Slides Labor Law

LESSON 1
LABOUR LAW
INTRODUCTION. SCOPE
Branch of the Law which covers all the principles,

rules and provisions governing industrial relations.
Divided into (main components):
Individual Labour Law: whose subjects are employer
and employee (worker), and its basics institutions are
the contract of employment and individual employment
relationship.
Collective Labour Law: legal regulation of trade unions,
employers associations, workers representatives,
collective bargaining and industrial disputes.
INTRODUCTION. SCOPE
Also includes other blocks of provisions, governing:
The labour market and the placement on it (Derecho del Empleo)

State intervention in industrial relations (D Administrativo Laboral)
The legal procedure for labour cases (D Procesal Laboral)
The social security (can be considered an independent branch or
not)
Main Functions:
To protect the rights of workers as the weaker party of the

contract of employment
To confirm the legitimacy of the subjects of industrial relations
(workers and employers organizations)
To establish a balance between the interests of these subjects and
those of the rest of the community (regulation of scope and
bounds of industrial conflict)
HISTORICAL DEVELOPMENT
Specific regulation of labour: recent phenomenon

ANTIQUITY AND MIDDLE AGES:
INDUSTRIAL REVOLUTION (late 18th-early 19th): generalization

of paid labour:
Personal bonding systems (slavery and servitude)

Emergence of artisans/craftsmen and guilds
Change in property of means of production and separation between

labour and capital
Changes in the way or organizing work: from craftsman shop to factory
(principles of division of labour, specialization and hierarchy)
Alienation of individual workers and radical transformation in structure of
working class
Higher benefits for employers depends on lower costs (including
manpower cost): natural disputes of interest
In Spain, take-off period of industrial revolution, over the 1860s
Throughout 19th CENTURY: application of liberal ideology the

individualism/laissez-faire
doctrinesto
employment
relationship:
Application of basic liberal principles: freedom of work and the

autonomy of will
Use of contract of lease of services: free agreement of wills between
two men formally free and equal, without state intervention
Organizations seen as interfering in workers freedom of work and
markets freedom: in Spain, criminal prohibition (1848)
Effects:
The employer, as owner, had full control of the work, the workplace
and the worker
Freedom without equality: inequality, insecurity and lack of voice ->
exploitation and poverty of workers
Deep social unrest -> Emergence of workers social question (social
awareness) and labour movement -> General Associations Act 1887
LATE 19th-EARLY 20th: first modern labour law

enactments:
State intervention caused by social justice reasons and
pressure of labour movement > limits to employers power
in the determination of the provision of work
Birth of unequal labour law: with an unequal treatment,
unequal situations will be compensated/balanced -> isolated
rules preventing particularly odious exploiting conditions
(work of women and minors, accidents)
Abandonment of contract of lease of services and legal
regulation of contract of employment, but in a limited way:
Cdigo de Trabajo 1926
SECOND REPUBLIC: culminates Labour Law creation (as a

special branch of the Law, systematized and consistent, with
common and congruent principles) through:
Constitucin Espaola de 1931 and Ley de Asociaciones

Profesionales de 1932: both recognize rights of association and
unionization
Ley de Contrato de Trabajo de 1931: regulates contract of
employment, collective bargaining, strike and lockout
FRANCO DICTATORSHIP (1939-1975):
1st phase: total abolition of democratic model of industrial

relations
2nd phase (from 50s on): timid opening: particular recognition of
some collective rights
POLITICAL TRANSITION after Francos death:
Process of institutional change (Ley de Reforma Poltica 1977). Begins

the restoration of industrial relations system based on democracy and
participation of workers
Constitucin Espaola de 1978: sets up a Social and Democratic State of
Law -> constitutional recognition of freedom of association, collective
bargaining, collective disputes
Major transformation of individual employment relationship: get rid of
influences of the autocratic system: Estatuto de los Trabajadores de 1980
-> introduces limits to contractual freedom by establishing mandatory
terms from which the parties cannot deviate
Assumption of international labour standards in national laws
LATE 20th-EARLY 21st: evolution of Labour Law:
Conditioned by the incidence of political, economical and social factors

Trends towards more flexibility and liberalism in labour relations
CURRENT SITUATION AND CHALLENGES:
Redefinition of the purposes:
Analysis of effects of labour regulations on labour market, economic situation

and competitiveness : to strike the right balance between employee protection
and economic efficiency -> flexicurity?? ->
Use of more flexible forms of work organization and management of
workforce: business groups, outsourcing (contract and subcontract, companies
for temporary work), telecommuting, flexibility within the employment
relationship
New division of roles between law, collective agreements and contract of

employment: although 20th Century was a period of continuous growth of
employment legislation, the last decades are characterized by its crisis
(1994 Reform and 2012-13 Reform)
Challenges:
Reduction in rate of temporality and precariousness (part-time contracts,

contracts for training or for work practice) and rate of unemployment
Migration
Effects of economic globalization and incidence of EU provisions
SOURCE: EUROSTAT
2012
2013
ESPAA: 23.6
23.1
FRANCIA: 15.2
16.4
ALEMANIA: 13.9
13.4
POLONIA: 26.9
26.9
2011
2010
2009
2008
2007
ESPAA: 25.3
ESPAA: 24.9
ESPAA: 25.4
ESPAA: 29.3
ESPAA: 31.7
FRANCIA: 15.2
FRANCIA: 15.0
FRANCIA: 14.3
FRANCIA: 14.9
FRANCIA: 15.1
ALEMANIA: 14.7
ALEMANIA: 14.7
ALEMANIA: 14.5
ALEMANIA: 14.7
ALEMANIA: 14.6
POLONIA: 26.9
POLONIA: 27.3
POLONIA: 26.5
POLONIA: 27.0
POLONIA: 28.2
SOURCE: EUROSTAT
2008 to 2013
SOURCE: EUROSTAT
2007 to 2013
Encuesta de Poblacin Activa

(EPA)
Cuarto trimestre 2014
Current challenges?
Professor Rojo Torrecillas opinion, 2014:
A) Labour legislation should protect all working people, but principally those who are in difficult situation on the labour
market.
(B) The right to work has never been a brake to allow the development of entrepreneurial activity committed with a
social, cooperative economy with the participation of the staff.
(C) To invest in training is one of the keys of any proposal to improve the situation, because only well-trained people
are able to adapt to economic and social changes.
D) Searching for a model of company which does not abdicate the achievement of positive economic results but which
allows a better distribution of the benefits should be a basic reference point of a socially progressive policy.
(E) It is essential to bet on a model of "flexibility" in which the security of people who have a job should be properly
combined with the protection of those who try to find it.
(F) To regulate social protection mechanisms that allow everyone to have a reasonably good life after retirement. Or to
write it in clearer language: decent retirement pensions.
(G) We must remember the origins of labour law to understand the importance of the preceding proposals.
(H) To foster or promote a labour law reform which does not bring unbalanced labour relations to the clear detriment
of workers and their organizations. The best labour relations are those which are based on the agreement and social
dialogue, and the best companies, and more socially responsible, are those having a well trained, motivated and
permanent staff.
I) Labour legislations contribution to economic growth and the improvement of the levels of employment and
reduction of the levels of unemployment is less important than the economic reforms contribution.
LESSON 2
SOURCES OF LABOUR LAW
SOURCES OF LABOUR LAW
Art 3.1 ET: rights and duties relating to employment

relationship shall be governed:
By the laws and executive rules and regulations of the
State
By collective agreements
By the will of the parties, shown in the contract of
employment
By the local and professional habits and customs
It doesnt include a complete list:
Spanish Constitution, International Law, European Law,

rules of the autonomous regions
1. SPANISH CONSTITUTION 1978
Source of sources:
It is a rule that orders the system of sources of the
Spanish legal system: it rules the rest of the sources
It is also a direct source of law: a rule of law that must
be respected by the other rules (it binds the legislature)
and has direct effect (it binds the judiciary)
Articles 1.1 and 9.2 SC: Welfare State: a concept

of government where the State plays a key role in
the protection and promotion of the economic and
social well-being of its citizens
SPANISH CONSTITUTION 1978
LABOR RIGHTS IN THE SC
FUNDAMENTAL RIGHTS AND PUBLIC LIBERTIES (Arts.

