Etiqueta: derecho laboral

It has been more than a year since the European Parliament’s Directive 2023/970 known as the EU Pay Transparency Act was passed, which aims to reinforce the principle of equal pay for women and men, eliminate the gender gap and ensure that companies offer equal pay for equal work or work of equal value. The time is therefore approaching for companies to implement this regulation. From 7 June 2026, it will be mandatory to provide prior salary information in job advertisements and to communicate salaries and explain the criteria used to determine salary levels. In addition, companies will have to take action when they detect a significant pay gap.

New rules for recruitment processes

In selection processes:

• Employers may not ask applicants about their current or previous salaries.
• Candidates will have the right to know the starting salary or pay band for the position for which they are applying before the interview. It will no longer be sufficient to refer to the relevant collective agreement.

Transparency in salary levels and remuneration criteria

Companies are obliged to make available to their staff the criteria used to determine the remuneration of each employee, as well as the salary levels and pay progression.

In addition, each worker may request his or her individual pay level and average pay levels, which the company shall provide broken down by sex for categories of workers performing the same work or work of equal value.

Additional obligations for companies with more than 100 employees

Companies with a workforce of more than 100 employees must, after consultation with employee representation, communicate to the competent authority specific information on their pay gap. The periodicity of this obligation varies according to the size of the workforce. Companies with between 100 and 249 employees must do so every 3 years. Companies with more than 250 employees must update the information on an annual basis.

Companies with a 5% wage gap will have to take action

The EU’s ultimate goal is to fix the pay gap at a maximum of 5%, while the current European average is 13%. For this reason, the regulation goes further than just requiring transparency in wage information to impose corrective measures. Companies with a pay gap of 5% or more will have to carry out a pay assessment together with workers’ representatives with the aim of closing this unjustified gap. They will have a maximum period of six months to do so.

Workers who suffer pay discrimination on grounds of gender may receive compensation. The Directive also provides for penalties for companies where there is pay discrimination. Depending on the seriousness of the offence, fines range from €626 to €225,018.

Conclusion

The implementation of the Pay Transparency Act represents an important legal change for companies. Until now, the burden of proof has been on the employee to prove that he or she is suffering from pay discrimination. From next year onwards, however, it will be the employer’s obligation to prove that he or she has not violated EU rules on equal pay and pay transparency.

This Directive, still pending transposition into Spanish law, entails significant risks for companies, such as a general increase in salaries or less room for wage negotiation. Confianz’s team of labour law advisors can help you comply with the new regulations while minimising the negative consequences.

A technical error in the wording of Organic Law 2/2024, of 1 August, on equal representation and balanced presence of women and men, known as the Parity Law, now allows companies to dismiss workers who have requested an adapted working day or leave for family reconciliation. Let’s see what the situation is.

When does the Parity Law come into force

Tomorrow, 22 August 2024, the Parity Law will enter into force. The aim of Organic Law 2/2024 on equal representation and balanced presence of women and men is to guarantee gender equality in various areas, including the labour market. To this end, it establishes a series of amendments to the Workers’ Statute, Spain’s main labour law.

What does the new Organic Law 2Qué dice la nueva Ley Orgánica 2/2024 say

As recognised by the Ministry of Equality itself, the promoter of the law, a technical error in the wording of the law could allow companies to dismiss workers who request changes in their working day or leave for family reconciliation. For example, the Parity Law gives companies the power to dismiss workers who request five days’ leave to care for sick family members.

Where is the error

The error is due to an omission in the protections that until now shielded workers in these situations from dismissal. In order to include female workers who are victims of gender-based violence in the articles of the Workers’ Statute, changes have been made to an obsolete version of the law, prior to the modification that took place in Royal Decree Law 5/2023, which came into force last year.

Since the approval of Royal Decree-Law 5/2023, of 28 June, and until now, dismissals related to requests for leave or changes in the working day due to family reconciliation were considered null and void. These workers have enjoyed special protection and, as a result, should be reinstated immediately. In addition, the company had to pay them the unpaid wages in the period between the illegal dismissal and the judgement.

However, with the new Parity Law, these dismissals are now classified as unfair. With this classification, the company is free to dismiss the worker and is not obliged to reinstate him/her. It only has to pay compensation of 33 days’ salary per year worked up to a maximum amount equivalent to two years’ salary.

What happens next

The Ministry of Labour has committed itself to rectify the failure as soon as possible, although it has not given a specific date. Because this change requires a process that cannot be immediate. It must necessarily be approved by both Congress and the Senate. The Council of Ministers will not start work again until 27 August, five days after the change in the Workers’ Statute comes into force. Therefore, at least a few weeks will have to wait for this rectification to take place.

