Labor Law in Spain: Contracts, Working Hours, and Wage Protection
Block I: Birth and Duration of Contracts for Work
Course A:
Miguel Hernandez works for the municipality of Valladolid as a social educator. Since joining on January 11, 2000, he has been providing his services in the Juvenile Program Insertion council through successive contracts for work or service, developing the same functions in each new hire. The project, which does not belong to the education system, is funded autonomously and therefore subject to signing a specific agreement each year with the Department of Labor. The subscription of successive contracts for work or service has been depending on the signing of such agreements, which are conditional, in turn, on the availability of European funds. As of October 4, 2009, after a previous claim, Miguel presented a lawsuit in recognition of his rights, requesting an injunction for the recognition of an indefinite employment relationship with the city.
Do you think in this case that the demand is likely to succeed?
The requirements for the validity of the contract for specific work or service have been thoroughly reviewed by the Supreme Court in numerous pronouncements, among which include the decision of October 10, 2005, appeal 2755/04, which states that both private companies and public administrations should be subject to the provisions of Articles 15.1.a) of the Workers’ Statute (ET) and 2 of Royal Decree 2720/1998 of December 18, which set the following conditions apply:
- a) The work or service that is its subject, has autonomy and its own identity within what is the work performance of the company;
- b) Its execution, although limited in time, is in principle of uncertain duration;
- c) The contract must specify and identify with precision and clarity, the work or service which is its object; and
- d) In the development of employment, the employee is normally employed in the execution of the work or the compliance with it and not on different tasks.
The Supreme Court has repeatedly spoken about the need to attend to all requirements listed together, so that the temporary appointment for work or service can be considered consistent with the law. There are many sentences that say so, although each delves into a specific requirement, whose existence was discussed. This is corroborated by Cases 21-9-93 (rec. 129/1993), 26-3-96 (rec. 2634/1995), 20-2-97 (rec. 2580/96), 21-2-97 (rec. 1400/96), 14-3-97 (rec. 1571/1996), 17-3-98 (rec. 2484/1997), 30-3-99 (rec. 2594/1998), 16-4-99 (rec. 2779/1998), 29-9-99 (rec. 4936/1998), 15-2-00 (rec. 2554/1999), 31-3-00 (rec. 2908/1999), 15/11-00 (rec. 663/2000), 18-9-01 (rec. 4007/2000). They all show that the Supreme Court has consistently held that it has proved decisive because of the timing. In this connection, it cannot be understood that the cause of temporary contracts of successive Miguel Hernandez has autonomy and its own identity in the activity of the Municipality of Valladolid for the mere fact that such contracts were subject to the availability of European funds already signed a specific agreement with the Department of Labor.
True, the Social Chamber of the High Court has held, in relation to the validity of temporary contracts linked to the perception of a grant, including the sentence of February 8, 2007 (rec. 2501/05) and of February 19, 2002 (rec.1151/01) which do depend on the duration of employment contracts for the delivery of these services for the persistence of the subsidy needed for its operation when this grant comes from a third party and not just a budgetary provision of the own employer, not act which might be abusive, in fraud of law or contrary to law and, on the contrary capable of being framed in the specific service contract.
However, this case has been qualified and supplemented by other enactments, such as that of April 10, 2002 (rec. 2806/01) of November 25, 2002 (rec. 1038/02) and January 21, 2009 (rec. 1627/2008), which clarifies that the Board has not raised in any case, the existence of a subsidy to the category of decisive and conclusive element, by itself, the validity of the temporary contract causal stating that the annual nature of the plan cannot be inferred temporality of the work or service that supports one, because it is a temporary realization that applies only to grants, not to basic services that they finance.