14 to 29: Part I, Chapter II, Section 1)
Specifics: 25.1 (only for inmates), 28.1, 28.2
Non specifics
Features:
Direct applicability: its recognition binds the public powers
Organic Law
Summary and preferential appeal before ordinary Courts
Individual appeal for protection (recurso de amparo)
before Constitutional Court
RIGHTS AND DUTIES OF CITIZENS (Arts. 30 to 38:

Part I, Chapter II, Section 2)
About Labor: 35.1, 37.1, 37.2
About Capital: 33.1, 38
Features:
Direct applicability: its recognition binds the public
powers
Ordinary legislation
Ordinary protection
PRINCIPLES GOVERNING ECONOMIC AND

SOCIAL POLICIES (Arts. 39 to 52: Part I, Chapter
III)
Features:
Many are mandates to legislature, containing
programmatic rules (set up purpose but not means)
Need a minimum legal development for application:
Ordinary legislation
Ordinary protection (but can only be applied in
accordance with the provisions set forth in their legal
development)
2. INTERNATIONAL SOURCES
At international level, three sources of production

of labor rules:
Direct negotiation between States: treaties or bilateral
and multilateral conventions
The action of international or regional organizations
(UN, ILO, Council of Europe)
The action of supranational organizations (EU)
INTERNATIONAL LAW
International regulation of labor is a necessary

condition for the existence and development of
national labor laws:
Is a means of equalizing burdens and reducing
inequalities between States: application of identical rules
when possible
It has happened because of the participation of working
class: Pressure of workers organizations: During WWI,
trade unions insisted on being heard at the time of the
settlement of peace (Part XIII of the Treaty of Versailles
1919: Constitution of the ILO)
A) INTERNATIONAL LABOUR
ORGANIZATION (ILO)
Aims and purposes (Philadelphia Declaration

1944):
Labor is not a commodity
Freedom of expression and association are essential to
sustained progress
Poverty constitutes a danger to prosperity everywhere
War against want requires to be carried on within each
nation and by continuous and concerted international
effort in which representatives of workers and employers
and governments join them in free discussion and
democratic decision with a view to the promotion of the
common welfare
INTERNATIONAL LABOUR
ORGANIZATION (ILO)
Characteristics:
Specialized agency associated with the UN since 1946
Tripartite:
Governments
Workers
Representatives
Employers
representatives
ILO
ORGANIZATION (ILO)
ILO has maintained and developed a system of international labor

standards (ILS)
INTERNATIONAL LABOUR STANDARDS BY SUBJECT

Purpose: To promote balanced economic and social progress
Sometimes, ILS prevent Governments from adopting retrograde measures,
particularly in times of crisis
Can serve as a general guide and as a source of inspiration to
Governments by virtue of their authority as texts adopted by a tripartite
assembly of nearly all countries of the world.
Where and how? Through Conventions and Recommendations
ILO Declaration on Fundamental Principles and Rights at Work 1998: all

member countries have an obligation to respect fundamental principles,
whether or not they have ratified relevant conventions Key document Declaracin de la OIT relativa a los principios y derechos
fundamentales en el trabajo de 1998
ORGANIZATION (ILO)
ILO sources of international law:
CONVENTIONS: instruments designed to create

international obligations for the States which ratify
them. Specific features:
Are
adopted within an institutional framework

A two-thirds majority is sufficient for their adoption
Governments should submit the Convention to their
competent authorities for ratification (in accordance with its
internal procedures for adoption of international treaties
art. 94.1 SC)
RECOMMENDATIONS: instruments that serve to guide

government action, but its application is not mandatory
ORGANIZATION (ILO)
Core Conventions:
Freedom of association and collective bargaining
(Conventions nos. 87 and 98)
Forced Labour (Conventions nos. 29 and 105)
Non-discrimination in employment (Conventions Nos.
100 and 111)
Child labor (Conventions nos. 138 y 182)
B) UNITED NATIONS INSTRUMENTS
General scope:
Universal Declaration of Human Rights 1948: Arts. 4, 20, 22,
23, 25, 28
International Covenant on Economic, Social and Cultural Rights
1966: Art. 22
International Covenant on Civil and Political Rights 1966: Arts
6-9
Legally binding conventions concerning labor matters:

Convention on the elimination of all forms of racial
discrimination 1969
Elimination of all forms of Discrimination against Women 1979
Rights of the Child 1989
C) REGIONAL INSTRUMENTS
At the European level, a number of regional

organizations created after the end of II WW have
adopted legal instruments on labor matters:
Council of Europe (1949):

European
Convention for the Protection of Human Rights and

Fundamental Freedom 1950: recognizes the right not to be
required to perform forced or compulsory labor and the right
to create trade unions -> ECHR
European Social Charter 1961 (revised in 1988): recognizes
the right to collective action in case of conflicts of interest,
including the right to strike -> ECSR
European Convention on the Legal Status of Migrant Workers
1977
3. EUROPEAN UNION
TREATY OF ROME
1957 (EEC)
Single European Act

1961
Maastricht Treaty
1993 (TREATY ON
EUROPEAN UNION)
+ Social Policy
Agreement
Treaty of Lisbon
2007: TREATY ON
THE FUNCTIONING
OF THE EUROPEAN
UNION
Treaty of Nice 2001

+ Charter of
Fundamental Rights
Amsterdam Treaty
1997
MOST IMPORTANT EU PRIMARY LAW
Treaty on the EU:
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:201
0:083:0013:0046:ES:PDF
Treaty on the Functioning of the EU:
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:201
0:083:0047:0200:es:PDF
EUROPEAN UNION LABOUR LAW
How does it work?
The role of the European Union (EU) is to support and complement the activities of
the Member States in the area of social policy:
The EU adopts legislation defining minimum requirements at EU level in the fields of

working and employment conditions and the information and consultation of workers.
The Member States then transpose the Community law into their national law and
implement it, guaranteeing a similar level of protection of rights and obligations
throughout the EU
National authorities, including courts, are responsible for the enforcement of the
national transposition measures
The European Court of Justice (ECJ) plays an important role in settling disputes and
providing legal advice to questions formulated by national courts on the
interpretation of the law
Early cases in the ECJ established the supremacy of European

Union Law over national law.
EU SECONDARY LAW
Main instruments:
Regulations: tend to be of a broad nature and are directly

applicable in all Member States
Directives: legislative instruments that require a Member State to

translate (transpose) the contents of the Directive into national law
within a certain period. Purpose: harmonization on working
conditions: are binding as to the results to be achieved
Free movement of workers, social security and other measures for migrants, creation of European
Social Fund, vocational training and employment policy
Equal treatment, maternity protection, collective redundancies, transfer of workers, insolvency, safety
and health, working hours, parental leave, temporary work and part-time work
Decisions: must be followed only by those to whom they are

addressed (Member States, individuals or companies)
4. NATIONAL LEGISLATION
LAWS (ACTS):
Enacted by Parliament: Organic and Ordinary Laws

Differ
because of the subject and the passing procedure
Approved by the Government:

Royal Law-Decree in case of extraordinary and urgent
need (art. 86 SC)
Royal Legislative Decree, after Delegation by the
Parliament of the power to give rules with the force of an
act of the legislature (art. 82 SC):
Through establishing the basic outlines of the enactment

Through authorizing the Executive to recast several acts in one
text
5. NATIONAL LEGISLATION
EXECUTIVE RULES AND REGULATIONS:
Rules approved by the Government:

Decree
(Council of Ministers) and Ministerial Order

(Minister)
In labor issues, limited role: only development and

technical implementation of the Law
Material or
formal reserve of law: principle of monopoly

of formal act
Art. 3.2 Estatuto de los Trabajadores (ET)
6. REGIONAL LEGISLATION
Very limited role in labor issues

Why? Art. 149.1.VII Spanish Constitution:
The state holds exclusive competence over the following matters:

VII. Labour legislation without prejudice to its execution by the
bodies of the Autonomous Communities
AC have no original, transferred or delegated power to legislate
in labor matters: labor law is the same and unchanging, with no
regional differences
Only execution: implementation of State laws and

regulations :
competence to develop rules of economic or social content but

without direct effect in the regulation of the employment
relationship:
employment policy (subsidies), creation of administrative organs

which perform executive functions
7. COLLECTIVE AGREEMENTS
Constitutional recognition: art. 37.1 SC

CONCEPT: an arrangement or agreement between:
in one hand, a Company or one or more employers
organizations and,
on the other hand, a collective representation of workers
(trade unions or workers representatives)
In order to regulate for a certain sphere the content

of the contracts of employment the working
conditions-, and also the rights and duties of the
signing parties.
It is an hybrid: with soul of law but body of contract
COLLECTIVE BARGAINING SYSTEM

A) COLLECTIVE AUTONOMY
Material Source
B) COLLECTIVE BARGAINING
Process
C) COLLECTIVE AGREEMENT
Formal Source
COLLECTIVE AGREEMENTS
Types of collective agreements in Spanish legal system:

Statutory (regulated in ET): with normative force and general
effectiveness
Automatic application
Mandatory application
Under principles of publicity, hierarchy, iura novit curia,
modernity in succession
Extra-statutory (do not derive from ET rules or do not pay
attention to its formalities and proceedings): with contractual
force and limited effectiveness
Company agreements: in the absence of statutory agreements
and more informal
8. OTHER SOURCES
LOCAL AND PROFESSIONAL CUSTOM: art. 3.1ET:

uses and customs in a reduced area and for a
particular type of work
Custom emanates from constant and accepted
application of a rule, neither formally enacted nor
contained in a collective agreement
Requirements:
Not contrary to morals or to public order
Duly proved
Application: subsidiary (if there is no legal rule applicable) or
when specific call to custom
LESSON 3
SOURCES OF LABOR LAW: APPLICATION
THE SYSTEM OF SOURCES OF LABOR

LAW
COMPLEX FRAMEWORK OF SOURCES OF LABOR

LAW:
Abundance
Constant mobility/change
Different nature and origin
Different scope
GENERAL CRITERIA FOR SYSTEMATIC

ORGANIZATION:
Principle of hierarchy of norms
Principle of succession of norms
APPLICATION OF SOURCES:
CONCURRENCE OF NORMS
CONCURRENCE OF NORMS:
a plurality of legal rules

impinges simultaneously on a particular relationship tending to regulate it.
If it is problematic, we must use the:
General principle of hierarchy:
WRITTEN
LAW
CUSTOM
GENERAL
PRINCIPLES OF LAW
HIERARCHY AMONG THE WRITTEN LAW:

SC and EU Law
International Treaties and Conventions
Laws and other provisions with the force of law
Executive regulations
Collective agreements
Contract of employment
PECULIARITY: EXISTENCE OF MINIMAL RULES:
Certain labor rules, despite their higher rank and due to

their status as minimum rules in front of others of lower rank,
allow the application of the latter when they are more
favorable for workers
NATURE OF NATIONAL RULES
MANDATORY RULES OR RULES OF NECESSARY LAW:

ABSOLUTE: no modification allowed in any way
RELATIVE: rule modifiable only in one sense
MINIMUM:
provision can be improved for the benefit of
workers
MAXIMUM: provision does not support improvement but
worsening
NON MANDATORY LAW:

Modification allowed in any way, to get better or worse
regulation
Allowed to collective agreement or contract of employment
RELATIONSHIP BETWEEN RULES:

National and International/supranational legislation :
principle of primacy/supremacy (unless minimal)
National rules: Laws and Executive regulations : art. 3.2
ET
National rules and Collective Agreements : depends on
nature of national rules
Between Collective Agreements : art. 84 ET
Contract of Employment and National rules / Collective
Agreements : art. 3.1.c) ET
DURATION AND REPLACEMENT OF

LABOUR LAW RULES
SUCCESSION OF NORMS:
Labor rules come into force on the date they establish
They are immediately effective: applicable to future
relationships but also to those already created, about
their subsequent effects
Succession over time cannot be problematic because:
Subsequent
laws repeal the previous laws

After a collective agreement comes into force, the previous
one ceases to apply (forfeits its legal force)
But new law or new agreement may be more or less

favorable-> labor rules are reversible in peius
THE ROLE OF THE CONTRACT OF

EMPLOYMENT (REGULATORY ROLE)
Individual autonomy (the will of the parties) plays a

regulatory role in employment relationship ->
parties to the contract of employment may stipulate
working conditions relating to their relationship
Relation between individual autonomy and sources
of labor law: art. 3.1.c) ET
Aim: to ensure employees acquisition of rights foreseen by
compulsory law
Contract can only provide more favorable conditions than
the legal, regulatory or conventional minimum

THE PRINCIPLE OF THE MOST BENEFICIAL

CONTRACTUAL CONDITIONS (MBCC): art. 3.1.c) ET and
jurisprudence
MBCC are unaffected by the employer and remain even if
rules under which they were born change
Requirements:
Conditions
arising from the contract (express or implicit way)

=>voluntary and unilateral concession of the employer (not mere
tolerance)
Conditions: permissible and not less favorable or contrary to the
law and collective agreements.
If so, they are null and void and replaced automatically by

appropriate legal provisions

MBCC:
Duration:
Its
effective and endures as the parties otherwise agree

It cant be unilaterally removed by employer without a cause
Modification and suppression:

By
agreement of the parties

By the way of substantial change in working conditions at
the request of the employer (art. 41 ET)
By the play of compensation and absorption
THE INTERPRETATION OF LABOR LAW
Criteria for the interpretation of Labor Law: art. 3.1

Civil Code:
Literal
Systematic
Historical
Purposive or teleological
General principle: In dubio, pro worker
Subsidiary nature: only if the meaning is not clear

under the general interpretative criteria
CASE LAW
Courts dont have the power to legislate but to resolve disputes

according to specific rules or sources of objective Law.
Its role is purely to judge and to execute judgements (art. 117 SC)
The Court decision only binds the parties.
The Jurisprudence (legal doctrine of Supreme Court included in the ratio
decidendi of its decisions, not in obiter dicta) is not a source of law.
But the Supreme Court interpretation of the Law is added to the

law as an indivisible whole, creating the expectation that future
cases will be decided by each Court according to this
interpretation.
Principle of Equality art. 14 SC

Violations of this Jurisprudence allow us to appeal against decisions of Social
Courts before the Supreme Court, asking for a conviction to be quashed or
annulled.
LESSON 4
THE WORKER
THE CONTRACT OF EMPLOYMENT:

CONCEPT
What is a contract of employment?

The
contract of employment is the contract

that rules the relation between an employer
and a worker/employee
It
is an agreement between 2 people, through which

one of them (the worker/employee) agrees to do
subordinate work and the other (the employer) to
pay a guaranteed wage => art. 1.1 WS
Cause: exchange between work and remuneration

OBJECT
PERSONAL
OBLIGATION
CONSENT OR
WILLINGNESS
SUBORDINATION
SPECIFIC
TYPE OF
WORK
AJENIDAD
REMUNERATION

ELEMENTS OR FEATURES
ELEMENTS OF A CIVIL CONTRACT OF
LEASE OF SERVICES (art. 1261 and
1544 Civil Code)
ELEMENTS OF A CONTRACT OF
EMPLOYMENT (art. 1.1 WS)
Consent or willingness
Consent (no forced labor)
Object
Object
Cause
Cause
Personal obligation
Remuneration
Personal obligation
Remuneration
Ajenidad
Subordination

SPECIFIC ELEMENTS
AJENIDAD: the employee is alien to/separated from:

the means of production,
the results of his/her work,
the economic benefits or profits,
the risks
and/or the market
SUBORDINATION: Subordination to the employers

powers of direction and discipline. The employee works
within the area of organization and direction of the
employer.
Its degree depends on the characteristics of the activity and

the kind of workplace occupied.
PROBLEMS OF LEGAL SPECIFICATION:

DUE TO
Very little precision of the basic elements or features:
Subordination: depends on characteristics activity and kind of workplace
Ajenidad: problems to identify it when working on commission basis,

performance-related payments, profit-sharing compensations
Coexistence of similar contracts (contratos vecinos):

contract of society, execution of work, lease of
services...
Malicious will of the parties, seeking to hide the
existence of a contract of employment

CRITERIA TO OVERCOME
Irrelevance of the job description made by the parties

SYSTEM OF EVIDENCE or SIGNS/HINTS: about the
presence of the basic elements of the contract of
employment: they preferably act in a positive sense
A) Personal nature of the services provided:

Whether
or not replacement is allowed
B) Ajenidad (hints):
Fixed
and regular remuneration (amount and manner); nonparticipation in loss or expenses; failure to provide the means or
instruments of work; the non-appropriation of the result of the
work; etc.

CRITERIA TO OVERCOME
C) Subordination (hints):
Regular
attendance to a workplace; submission to working

hours or timetable; existence of orders and instructions of the
employer; exclusivity or frequency; uniform in the presence
of costumers; the need to tell the employer about the work
carried out; the exercise of disciplinary power, etc.
Article 8 WS: Presumption of Workability

Extralegal factors: public opinion pressure, peer
pressure
EXCLUDED RELATIONS: TWO TYPE OF

EXCLUSIONS (art. 1.3 WS)
DECLARATIVE
When one of the basic
elements of the contract
of employment is
missing: art. 1.3 WS
Absence of any of the
basic elements: DF 1
WS: self-employment
(Act 20/2007, July 1st)
CONSTITUTIVE
They are real labour

relations -with all basic
elements of the contract
of employment-, but
legally excluded (due to
reasons of legal policy):
art. 1.3 WS (exhaustive
list)
WHO IS NOT A WORKER FOR THE WS?

