Spain – Employment suspension and leaves

27 Gennaio 2017

  • Spagna
  • Lavoro

Il contratto di lavoro nel diritto belga è il contratto con il quale un soggetto – il lavoratore – si obbliga a fornire una prestazione lavorativa sotto l’autorità del datore di lavoro a fronte di un corrispettivo (artt. 2, 3, 4, 5 della legge 3 luglio 1978).

Gli elementi costitutivi di un contratto di lavoro sono tre:

  • la prestazione di lavoro
  • la remunerazione
  • autorità del datore di lavoro (la subordinazione)

La prestazione di lavoro è il primo elemento del contratto di lavoro. Il datore di lavoro si obbliga a fornire il lavoro e, di contro, il lavoratore si impegna ad adempiere correttamente il lavoro che gli è stato affidato.

La nozione di lavoro comprende le prestazioni di lavoro che un soggetto esegue sotto l’autorità di un terzo soggetto e per le quali è corrisposto un compenso.

Si parla dunque di lavoro, ai sensi della legge relativa ai contratti di lavoro, nel caso in cui un soggetto effettua una prestazione di lavoro subordinato (quindi sotto l’autorità del datore di lavoro) a fronte di un corrispettivo, anche se l’attività lavorativa è di breve durata o se il compenso attribuito non è elevato.

La prestazione di lavoro non deve necessariamente essere determinata. Tuttavia, è preferibile che le parti specifichino, nel contratto di lavoro, la prestazione che dovrà essere eseguita.

I contratti che non sono considerati contratti di lavoro sono: l‘apprendistato, il tirocinio, il lavoro autonomo, i contratti degli agenti aziendali, i mediatori, i commissionari ed i concessionari.

Il secondo elemento essenziale del contratto di lavoro è la remunerazione quale corrispettivo della prestazione  lavorativa.

La Corte di Cassazione, in una sua sentenza del 25 maggio 1998, ha stabilito che “la remunerazione deve risultare da un accordo tra le parti circa il suo ammontare”: in caso contrario non c‘è contratto di lavoro.

Inoltre la remunerazione permette di distinguere il contratto di lavoro dal volontariato (activité bénévole).

La legge relativa ai contratti di lavoro non contiene alcuna disposizione relativa all’ammontare della remunerazione: quindi le parti, in linea di principio, possono liberamente fissarla.

Tuttavia, si dovrà tener conto del salario minimo obbligatorio che è determinato dalle convenzioni collettive del lavoro (CCT) generalmente vincolanti (les barèmes = liste). Nei settori disciplinati da tali “liste“, le parti non potranno prevedere nel loro contratto di lavoro una remunerazione inferiore a quella fissata quale salario minimo applicabile nel settore di attività del lavoratore.

E nel caso in cui, in un contratto di lavoro, non è stata espressamente stabilita una remunerazione si applicherà il valore del salario minimo fissato dalla lista (le minimum barémique). Se, nel settore di impiego del lavoratore tale minimo non è stato stabilito, allora egli avrà diritto ad un reddito mensile minimo garantito (RMMG), eventualmente adattato anche in funzione dell’età.

L’ultimo elemento è il legame di subordinazione tra il lavoratore ed il datore di lavoro. Questo è certamente l’elemento più caratteristico del contratto di lavoro, ma il più complesso da identificare.

Questo criterio consente infatti di distinguere il contratto di lavoro da altri contratti, come il contratto d’appalto (contrat d’enterprise) che, a differenza del primo, non crea un legame di subordinazione tra i contraenti. Inoltre lavorare senza vincolo di subordinazione è quello che distingue il lavoro dipendente da quello autonomo.

La subordinazione presuppone:

  • l’esistenza di un potere di direzione concesso al datore di lavoro;
  • che il lavoratore sia tenuto ad un certo “dovere di obbedienza”.

La legge sul contratto di lavoro dispone, infatti, che il lavoratore ha l’obbligo d’agire conformemente agli ordini e alle istruzioni impartite dal datore di lavoro in vista dell’esecuzione del contratto (art. 17 secondo comma legge 3 luglio 1978).

Durata del contratto

Un contratto di lavoro può essere concluso senza che vi sia alcun riferimento al limite temporale (per una durata indeterminata) o con un limite temporale (contratto a tempo determinato o con una durata “ben definita”). Un contratto di lavoro a tempo indeterminato necessita esclusivamente dell’accordo fra le parti: non è richiesta nessun’altra formalità. Quindi un contratto di lavoro potrà essere concluso anche oralmente.

Il contratto di lavoro a tempo determinato è quel contratto nel quale le parti stabiliscono un termine finale, il raggiungimento del quale porrà fine alle obbligazioni reciproche tra le parti.

La Corte di Cassazione, in una sua sentenza del 15 aprile 1982, ha disposto che tale contratto presuppone necessariamente “l’indicazione di un giorno determinato o di un avvenimento certo ad una data fissa, trascorso il quale le parti sono libere dalle loro obbligazioni reciproche”.

Lo stipendio

Lo stipendio indicato sul contratto di lavoro è sempre lordo. Per conoscere il netto, è necessario sottrarre a tale cifra i contributi previdenziali del lavoratore e le tasse:

  • i contributi previdenziali del lavoratore (cotisations sociales);
  • le trattenute fiscali (précompte professionnel): in Belgio, come in Italia, il datore di lavoro funge da sostituto d’imposta. Tali trattenute sono calcolate sull’imponibile, cioè sullo stipendio lordo indicato sul contratto di lavoro meno i contributi previdenziali del lavoratore.