Thus, we examined the case now before successive labor contracts concluded by a public-Valladolid City Council to implement a plan or program-specific audience Insertion Program-Under the offer being conditional on the agreement that the City Council signed each year with the Labor Department in establishing funding and is conditional, in turn, the availability of European Union funds. It can however be reduced by the temporality of the work or service provided by Miguel Hernandez of the Plan on an annual basis, because as explained such temporary concrete affects the grants but the essential services that are developed with this funding. Indeed, services have become permanent since the goal of Juvenile Integration Program is to facilitate social integration, which is confirmed by the undisputed fact that since 2000 the council has been developing continuously the program, hiring the worker Miguel Hernandez for the same functions in each new hire.
In this case it is found by both the continuing need for the public service provided, since the need for integration for children with risk of social exclusion is structural, and programs are coming in successive years, so it is appropriate procurement contract indefinitely, having concluded that the temporary contract for specific work or service entered into between the parties is not the proper type of contract for not meeting the requirements of Article 15.1 a) of the Statute of workers and 2 of Royal Decree 2720/1998 18 December.
In short, the working relationship between Miguel Hernandez and the city of Valladolid, although initially it was a work contract, set out in Article 15.1 a) ET, with the passage of time is found that the employment relationship has become indefinite the extent that such character is also the structural necessity of social inclusion, whose satisfaction is the subject of the contract.
In the alternative, it is also possible to turn to the provisions of Article 15.5 ET to substantiate the existence of an indefinite, because it provides that workers in a period of thirty months had been under contract for a period exceeding twenty four months, with or unbroken, for the same job with the same company, by two or more temporary contracts, with the same or different forms of fixed-term contract, acquire the status of regular workers.
In this sense, the Seventh final provision of Law 43/2006, which established the current drawn Art15.5 ET, established a rule of retroactivity, under which the new fifth paragraph, Article 15 of the Workers’ Statute shall apply to employment contracts from June 15, 2006, but that are signed before and are in force on that date was “taken into account both the effects of number of contracts as of period (thirty months), as the term (contract for a period exceeding twenty-four months) that the new provision covered. This implies that such contracts prior to June 15, 2006, not related to any previous one, are taken into account in its entirety for all purposes, provided of course that the employee is in effect another temporary contract signed after June 15, 2006, as in this case.
In this regard they have pronounced the High Court of Madrid, Case no. 269/2009 of April 22 the High Court Andalusia (Granada), Case no. 2606 / 2008 of October 1 and the Tribunal Superior de Justicia de Cantabria, Case no. 675/2007 of July 13. So the worker may require the conversion of this indefinite contract as soon as they satisfy the demands in the standard, and without the end of this latest contract.
Block Two: The Content of the Contract Work
Scenario B:
Carlos Romero provides services to the Hospital de La Plana as a doctor with the rank of deputy, holding, in 2008, 350 duty hours and 1740 hours of normal working hours. The collective agreement establishes a regular working day of 1732 hours per year, with the value of the time called for in Article 36 of the Agreement as “Additional call time (guards present)” less than the usual time.
Can it be considered lawful to give back the hours of presence?
To resolve the case raised it necessary to resort to the doctrine contained in the Court of Justice of the European Communities (ECJ) on October 3, 2000, SIMAP, which was issued to resolve a question raised by the Chamber of Social Justice High Court of Valencia, in relation to the extent that it has on Directive 93/104/EC concerning certain aspects of the organization of working time, which in Article 2.1 (the same wording as the current Article 2.1 Directive 2003/88/EC, which replaced the previous one) defines working time as any period during which the worker is working at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and / or practice. Furthermore, the working time arrangement is placed in opposition to rest periods, the two being mutually exclusive.
In that ruling the ECJ also referred to Council Directive 89/391/EEC of June 12, 1989 on the implementation of measures to encourage improvements in safety and health of workers at work and it is said that the time spent on call doctors provided by primary care teams in their presence at the health center should be considered working time in its entirety and, if applicable, overtime, as opposed to the provision continuing care services for such doctors in tracking system, which should only be regarded as work when it comes to effective delivery of primary care services.