ART. 1.3 WS
a) Civil servants, as well as employees of the State, local

corporations and autonomous public entities when regulated by
administrative or statutory norms.
b) Compulsory personal services.

c) Advisors or members of administrative organs of
corporations:
Those whose activity is limited to holding the office of advisor.

What happens when they carry out additional tasks?
d) Friendly workers (work carried out for friendship, goodwill or

neighborly relationship reasons)
The friendly character must be demonstrated

Independent of the profitable or altruistic nature of the employer

ART. 1.3 WS
e) Family workers,
Rebuttable presumption: unless a condition of wage-earning can be

proven.
Concept of relative
f) The activity of people who take part in commercial

transactions on behalf of one or more employers, whenever
they assume the risks of it:
Distinction from Trade Representative with special employment

relationship.
Agency contract Law (Act 12/1992): distinguishing features: own

organization and absence of dependent work
g) Final Clause + Carriers: open list

ART. 1.3 WS
The work of Carriers (transportistas): Art. 1.3 g)

WS:
This is not an absolute exclusion, it does not affect all

providers of transport services but only those who make
the service complying with 3 features:
They
hold appropriate administrative authorization (shuttle

service)
They must be the owners of the vehicle, or have direct
disposal of it;
It must be a commercial vehicle of public service
SPECIAL LABOUR RELATIONS. ART. 2 WS
Despite the presence of basic elements, they have a

specific legal regime, different than that provided
by WS.
Open list where any other work expressly declared
by law as special labour relation could be added.
List of art. 2 WS:
a) Senior management: RD 1382/1985, August 1st.
b) Domestic employees: RD 1620/2011, November
14th.
c) Prisoners in penal institutions: RD 782/2001, July
6th.
SPECIAL LABOUR RELATIONS. ART. 2 WS

d) Professional athletes: RD 1006/1985, June 26th
e) Performing artists: RD 1435/1985, of August 1st
f) Subordinate trade representatives: RD 1438/1985, of
August 1st
g) Disabled people who work in special employment
centers: RD 1368/1985, of July 17th
h) Dock workers
i) Others: Doctors in residence (RD 1146/2006), lawyers
in law firms (RD 1331/2006), inmates in juvenile
detention centers
TO SUM UP: CONTRACT OF EMPLOYMENT:

SUBJECTS
THE WORKER / EMPLOYEE:
Art. 1.1 WS + art. 2 WS art. 1.3 WS
Person who voluntarily provides their services for another person (the
employer), within the area of organization and direction of the latter
in exchange for payment, or who has been explicitly included among
the special labour relations on article 2 ET, and who has not been
subject to a statutory exclusion
THE EMPLOYER:
Article 1.2 WS in relation to 1.1 WS
The person or entity, or community of assets, receiving the services of

employees as well as of those hired by a TWA (Temporary Work
Agency) to be placed on a temporary basis at the disposal of an
other company
LESSON 5
THE EMPLOYER
THE EMPLOYER - CONCEPT
ART. 1.2 WS:

The
person or entity, or community of assets,

receiving the services of workers, including workers
recruited by a TWA (Temporary Work Agency ETT in
Spanish) to be placed on a temporary basis at the
disposal of an other company:
The
employer supervises organization and direction and

has the control and capacity of decision over resources of
the company
Whether there is a direct relationship with the employee or
through a TWA
The notion of employer for Labour Law

and Commercial Law is different
The distinction between company,

workplace or autonomous productive unit
COMPANY
No definition in WS, but frequent references with different

meanings:
WORKPLACE (ART. 1.5 WS)
Subjective sense: employer, as one of the parties of the contract of

employment (arts. 22.1; 39.4; 40.4 WS)
Objective sense: a place, an organization of material and human
resources directed by the employer in order to obtain an end, that is, the
provision of goods or services (art. 1.1 WS)
Technical unit of production (differ from workshops, warehouses)

Specific organization within the general organization of the
company
Registered within the Labour Authority: formal requirement
AUTONOMOUS PRODUCTIVE UNIT (ART. 44 WS)
Problematic identification
Problems for the identification of the

Employer and distribution of liabilities
Why it is important to determine who is the
Employer?
SOLUTIONS:
A)
Jurisprudence answers: Business groups

Legislative responses:
B)
Contract and subcontract of works and services:

Art. 42 WS
C) Prohibition of illegal transfer of workers: art.
43 WS
D) The transfer of Businesses: art. 44 WS
A) BUSINESS GROUPS
Characteristics: Two or more formally independent

companies
Types of BG:
that exchange work in a coordinate way and adopt joint

decisions
which can have a unitary organization and management
but they lack legal personality as a group
Horizontal coordination: coordination criteria
Vertical coordination: subordination criteria: one entity has a
dominant position over the others
Problem:
Who assumes liability for workers rights, when a company

fails to meet its obligations with its workers? Only the
company that is the signatory party of the contract of
employment or also the others?
JURISPRUDENCE ON BUSINESS GROUPS
General idea: every company acts like an independent

company and assumes all responsibilities that derive
from contracts of employment
But in order to guarantee more protection to workers:
Sometimes, joint and several liability of group members
Why? considering the group as a sole employer
Premise and/or consequence: worker can address any
member of the group or all of them to demand the
observance of the contract of employment
When? Doctrine of lifting the veil of legal personality
JURISPRUDENCE ON BUSINESS GROUPS:

SHARING LIABILITIES
When? (vid. STS 10 June 2008, RJ\2008\4446)
In case of confusion of activities and corporate assets:

Lack
of economic independence: financial grouping of assets

A sole employer who owns the results of the work done by
employees
In case of confusion of workers (joint staff)

Workers
develop their services in various companies of the
group
If action of Company managers resembles that of a sole

employer
If
they act under a semblance of unity or like a sole company

Companies receive the same orders, directions or criteria
B) CONTRACT AND SUBCONTRACT OF WORKS

AND SERVICES
Concept of contract and subcontract: Art. 42 WS

MAIN COMPANY
(COMITENTE)
CONTRACT
FOR
EXECUTION
OF WORKS
AND
SERVICES
CONTRACTOR
COMPANY
(CONTRATISTA)
CONTRACT
OF
EMPLOYME
NT
WORKER
CONTRACT AND SUBCONTRACT OF WORKS

AND SERVICES
Company liabilities in art. 42 WS:

Scope
of art. 42: own activity of the main

company
Criterion of Essential:
Activity
that must necessarily be performed, by contractor

or by main company -> it includes additional tasks
Criterion of
Activity
inherent in:
that is inherent in the productive process: set of

normal operations which are entirely necessary to get a
result

AND SERVICES
Liability regime of art. 42 WS: Scope:
Type of responsibility: joint and several liability (arts.

1137 ff. CC): the main company is responsible for certain
obligations of the contractor to its employees
REMEMBER:
Only in case of own activity
Type of obligations to which it extends: wages (not

extra-salary complements) and social security (art. 42.2
in fine)
For how long can this liability be required? Limits
Exclusion of liability (art. 42.2 2nd): declarative exclusion
Its a responsibility in chain: STS 9 July 2002

AND SERVICES
Exoneration of responsibilities: art. 42.1 WS (social

security obligations)
Other responsibilities:
Subsidiaria in social security: art. 127.1 LGSS
Administrative liability in risk prevention: arts. 24.3
LPRL and 42.3 LISOS
Duties of information and consultation:

Main Company: art. 42.4 WS
Contractor or subcontractor: art. 42.3 and 42.5 WS
Subcontracting in Construction Sector: special rules
Law 32/2006 and RD 1109/2007: limits in the chain
C) ILLEGAL TRANSFER OF WORKERS
Concept of transfer:
Placing workers under contract with the object of hiring them
out on a temporary basis to other companies in order to cope
with the needs of the market
Traditionally has been prohibited by labor legislation: art. 43
WS: hiring workers and transferring them to other company
It is only permitted to Temporary Work Agencies (Law
14/1994 LETT-)
Cases of illegal transfer:
Through TWA:
In forbidden cases (arts. 6 and 8 LETT)
Through contract between assignor (cedente) and assignee

(cesionario): Art. 43.1 WS
Existence of an apparent employer (vid. STS 2 October 2007)
Direct and exclusive transfer of workforce
ILLEGAL TRANSFER OF WORKERS
Consequences of illegal transfer:

Work-related:
art. 43 WS
Art.
43.3 WS: Joint and several liability between assignor

and assignee
SCOPE: Work duties (not only wages) and Social Security duties
Art.
43.4 WS: Right of workers to be recognized as

permanent (non fixed term) workers of assignor company
or assignee
Administrative:
art. 8.2 LISOS: very serious

misdemeanor of both companies: fine
Criminal: art. 312.1 CP: workforce trafficking
LEGAL TRANSFER: TEMPORARY WORK

AGENCIES
TWA: Concept:
An enterprise whose activity consists in hiring out to a user

enterprise on a temporary basis, workers with whom it has
concluded a contract. Only temporary work agencies duly
authorized in the terms of this Act may conclude contracts with
workers in order to hire them out on a temporary basis to
another enterprise.
Legal regime: Law 14/94 and RD 216/99, amended by Law

3/2012 and RDL 4/2013
Main feature:
Triangular relation between TWA, User Company and worker
a) BETWEEN TWA AND USER COMPANY
Contract for placing a worker at the disposal of

another company
Cases in which it is allowed: art. 6 Law 14/94
Forbidden cases: art. 8 Law 14/94
Form and length: art. 6.3 and 7 Law 14/94
Obligations and Liability: art. 16 Law 14/94
Joint
and several liability: cases

Subsidiaria:
Wages and compensation for dismissal

Social Security obligations
b) BETWEEN TWA AND THE WORKER
TWA: Two types of workers, all of them with a

contract of employment:
Workers providing services for the TWA: art. 14
Workers hired to be transferred
Form and length of the contract: art. 10 Law 14/94

OEC (unusual)
FTC
TWA AND THE WORKER
Workers rights:
TWA
workers have equal essential employment

conditions as User Companys workers (art. 11 Law
14/1994) including:
Wages
Working hours
Rest days, night work, holidays
Measures against discrimination in employment or working conditions
on the grounds of sex.
TWA workers have the right to a Severance Pay

(termination of a fixed-term contract: 12 days' wages per
year of service. )
TWA AND THE WORKER
Duties of the TWA:

Wages and Social Securitys responsibility with its
workers (art. 12.1 Law 14/94)
Training: professional and health (art. 12.2 and 3 Law
14/94)
Vigilance of health and Security Measures (art 3.4 RD
216/1999)
Any clause in the temporary work contract obliging the
worker to pay to the temporary work agency any sum in
respect of selection costs, training or receiving a contract
shall be null and void.
c) BETWEEN USER COMPANY AND THE

WORKER
User Company:
Management and control (art. 15)

Exercise
of organization and disciplinary powers
Health protection
Duty
to inform on security
Responsibility for security in the company
Workers rights:
Presentation of claims by workers representatives of the
User company
Use of facilities and transport
Information about the posts that are vacant
D) TRANSFER OF BUSINESSES
Concept:
Changes in the ownership of a company or transfer of the
status of employer
Art. 44 WS regulates it in order to protect the workers
and to ensure that their rights are safeguarded: it
provides for the maintenance of contracts (subrogation)
Object: total or partial transfer of the company (entire
company, a workplace or an autonomous productive unit)
In
the case of partial transfer, the economic entity should retain

its identity (as an organized group of resources which has the
objective of pursuing an economic activity)
Not included: transmission of shares or stocks (unless merger)
TRANSFER OF BUSINESSES
When? Transfer procedures: different consequences
By acts inter vivos: sale, lease, merger, foreclose, exchange
Sale and lease (several transfers):
Contracts of works and services or administrative concessions:
Of a Company
Of premises: not applicable art. 44 WS
Regime provided in collective agreement or administrative schedule of
conditions (specifications)
Non transparent changes
By acts mortis causa (death, disappearance or incapacity):

Cause for the termination of the contracts of employment, unless the
heirs continue with the activity (directly or transmitting the company to
a third party)
Disappearance of legal personality:
When activity doesnt continue -> art. 51 WS: collective dismissals

When activity continues (i.e. case of merger)-> art. 44 WS
Effects:
Employers subrogation: art. 44.1 WS:

The
transfer itself doesnt produce the termination of contracts

The assignors rights and duties arising from the contract of
employment existing on the date of the transfer, shall be
transferred to the assignee.
Furthermore, liability regime: art. 44.3 WS

Joint
and several liability for 3 years related to obligations

which arose from the contract of employment before the date of
transfer
Joint and several liability about obligations arisen after the date
of transfer, in case the transfer was declared a crime
More effects:
Maintenance of applicable collective agreement (art.
44.4 WS)
Maintenance of workers representatives (art. 44.5
WS)
Duties of information and consultation (art. 44.6 to 10
WS)
CONTRACT OF EMPLOYMENT:
ENGAGEMENT
LESSON 7
1. CAPACITY
The validity of the contract of employment depends

on the fact that the person who signs it has the
capacity to enter into a contract as a worker,
capacity that sometimes is limited due to the
workers age (a)
But even in the case that the worker has capacity to
enter into a contract, his ability to work may be
limited because of some reasons (age, nationality,
qualifications) (b)
(a) Capacity to enter into a contract:

Limits
Limitation because of AGE: art. 7 WS
Full capacity: art. 7.a)

People
over 18 years old who are not incapable

People under 18 years old emancipated by marriage (from
16 on)
People aged between 16 and 18 years old who live on their
own with their parents or tutors consent
Limited capacity: art. 7.b)

People
aged between 16 and 18 years old and not married

or emancipated
They need prior authorization of their legal representatives

(parents or guardian)
(b) Ability to work: Limits
Limitation because of AGE: art. 6 WS
ABSOLUTE PROHIBITION:
For children under 16 years old
Exception: work in public shows or entertainments-> art. 6.4 WS:
Work cannot be hazardous to their health or professional and personal

training
It must be authorized by labor authority, in writing and for certain acts
RELATIVE PROHIBITIONS: affecting minors of 18 years old

Night work (art. 6.2 WS)
Laborious, harmful, unhealthy or hazardous activities (art. 6.2 WS)
Specific protection related to working time (arts. 6.3 and 34.3 and 4
WS or 37.1 WS: overtime, maximum working hours, minimum weekly
rest)
Limitation because of NATIONALITY:
Art. 7 WS: Reference to specific legislation on the subject

Art.
35 SC: recognition of the right to work only to the Spanish

LOEX 4/2000 (amended by LO 8/2000 and LO 14/2003) and
developed by RD 557/2011 of 20th April: only applicable to
non-EU foreigners
EU foreigners and Swiss Citizens:

Enjoy
freedom to live and work in the EU Member States,

according to Regulation 492/2011 of 5 April 2011 on freedom
of movement for workers within the EU + Directive 2004/38.
Right to use same employment services than nationals

Right to equal treatment in access to employment
Limits: a) work in public administration (art. 57 EBEP); b) reasons of
health or public policy
Non-EU foreigners:
Right to engage in gainful employment (self employment or not) and to
access social security under the terms of the law
Ability to work is subject to obtaining official authorization, besides
having a residence permit (art. 36.1 LOEX)
Legal situations and legal status of work:
Status of Stay: stay in Spanish territory for a period not longer than 90
days. Work is not allowed.
Temporary Resident Status:
Authorizes residence for a period exceeding 90 days and less than 5
years.
A work permit is needed when hiring services from 90 days to 5 years
Long duration Resident Status:
Right to live in Spain indefinitely and matched to the Spanish, after 5
years of residence in Spain
They do not need work permit
Consequences of the absence of work permit:

Art. 36.5 LOEX: related to the contract, it cant be void
with regards to foreigners rights (art. 9.2 WS), including
the right to obtain social security benefits in case of
professional contingencies (Covenant 19 ILO), but not
including unemployment benefits
Administrative responsibilities (fine or even expulsion)
Serious
misdemeanor of the worker

Very serious misdemeanor of the employer
Limitation because of QUALIFICATIONS:

The level of studies is a limit when the job post
demands a certain degree
Also the obligation of professional membership in some
activities: lawyers
2. CAPACITY TO CONTRACT AS
EMPLOYER
There are not specific rules at this regard, but:

Employers incapacity may determine the termination of
the contract (art. 49.1.g) WS)
Employers who are self-employed and do not come
from EU Member States need a work authorization
(arts. 35 and 36 LOEX)
3. FORM OF THE CONTRACT OF