In ogni caso il lavoratore ha diritto al salario minimo garantito (Revenu Minimum Mensuel Moyen Garanti: R.M.M.M.G.). Si tratta dell’importo minimo che un datore di lavoro in Belgio deve corrispondere mensilmente al lavoratore. A titolo indicativo, per i lavoratori di età superiore ai 21 anni, nel 2015 il salario minimo garantito ammontava a 1.559,38 €. Per un lavoratore diciottenne ammontava a € 1.501,82, mentre per un lavoratore sedicenne 1.051,27 € (pari al 70 % del salario minimo previsto per i diciottenni).

Il lavoratore, oltre allo stipendio mensile, ha diritto a:

  • un rimborso parziale o totale delle spese di trasporto per recarsi sul posto di lavoro;
  • una sorta di “tredicesima” (prime de fin d’année), versata al più tardi al 31 dicembre dell’anno in corso. Le condizioni che determinano l’ammontare di questa tredicesima variano relativamente al settore. Generalmente è calcolata proporzionalmente ai mesi di lavoro effettivo svolto durante l’anno presso il datore di lavoro.
  • un pécule de vacances, ovvero una somma extra per far fronte alle vacanze estive. In particolare:
  • per gli operai, tale importo sarà versato dall’Office National des Vacances Annuelles (ONVA). L’ammontare lordo corrisponde al 15,38% del salario guadagnato l’anno precedente. Tale somma è versata prima delle vacanze estive e comunque non prima del 2 maggio;
  • per quanto riguarda gli impiegati, è il datore di lavoro che verserà direttamente tale pécule de vacances. Questo comprende la remunerazione che è normalmente dovuta per la durata delle vacanze (pécule simple) più un supplemento uguale al 92% dello stipendio lordo (double pécule).

La cessazione del contratto di lavoro

Il contratto di lavoro cessa sia secondo le modalità previste dal diritto comune, sia secondo la regolamentazione della legge 3 luglio 1978.

Le modalità di cessazione del contratto di lavoro di diritto comune sono le seguenti:

  • la risoluzione del contratto di comune accordo;
  • la risoluzione giudiziale (art. 1184 del Code Judiciaire);
  • la forza maggiore (artt. 1147 e 1148 del Code Civil; article 32, 5° de la loi du 3 juillet 1978);
  • la clausola risolutoria;
  • la scadenza del termine;
  • il decesso di una delle parti (art. 1122 del Code Civil).

Le modalità di cessazione di un contratto di lavoro previste dalla legge sul contratto di lavoro (art. 32 della legge 3 luglio 1978) sono:

  • la scadenza del termine;
  • la realizzazione del lavoro per il quale era stato concluso il contratto;
  • la volontà di una delle parti;
  • la morte del lavoratore (mentre, ai sensi dell’art. 33 della legge del 1978, la morte del datore di lavoro non mette fine al contratto);
  • la forza maggiore.

Inoltre, la legge determina tre modi di rottura del contratto di lavoro concluso a tempo indeterminato:

  • rottura tramite notificazione di un preavviso;
  • pagamento di un‘indennità compensatoria di preavviso;
  • rottura per grave motivo.

Occorre chiarire che, benché il datore di lavoro ed il lavoratore abbiano la possibilità di risolvere unilateralmente il contratto di lavoro, ci potrà essere un licenziamento soltanto per ragioni che non siano né legate alla capacità o al comportamento del lavoratore né alle esigenze del datore di lavoro.

In questi ultimi casi quindi, il lavoratore potrà considerare il suo licenziamento non giustificato da validi motivi e si parlerà di licenziamento manifestamente irragionevole (in passato licenziamento senza giusta causa).

Per quel che riguarda il contratto a tempo determinato, occorre sottolineare che questo cesserà alla scadenza del termine per il quale era stato concluso.

La lingua del contratto

In Belgio l’uso delle lingue nelle relazioni lavorative è regolamentato:

  • se il datore di lavoro ha la sua sede nella regione fiamminga, allora il contratto di lavoro dovrà essere stipulato in fiammingo;
  • se il datore di lavoro ha la sua sede nella regione francofona, il contratto di lavoro dovrà essere stipulato in francese;
  • se il datore di lavoro ha la sua sede nella regione germanofona, il contratto di lavoro dovrà essere stipulato in tedesco.

Le imprese che hanno la loro sede nella regione bilingue di Bruxelles, dovranno stipulare il contratto in fiammingo o francese a seconda della lingua madre del lavoratore.

Se tali documenti non saranno redatti nella lingua prescritta dalla legge la sanzione prevista nella regione di Bruxelles-capitale, nella regione germanofona e nei comuni con facilitazioni amministrative (à facilités) consiste nella sostituzione obbligatoria di questi documenti e tale modificazione avrà effetto retroattivo.

Una diversa disciplina si applica invece relativamente ai contratti di lavoro conclusi in Vallonia e nelle Fiandre: qui la sanzione consiste nella nullità del contratto ed una sua successiva redazione nella lingua prescritta non sarà retroattiva.