Furthermore, Article 6.1 of Directive 93/104/EC (as well as the current Article 6.b) of Directive 2003/88/EC) refers to the need for the average working time not exceeding forty-eight hours, including overtime, for each period of seven days. Thus it is said in the foundation 51 of the sentence As regards the issue of whether overtime can be considered the time spent on call, while Directive 93/104 does not define the concept of overtime, which only mentioned in Article 6 concerning the maximum weekly working time, the fact remains that overtime work fall within the concept of working time within the meaning of that directive.
Thus, the ECJ in its ruling of October 3, 2000 (SIMAP) that in accordance with Directive 93/104 on-call service that makes a doctor in their presence in the hospital is in full time Working for the purposes of this Directive, even though the person concerned is permitted to rest at his place of work during the periods when their services are requested. This interpretation has been confirmed and repeated in subsequent Statements of September 9, 2003 (Jaeger) and December 1, 2005 (subject Dellas).
From the above we can draw that to the Court, the activity of guard presence, although it may have very specific characteristics that distinguish it from the ordinary working day, however be counted as working time, even those times when the doctor can rest, and certainly excludes it a special day, but working time subject to maximum Community Week.
Our doctrine judicial community has embraced this interpretation on the medical ward. So are repeated statements that, for purposes of computing the working day, differs between guards and guards present location. The first is computed entirely as working time while the latter are counted as working time only the contact hours. Similarly, it supports the computation of these hours in order to determine whether or not it exceeds the normal working day and, as far as it exceeded it, they are described as overtime (Judgments of the Supreme Court of 4-10-2001, 1/4/2002, 11/12/2002, and 12/7/2004.
However, although it is not unusual that the presence guards working time, however, EU case law has not acted on the way to give back the working time. Thus in the case raised the collective agreement establishes a regular working day of 1732 hours per year, while the worker, Carlos Romero, developed in 2008 in addition to the agreed time (namely ordinary day 1740 ) also 350 hours of guard presence, while he was recompensed for the tables of the agreement at a lower price than the normal working hours.
Such duty hours must be integrated into the concept of working time from the moment when, according to established the Supreme Court in its Ruling of February 21, 2006 (rec. 2831/2004), the worker is in the hospital premises, holding or disposition to carry out its activity, which essentially corresponds to their profession made “plant” as it is to project the medical expertise on the cases to be addressed, with more discomfort than the schedule of daily activities.
Moreover, the concept of working time collecting Directive 2003/88/EC has to be compared with the number 1 of Article 35 of the Workers’ Statute, under which shall be considered for those hours of overtime work carried out on maximum normal working hours of work, determined in accordance with the preceding article.A collective agreement or, failing that, individual contract, it will choose between overtime pay in an amount to be determined in no case be less than the value of regular time, or compensate them for time equivalent paid rest.
Thus, in order to determine when work hours are great, we must distinguish two limits. The first relates to the legal maximum working week set by the art. 34.1 ET and the second to the maximum working week by convention, which may be less than or equal but never higher than the Statute of Workers. In connection with the first of these limits, all the time you work overtime and are beyond the agreement in any way can not exclude that grade. Hence, the face guards, under the doctrine of the Community Court will be overtime as far as they exceed the legal maximum working week, with the convention itself which should provide the treatment to be given to the hours worked in excess agreed normal working hours.
Whereas the hours on duty that made Carlos Romero were conducted on the duration of the maximum legal time referred to in Article 34 ET, it follows that only the hours worked in excess of the maximum working day of ET, this 40-hour week is calculated annually, (ie 1826 hours per year) must necessarily be classified as extraordinary.
Therefore, in terms of remuneration for overtime can not be set for times exceeding 40 per week less pay than that of ordinary time, as Article 35.1 ET is a provision of law or necessary minimum which can not lawfully provide the parties. However, it is possible to set a value when the guard below the regular presence on those hours that fall between 1,732 (maximum annual day set in the agreement) and 1826 hours (maximum time provided for in Article 35.1 ET), as affirmed in the Supreme Court decision of October 8, 2003 (rec. 48/2003).
