Modification of working conditions in Spain
| Autor | Manuel Luque Parra - Anna Ginès i Fabrellas |
| Páginas | 50-61 |
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The Spanish labor reform of 2012 (introduced by the Decree 3/2012, February 10, and Law 3/2012, July 6, on urgent measures to reform the labor market) introduced important changes in, among others, the legal regime of the modification of working conditions. Specifically, as will be analyzed in further detail in this section of the Comparative Labor Law Dossier, increasing the employer’s faculties to unilaterally modify employees’ working conditions and allowing the modification of -in addition to wages- essential labor conditions regulation in collective bargaining agreements, with the aim of increasing internal flexibility and allowing companies to adapt working conditions to the economic situation (preamble of the RD 3/2012 and Law 3/2012).
As intended by the legislator with this labor reform, there has been an exponential increase in the number of modification processes of employee’s working conditions. The Survey of Collective Agreements shows that number of modifications of working conditions regulated in collective bargaining agreements tripled in 2013 in comparison with 2012, from 748 to 2.512.1Until November of 2014, the number of temporary modified collective bargaining agreements was 1.960, 91.5% of which modified the regulation regarding wages and/or the remuneration system. In this sense, according to the Third Monitoring Observatory of the Labor Reform,2wages have decreased, on average, 10% since the adoption of the 2012 labor reform.
Yes. In the Spanish legal system the modification of workers’ functions (functional mobility) is regulated in article 39 of the Worker’s Statute (ET, hereinafter).
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The formal/procedural and causal limits that must be observed by the employer to proceed to such mobility depend on whether it is a horizontal mobility (that is, when there is equivalence between the functions of origin and destination: for example, administrative assistant ? administrative) or vertical mobility (that is, when there is no equivalence between the origin and destination functions: for example: lawyer ? administrative).
In this sense, the employer has greater freedom to operate with respect to horizontal mobility, not requiring business reasons to justify its decisions and allowing a permanent modification of functions (articles 20 and 39.1 ET). Nonetheless, to perform a vertical mobility, article 39 ET requires the existence of an appropriate technical or organizational cause and it requires modifications to be temporary; when the mobility is descending (for example, lawyer ? administrative) courts don’t usually accept the modification of functions to exceed 2 or 3 months.
In spite of what is said in other answers, the Spanish legal system does not recognize the right of workers affected by a functional mobility to terminate their employment relationship and obtain an economic compensation. If the worker opts for terminating its labor contract, he/she is not entitled to compensation nor has the right to unemployment.
Yes. In the Spanish legal system we must distinguish 4 types of geographic mobility in terms of the causal and/or formal legal limits that the employer must observe for the decision to be correct.
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Temporary or indefinite geographical mobility that doesn’t involve a change of residence. Imagine the case of a shopkeeper that the company decides to locate him/her in a different store but in the same city.
In this case, the Spanish rule (article 20 ET) does not require the employer to justify its decision causally and it is not limited in time. In this case, if the employee terminates his or her employment relationship, he or she will not be entitled to any compensation or unemployment benefits.
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Geographical mobility involving a change of residence that does not exceed 12 months in any period of 3 years. Imagine the case of an industrial engineer that has
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been employed for several years in Barcelona for a telecommunications company and the company wants to move him or her for 3 months to Seville.
This case is qualified by article 40.3 ET as «displacement» (desplazamiento) and requires the company to claim economic, technical, organizational or production reasons to justify it. Continuing with our example, the cause would exist if the work center of Seville has been recently created and is required the presence of an experienced engineer during the startup period.
In cases of «displacement», the employer must inform the employee giving notice of no less than 5 working days and must bear the relocation costs. Furthermore, the worker has the right to a paid leave of 4 working days in his/her old residence when the displacement is for more than 3 months.
As with the first case of geographical mobility analyzed and unlike the remaining two, if the employee terminates his or her employment relationship, he or she will not be entitled to any compensation or unemployment benefits.
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Geographical mobility involving a change of residence permanent or for more than 12 months over a period of 3 years, and that does not affects a group of workers. Imagine the same example of the industrial engineer that provides services in Barcelona, but -in this case- the company wants to transfer him or her to Seville for 2 years.
The geographical mobility that requires involving a change of residence permanently or for more that 12 months in 3 years is called, in the Spanish legal...
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