Infine, è possibile che il contratto di lavoro sia redatto nella lingua ufficiale del luogo in cui ha sede l’impresa e, qualora sia differente, nella lingua parlata dal lavoratore. Occorre tuttavia precisare che in caso di controversie relativamente alle interpretazioni delle clausole contrattuali prevarrà la lingua ufficiale del contratto.

L’autore di questo post è David Diris.

The change in ownership of a company, of a working place or of an autonomous production unit will not extinguish by itself the employment relationship, and the new employer will be subrogated in the labour rights and obligations and in the Social Security obligations from the previous employer.

Company Succession shall be considered to exist when the transmission affect to the economic entity which maintains his identity, understood as an organized grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary.

The transferor and the transferee shall be jointly and severally liable during three years for the labour obligations born beforehand the transmission and which had not been satisfied.

The transferor and the transferee have to report to the legal representatives of the affected employees by the change in the ownership about the following:

  • Expected time of the transmission.
  • Reasons for the transmission.
  • Legal, economic and social consequences of the transmission to the employees.
  • Measures envisaged in relation to the employees.

If there are no legal representatives of the employees the transferor and the transferee shall provide that information directly to the affected employees.

Occupational risk prevention

The law 31/1995 of Prevention of risks at the workplace has the objective of promote the security and the health of the employees’ through the application of measures and the development of the necessary activities to the prevention of risks derived from work.

For that purpose, the Law establishes the general principles concerning the prevention of professional risks for the protection of the life and health.

Under Spanish law a labour contract may be suspended by the following causes:

  • Mutual agreement of the Parties.
  • The legitimate causes consigned in the contract.
  • Temporary incapacity of the employee.
  • Maternity, paternity, risk during pregnancy, risk during breastfeeding, and adoption or family placement.
  • Military service.
  • Holding a representative public charge.
  • Deprivation of the liberty of the employee, as long as a condemnatory sentence does not exists.
  • Suspension from duties without pay for disciplinary reasons.
  • Temporary force majeure.
  • For economic, technical, organizational or production causes.
  • Forced leave of absence.
  • For exercising the right to strike.
  • Legal closing of the company.
  • For decision of the employee as a consequence of gender-based violence.

The suspension of the contract exonerates the reciprocal obligations of working and remunerating the work.

Leaves

The leave can be voluntary or forced. The forced leave will give the right to return to the same workplace and to the computation of the seniority, this leave will be given cause by the designation or the election for a public charge which makes impossible to assist to the work. The readmission has to be applied on the following month since the cessation in the public charge.

The employee with seniority in the company of one year has the right to ask and have the opportunity of having the voluntary leave for a period of time between four months and five years. This right is only possible if four years since the last leave have passed.

The employees will have the right for a leave period for no more than three years to attend the care of every son.

The employee in leave will keep only a preferential right to re-entry in a vacant in the same or similar category in relation with his position.

Collective dismissals

Collective dismissal means the extinction of the contract based on economic, technical, organizational or production causes when, in a period of nineteen days, the extinctions affects at least to:

  • Ten employees, in companies with fewer that one hundred employees.
  • The ten per cent of the number of employees in companies with between one hundred and three hundred employees.
  • Thirty employees in companies which employ more than three hundred employees.

The collective dismissal must be preceded by a consultation period of no more than thirty days, or fifteen in case of companies with fewer than fifty employees, with the legal representatives of the employees. The consultation with the legal representatives of the employees must be, at the very least, about the possibilities of avoid or reduce the collective dismissals and attenuate its consequences through the use of accompanying social measures (e.g.: outplacement activities, training activities…).

The communication of the opening of the consultation period will start by means of a document by the employer to the legal representatives of the employees, and one copy which has to be sent to the labour authority. In this document shall be specified the following points:

  • The specification of the causes of the collective dismissal.
  • Number and professional qualification of the affected employees by the dismissal.
  • Number and professional qualification of the employees employed in the last year.
  • Period of time expected for the realization of the dismissals.
  • Criteria used for the designation of the affected employees by the dismissal.
  • Copy of the communication directed to the employees or their representatives.
  • Representatives of the employees who will be part of the negotiating committee.

The communication to the legal representatives of the employees and to the labour authority shall be accompanied with an Explanatory Memorandum about the causes of the collective dismissal and the other aspects indicated in the previous paragraph, and also the financial and accounts documentation and the technical dossier.

During the consultation period, the Parties shall negotiate with good faith, aiming to reach an agreement.

That agreement shall require the approval of the majority of the legal representative of the employees or, where appropriate, the majority of the members of the representative commission of the employees.

The termination of the consultation period can finish with an agreement or without agreement; if it finishes with an agreement a Deed of Agreement has to be drafted, or a Deed of Final Decision in case no agreement can be reached. After the consultation period, the result of the communication period has to be communicated to the labour authority and to the employees individually. In case of objection, this can be individually or collective.