Pending the text being rectified, over the next few weeks companies will have the ability to dismiss workers who request changes to their working hours or work-life balance leave. Both employees and employers find themselves in a situation of uncertainty that will hopefully be resolved quickly. From the labour consultancy service of Confianz, we will remain attentive to the news to advise the companies that trust us. Do you want to be one of them? We are waiting for you.

Law 4/2023 established 2 March 2024 as the deadline for all companies with more than 50 employees to have an LGTBI Plan in place. However, the specific content of this plan has not been specified until now, with the regulatory development of Article 15.

On 26 June, an important agreement was signed between the Ministry of Labour and the Social Agents for equality and non-discrimination of the LGTBI collective in the workplace, which establishes the specific measures to implement the LGTBI Plan. We still have to wait for the approval by the Council of Ministers and the publication of the regulatory text in the Official State Gazette, but we finally know the terms that will have to be taken into account for the implementation of the LGTBI Plan. We break them down in this article.

Which companies are obliged to have an LGTBI Plan?

All companies with more than 50 employees are obliged to have an LGTBI plan. The calculation is made considering the entire workforce of the company on the last day of June and December of each year, regardless of the type of contract, the number of workplaces or the type of contract.

The obligation remains in place even if the number of employees falls below 50 once the special negotiating body has been set up and until the end of the term of the plan or, failing that, for four years.

What should it include?

The LGTBI Plan must include a planned set of measures and resources to achieve real and effective equality for LGTBI people.

It should specifically include an anti-harassment and violence protocol identifying preventive practices and mechanisms for detecting and dealing with harassment.

How to create it

The measures included in the LGTBI Plan must be agreed through collective bargaining and have been agreed with the legal representatives of the workers.

First the negotiating body will draw up a status report based on the documentation provided by the company. This documentation shall include, without exception, a work climate survey on LGTBI rights at work.

The plan should follow this structure:

• Identification of the parties involved in the negotiation.
• Personal, territorial and temporal scope.
• Qualitative and quantitative objectives of the planned measures.
• Description of specific preventive and reactive measures, timeframe for implementation and prioritisation, as well as design of indicators to assess progress.
• Timetable of actions for implementation, monitoring and periodic evaluation. Identification of the necessary means and material or human resources.

How long will it be in force?

The duration of the LGTBI Plan shall not exceed 4 years.

Penalties foreseen

Law 4/2023 provides for penalties of between 200 and 150,000 euros for individuals or companies that violate LGTBI rights. In addition, companies that fail to comply with their obligation will not be eligible for government contracts and could be forced to cease their activity for three years.

At Confianz we help you to implement your LGTBI Plan 

At Confianz we provide you with all the labour law services that your company requires. Therefore, we help you to create the LGTBI Plan and we give you the necessary guidelines to implement it in a satisfactory way according to the current regulations. For more information, contact us!

The European Commission has set out to promote pay transparency and the principle of equal pay for men and women. This strategy is legally articulated through Directive 2023/970 of the European Parliament and of the Council of 10 May 2023. Once transposed into Spanish law, this new regulation will oblige companies to share information on the remuneration received by women and men for the same work or for work of equal value in their organisation.

Equal pay laws in Spain

In recent years, a number of regulations on equal pay have been published in Spain. Specifically, Royal Decree 902/2020 of 13 October on equal pay for women and men implements issues set out in Royal Decree Law 6/2019 of 1 March on urgent measures to guarantee equal work and equal opportunities for women and men in employment and occupation.

In line with the European strategy, this Royal Decree is based on two principles:

• Equal pay for work of equal value.
• Pay transparency through a series of instruments: a register with information disaggregated by sex, job classification and type of pay; a company audit that includes job evaluation; a plan to correct inequalities; and a job evaluation system that allows for a real comparison between jobs of equal value.

6 changes to equal pay rules introduced by Directive 2023/970

However, the transposition of Directive 2023/970, to be effective by 7 June 2026, will require adjustments to Spanish legislation:

1.- The scope of application shall be extended to job applicants during the selection process. Job applicants shall have the right to receive information on the starting pay for the position for which they are applying, as well as on the collective agreement applied. The employer may not ask questions about the applicant’s salary history.

2.- The pay gap shall be publicly available on the company’s website or any other means of dissemination.

3.- The average pay gap between workers is reduced from 25% to 5%, after which the company must justify that the difference between the two genders is due to neutral criteria.

4.- There will continue to be compensatory and dissuasive compensations for the damages that workers may have suffered as a result of non-compliance with the principle of equal pay. The great novelty is that these compensations may not be capped or consist of fixed amounts. At present, it is a widespread procedural practice in Spain to use the penalties provided for in the Law on Social Order Infringements and Penalties as a scale for these damages.