EMPLOYMENT
The principle of FREEDOM OF FORM: art. 8.1 WS

Exceptions: art. 8.2 WS: mandatory written form:
When
required by a legal provision: interim contracts, contracts

with TWA
Contracts for work practice and training, part-time contracts,
contracts for an indefinite period of a permanent but
discontinuous nature, contracts for replacement, contracts for
telecommuting, contracts for a work task or particular service,
and temporary contracts exceeding 4 weeks.
When requested by any of the signatories (art. 8.4 WS)
Consequences of the lack of writing:

The
contract is presumed as held for an indefinite period and

full-time, but this is a rebuttable presumption
FORM OF THE CONTRACT OF

EMPLOYMENT
RIGHTS/DUTIES OF INFORMATION:
Within 10 days from the signing, the employer is obliged
to give the workers representatives a copy of every
written contract, with the basic data of the contract (art.
8.3 WS)
Employer is obliged to inform the worker about the
essential elements of the contract when it lasts more than 4
weeks (art. 8.5 WS)
Within 10 days after the employee is hired, the employer
is obliged to notify to SEPE (Servicio Pblico de Empleo)
the content of the contract of employment (written or not)
and its extensions (art. 16.1 WS)
4. INEFFICIENCY OF THE CONTRACT
It means the lack of consequences at least, the usual

consequences- arising from the normal conclusion of a
contract of employment.
Causes:
Absence or vitiated presence of one of the basic elements
of the contract (capacity, consent, form, object or cause)
Infringement of mandatory rules
Effects: art. 9 WS:

Partial nullity: art. 9.1 WS: null and void clause will be
replaced by the appropriate legal provision
Total nullity: art. 9.2 WS: right to wages for days of work
5. THE PLACEMENT PROCEDURE
The application for a job can be directly made to/by

the employer or by means of:
Public Employment Agencies (SEPE included)

Optional
registration of the worker, unless the contract is

subsidized or the worker is receiving unemployment benefits
Private Employment Agencies, which may be non-profit

entities or profit-making entities (since Law 35/2010).
Since
Law 18/2014 they dont need to be authorized by the

Public Administration
Services they provide must be paid by employers, not by
workers
TWA have been recognized as Employment Agencies by RDL
3/2012
6. SELECTION PROCEDURES
Proficiency tests, interviews, training courses:

Purpose: to verify candidates skills
They can be established by collective agreements
Fundamental rights of workers must be respected
Effects of the employers failure to comply with the results:
Worker
cannot sue for dismissal but only for damages
Job vacancies and job listing:

Can be stated by collective agreements
Mandatory for employers
LIMITS ON THE SELECTION OF

WORKER
Non discrimination rules

In placement procedures, Employment Agencies (public or
private) must guarantee the principle of equality with
regards to the access to jobs
In the hiring procedures:
Employers
cannot use discriminatory criteria in the selection and
hiring
The proof of the absence of discrimination lies upon the
employer (when the worker demonstrates the existence of hints
of discriminatory treatment)
Consequence: the payment of damages (civil procedure). Not
the hiring.
7. THE PROBATIONARY PERIOD
PURPOSE: personal and professional knowledge of

both parties to the contract
OPTIONAL: such an agreement is optional
FORM:
So if it is agreed, it should be clearly specified in the

contract
Mandatory, WRITTEN form
MAIN FEATURE:
Termination without cause, notice and compensation
THE PROBATIONARY PERIOD
DURATION: Art. 14.1 WS

Collective agreement or, failing that, the legal length
Legal length:
Depending
on technical difficulty of the job

Depending on the company size
Depending on the duration of the contract (up to 6 months)
Singularities:
Contract
for work practice (art. 11.1.d) WS)

Contract for entrepreneurs (art. 4 Ley 3/2012)
LIMITS
Previous work in the same company with the same functions

(art. 14.1 in fine)
THE PROBATIONARY PERIOD
WORKERS RIGHTS: Art. 14.2 and 3 WS

Working conditions: Equivalent, unless termination
Seniority
Suspension of the contract during probationary period:
depends on the agreement of the parties
THE LABOUR HIRING

Lesson 8 (I)
Type of contracts: criteria

Duration
1.
1.
2.
Open Ended Contracts (contratos indefinidos)

Fixed term and Temporary Contracts (contratos temporales)
Working hours
2.
1.
2.
Full time contracts

Part time contract
Objectives or Purposes
3.
1.
2.
Ordinary contracts
Training contracts
Employment promotion
4.
1.
2.
OEC (general rule)

FTC (special subjects)
Type of contracts in the Spanish

labour law system (duration)
OPEN ENDED CONTRACTS (OEC)
1.
Ordinary Contract
Contract for the Support of Entrepreneurs
1.
2.
FIXED TERM AND TEMPORARY CONTRACTS (FTC)
2.
Types of contracts
1.
The circumstantial temporary hiring
1.
The temporary contract for the promotion of employment
1.
2.
The structural temporary hiring (due to the kind of job)
1.
2.
3.
2.
3.
3.
Contract for the performance of a work task or particular

service
Contract due to production needs (temporary increase in
workload)
Interim contract (replacement of workers)
Common Provisions for temporary contracts

Law Fraud and irregularities in the temporary hiring
TEMPORARY WORK IN THE CIVIL SERVICE
OPEN ENDED CONTRACTS

ORDINARY OEC
NEW OEC FOR THE SUPPORT OF ENTREPRENEURS

1. The "ordinary" OEC
One in which its length is unbounded in advance (no fixed

term nor termination date)
It can be done full time or part time
Preference for permanent hiring -> presumptions (mostly
iuris tantum or rebuttable)
If nothing is said: OEC

If the contract is not in writing and it should be: OEC
If there is no reason for FTC: converted into OEC
If there is a repeated renewal of certain FTC with or without cause
above the temporal limits: converted into OEC
Illegal transfer of workers
Failure to comply with the responsibility of submitting workers
affiliation to the Social Security System
2. Contract for the support of entrepreneurs

Legal regime: art. 4 Law 3/2012, 6th July
Main characteristics:
Only for companies with less than 50 employees (including selfemployed with 0 employees)
Full time or partial time contract (RDL 16/2013) and for an indefinite
period of time
Official model
Probationary period: one year (for qualified technicians or not, and
unrelated to the number of workers less than 25 or not-)
Tax incentives and discounts for Social Security contributions, when
applicable (paragraphs 4, 5 and 7)
Forbidden for companies under certain circumstances (unfair objective
dismissal and collective dismissal)
Fixed Term or Temporary Contracts

(FTC):
TEMPORARY CONTRACT FOR THE PROMOTION OF EMPLOYMENT
CONTRACT FOR THE PERFORMANCE OF A WORK TASK OR PARTICULAR
SERVICE
CONTRACT DUE TO PRODUCTION NEEDS
INTERIM CONTRACT
FIXED TERM OR TEMPORARY

CONTRACTS (FTC)
TYPES OF TEMPORARY CONTRACTS:

I. Circumstantial temporary hiring
The temporary contract for the promotion of employment of:

Disabled people (first AD Law 43/2006); Youth (Ley 11/2013)
Employment in Work Integration Social Enterprises(Act 44/2007)
II. Structural temporary hiring: due to the temporary nature

of the job
1.
2.
3.
Contract for a work task or particular service

Contract of temporary nature due to circumstances of
production (temporary increase in workload)
Interim contract (replacement of a worker)
III. Training contracts (remission)

IV. Indirect temporary hiring by means of a Temporary Work
Agency
FTC I: Circumstantial temporary hiring for

disabled people (1st AD Law 43/2006)
Purpose
Group to be targeted
To promote employment of disabled people

Incentive: FTC without a cause related to the job but rather to
the person
Disabled people: concept DA 1 Law 43/2006 (with 33 % of
disability or more/ pensioners with total, absolute or great
incapacity)
Contract features
Writing form
Duration and extensions (min. 12 months max. 3 years)
Compensation at the end of contract: 12 days
Exception: this contract cannot be used when, during the previous
six months, the company has made unfair dismissals or redundancies.
FTC I: Circumstantial temporary hiring

for young people (art. 12 Ley 11/2013)
Purpose
Group to be targeted
To promote employment of young people (Primer empleo joven)

Incentive: FTC without a cause related to the job but rather to the person
Young people: concept art. 12.1: unemployed younger of 30 year old, without
any labor experience or shorter than 3 months
Contract features
Writing form in official model