Termination of the contract due to objective causes

The employment contract may be terminated for the following causes:

  • For known or for subsequent ineptitude of the employee after his effective placement in the company.
  • Because a lack of adaptation of the employee to the technical modifications operated in his works placement, if those changes are reasonable. First, the employer shall offer to the employee a guided course to facilitate the adaptation.
  • When any of the causes of the collective dismissal concurs and it affect to less than the thresholds established for the collective dismissals.
  • For non-attendance faults to the work, even if justified but intermittent, which are more than the twenty per cent of the working days in two consecutive months, as long as the total of non-attendance faults in the last twelve months exceed the five per cent of the working days, or the twenty five per cent in four discontinuous months.
  • The absences caused by legal strike, exercise of legal representation activities, accident at work, maternity, risk during pregnancy or breastfeeding shall not be count as non-attendance faults to the work, nor if the absences obey to a medical treatment of cancer or serious illness.

Form and effects of the extinction due to objective causes

The adoption of an extinguishment agreement demands the following requisites:

  • Written communication to the employee explaining the cause.
  • Make available to the employee, at the same time of giving the written document, the compensation of twenty days per worked year, prorating as months the periods of time less than a year and with the maximum of twelve monthly pays.
  • Fifty days prior notice of the termination of the contract, to commence from the moment of the official notification to the employee, until the end of the contract.

During the period of notice, the employee shall have the right of 6 hours per week licence to look for a work.

Against the termination decision the employee is able to appeal in the same way as with a disciplinary dismissal.

If the decision is based in reasons of the types of discrimination forbidden by the Constitution or by the Law, or it is made with violation of the fundamental rights and civil liberties, the termination decision will be null and void.

It will be also null the termination decision in the next situations:

  • Employees when their contracts are under suspension caused by maternity, risk during pregnancy, risk during breastfeeding, adoption or family placement…
  • To the pregnant employees, from the beginning of the pregnancy until the start of the period of suspension.
  • Employees after the return from the situations mentioned in paragraph a) if there has not passed nine month since the date of birth or date of the family placement.

The qualification by the judicial authority as null, fair or unfair dismissal of the same will produce the same effects than in case of disciplinary dismissal with the following modifications:

  • In case of fair dismissal, the employee shall be entitled for a compensation of 20 days per worked year, prorating as months the periods of time less than a year and with the with the maximum of twelve monthly pays.
  • In case of unfair dismissal, if the employer proceeds to readmit the employee, the employee has to reintegrate the perceived compensation and corresponding procedural salary. In case of substitution of the readmitting for financial compensation, the amount of that compensation will be deduced from this compensation.

Disciplinary dismissal

The contract can be terminated by decision of the employer, through a dismissal based on serious and negligent breach of duty by the employee.

Shall be regarded as contractual breaches:

  • Repeated an unjustified absenteeism.
  • The indiscipline or disobedience at work.
  • Verbal or physical offences to the employer, or other employees of the company, or relatives who live with them.
  • The breach of the contractual good faith, as well as the breach of trust in the course of the work.
  • The voluntary and continuous decline on working output.
  • Habitual drug or alcohol abuse which adversely affects to the work performance.
  • The harassment based on racial or ethnic origin, religion or convictions, disability, age or sexual orientation or sexual harassment.

Form and effects of the extinction due to disciplinary effects

The dismissal must be notified in writing, with an explanation of the causes and the date when it takes effect.

If the employee is a legal representative of the employees or a trade union representative will proceed to open a contradictory dossier, in this will be heard, besides the interested employee, the other members of the representation.

If the employee is a labour union member and the employee knows it, has to give prior hearing to the union representatives.

If the dismissal is done not respecting these requirements, the employer can make a new dismissal with all of the necessary requirements omitted in the previous. This new dismissal, will only be effective since its date of execution, and can only be done within the term of twenty days since the first dismissal.

The dismissal will be qualified as fair, unfair or null.

The dismissal shall be fair when the breach is accepted by the employer. It will be unfair in the opposite case or if its form is not adjusted to the Law.

It will be null in case the dismissal has been done by causes of discrimination prohibited in the Constitution or in the Law, or when is done with a violation of the fundamental rights or the public liberties of the employee.

It will be also null and void the dismissal in the following causes:

  • The employees who have their contracts under suspension caused by maternity, risk during pregnancy, risk during breastfeeding, adoption or family placement…
  • To the pregnant employees, from the beginning of the pregnancy until the start of the period of suspension.
  • Employees after the return from the situations mentioned in paragraph a) if there has not passed nine month since the date of birth or date of the family placement.

The previous specifications will be also null, except if the dismissal is qualified as fair by reasons which are not related with the pregnancy or the exercise of the rights to leaves or other licenses pointed.

The effect of the null dismissal is the automatic reinstatement of the employee, with the payment of the salaries they did not receive since the date of dismissal to the declaration of null dismissal.

The fair dismissal may validate the extinction of the work contract, without the right of  compensation and nor procedural salaries.

Unfair dismissal

If the dismissal is qualified as unfair, the employer, within five days since the notification of the sentence, may elect between the reinstatement of the employee or to pay an indemnity  equal  to thirty-three days of salary per worked year, prorating as months the periods of time less than a year and with the maximum of twenty-four monthly pays.

If the employer chooses the reinstatement, the employee has the right to obtain the procedural salaries.

If the employer does not choose between the reinstatement and the compensation, it is understood that he choose the first.

If the dismissed employee is a legal representative of the employees or a trade union representative, the option will always correspond to him. If he does not choose between reinstatement and compensation, it is understood that he choose the reinstatement, and he will have right to receive the procedural salaries.