Thus, the hours between the maximum time agreed in the agreement (1732 hours) and 1826 hours (maximum time provided for in Article 35.1 ET) (1826-1732 = 94 hours) may be paid in such manner as the agreement has established, although its value is less than the usual time.
Accordingly, in the present case, they rewarded with the value set for normal working time those hours worked on-call attendance in excess of the working week of 40 hours per week in an annual figure, ie the difference between the annual day (1,826 hours / year) and total hours worked by Carlos Romero (1740 regular hours call +350 hours = 2090 hours). Therefore, 264 hours (2.090-1826) must be compensated with the ordinary time value, regardless of the administrative responsibilities of creditor Those which may be the employer for exceeding the maximum annual limit of 80 hours per year set out in paragraph 2 of Article 35.
This is despite the fact that some Supreme Court ruling (Social STS of September 18, 2000, rec. 1696/1999) estimated to be overtime hours that were made above the agreed time, not for maximum statutory 40 hours of Article 34 ET. However, unification of doctrine, the Supreme Court in a subsequent sentence of February 21, 2006 (rec. 2831/2004) considered more suited to the literal interpretation of Articles 34 and 35 ET, the interpretation that can only be described Overtime those made on the maximum length of an ordinary working day, determined in accordance with 34 ET, which is set to 40 hours maximum ordinary working time.Consequently, the worker Carlos Romero, shall be entitled to remuneration for hours worked on-call presence with the value set for normal working time, but only those that exceed the 40-hour workweek or 1826 hours in an annual figure, ie 264 hours. The time between 1732 hours and the Convention agreed in 1826, ie 94 hours, shall be paid to the values specified in the collective agreement.
Assumption C:
The company pays Solimar Supermarkets workers who provide services in that half hour, in whole or in part, between 22.00 hours a day and 06.00 hours the following day nocturnal complement the amount which varies depending on the hours, in particular, works in such a schedule each of the affected employees. The nocturnal plus complement or received by each worker according to their personal work situation, what are forgoing such workers in the days called “own affairs” that are recognized as paid leave in the collective agreement.
Should the company also pay days off plus the amount of nocturnal workers who are paid regularly with the plus?
Art. 36 of the ET considered night work performed between ten o’clock at night and six in the morning, having a specified remuneration, determined in collective bargaining, unless the salary is established considering that the work is at night by their nature or compensation has been agreed for this work to rest. To resolve the present case must be taken into account that according to Supreme Court jurisprudence contained in its ruling of 15.09.1995 (rec. 997/94) and March 18, 2009 (rec. 98/2007) the plus the night is a salary supplement of job and their perception depends exclusively on the exercise of professional activity in the assigned position, given its functional nature.
We must clarify that this does not apply in respect of the holiday under the provisions of art. 7 of ILO Convention 132, which is guaranteed for holiday pay “at least normal or average remuneration”, ie the average value of nocturnal plus must be reflected in the remuneration of the holiday, according to the Supreme Court Case 15-09-95. Moreover, this also should be paid plus applicable if the agreement expressly provides your subscription during such days of warrant (Judgments of the Supreme Court 16-12-05 (rec.182/05) of 28-06-06 (rec . 187/05), of 26-03-07 (rec. 848/06, and 3-04-07 (rec. 716/06).
In the present case, since nothing is set in relation to the remuneration of day matters pertaining to the collective agreement must be concluded by applying that case-that no obligation to pay the nocturnal plus two days in such warrant, since such a salary supplement not payable weekly rest days or holidays, nor is payable on the permits and licenses paid.
Assumption D:
Miguel Carlos Fuentes, a Colombian national, filed a lawsuit claiming payment dated March 8, 2009 against the company SERPEX SA, for providing services from January 1, 2007, without proper authorization to work. In that application the worker claiming the following:
- Wages from January 1, 2009 to March 14, 2009: 3452 euros.
