Employment Spain Newsletter February
Legislation
1. Royal Decree 145/2024 of 6 February, which sets the minimum inter-professional wage for 2024
On 7 February 2024, the minimum interprofessional wage for 2024 was published, which is set at 1,134 euros per month in 14 payments (15,876 euros per year). These new amounts represent a 5% increase over the minimum interprofessional wage set for 2023. This review will not affect the structure or the amount of professional salaries that employees have been receiving when such salaries as a whole and in annual computation are higher.2. Order PJC/51/2024, of 29 January, which develops the legal rules on Social Security contributions, unemployment, protection for cessation of activity, the Wage Guarantee Fund and vocational training for the financial year 2024
This order includes transitional measures and sets for 2024 the maximum contribution base in 4,720.50 euros per month and the minimum in 1,260 euros per month. On the other hand, the intergenerational entity mechanism (MEI) is increased to 0.70%.Court Precedents
1. The principle of equal treatment for temporary agency employees implies that they are entitled to the compensation for total permanent disability due to work accident provided for in the collective bargaining agreement of the user company
Judgment of the Court of Justice of the European Union in case C-649/22 of 22 February 2024
The Court of Justice of the European Union (the "CJEU") rules on whether legislation which provides for different compensation for total permanent disability due to work accident for temporary agency employees as compared with directly employed employees is contrary to European Union law.
The CJEU concludes that, in accordance with the principle of equal treatment laid down in Article 5 of Directive 2008/104 of 19 November 2008 (on temporary agency work), employees from a temporary agency must enjoy the same basic working conditions as employees from the user company. Thus, the concept of "essential working and employment conditions" must be interpreted broadly and include any compensation for total permanent disability due to work accident. The judgment adds that the contrary would discourage user companies investing in the health and safety of temporary agency employees.
2. Negotiation with the employees' legal representatives in the event of collective redundancies is mandatory from the moment the employer considers the possibility of terminating contracts whose number may exceed the collective redundancy thresholds
Judgement of the Court of Justice of the European Union in case C-589/22 of 22 February 2024
The case assess when the consulting obligation laid down in Directive 98/59 on the approximation of the laws of the Member States relating to collective redundancies arises. Specifically, whether it arises when the employer (i) considers or plans a reduction in the number of jobs whose number is likely to exceed the collective redundancy thresholds or (ii) is certain that will actually have to dismiss a number of employees above the collective redundancy thresholds.
The CJEU concludes that it arises as soon as the employer considers or plans to reduce the number of jobs whose number is likely to exceed the collective redundancy thresholds, since the purpose of the consultation obligation (to avoid redundancies or reduce its number) is thus fulfilled. A consultation when it is already certain that the collective redundancy will reach the thresholds will not enable to assess alternatives to reduce or avoid such redundancies.
3. Termination of a fixed-term contract without giving any cause is contrary to European Union law
Judgement of the European Court of Justice in case C-715/2020 of 20 February 2024
The CJEU holds that national legislation which allows an employer not to justify the termination of a fixed-term contract (as opposed to a permanent contract) is contrary to EU law.
It states that there is an unjustified differential treatment contrary to the principle of equality between comparable temporary and permanent employees provided for in Article 4.1 of the Framework Agreement on fixed-term work concluded by Ces, UNICE and CEEP (an integral part of Directive 1990/70 of 28 June 1990). The judgement states that the fact that temporary employees are unaware of the reason for termination limits their access to effective judicial protection.
4. The participation of the employees' legal representatives is imperative when policies regarding the use of electronic devices are intended to be implemented or changed
Judgement 225/2024 of the Labour Chamber of the Supreme Court of 6 February 2024
The Labour Chamber of the Supreme Court ("SC") analyses whether a communication relating to the use of company-owned IT devices is null and void because it was not drawn up with the participation of the employees legal representatives ("RLT").
It is concluded that the decision is null and void as it violated Article 87.3 of the Organic Law on the Protection of Personal Data and the Guarantee of Digital Rights, which, as a legal imperative, requires the participation of the RLT when establishing, modifying or updating the criteria for the use of digital devices.
5. A clause by virtue of which an employee can unilaterally leave without effect a post-contractual non-competition agreement after the termination of the contract is void and null
Judgement 144/2024 of the Labour Chamber of the Supreme Court of 25 January 2024
This case argues whether the introduction of a clause in the post-contractual non-competition agreement that allows the company to unilaterally release the employee from this commitment before its commencement is valid or not.
The SC reiterates its doctrine and concludes that this provision is null and void, even if expressly provided for, because it contravenes the provisions of article 1256 of the Civil Code by leaving compliance with the agreement to the discretion of one of the parties.
6. Remuneration unduly received by the employees shall be refunded gross
Judgement 11/2024 of the Labour Chamber of the Supreme Court of 8 January 2024
On the basis of Article 26.4 of the Workers' Statute ("WS") ("all tax and social security charges payable by the employee shall be paid by the employee") and Article 32 of the General Tax Law, it is concluded that the gross amount must be refunded because it is the employee who is liable to pay tax. The employer is limited to withholding and making a deposit on account of the tax that corresponds to the employee (it does so on his behalf) and it is the employee who, at the time of filing the personal income tax return, deducts the amount already withheld and paid on his behalf. A contrary interpretation would mean that the company would not be able to recover this payment on account.