Legal representation of the employees

The employees have the right to participate in the Company through the representative bodies. There are two different representative bodies, which are the Personnel Delegates and the Works Council.

Personnel Delegates

The representation of the employees in a company or in a workplace which has less than 50 and more than 10 employees correspond to the Delegates. The employees shall elect through free, personnel, secret and direct suffrage the personnel delegates depending on the number of employees, 1 delegate if are 30 or less employees, and two personnel delegates if the company has more than 31, till 50 employees.

The personnel delegates will exercise together before the employer the representation of the employees, and the will have the same conditions established for the works council.

Works Council

The works council is the representative and collegiate body of the employees in the company or workplace, its function is to defend the interests of the employees, in every workplace where the census is more than 50 employees.

The company which has in the same community two or more workplaces or in the bordering communities and their census are less than 50 individually but more than 50 employees in the whole workplaces will have a works council for all of the centers. And if there are one with more than 50 employees and more with less, the first will have one works council and in the others will constitute other.

Information and consultation rights

The works council will have the right of being informed and consulted by the employer about those questions that can affect to the employees, and also about the situation of the company and the evolution of the employment in the same.

The works council has the right of being informed quarterly:

  • About the general evolution of the economic area of the company.
  • About the economic situation of the company.
  • About the forecast of the employer to celebrate new contracts.
  • About the statistics regarding the index of absenteeism and the causes, the accidents at work, occupational illnesses and its consequences.

The works council will also have the right of receive information, at least annually, related with the implementation in the company the right of equal treatment and opportunities among men and women.

The works council will have the right to obtain the following documents:

  • The balance, the P&L account, the memory and, other relevant documents.
  • The model of the contracts which are used in the company and the documents related with the dismissals.
  • The severe sanctions targeted.

The works council will have the right of being informed about the situation and structure of the employments in the company or work place, and about the evolution of the same.

The number of the members in the works council will be depending on the number of employees in the company, and will be:

  • From 50 to 100 employees, five.
  • From 101 to 250, nine.
  • From 251 to 500, thirteen
  • From 501 to 750, seventeen.
  • From 751 to 100, twenty-one.
  • More than 1000, two per each thousand, with the maximum of seventy-five.

The works council will choose between their members one president and a secretary, and the will elaborate their own procedural regulation, which cannot contravene the Law.

Substantial changes in working conditions

The business management may agree substantial modifications in the working conditions if there exists real economic, technique, organizational, or production reasons. They shall be consider related with the competitiveness productivity or technique organization or work in the company.

The modification in the next causes will be considered as substantial change in working conditions:

  • Working day.
  • Timetable and working time arrangements.
  • Scheduled working hours.
  • Compensation package and the amount of salary.
  • Functions, if exceed the limits from article 93 of the Works Statute.

The Substantial changes in the working conditions could affect to the recognized conditions to the employees in the work contract, agreements or collective agreements.

It is consider as collective character the modification that, in a period of 90 days, affect at least to:

  • Ten employees, on companies with fewer 100 employees.
  • The ten percent of the number of employees in the company in the companies which have more than one hundred and less than three hundred.
  • Thirteen employees, in the companies of more than three hundred employees,

The decision to change the working conditions individually shall be notified by the employer to the affected employee and his/her legal representatives no later than fifteen days before effective date.

If the Substantial change in working conditions has a collective character, this decision has to be preceded by a consultation period of no more than fifteen days.

The temporary employment agencies are the companies where their main function is to provide to another company (User Company), temporarily, employees contracted through it. The hiring of employees to release temporarily to another company may occur only through a temporary employment agency.

The contract may be temporally or undefined, and the maximum will be six months if the contract has been concluded for circumstances of the market, or accumulation of work. And if it is to cover a workplace temporarily, the maximum will be for three months.

Manpower supply contracts

Manpower supply contract is the contract which is celebrated between the temporary employment agencies and the User Company being his subject the assignment of an employee, and the employee through the assignment will be subject to the instruction and discipline of the User Company.

It will only be possible to execute a contract between a temporary employment agency and a User Company in the same circumstances and under the same conditions and requirements that the article 15 of the Employees Statute.

Additionally, it will only be possible to conclude a contract between a temporary employment agency and the User Company, in the same terms that in the contracts of apprenticeship contract and training for work according to the article 11 of the Employees Statute.

If after the available deadline the employee continues working in the User Company, the employee will be considered an employee of the User Company under an undefined term contract.

The working time will be the scheduled by the User Company. The clause that bans the possibility for the employee to be hired by the company after this kind of contract shall be void.

The companies may not conclude these contracts in the following cases:

  • To substitute employees in strike.
  • To carry on dangerous works.
  • Where in the previous twelve months the company has cancel the work places, which are looking to cover, under an unfair dismissal or by any other the causes of the article 20, 21 and 52 c, of the Employees Statute.
  • To assign employees to other temporary employment agencies.

The User Company is responsible of the protection in safety and hygiene matter in the work.

The User Company will respond collaterally of the wage guarantees and of Social Security contracted with the employee during the effect of the manpower supply contract.

If the contract is for a defined period, the employee after the contract will have the right of a compensation of 12 days per worked year.

General Aspects

Definition – Employment contract means the contract by which one individual (employee) assumes the obligation to execute a work or to provide a service to one or several persons (employer), under the dependence of those persons, in return for remuneration in any kind or form.

