International Employment – Spain – Alfredo Aspra

Labormatters Abogados is one of the main law firms specialised in employment law in Spain. It is a first-class reference law firm in comprehensive advisory services regarding employment law, both for the public and for the private sector. The firm offers, through its different areas of specialisation, a comprehensive legal-labour advisory service that covers all the needs of our clients. These include:

• Ongoing Advisory Services
• Litigation
• Employment Relations: Collective Employment Law
• Restructuring and Collective Dismissals
• Outsourcing and Insourcing
• M&A
• Equality, Diversity and Work-Life Balance
• Remote Work and New Technologies
• Remuneration and Compensation
• Corporate Policies and Codes of Ethics
• Working Time and Time Tracking
• Top Executives
• Complementary Social Welfare
• Employment Audits
• International Mobility
• Legal Reports and/or Opinions
• International and EC Law
• Training
• Data Protection, Information Security and Corporate Control
• Occupational Safety and Health
• Obligations in Terms of Non-Financial Information

We have a multilingual team of more than 35 professionals, five of them partners, fully specialised in all branches of labour law, ensuring professional coverage throughout the national territory from our offices in Madrid, Seville and Valencia, offering strategic labour and HR advice to all types of companies and business organisations with a personalised and direct approach, characterised by technical quality, strategic vision of the business where our clients operate and agility in response.

It has specialists in all disciplines of labour law, social security and occupational risk prevention, with practice areas and sectorial or industry groups made up of various highly qualified professionals, with work teams being formed according to the specific complexity of the action to be taken and the nature of the work required by the client at any given time.

All lawyers at the firm abide by the same practice standards based on an unwavering aim for professional excellence: the greatest specialisation possible, strictness, and technical capacity, swiftness in answers and availability, ongoing effort to understand clients’ needs.and a deep knowledge of the industries where they operate, with independence, ethics, and full compliance with ethical standards.

Our team is prepared to help clients achieve their objectives, proposing and designing specific solutions both in the day-to-day running of their business and in advising on complex and sensitive matters, among which are: collective bargaining, advice on restructuring processes, business succession operations or forensic defence before the social jurisdiction in matters of particular sensitivity. The firm stands out for its broad and proven experience in advising on labour law, social security, occupational risk prevention and social welfare, providing and developing solutions in all types of labour issues that may arise in a business organisation.

Currently, the matters that require the most attention are those related to collective bargaining arising from all kinds of issues. Among them: (i) alternatives to avoid linking wage increases to price increases (CPI), especially considering the increases in energy and fuel; (ii) the application of teleworking in all its variants; iii) of the amendments provided for in Law 12/2022, of June 30, regulating the promotion of occupational pension plans; iv) all kinds of issues related to work organisation and working time; v) in connection with restructuring processes; and vi) temporary hiring arising from the far-reaching labour reform implemented in Spain in this area, the entry into force/practical application of which has been taking place since March of this year.

Many and varied. The labour reform carried out in Spain through the approval of Royal Decree Law 32/2021 of December 28, 21, on urgent measures for the labour reform, has meant a before and after in this matter. Thus, in general, in Spain the employment contract is presumed to be for an indefinite term. It may be of a temporary nature in cases of circumstances of production or for substitution of a worker. In addition, in order to be understood that there is a justified cause for temporary employment, it will be necessary to specify precisely the reason for the temporary hiring, the specific circumstances that justify it and its connection with the foreseen duration.

After analysing in detail the business needs that may arise in each sector, company or case, a specific plan of action is proposed aimed at matching such needs with the applicable regulations, taking into account both collective and individual labour law. Issues such as the needs that give rise to the hiring, its expected duration, the group to be hired, possible bonuses/exemptions for the companies, possible future rights of the group, etc., may play a decisive role when issuing the corresponding legal opinions. Of course, always oriented and/or with a great practical component.

On the occasion of the pandemic caused by Covid-19, the provision of remote services experienced a notable increase, and Royal Decree-Law 8/2020, of March 17, on extraordinary urgent measures to deal with the economic and social impact of Covid-19, even considered the preferential nature of this type of work over face-to-face work.

While it is true that remote work has decreased considerably nowadays, compared to that experienced in the worst moments of the healthcare crisis, the reality is that many companies have adopted a hybrid work formula, whereby face-to-face and remote work are combined, perhaps helped by the enactment of Law 10/2021, of July 9, on remote work, whereby remote work is regulated (provided that such remote work involves a minimum of thirty percent of the working day in a reference period of three months).

The aforementioned Law 10/2021 regulates in detail the requirements, formal obligations and the minimum content of the telecommuting agreement (which must be subscribed by the parties), having detected a series of elements of complexity or, at least, not resolved by the Law and which, on occasions, arise as points of conflict between the company and the employee. These include, inter alia: the determination of the amount to be received by the worker as compensation of expenses for remote work (since the Law imposes its payment but does not fix the specific amount), as well as its tax and Social Security treatment; the means, equipment and tools to be provided to the employee for the rendering of remote services (the Law also does not stipulate what type of means should be made available to the worker); the powers of control of the work activity by the employer, as well as its limits; the right to digital disconnection; or the maintenance or elimination of certain social benefits linked to the provision of on-site services when the employee starts working remotely (meal tickets, transport pass, etc.).

