Spain – Promulgate a Worker's Charter

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NOTE: Spain’s Act No. 8, To Promulgate a Worker’s Charter, dated 10 March 1980, was published in the Boletin Oficial Del Estado, 14 March 1980, No. 64, p. 5799. The following short extracts are from the English translation that appeared in the 1980 volume of the Legislative Series published by the International Labour Office based in Geneva. ¬©International Labour Organisation, 1981, all rights reserved.

ACT NO. 8, TO PROMULGATE A WORKER’S CHARTER

Title I. Individual employment relationships

CHAPTER 1. GENERAL PROVISIONS

Division I. Scope and Sources

1. Scope.
(1) This Act shall apply to workers voluntarily performing services in return for remuneration by another person, whether an individual or a body corporate (hereinafter referred to as an employer), within the field of work organised and directed by this latter person.

(2) For the purposes of this Act the expression “employer” means any individual or body corporate or any community of property for whom or for which services are performed by persons covered by the preceding subsection.

(3) The following shall be excluded from the scope of this Act:

  1. the employment of public servants, which shall be governed by the Public Service Rules, and the employment of persons working in the service of the State, local authorities, and independent public bodies if, in virtue of any law, such employment is governed by administrative provisions or rules;
  2. compulsory personal services;
  3. activity restricted purely and simply to the holding of office as an adviser to or member of the management bodies of undertakings legally established in the form of companies, if such activity in the undertakings concerned merely consists in the performance of duties inherent in such office;
  4. work done out of friendship, kindness or good neighbourliness;
  5. family employment, except where there is evidence that the persons engaged in it are employees. For the purposes of the foregoing the spouse, descendants, ascendants and other relatives by blood or marriage down to the second degree inclusive or, where appropriate, by adoption shall be deemed to be family workers if they live with the employer;
  6. the activity of persons involved in commercial operations for the account of one or more employers, if they are personally required to answer for the successful conclusion of the operation by assuming the risk that it entails.

(4) Spanish labour legislation shall apply to the work done by Spanish workers recruited in Spain for service with Spanish undertakings abroad, without prejudice to the principles of public policy applicable at the place of their employment. Such workers shall enjoy at least the financial rights to which they would be entitled if they were employed in Spanish territory.
(5) For the purposes of this Act the expression “workplace” means a production unit having its own specific organisation and reported as such to the labour authority.
In the case of employment at sea the workplace shall be deemed to be the vessel, which shall be taken to be situated in the province where its home port is located.

2. Employment relationships of a special nature.
(1) The following shall be deemed to constitute employment relationships of a special nature:

  1. the work of senior managerial staff not covered by clause (c) of subsection (3) of section 1;
  2. work in the service of a family;
  3. the work of convicts in penitentiaries;
  4. the work of professional sportsmen;
  5. the work of public entertainers;
  6. the work of persons involved in commercial operations for the account of one or more employers but not assuming the risk that they entail;
  7. any other work expressly stated by law to constitute an employment relationship of a special nature.

(2) In all cases covered by the preceding subsection the way in which the employment relationships are regulated shall respect the basic rights conferred by the Constitution.
3. Sources of employment relationships.
(1) The rights and obligations arising out of an employment relationship shall be governed-

  1. by the provisions of national laws and regulations;
  2. by collective agreements;
  3. by the desires of the parties; as expressed in a contract of employment, on condition that it is made for a lawful purpose and that it does not in any circumstances operate to the worker’s disadvantage by laying down less favourable conditions than those contained in the laws and collective agreements referred to above or conditions conflicting with such laws and agreements;
  4. by the usages and customs in the locality and occupation.

(2) The provisions of laws and regulations shall apply in strict accordance with the principles of legal precedence. Regulations shall expand the principles laid down in higher-ranking texts but shall not provide for conditions of employment departing from those specified in the laws under which they are made.

(3) Conflicts between the principles contained in two or more texts relating to employment, whether drawn up by the Government or arrived at by agreement, shall, on condition that all such texts comply with the minimum standards laid down by binding provisions of the law, be settled by applying the clause which, taken as a whole, is most favourable to the worker and by taking an annual assessment of any item which is quantifiable.

(4) Usages and customs shall be taken as a criterion only in the absence of the provision of laws, agreements or contracts, unless they have been expressly stated to be admissable or such provisions have been expressly waived.

(5) A worker may not validly dispose of rights conferred on him by binding provisions of the law, whether before of after he acquires them. He may likewise not validly waive rights that have been recognised by collective agreements as not being subject to renunciation.

Division II. Basic rights and obligations in connection with employment

4. Rights.
(1) Workers shall enjoy the following basic rights in accordance with the definition and scope laid down for each one of them in the specific legislation on the subject:

  1. the right to work and to a free choice of an occupation or trade;
  2. the right of freedom of association;
  3. the right of collective bargaining;
  4. the right to take steps in the event of a collective dispute;
  5. the right to strike;
  6. the right of assembly;
  7. the right to participation in the undertaking.