Dependency and otherness are essential elements of the contract.

Minimum age – The minimum age to enter into a labor contract is the age of sixteen. For the employees under the age of eighteen there exist special rules depending on the work type of works, the working hours and benefits surcharges.

Types of contracts

Verbal or written

Both types are valid but written contracts are recommended.

Time

The contract could be for a full-time workday or part-time workday. The workday duration will be agreed through the collective bargaining agreements; if not agreed through the collective bargaining agreements, the maximum will be 40 hours per week.

Term

The contract could be permanent (indefinite) or temporary (valid for a pre-determined time period). Unless indicated otherwise, a contract shall be presumed as permanent and for full-time workday.

Types:

  1. Permanent contract – The permanent contract is the one who is concluded with no limits in the provision of services. It must be announced in the Employment Service Office within ten days following its execution. The condition of permanent employee will be acquired, whatever modality of contract has been executed, by the employees who have not been registered in the Social Security once the trial period has expired.
  2. Temporary contract – The temporary contract is the contract executed to be valid for a fix term and can be a full-time or part-time workday contract. The temporary contract shall be made in writing, but it can be verbal in the case of casual contract due to production overload if the term of the same is less than four weeks and full-time workday.
  3. specific project or service contract – This type of contract is intended for the completion of works or services with autonomy inside the normal activity of the company and its duration , limited in time, is initially uncertain, but never for more than three years. The collective bargaining agreements are able to identify those works or task with own autonomy within the normal activity of the company that can be performed with contracts of this nature. The contract for a specific project or service can be done through full-time or part-time contracts. And the term will be the term of the realization of the work or service. The contract shall be made in writing and should specify with detail and clearly the type of hiring and identify sufficiently the work or service which constitute its object, the term, and also the work that is going to be developed.
  4. Temporary contract depending on production circumstances – This contract is concluded to attend to the circumstantial requirements of the market, amount of task/works or excess of orders, even if is it is the normal activity of the company. It can be executed for a first professional experience, first youth employment, for an unemployed person who is under thirty years with no professional experience or less than three months. It could be concluded for a full-time or part-time workday. In case of youth employment the minimum of the part-time workday has to be the 75% of the workday from a full-time employee. The maximum term of this type of contracts will be six months inside a period of twelve months. And in case of first youth employment the minimum will be three months. These contracts must be concluded by writing if the duration exceeds four weeks and always in the event of part-time contracts. The contract must specify the reasons which justify it, the duration and the work to be done. The temporary contract depending on production circumstances will be extinguished, following denounce by any of the Parties at the expiry of the agreed period.
  5. Provisional contracts – The aim of this contract is to substitute employees with a reserved right to their job, or to temporarily cover a work place during the selection process of a permanent candidate. The working time must be full-time. The term of this contract will be equal to the term of the absence of the employee with reserved right of his work place. And if the contract is caused by a selection process of a permanent candidate it has to be for the same time of that period, but never more than three months. The contract must be concluded in writing, specifying with precision and clearness the nature of the hiring, identifying the substitute employee and the cause of the substitution and, where appropriate, the work place whose coverage will be done after the selection process, and also specify the circumstance which determinates its duration, the term of the contract and the work to be performed. This contract will be extinguished, following denounce by any of the Parties, if any of the following circumstances occurs:
    • The return of the replaced employee;
    • Expiry of the legal period or expiry of the period conventionally established for the reintegration;
    • The extinction of the cause which brought the reserved right of the work place;
    • The fulfilment of the three month period for the selection process.
  6. Compensation in case of expiration of the temporary contracts – The compensation established in the Law, in case of expiration of the temporary contracts will be implemented gradually according to the following timetable:
    • Nine days of salary per worked year for the temporary contracts celebrated after the 1st of January of 2012;
    • Ten days of salary per worked year for the temporary contracts celebrated after the 1st of January of 2013;
    • Eleven days of salary per worked year for the temporary contracts celebrated after the 1st of January of 2014;
    • Twelve days of salary per worked year for the temporary contracts celebrated after the 1st of January of 2015.
  7. Apprenticeship and training contract – The aim of this contract is the professional qualification of the employees through a training and professional activity. This contract can be executed with employees over 16 years old and under 25, who do not yet have the required professional qualification for an internship contract. The previous age restriction shall not apply if the contract is executed with disabled people and those social groups that are at risk of exclusion. Once the duration of this type of contract has expired, the employee may not be hired under this modality of contract by the same or other company, unless if the inherent training of the new contract has the purpose to obtain a different professional qualification. The effective working time cannot be over 75%, during the first year, or the 85%, during the second and third year, of the maximum working day established in the collective bargaining agreement. The remuneration of the employee hired for the apprenticeship and training shall be established in proportion to the effective working time, set forth through the collective bargaining agreement.
  8. Internship contract – The internship contract shall be concluded with those who are in possession of a university degree or technical education degree in the next five years, or seven for a disabled employee, from the finishing date of the studies according to the following rules:
  • The workplace shall allow the obtaining of the professional practice suitable with the study or formation level completed.
  • The term of the contract cannot be less than six month and more than two years.
  • No employee could be hired in the same or different company for more time than two years under the same degree or professional certificate.
  • The remuneration of the employee shall be the remuneration which is agreed in the collective bargaining, which must not, however, be less than the 60% or the 75% during the first or the second year of the contract.