7. If the predominant activity of the company is not covered by any collective bargaining agreement, the one agreed in the employment contract applies
Judgement 1232/2023 of the Labour Chamber of the Supreme Court of 21 December 2023
The SC upholds the judgment of the High Court of Justice and points out that when the company's main activity is not covered by a collective bargaining agreement, the parties can agree to apply a collective bargaining agreement in the employment contract (i) in accordance with article 3.1. c) of the WS on the will of the parties as the source of rights and obligations in the employment relationship; and (ii) because it does not entail a breach of articles 82 WS (on the effectiveness of collective bargaining agreements) and 85 WS (on the content of collective bargaining agreements) since, as no collective bargaining agreement is applicable, no less favourable legal or conventional conditions are being imposed.
8. Unless otherwise provided for in the collective bargaining agreement, all periods of activity of temporary employees shall be taken into account when calculating the length of service salary supplement
Judgement 1169/2023 of the Labour Chamber of the Supreme Court of 18 December 2023
The case analyses whether, for the purposes of the seniority supplement in temporary contracts:
(i) only periods of service in which there is no break of more than 20 working days must be taken into account (based on the doctrine of the essential unity of the relationship); or
(ii) all periods of activity must be taken into account, regardless of the existence of breaks between the different temporary contracts entered into.
The SC concludes that the doctrine of the essential unity of the relationship is not applicable because (i) the seniority supplement must be received by both permanent and temporary staff and (ii) the terms and amount of that supplement are not determined by whether or not the temporary contracts are fraudulent but by the provisions of the applicable collective bargaining agreement (which in this case does not make any distinction).
9. Paid nature of the leave due to force majeure of 4 days per year for urgent family reasons in the event of illness or accident
Judgement 19/2024 of the Labour Chamber of the National High Court of 7 February 2024
The Labour Chamber of the National High Court (the "NHC") clarifies that the force majeure leave provided for in Article 37.9 of the WS is paid without the need for it to be expressly regulated by the applicable collective bargaining agreement or agreed with employee's legal representatives.
10. The days of leave set forth in article 37.3 b) and b) bis are to be understood as working days and not calendar days unless the collective bargaining agreement improves on the provisions of the WS.
Judgement 9/2024 of the Labour Chamber of the National High Court of 25 January 2024
In this judgment, the NHC rules on whether the computation of leave days must be made in calendar or working days in order to comply with Directive 2019/1158 and Article 37 of the WS and concludes that:
(i) Five "working" days must be granted due to leave to take care of relatives in case of accident or serious illness based on the transposition of Directive 2019/1158.
(ii) Regarding the leave due to death of a relative, given that this leave is not due to the transposition of the aforementioned Directive, the NHC distinguishes that when there is no travel, as the WS does not specify anything, the leave must be taken on working days, and in the case of travel, as the collective bargaining agreement establishes an improvement, it is allowed to be taken on calendar days.
Keep an eye
1. Draft of the Families Law
On 27 February 2024, the Council of Ministers approved the Draft of the Families Law and its referral to the Spanish Parliament. Its main objectives are to (i) recognise the different situations that exist in Spain (e.g. unmarried couples, single-parent families, migrant families, families with disabled members); (ii) improve the social protection of families (e.g. by establishing a child-rearing allowance) and (iii) guarantee the right to reconcile family and working life.
2. Draft law for the transposition of Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union
On 16 February 2024, the draft law transposing Directive (EU) 2019/1152 on transparent and predictable working conditions in the European Union was published.
The right to foreseeable working conditions is introduced in Article 4 of the WS. In addition, new information obligations are established and changes are introduced in aspects such as working hours, the probationary period (e.g., establishing limits on permanent contracts (6 months for technicians and 2 months for other employees) and fixed-term contracts (up to 1 month for contracts of 6 months or more), moonlighting (e.g., impossibility to veto, restrict or discriminate against employees, limiting it only when there is a legitimate business interest (e.g. to safeguard confidentiality) and in the application for vacancies within the company.
The Law on Social Infringements is amended by introducing three new infringements: (i) failure to inform or give a reasoned reply to employees with at least six months' seniority of existing vacancies (minor); (ii) failure to inform the employee in writing of the essential elements of the contract and the main conditions for the performance of the work (serious); and (iii) decisions by the employer that entail unfavourable treatment in a situation of multiple employment of the employee (very serious).
3. Sustainable Mobility Plans
On 13 February 2024 the Council of Ministers agreed to approve the draft Sustainable Mobility Law. This draft law will be sent to the Spanish Parliament for urgent processing and approval in 2024, thus fulfilling one of the objectives agreed with the European Commission in the Addendum to the Recovery, Transformation and Resilience Plan.
Within 24 months of the law coming into force, companies will have to have a sustainable mobility plan for workplaces with more than 500 employees, and will include specific sustainable mobility measures such as enabling remote working where possible.
4. LGTBI+ protocol
As of 2 March 2024, the obligation to have a protocol of action against the LGTBI+ collective comes into force. For the time being, the regulatory development that will determine the scope and content has yet to be published.
5. Draft Organic Law on equal representation and balanced presence of women and men on boards of directors
The draft Organic Law on equal representation and balanced presence of women and men on boards of directors transposing Directive (EU) 2022/2381 promoting gender balance on boards of directors in private sector companies was approved in December.
6. Reduction of working hours and electronic working day register
In recent weeks the Government has confirmed its intention to reduce working hours to 37.5 hours per week. In addition, in order to check that companies observe the maximum working hours, they have stated their intention to ban paper-based registration systems in order to make them reliable systems and to digitalise them so that the Labour Inspectorate can have access to them. Thus the Government is also considering to increase the administrative fine linked to the breach of not having a working time register in force.