- Per diem for meals: 550 euros.
- Plus for materials to cover the expenses that the worker had passed by this concept: 110 euros.
On May 17, 2009, held judicial conciliation, in which agreement was reached, which was reflected in the corresponding record, and which was recognized by the employer debt owed to the employee undertaking to pay the same which, however, failed. Pushed to the performance by the Social Court order was issued provisional insolvency of the company dated June 15, 2009, subsequently made by the employee request Fogasa complaint for payment of unpaid amounts. The resolution issued FOGASA dated July 17, 2009 refusing the provision concerned by lack of work permit from the claimant.
1) Can this be regarded as a valid reason? What concepts would be excluded from the protection offered by the social fund?
According to Art. 33.1 of the LET, the Wage Guarantee Fund will pay workers the amount of unpaid wages due to bankruptcy or insolvency of employers. This rule has been developed by art. 13 of Royal Decree 505/1985 of March 6, the organization and operation of the Wage Guarantee Fund, under which beneficiaries will benefit from the wage guarantee fund “all workers bound by employment relationship to one of the entrepreneurs listed in art. 11, when they hold a credit for wages or compensation and the way that for each case is specified in the following articles. In the wording of that provision also be included for the employees of foreign nationality, as Art. 36 of Law No. 4 / 2000 of January 11 on the rights and freedoms of foreigners in Spain, noting in its first paragraph that “foreigners over 16 years to engage in any gainful activity, employment or training, require of prior administrative authorization to work, “such a requirement refines its third paragraph that “the lack of authorization by the employer, without prejudice to the responsibilities of leading, including those on security social, does not invalidate the contract of employment on workers’ rights abroad, nor to preclude the obtaining of benefits that would be entitled.”
So this rule can only be interpreted considering that not only the employment contract is perfectly valid and effective to regulate the legal relationship between employer and employee, regardless of administrative or even criminal liabilities that may creditor prove the employer who breaches the ban on hiring a foreign worker who has no work permit, but after the reform brought about by the LO 14/2003, which introduced two new paragraphs in that third paragraph of Art. 36, the fullness of labor rights of foreign workers who lack work permits, including other rights arising thereof, such as the benefits of FOGASA, as recognized in the Case no. 1061/2007 of the High Court of Cantabria, December 5, Case no. 5090/2002 Catalan High Court of July 10 and the Case no. 71/2000 Superior Court of Justice of Madrid, February 2.
Owing, however, ruled out this possibility for social security benefits for common contingencies covered by the General Law of Social Security, in particular unemployment benefits, according to the Supreme Court Decision of March 18, 2008 (rec.800/2007). Thus, the foreign worker can be directed to your employer for the enforcement of all labor obligations that arise from the employment relationship as available to the Workers’ Statute and, in case of insolvency may enforce their right to the wage guarantee autonomous organism.
In this sense, we must highlight the provisions of ILO Convention 173, which provides for equal treatment in respect of employees of foreign workers and the Spanish, when those holding a job in Spain. However, excluded from the protection offered by the social fund concepts that, under Art. 26.2 ET, are not regarded as salary or allowances are paid to the worker supplied during the performance of work, character must be attributed in this case food subsistence allowance, amounting to 550 euros and the plus to cover the materials costs, amounting to 110 euros.
Then it should be recalled that Art. 33.1 of the LET, noting that the wage guarantee fund to pay workers the amount of unpaid wages in case of insolvency or insolvency of the employer, determines in its second paragraph that “For the purposes above shall be deemed salary the amount recognized as such conciliation or judicial resolution of all the concepts referred to in Art. 26.1, and the salaries of processing in cases that are legally due, without which the Fund may pay for one or another concept, together or separately, an amount exceeding the amount obtained by multiplying three times the minimum daily wage rate, including the proportional share of the extra payments, the number of days of unpaid wages, with a maximum of one hundred fifty days “.