If at the end of this contract the employee continues in the company, it is not possible to state a new probationary period. In this sense, the total duration of the internship contract must be computed to the effects of the seniority in the company.

  1. Distance work – Through this type of contract the provision of the professional activity is mainly executed in the residence of the employee or in a place freely chosen by the employee, alternatively to the on-site development in the working place of the company. The agreement shall be formalized in writing. The distance employees will have the same rights that the employees who work in the work place of the company.

Salary and wage

Salary shall include all l kind of considerations received by the employees in money or in kind.

The in-kind salary may not exceed 30 per cent of all of the considerations received by the employee.

The national minimum wage is established by the Government each year, and for 2015 it is € 9.080 per year (€ 648.60 per month). The employee has the right to receive two extraordinary payments, one in Christmas and the other at the time to be negotiated with the company. The minimum salary includes these two extra wages.

Working time

The maximum working hours are those agreed in the collective bargaining agreements, but in general, the maximum is 40 hours per week. Between the end of one working day and the beginning of the next working day must mediate twelve hours.

The time worked in excess over the 40 hours per week will be considered overtime. The amount of overtime may not exceed 80 hours per year. Overtime will be voluntary in general.

Night work

The Statute of Employees considers as night work the work realized between 10 pm and 6 am. The employer who resorts regularly to this kind of work has to inform to the labor authority.

Weekly rest, holiday

The employees have the right for a weekly rest period of one day and a half, this time has to be uninterrupted, and as a general rule it shall include the Saturday evening or Monday morning and the whole Sunday.

The bank holidays cannot exceed the number of fourteen days per year including local holidays.

The employee, with prior notice and justification, may be absent from the work, with the right of remuneration, under the reasons established in the Statute of Employees, for e.g.: marriage, birth of a child, change of domicile.

The annual period of paid holidays will be, at least, 30 calendar days.

Special labour relationships for senior management personnel

The employees who are empowered to represent the company and in connection with the general objectives of the same, with autonomy and full responsibility are considered as senior management personnel.

The special relationship of the senior management personnel is based on the mutual confidence of the Parties.

The contract shall be made in writing and shall contain as a minimum:

  • Identification of the Parties.
  • The purpose of the contract.
  • The agreed compensation, specifying, if it is the case, the amount in money or in in kind.
  • The term of the contract.

This contract may be entered into for a trial period, but for not more than nine months. If the trial period has expired with no abandonment, the contract will produce full effect.

The Parties are free to agree the term of the contract but if they do not agree a specific term it shall be deemed as an indefinite contract.

The employee cannot conclude other contracts with other companies, unless expressly authorization of the employer.

The non- competition clauses, which cannot be for more than two years, shall be valid only if they comply with the requirements set forth at the RD 1382/1985.

  • Termination by decision of the senior executive.
  • The contract shall cease by the will of the senior executive, with an advance notice of three months.
  • Termination by decision of the Company.

The senior executive can be ceased with the right to obtain the agreed indemnities, and in the lack of agreement with the amount set out in RD 1382/1985 (seven days of salary in cash per worked year, with the limit of six months’ salary.

The Company must serve a minimum advanced notice of three months. In case of non-compliance with the advance notification, the senior executive shall have the right for a compensation equivalent to the salaries that he will not obtain during that period.

In the event of disciplinary dismissal, (provided that it is qualified as unfair by Court), the indemnity amount will be the figure agreed through the contract, or if not agreed the equivalent to twenty days of salary per worked year, with the limit of twelve months salary.

The Foreign Investment Protection and Promotion Act of Iran of 2002 (FIPPA) does not give a precise definition of investment. However, according to article one of the law, it shall include any cash or non-cash flow of investment into the country and could encompass cash flows in foreign currency through the Iranian banking system or other legitimate means, machinery, spare parts, raw materials, CKD (knock-down-kit) and SKD (semi-knocked-down-kit) parts, intellectual property such as knowhow, patents and registered names, technical services, transferable share dividends and anything else if approved by the Council of Ministers. Foreign direct investments are allowed only in sectors in which private ownership is permitted. Build Operate Transfer (BOT) agreements and Civil Partnerships can be used in all areas, including upstream oil and gas industry, where foreign direct investment is prohibited due to a constitutional ban.

With the enactment of FIPPA, obtaining an investment license has become very straightforward. As a rule of thumb, there is a minimum amount of $ 300,000 to apply for a FIPPA license. The entire process of obtaining a license should take no longer than 45 days since the date of submission of documents to the Organization for Economic and Technical Assistance of Iran (hereinafter “OIETAI”), the main foreign investment authority in Iran. The application can be submitted directly by the foreign investor or their legal representative in Iran. The application form is downloadable online, must be completed in Persian or in English language and is reviewed by the OIETAI in coordination with the relevant Ministry. This stage may last up to 15 days. OETAI refers the application to the Foreign Investment Board which shall make the final decision regarding the admission of the foreign investment. The Foreign Investment Board is the highest-ranking authority and is the authority which finally issues the FIPPA license. The board includes six high-ranking official members of the government, the head of OETAI and some other prominent figures.