Duration and extensions (min. 3 months max. 6 months unless otherwise
agreed by collective agreement)
It can be part-time contract (min 75 % of working time of comparable worker)
Compensation at the end of contract: same as that of contracts due to
production needs?
Exception: this contract cannot be used when, during the previous six months
(after RDL entered into force), the company has made unfair dismissals or
redundancies and wants to replace them.
FTC II: Structural temporary hiring:

general questions
Legal regime
th
Article 15 ET and RD 2720/1998, 18 December
Types of FTC:
Contract for the performance of a specific task or service =

contrato de obra
Contract due to production needs (temporary increase in

workload) = contrato eventual por circunstancias de la
produccin
Interim contract (replacement of workers) = contrato de

interinidad
1. CONTRACT FOR A SPECIFIC TASK

OR SERVICE
Contract established for the execution of a specific work

or the provision of a determined service,
Collective agreements could determine tasks or jobs within

the normal activity of the company that can be developed
with this contract
With autonomy and own identity

Within the activity of the company, or not
Its execution could be planned for a fixed term (but not defined)
although it finishes with the total completion of the work.
Unsuitable for the opening of a new workplace nor for the launching
of a new line or activity
Jurisprudence allows Contractor companies to use them in

connection with the contract for works and services signed
with a Principal or main company
Formalities
The contract should be made in writing, and

establishing in a precise and clear way the type of
contract and identifying the hired work or service:
Art. 2.2 RD 2720/1998.
The absence of written formality or the absence of

precise identification of the task or service will suppose
that the contract is presumed as held for an indefinite
period of time, unless proof against its temporary
nature:
Art. 8.2 WS.
Length and extinction
New wording of art. 15.1 WS (after the reform by Law

35/2010):
These contracts have a maximum duration of 3 years, although they can be

extended by up to 12 months by sector collective agreement
The contract will only terminate because of the completion

of the hired work or service. If not, dismissal.
It does not end if the work is not finished -> conversion in OEC
Gradual extinction is possible: in case of gradual completion of the work
The termination of the contract of works or services extinguishes it, if the work or
service has finished
Not if it terminated by mere will of the contractor or by agreement of the parties

Not if there is succession of contracts with the same contractor or a new company if art. 44 ET is
applicable or it is established in specifications or agreement
Duty of the employer:
To give the worker a document recognizing his condition as a permanent worker, in

the 10 following days to the compliance of the 3 years or the term extended by
collective agreement, when the work or service doesnt finish during it.
2. CONTRACT DUE TO PRODUCTIONS

NEEDS
Cause: These contracts are specifically made in order to

attend the circumstantial exigencies of the market,
accumulation of tasks or excess of orders, even if they
were part of the normal activity of the company:
Art. 15.1.b) WS.
The increase of the activity which justifies the eventual
hiring must be circumstantial and not repeated
periodically, because in this case we would be talking
about a contract for fixed discontinuous workers.
Example: agriculture, hotel and catering business, etc.
Limits
Collective agreements can determine the activities in which

it is possible to use this contract
Collective agreements can determine the maximum
percentage of these contracts with relation to the total staff,
then those provisions will act as limits to the eventual hiring:
Art. 15.1.b) WS.
Length
The maximum length for this contract will be 6 months

within a reference period of 12 months: total and
absolute limit for a worker performing same tasks
The contract can be extended only once.

Both terms can be modified by a sector collective
agreement with national scope or, in its absence, with a
lower scope.
Art. 15.1.b) WS.
Maximum lengths: 12 months-18 months, respectively
When the contract lasts more than this, Jurisprudence

considers that eventuality turns into normality
Formalities
The contract must be done in writing when it lasts more than

4 weeks:
If both parties agree, they could add a sole extension in

writing and without exceeding the maximum length:
art. 3.2.a RD 2720/1998.
art 3.2.d RD 2720/1998.
The extensions must be communicated to the Public

Employment Agency and the workers representatives in the
10 following days since its signing:
art. 64.4 WS 6.3 RD 2720/1998.
Termination
The eventual contract due to production needs will

terminate when the fixed term arrives, with previous
communication at this regard of one of the parties: art.
8.1.b) RD 2720/1998.
If the contract is not denounced and the provision of work
continues, it will be implicitly extended until its
maximum term, and if it has been exceeded, it will be
extended for an undefined period of time, except proof
against its temporal nature.
3. INTERIM CONTRACT
Cause:
-
The worker is hired in order to replace other worker who is absent

for special causes (art. 45 WS, suspension; reduction of working
hours) and who has the right to reserve his/her job.
The worker is hired to temporarily fill a job during the process of
selection of the worker who is going to occupy it.
It should be done on a full-time basis unless:

-
The previous worker was part-time

The position is intended to be finally occupied with a part-time
contract
The interim contract is intended to complement the working time of
another worker who has a reduced working day in order to care for
relatives.
Features
Duration: the same as granted to the worker who is

entitled to a reserve of his post, or that of the selection
process (max. 3 months)
Termination:
Because of the return of the replaced worker or the
course of the term of reserve without return of the worker
Because of the arrival of the new worker or the course of
the maximum duration of the selection process or the
elimination of the vacant
COMMON PROVISIONS FOR FTC
WRITTEN FORM: mandatory, unless in case of contracts due to

production needs for full time jobs which last less than 4 weeks, or
special contracts which dont have this formality:
Companies are obliged to communicate to the Public

Employment Agency the signing of these contracts (and its
extension) sending a copy in the following 10 days from its
signature:
art 8.2 WS and art. 6.1. RD 2720/1998.
arts 8.3 and 16.1. WS ; art. 6.3. RD 2720/1998.
Temporal workers will have the same rights as workers with an

open ended contract:
art. 15.6 WS

Holidays:
An economic compensation is allowed when, due to the fact that the
contract lasts less than one year, it is impossible to enjoy the right to
holidays.
Salaries and extraordinary payments:
Equality with permanent workers : art. 15.6 WS
Seniority:
It will be counted with the same criteria for all the workers,
independently of the type of contract: art. 15.6. WS.
Related to the calculation of the time of services, it cannot be added
unless the transformation into a contract for an indefinite period of time
occurs immediately, without interruption
Suspension of the employment relationship:
The causes of suspension or leaves of absences (arts. 45 and 46 WS)
dont extend the temporary contract (art. 7 RD 2720/1998).
Termination:
In
order to terminate the relationship, a previous

communication or notice by the employer must be given
at least 15 days before the end of the contract for
contracts which last more than 1 year (unless in interim
contracts):
Art. 8.3 RD 2720/1998.
The
breach of the term of notice by the company will be

compensated with a sum of money equivalent to the
salary of the days for which notice was not given:
Art. 8.3 RD 2720/1998.
Severance pay:
According to art. 49.1.c) WS, upon termination of a fixed
term contract by expiration of the term or the work, the
worker is entitled to a payment of 12 days salary per year
of service.
This provision does not apply to termination of contracts
concluded for training purposes or to interim contracts:
Art. 49.1.c) WS.
Law 35/2010 amended art. 49.1.c) WS by increasing

compensation on a yearly basis from 8 days' wages to
12 days' wages in 2015 (see DT 13 ET)
CONSEQUENCES OF THE IRREGULAR

TEMPORARY CONTRACTS
a) Formal defects:
No cause, no register within Social Security, extension which

exceeds the maximum duration
The contract is presumed as held for an indefinite period
and full-time, but this is a rebuttable presumption:
Art. 8.2 WS
b) Fraudulently made Contract:

When apparently the temporary hiring is legally done, but its
purpose is illegal
The contract is presumed as held for an indefinite period of
time, and this is a presumption iuris et de iure:
art. 15.3 WS; art. 9.3. RD 2720/1998.
THE LABOUR HIRING

Lesson 8 (II).
OTHER TYPES OF CONTRACT OF

EMPLOYMENT
TRAINING CONTRACTS
Work-practice contract
Contract for training and apprenticeship
PART-TIME CONTRACTS
Part-time contract
Contract for replacement and contract to replace early
retired workers
SEASONAL WORK
Work repeated in the same dates: part-time
Work not repeated in the same dates
1. TRAINING CONTRACTS
TYPES OF TRAINING CONTRACTS
Work-practice contract (contrato en prcticas)

Qualified people
Contract for training and apprenticeship (contrato para la

formacin y aprendizaje)
Non
qualified workers
LEGAL REGULATION
Art. 11 WS and art. 13 Law 11/2013 (for people with
less than 30 years old)
RD 488/1998 (work-practice) and RD 1529/2012
(training and apprenticeship)
a) WORK-PRACTICE CONTRACT
PURPOSE:
OBJECT:
Qualifications requirements (arts. 11.1 WS; 1 RD; 13 Law 11/2013

applicable until unemployment rate below 15 %-)
Limits: art. 11.1.c) WS
FIXED-TERM CONTRACT: Art. 11.1.b) WS:
Work and practical training that fits in with the level of studies or
training
PEOPLE TO BE ENGAGED:
Job insertion for qualified people
Minimum duration: 6 months; maximum 2 years
TRIAL PERIOD: Art. 11.1.d) and f) WS

