m&a, professional training plans. - Implementation and control systems o f work organization, bonuses, job evaluations. - Monitorization of the compliance with social security and employment regulations - Participate in the CBA - Collaborate with the company’s' management and implementation of conciliation measures Guarantees: - Can’t suffer discrimination of salary or promotions - If he is going to be fired of disciplinary conduct, you have the right to open a contradictory report (defending yourself) and a hearing. Now if you are a worker, you also have this right. - Priority to stay in the company in the case of transfer, collective dismissal… - They cannot be fired or sanctioned after a year if they stop doing this role. EXCEPT disciplinary dismissal. - Right of freely express their opinion - They get paid for being workers representatives.