5.- The limitation period for cases of discrimination due to differences in pay may not be less than three years. It is currently one year.

6.- The possibility remains open that the social partners may be responsible for the application of this Directive, especially with regard to the tools or methodologies that measure the value of work in the terms of the Directive, and with regard to possible fines or financial penalties.

Awaiting transposition

In short, the transposition of Directive 2023/970 of the European Parliament and of the Council of 10 May 2023 into Spanish law will imply the appearance of new legal obligations that companies will have to comply with as early as mid-2026.

The Council of Ministers has approved a few days ago, at the proposal of the Ministry of Labour and Social Economy, the preliminary draft law for the transposition of Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on the introduction of transparent and predictable working conditions in the European Union.

The new law gives workers a new right to foreseeability, which means knowing in advance the essential working conditions and the criteria on the basis of which they may change. This right is introduced in Article 4 of the Workers’ Statute.

The obligation to provide written information on working conditions is strengthened

The employee must know his or her work pattern in advance. To this end, the employer is required to put employment contracts in writing, irrespective of their duration. This also applies to fixed-term contracts of less than four weeks, which until now were exempt from this obligation. In addition, written notification will be compulsory if the essential elements of the employment relationship are changed.

What are the essential working conditions to be included in contracts

These are the essential working conditions: the duration of the contract, the length of the working day and its distribution and the length of the probationary period.

The duration of the contract

If this mandatory information is not included in the employment contract, the employment contract is presumed to be indefinite and full-time.

The lenght of the working day

Any change in the number of hours worked is always voluntary for the employee. The employer may not unilaterally impose, for example, the conversion of a full-time job into a part-time job or vice versa, as well as the increase or reduction of hours in part-time work.

In the case of agreed additional hours, they must be announced at least three days in advance. This period may not be reduced by agreement. If these additional hours are cancelled without respecting this three-day period, the workers shall be entitled to receive the corresponding remuneration.

When a vacancy arises, any employee with at least six months’ seniority in the company is entitled to apply. In this way, priority will be given to existing staff when it comes to accessing better conditions, such as full-time working hours, longer working hours, permanent contracts, etc. The company must issue a reasoned written reply within 15 days or within a maximum of three months if the company has fewer than ten employees or one month if there are more than ten employees.

The probationary period

The trial period in the case of permanent contracts is limited to a maximum of six months for qualified technicians and two months for other workers. This time limit may not be extended in the collective bargaining agreement.

In the case of temporary and fixed-term contracts, if the contract is concluded for a period of six months or more, the probationary period may not exceed one month. In the case of shorter contracts, the probationary period shall be calculated in the same proportion.

Protection of moonlighting

Undertakings may not hinder moonlighting. They may not prohibit it, restrict it or treat any worker unfavourably on the grounds that he or she provides services to other companies.

Any restrictions will have to be well justified on objective grounds such as respect for business confidentiality or the avoidance of conflicts of interest, among other issues.

In recent times, new developments in the field of labour law are constantly taking place and companies are finding it very difficult to keep up with all the changes. For this reason, it is increasingly essential to have a good employment consultancy such as Confianz, made up of professionals who are specialists in this branch of law.

The last few years have seen a large number of legislative developments in the field of employment law, and 2024 looks set to continue to add new legal obligations for companies. In this article we will review some of the latest laws that have come into force and others that are about to come into force.

At Confianz Employment Law Department we keep our clients permanently updated on existing or developing procedures and duties to enable them to have a strategy that anticipates changes, eliminates the risk of sanction and protects the company’s reputation.

New rules that entered into force in 2023

Implementing an internal complaints channel

For companies with 50 employees or more, it is mandatory as of 1 December 2023 to have an internal whistleblower channel in place to enable employees to report breaches of the law in the professional field.

Leave to reconcile work and familiy life

Royal Decree-Law 5/2023 of 28 June introduced a package of reforms directly affecting work-life balance. It extended the adaptation of the working day, marriage leave for unmarried couples, paid leave from 2 to 5 days for carers, the new right to take four days paid leave from work due to force majeure, eight weeks’ parental leave to care for a child for more than one year, and the cases of objective nullity of dismissals when there is unfavourable treatment for exercising the rights to work-life balance or co-responsibility.

Breastfeeding leave of up to 28 days 

From 21 December 2023 it will be possible to take up to 28 days of cumulative breastfeeding leave.