REMUNERATION: Art. 11.1.e) WS:
Lower than that of a worker in same or equivalent job post/position
b) CONTRACT FOR TRAINING
INITIAL PURPOSE:
OBJECT:
Job insertion for non qualified young people
Work and training (theoretical and practical)
PEOPLE TO BE ENGAGED:
Age requirements (art. 11.2.a WS and 6 RD):
Older than 16 and with less than 25 years old (30 until unemployment
rate under 15% -> DT 9 Law 3/2012)
Maximum age not applicable to disabled or people in situation of social

exclusion)
Qualifications requirements (arts 11.2.a WS)

Exclusions (arts. 11.2.c WS)
TRIAL PERIOD:
Art. 10.1RD: reference to art 14 WS
CONTRACT FOR TRAINING
FIXED-TERM CONTRACT: Art. 11.2.c) WS

Minimum length: 1 year; maximum 3 years
Role of the collective agreement
Some situations interrupt its duration (11.2.b) in fine)
PART-TIME ? Not possible: Art. 12.2 WS
SOCIAL SECURITY PROTECTION: art. 11.2.h)
Overtime, night work and shift work: forbidden: art. 8.4 RD

Improvements after Law 35/2010
REMUNERATION: Art. 11.2.g) WS
It is proportional to real time of work (not lower than SMI in

proportion to real time of work)
CONTRACT FOR TRAINING

TRAINING ACTIVITY
Object and exemption: art.

11.2.d) and e) WS and 16 RD
Related to the activity carried

out by the worker
In order to obtain certificado de
profesionalidad or a
professional training certificate
(medium or superior degree)
Must be authorized by SEPE

(16.7 RD)
Tutorials (art. 20 RD)
Effects of its inobservance: art.
14 RD: PRESUMPTIONS?
LABOUR ACTIVITY
Adequate activity: art.

11.2.d) WS:
75% (1st year) or 85%

(2nd and 3rd) of
maximum working hours
2. PART-TIME CONTRACTS
CONCEPT OF PART-TIME WORK: art. 12.1 WS

PRINCIPLES:
Voluntarism: art. 12.4.e WS
Non discrimination (equal treatment): art. 12.4.d WS
Pro rata temporis principle: art. 12.4.d WS
A) PART-TIME CONTRACT
Length: art.12.2: for an indefinite period or temporary

Formal requirements: art. 12.4.a):
Overtime:
Written contract which must include working hours per day, week, month or
year, and their distribution
New regulation in art. 12.4.c) WS since RDL16/2013: forbidden
The so called horas complementarias: art. 12.5 WS
Only when they are agreed in writing (voluntary for workers), provided that
working time lasts not less than 10 hours per week on a yearly basis
Remuneration: art. 12.5.j) WS: principle of equality
Possibility of ending the agreements validity: art. 12.5.e) WS
Mandatory written agreement
Number: limited with relation to normal working hours (30%) , unless collective
agreement -till 60%- (12.5.c) WS)
Notice to worker 3 days (RDL 16/2013) before its execution, unless: 12.5.d)
B) JOB SHARING SITUATIONS
PARTIAL RETIREMENT AND
LEGAL REGULATION: art. 12.6 and 12.7 WS (totally amended by

RDL 5/2013, 15th March); art. 166 LGSS (also amended); DA 1st and
2nd RD 1131/2002
CONSEQUENCES: partial-work and pension compatibility
CONDITIONS FOR PARTIAL RETIREMENT:
Only full time workers: art. 166 LGSS ->novation into part-time contract
Sometimes a contract for replacement is needed
Requirements for partial retired worker:
Reduction of working time and wage (replaced by pension):
Those of art. 161 LGSS: without contract for replacement

Age below that required for regular retirement / 6 years of seniority/ 33 or more
years of SS contributions: with contract for replacement
Between 25%-50%
Until 75% if contract for replacement is full time and indefinite
TERMINATION: when total retirement is reached (art. 12.6)
JOB SHARING SITUATIONS
CONTRAT FOR REPLACEMENT: art. 12.6 and .7 WS

Compulsory -or not- (art. 166.1 and 166.2 LGSS)
Subject: unemployed worker or with a temporary contract in
the same company
Object: replace, at least, vacant working hours of a partial
retired worker (art. 12.6 and 12.7.c)
Working hours: complimentary or simultaneously (art. 12.7.c)
Post: could be the same, or not, as the one partially vacant
(art. 12.7.d)
Duration:
Fixed term (until the partial retired reaches the normal retirement
age or when it may occur if prolonged beyond the ordinary age for
retirement)
Indefinite (art. 12.7.b) WS)
3. SEASONAL WORK
WORK REPEATED IN THE SAME DATES (fijo peridico)
Same rules as those applying to indefinite part-time contracts

(art. 12.3 WS). (i.e. schools /hotel business/ tax campaign)
WORK NOT REPEATED IN THE SAME DATES (fijo

discontinuo)
Concept: contract for an indefinite period of time but for

discontinuous work (with periods of inactivity)
It responds to a cyclical but permanent need of workforce
The start and length of the activity depends on variable factors
(weather)
Legal regulation: art. 15.8 WS

Calling or Llamamiento in the order and form established by collective
agreement: Status of intermittent permanent workers
Written model
If there is no call: comparable to a dismissal

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LESSON 1

Branch of the Law which covers all the principles,

Also includes other blocks of provisions, governing:

The labour market and the placement on it (Derecho del Empleo)

To protect the rights of workers as the weaker party of the

Specific regulation of labour: recent phenomenon

INDUSTRIAL REVOLUTION (late 18th-early 19th): generalization

Personal bonding systems (slavery and servitude)

Change in property of means of production and separation between

In Spain, take-off period of industrial revolution, over the 1860s

Throughout 19th CENTURY: application of liberal ideology the

Application of basic liberal principles: freedom of work and the

LATE 19th-EARLY 20th: first modern labour law

SECOND REPUBLIC: culminates Labour Law creation (as a

Constitucin Espaola de 1931 and Ley de Asociaciones

FRANCO DICTATORSHIP (1939-1975):

1st phase: total abolition of democratic model of industrial

POLITICAL TRANSITION after Francos death:

Process of institutional change (Ley de Reforma Poltica 1977). Begins

LATE 20th-EARLY 21st: evolution of Labour Law:

Conditioned by the incidence of political, economical and social factors

CURRENT SITUATION AND CHALLENGES:

Redefinition of the purposes:

Analysis of effects of labour regulations on labour market, economic situation

New division of roles between law, collective agreements and contract of

Reduction in rate of temporality and precariousness (part-time contracts,

Encuesta de Poblacin Activa

SOURCES OF LABOUR LAW

Art 3.1 ET: rights and duties relating to employment

It doesnt include a complete list:

Spanish Constitution, International Law, European Law,

1. SPANISH CONSTITUTION 1978

Articles 1.1 and 9.2 SC: Welfare State: a concept

SPANISH CONSTITUTION 1978

LABOR RIGHTS IN THE SC

FUNDAMENTAL RIGHTS AND PUBLIC LIBERTIES (Arts.

LABOR RIGHTS IN THE SC

RIGHTS AND DUTIES OF CITIZENS (Arts. 30 to 38:

LABOR RIGHTS IN THE SC

PRINCIPLES GOVERNING ECONOMIC AND

At international level, three sources of production

International regulation of labor is a necessary

Aims and purposes (Philadelphia Declaration

ILO has maintained and developed a system of international labor

INTERNATIONAL LABOUR STANDARDS BY SUBJECT

ILO Declaration on Fundamental Principles and Rights at Work 1998: all

ILO sources of international law:

CONVENTIONS: instruments designed to create

adopted within an institutional framework

RECOMMENDATIONS: instruments that serve to guide

B) UNITED NATIONS INSTRUMENTS

Legally binding conventions concerning labor matters:

At the European level, a number of regional

Council of Europe (1949):

Convention for the Protection of Human Rights and

Single European Act

Treaty of Nice 2001

MOST IMPORTANT EU PRIMARY LAW

Treaty on the EU:

Treaty on the Functioning of the EU:

EUROPEAN UNION LABOUR LAW

How does it work?

The EU adopts legislation defining minimum requirements at EU level in the fields of

Early cases in the ECJ established the supremacy of European