(2) As a party to an employment relationship a worker shall have the right-

  1. to effective employment;
  2. to advancement and training at work;
  3. to freedom from discrimination, when seeking employment or after having found employment, on grounds of sex, marital status, age (within the limits specified in this Act), race, social circumstances, religious or political ideas, membership or non-membership of a trade union, or language, within the Spanish State.
  1. A worker shall likewise not be subject to discrimination on grounds of physical, mental or sensory handicap, if he has the necessary skills to do the job or engage in the employment in question.
  2. to physical safety and an adequate safety and health policy;
  3. to respect for his privacy and proper consideration for his dignity;
  4. to the punctual payment of the agreed or statutory remuneration;
  5. to institute individual proceedings in connection with his contract of employment;
  6. to enjoy such other entitlements as specifically derive from his contract of employment.

5. Obligations.
A worker shall have the following basic obligations:

  1. to discharge the duties specifically relating to his job, in accordance with the principles of good faith and conscientiousness;
  2. to comply with such safety and health measures as are instituted;
  3. to obey the orders and instructions given by the employer in the normal exercise of his powers of management;
  4. not to compete with the activity carried on by the undertaking, subject to the provisions laid down in this Act;
  5. to contribute to improving productivity;
  6. to discharge any other commitments arising out of his contract of employment.

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CHAPTER IV. OFFENCES AND PENALTIES

Division I. Employers

57. Offences by employers against labour law.
(1) The expression “offences by employers against labour law” means any acts of omission or commission conflicting with the statutory provisions relating to employment. Such offences shall be considered, and the appropriate penalties imposed, by the labour authority or the Council of Ministers, as appropriate, after such administrative inquiries as may be necessary.

(2) Penalties shall be of varying degrees, depending on the gravity of the offence, the bad faith or dishonesty of the employer, the number of workers concerned, the scale of the undertaking’s business and whether the case involves a repetition of the offence.

(3) Offenders shall be liable to a fine imposed, on the recommendation of the labour inspectorate, by the provincial officers of the Ministry of Labour if the amount does not exceed 100,000 pasetas, by the appropriate Director-General if the amount does not exceed 500,000 pasetas, and by the Council of Ministers, acting on the recommendation of the Minister of Labour, if the amount does not exceed 15 million pasetas.

(4) Where an offence relating to occupational safety is accompanied by circumstances of exceptional gravity, the Government may order the suspension of work for a specified period or, in extreme cases, the closure of the relevant workplace, without prejudice in any circumstances to the payment of such wages or compensation as may be due and to the taking of such action as may be decided upon to guarantee them.

Division II. Workers

58. Offenses and penalties.
(1) A worker shall be liable to punishment by the management of the undertaking, in accordance with a scale of offences and penalties to be laid down in the relevant statutory provisions or by collective agreement, if he fails to discharge the obligations relating to his work.

(2) The management’s assessment of an offence and the corresponding penalty imposed by it shall invariably be open to review by the competent authority. Where a penalty is imposed for a serious or very serious offence, the worker shall be informed of it in writing, with an indication of the date and the facts warranting the penalty.

(3) No penalty may be imposed in the form of a reduction in the length of a worker’s leave or any other restriction of his entitlement to rest or in the form of a fine deducted from his wages.

CHAPTER V. PERIODS OF LIMITATION

Division I. Limitation of actions arising out of contracts of employment

59. Limitation and lapsing of actions.
(1) Actions arising out of a contract of employment shall, if no special time-limit has been specified, be barred by limitation one year after the termination of the contract.

For this purpose a contract shall be deemed to be terminated-

  1. on the date of expiry of the agreed period or the period fixed by law or collective agreement;
  2. on the date on which continuous services cease to be performed if the continuity is based on an express or tacit prolongation.

(2) Where an action is brought for the purpose of claiming money or the performance of obligations that are limited in time and cannot be performed after the termination of the contract, the period of one year shall be reckoned from the date on which the action could have been brought.
(3) In the case of a temporary contract, the right of action against dismissal or termination shall lapse 20 days after the date on which the dismissal or termination is ordered. The days shall be reckoned as working days and the period fixed for the lapsing of the right of action shall apply for all purposes.
The period fixed for the lapsing of a right of action shall be suspended if application is made for conciliation proceedings before the Mediation, Arbitration and Conciliation Institute.

Division II. Limitation of proceedings in the case of offences

60. Limitation
(1) Proceedings for offences committed by an employer shall be barred by limitation afer three years, except in the case of social security offences.

(2) In the case of a worker, proceedings for a minor offence shall be barred by limitation after ten days, for a serious offence after 20 days, and for a very serious offence after 60 days, reckoned in each case from the date on which the undertaking became aware of it, and subject in all case to a maximum of six months reckoned from the commission of the offence.

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