Changes coming into force in 2024

Minimum wage increase 

In 2024, the minimum wage will rise by 5% to 1,134 euros in 14 annual payments. This increase has already been approved a few weeks into the year 2024, but it will be applied retroactively as of 1 January.

Intergenerational Equity Mechanism contribution rises

From January 2024 the SS contribution rate for the International Equity Mechanism increases from 0.6% to 0.7%. The company pays 0.58%, while the worker pays the remaining 0.12%. This rate will continue to rise by 0.1% until 2029, when it will reach 1.2%.

It is compulsory to register all trainees with the social security system

Since 1 January, it has also been compulsory to register and pay social security contributions for all trainees. Even if their internships are unpaid. The company is entitled to a 95% reduction for common contingencies.

Mandatory LGTBI harrassment protocol

From 2 March it will be compulsory for all companies with more than 50 employees to have a protocol for dealing with harassment or violence against LGTBI people.

Labour law developments announced for 2024

Reduction of working hours

Among the changes in labour regulations announced by the government for this year, the reduction of the maximum working week from 40 to 38.5 hours without a reduction in salary stands out for its significance.

New statue for trainees

The Ministry of Labour has announced that it will reopen the dialogue on the statute for trainees. This regulation aims to restrict the hours of internships according to their type, to compensate at least the costs of transport and meals, and to limit the presence of interns to 20% of the workforce per work centre.

In addition to these expected changes, we will have to keep an eye on the developments that are sure to take place in labour law in 2024.

Since the end of June, Royal Decree-Law 5/2023 of 28 June has been in force, the text of which includes the transposition of the European Union Directive on the reconciliation of family and professional life for parents and carers. For employers, the regulation introduces new grounds for nullity of dismissal, both objective and disciplinary.

Specifically, Royal Decree-Law 5/2023, of 28 June, amends articles 53.4 and 55.5 of the revised text of the Workers’ Statute Law. It does so with the aim of protecting the right of workers to take their work-life balance leave without being dismissed for doing so.

The fact of expressly amending these articles is not trivial. In this way, dismissal for having taken such leave is expressly elevated to the category of objective or automatic nullity. This means that if the company fails to prove that the dismissal is justified, it will be declared null and void.

Directive protecting parents and carers transposed

Directive protecting parents and carers transposed

This is a transposition of the European Directive 2019/1158 of 20 June 2019 on reconciling family and working life for parents and carers. In its Article 12 («Protection against dismissal and burden of proof»), this Directive expressly states that «Member States shall take the necessary measures to prohibit the dismissal and any preparation for dismissal of a worker on the grounds that he/she has requested or taken leave referred to in Articles 4, 5 and 6, or time off work referred to in Article 9».

What exactly do you mean?

• Articles 4, 5 and 6 refer to paternity, parental and carer’s leave of five days for illness or hospitalisation.
• Article 9 refers to flexible working arrangements.

New grounds for nullity of dismissal

In both objective and disciplinary dismissals, the renewed Workers’ Statute adds new grounds for nullity. Thus, dismissal is null and void for:

1. Employees during periods of suspension of the employment contract due to childbirth, parental leave or illness caused by pregnancy, childbirth or breastfeeding. Also when the period of notice granted ends within these periods.
2. Pregnant workers.
3. Persons who have requested the five days of paid leave due to serious accident or illness, hospitalisation or surgery without hospitalisation requiring home rest of the spouse, unmarried partner or relatives up to the second degree of consanguinity or affinity, including the blood relative of the unmarried partner, as well as any other person other than the above, who lives with the worker in the same home and who requires the effective care of the worker.
4. Persons who have applied for or are taking the leave referred to in the aforementioned Articles 4, 5 and 6.
5. Workers who have requested or are benefiting from the adaptations of working hours for reasons of reconciliation or the leave of absence provided for in Article 46.3.
6. Female workers who are victims of gender-based violence for exercising their right to effective judicial protection or comprehensive social assistance.

The changing labour regulations, which, as we have seen, directly affect the General Workers’ Statute, make it almost essential for most companies’ Human Resources departments to have external legal advice. At Confianz we can accompany you and avoid costly conflicts in time and money.

Until now, companies had a margin of two years to incorporate new employees into the company’s pension plan. However, from now on this incorporation will have to be practically immediate, within a single month of being hired on the payroll. This is set out in the recent Royal Decree 668/2023, of 18 July, which modifies the Regulation of pension plans and funds, approved by Royal Decree 304/2004, of 20 February, to promote employment pension plans.

This Royal Decree completes the regulatory development of the Law on Employment Pension Plans and promises to speed up the incorporation of workers into retirement savings vehicles. The measure, which affects large companies and SMEs alike, is designed for both existing occupational pension plans and new publicly promoted pension funds. The latter is the figure through which it is intended to promote pension savings in the company sphere.