During the pandemic there was a flood of labour legislation aimed at adapting legislation to this exceptional situation (mainly aimed at protecting the maintenance of employment, thereby relieving companies of various burdens and costs). However, the vast majority of the legislation has been in force for a limited period of time. By way of example, it is worth mentioning all the regulations on temporary employment regulation.

Notwithstanding the foregoing, there is no doubt that certain regulatory obligations still survive today, such as, depending on each case and by way of example, the safeguarding of employment for a certain period of time, as originally regulated in the Sixth Additional Provision of Royal Decree-Law 8/2020, with severe consequences in the event of non-compliance.

Likewise, and without being a regulation linked to the pandemic (although with references to it), the truth is that the exceptional situation experienced motivated and accelerated the development and publication of a regulation on telecommuting, which was born with an indefinite vocation, and in this case we can speak of a regulation that is still applicable today and whose origin is linked, indirectly, to the pandemic situation.

Indeed, there has been a growing presence of issues related to these matters, especially with regard to the increasingly relevant environmental branch of labour relations.

This increase in the concern of companies for the ecological impact in the work environment has undoubtedly been fostered by the appearance of both Community legislation (Proposal for a Directive on due diligence of the European Commission) and national legislation (Royal Decree-Law 14/2022, of August 1, on economic sustainability measures) that provides environmental obligations for companies with transcendence from a legal-labour point of view.

In view of the above, Labormatters Abogados has set up a specialised work team in charge of advising companies in their adaptation to these sustainability requirements from the perspective of signing new individual contracts, adaptation to the environmental requirements to be met by workplaces, collective bargaining or possible actions by the Labour Inspectorate, among other matters.

No, our focus of advice is only to business organisations and, therefore, we have not been requested in this regard. In any case, the right to union and collective bargaining in Spain is a fundamental right with a great development and content.

The firm maintains a network of international collaborations entirely specialised in labour and employment law, thus offering global coverage and support to our clients in all major jurisdictions and regions. The lawyers of the firm, especially those who collaborate in transnational matters, have extensive and extensive experience in international labour advice within the different specialties and most important global jurisdictions, both in Europe and worldwide, choosing for this purpose the ideal collaborators and professionals in each matter, capable of guaranteeing the highest standards of quality and legal excellence. In this sense, it is common practice for the firm to collaborate and team up with professionals from other prestigious international firms.

Of course, we hold fluent webinars and participate in the main events and global labour associations (IBA, EELA, etc.).

With the arrival of the pandemic, the modality of teleworking arrived by force, at first the first piece of legislation regulating it was quickly introduced, culminating in July 2021, with Law 10/2021, of July 9, on telecommuting (“Law 10/2021”). This legislation established what can be understood as teleworking, the fundamental requirements for it to be possible – voluntariness, reversibility and agreement in written form – and the rights and obligations of the workers, as well as the powers of the employer to manage, organise and control the company. Undoubtedly, this is a matter that, in combination with the reconciliation of personal and family life, is causing a great deal of problems for organisations and a significant increase in litigation.

On the other hand, equality legislation has been introduced in recent years, which establishes certain obligations for companies with more than fifty employees. This legislation is guided by three basic principles: the principle of equal treatment of men and women in the workplace, the principle of non-discrimination in compensation, and the principle of transparency in compensation. Among the obligations established for companies is the obligation to negotiate with workers’ representatives a diagnosis of the situation, an equality plan and a pay audit. Failure to comply with these obligations could result in an administrative infringement that could entail a fine and the loss of certain bonuses, so it is undoubtedly a matter that is becoming increasingly relevant and important in labour relations, so special attention should be paid to the recently published Law 15/2022, of July 12, on equal treatment and non-discrimination.

In terms of wages in recent years there has been a rise in the Minimum Interprofessional Wage (SMI), in 2019, by means of Royal Decree 1462/2018, of December 21 the SMI went from the amount of 735 euros to 900 euros, a rise of 22 percent, and since then it has been rising year after year progressively, to stand in the year 2022 at 1000 euros. The Government is currently trying to enact another increase in agreement with the social partners to try to alleviate the effects of high inflation. The increase in social costs may have a significant impact on the accounts of companies, which will have to adjust to the new circumstances.

Finally, in relation to the high inflation experienced – and expected – it should be noted that only a small percentage of the Collective Bargaining Agreements include a wage increase linked to the annual CPI, so that a discussion is taking place among the social agents to agree on a wage increase that limits the negative effects of inflation. In this regard, the CPI in December 2021 was 6.5% and this has continued to increase to 10.8% in July 2022, however, wage increases have remained at an average of 2.45% in July this year, remaining below the increase in the SMI approved by the government (3.6%).