Labour Mobility Theory PDF

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 professiona...

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.  ▪ 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.