Private pension plans are in short supply in Spain  

Savings in private pension plans in Spain are very small, especially compared to the volume saved in bank deposits.

If we look at the data for the end of the first quarter provided by the Association of Collective Investment Institutions and Pension Funds Inverco, we see that the vast majority corresponds to individual plans promoted by financial institutions (82,553 million euros and 7.35 million participants). Far behind are employment plans (35,200 million euros and 1.90 million participants), a type of private pension plan promoted mainly by large companies and the public administration.

Publicly promoted occupational pension funds

With the aim of boosting pension savings in companies, also in smaller companies, the publicly promoted occupational pension funds (FPEPP) have been created and will probably be implemented this autumn. These are their main characteristics:

• Their fees will be lower than those of individual plans, between 0.1% and 0.25% per annum.
• 500 million in these funds in three years, so they will have a volume that will allow them to access more sophisticated investment assets.
• Contributions may continue to be made in the case of partial retirement.
• Savers will be able to benefit from contributions made by companies through commercial programmes or sponsorship campaigns.
• Existing occupational pension schemes and simplified pension schemes can be subscribed to these new publicly promoted occupational pension funds.
• They will be managed through a digital platform that will make all the information available to promoters and workers.

How will its implementation work?

A few weeks ago, the Ministry of Inclusion, Social Security and Migration proposed awarding the management contract for these new publicly promoted occupational pension funds to five entities: VidaCaixa (CaixaBank), Gestión de Previsión y Pensiones (BBVA), Caser Pensiones, Santander Pensiones and Ibercaja Pensión.

Each of them will manage three FPEPPs with different risk profiles: one more conservative, one mixed and one riskier. It is these managers who decide which assets to buy for each investment vehicle. In total there will be 15 different options to choose from.

In short, these publicly promoted occupational pension funds aspire to consolidate themselves as an instrument of complementary social provision, giving a boost to social provision in the company.

The new Family Law brings important novelties in the field of labour law, as it establishes three new types of paid leave aimed at facilitating the reconciliation of family and work.

The three work permits provided for in the Families Act

The three work permits provided for in the Families Act

Until now, the Workers’ Statute only allowed two days of absence per year for very serious causes such as death, a complicated illness or an accident of relatives up to the second degree (grandparents, grandchildren or siblings).

The text created by the Ministry of Social Rights together with the departments of Finance and Justice transposes the European directive on work-life balance and provides for the following work permits:

Five paid days

The new law establishes that any worker may be absent from work for up to five days a year to care for a family member up to the second degree or for a cohabitant, whether related or not. This leave is paid and has the following conditions:

• The worker must give prior notice.
• The worker must justify the reasons for the leave, which include: serious accident or illness, hospitalisation or surgery without hospitalisation requiring home rest.
• The sick person’s relationship with the worker may be:
  • Spouse
  • Domestic partnership
  • Relative up to the second degree of consanguinity or affinity
  • Any other person other than the above who lives with the worker in the same household and requires his or her care.

Four paid days

In this case, it is a leave of up to four paid days per year for reasons of force majeure which the worker may take «when necessary for urgent and unforeseeable family reasons, in the event of illness or accident, which make his immediate presence indispensable».

The reason for the absence from work must be provided to the employer by the employee. This absence from work is intended, for example, to deal with the typical situation of a child who has to be picked up from school because he or she is ill. It can therefore be taken partially by the hour, as long as the sum does not exceed four working days.

In total, in addition to the five days’ paid leave seen above, the new law allows workers to take up to nine paid days off per year to care for children, partners, relatives or cohabitants.

Eight weeks parental leave

Finally, the regulation provides for parental leave of eight weeks per year until the child reaches the age of 8. This leave may be taken continuously or discontinuously, but for full weeks. As in the previous case, here the leave may also be part-time or full-time.

Unlike the previous ones, this is an unpaid leave designed, for example, to reconcile school holidays or during the period of progressive incorporation of the child into the nursery. The employee must specify the start and end date of the leave 15 days in advance to the company. In this case, it is an individual right of the parents, adoptive or foster parents, and cannot be transferred to the other parent.

The implementation of this leave will be gradual. If the law eventually comes into force in 2023, workers will be able to take six weeks of parental leave this year. In 2024, the full eight weeks of parental leave per year will be in place.

When will the new work-life balance leave come into force?

When will the new work-life balance leave come into force?

These three new discharges will not come into force until the Family Law passes through its final parliamentary procedure and is published in the Official State Gazette, something that may still be delayed for months.