Should the Board reject the application, the decision can be appealed; in case the application is accepted, the license is signed by the Minister of Economic Affairs and Finance. The license is then communicated to the foreign investor by OETAI. The latter stage might take a maximum of 30 days, without considering the delay which may be caused by an appeal request.

A FIPPA license lists the amount of foreign investment, name of foreign and Iranian partners, type and area of investment, means for transference of capital contributions and the requirements regarding the investment project. The license is issued for a specific period during which at least part of the investment must be transferred to Iran. Foreign investors can file a request for an extension prior to the expiry of the deadline set by the Board of Investment, mentioning justified reasons for such a request. This request will be reviewed by the Board of Investment. If no investment is made during before the given deadline, absent justifiable excuses, the license will be revoked.

In general, merely commercial or trading activities do not qualify for FIPPA license unless they are accompanied by production. Investment in services may qualify for a FIPPA license subject to the decision of the Board.

Jose Luis Herrero

Aree di attività

  • Agenzia
  • Immigrazione
  • Proprietà intellettuale
  • Lavoro
  • Diritto penale d’impresa
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    Employment termination in Spain

    12 Dicembre 2016

    • Spagna
    • Lavoro

    Il contratto di lavoro nel diritto belga è il contratto con il quale un soggetto – il lavoratore – si obbliga a fornire una prestazione lavorativa sotto l’autorità del datore di lavoro a fronte di un corrispettivo (artt. 2, 3, 4, 5 della legge 3 luglio 1978).

    Gli elementi costitutivi di un contratto di lavoro sono tre:

    • la prestazione di lavoro
    • la remunerazione
    • autorità del datore di lavoro (la subordinazione)

    La prestazione di lavoro è il primo elemento del contratto di lavoro. Il datore di lavoro si obbliga a fornire il lavoro e, di contro, il lavoratore si impegna ad adempiere correttamente il lavoro che gli è stato affidato.

    La nozione di lavoro comprende le prestazioni di lavoro che un soggetto esegue sotto l’autorità di un terzo soggetto e per le quali è corrisposto un compenso.

    Si parla dunque di lavoro, ai sensi della legge relativa ai contratti di lavoro, nel caso in cui un soggetto effettua una prestazione di lavoro subordinato (quindi sotto l’autorità del datore di lavoro) a fronte di un corrispettivo, anche se l’attività lavorativa è di breve durata o se il compenso attribuito non è elevato.

    La prestazione di lavoro non deve necessariamente essere determinata. Tuttavia, è preferibile che le parti specifichino, nel contratto di lavoro, la prestazione che dovrà essere eseguita.

    I contratti che non sono considerati contratti di lavoro sono: l‘apprendistato, il tirocinio, il lavoro autonomo, i contratti degli agenti aziendali, i mediatori, i commissionari ed i concessionari.

    Il secondo elemento essenziale del contratto di lavoro è la remunerazione quale corrispettivo della prestazione  lavorativa.

    La Corte di Cassazione, in una sua sentenza del 25 maggio 1998, ha stabilito che “la remunerazione deve risultare da un accordo tra le parti circa il suo ammontare”: in caso contrario non c‘è contratto di lavoro.

    Inoltre la remunerazione permette di distinguere il contratto di lavoro dal volontariato (activité bénévole).

    La legge relativa ai contratti di lavoro non contiene alcuna disposizione relativa all’ammontare della remunerazione: quindi le parti, in linea di principio, possono liberamente fissarla.

    Tuttavia, si dovrà tener conto del salario minimo obbligatorio che è determinato dalle convenzioni collettive del lavoro (CCT) generalmente vincolanti (les barèmes = liste). Nei settori disciplinati da tali “liste“, le parti non potranno prevedere nel loro contratto di lavoro una remunerazione inferiore a quella fissata quale salario minimo applicabile nel settore di attività del lavoratore.

    E nel caso in cui, in un contratto di lavoro, non è stata espressamente stabilita una remunerazione si applicherà il valore del salario minimo fissato dalla lista (le minimum barémique). Se, nel settore di impiego del lavoratore tale minimo non è stato stabilito, allora egli avrà diritto ad un reddito mensile minimo garantito (RMMG), eventualmente adattato anche in funzione dell’età.

    L’ultimo elemento è il legame di subordinazione tra il lavoratore ed il datore di lavoro. Questo è certamente l’elemento più caratteristico del contratto di lavoro, ma il più complesso da identificare.

    Questo criterio consente infatti di distinguere il contratto di lavoro da altri contratti, come il contratto d’appalto (contrat d’enterprise) che, a differenza del primo, non crea un legame di subordinazione tra i contraenti. Inoltre lavorare senza vincolo di subordinazione è quello che distingue il lavoro dipendente da quello autonomo.

    La subordinazione presuppone:

    • l’esistenza di un potere di direzione concesso al datore di lavoro;
    • che il lavoratore sia tenuto ad un certo “dovere di obbedienza”.

    La legge sul contratto di lavoro dispone, infatti, che il lavoratore ha l’obbligo d’agire conformemente agli ordini e alle istruzioni impartite dal datore di lavoro in vista dell’esecuzione del contratto (art. 17 secondo comma legge 3 luglio 1978).

    Durata del contratto

    Un contratto di lavoro può essere concluso senza che vi sia alcun riferimento al limite temporale (per una durata indeterminata) o con un limite temporale (contratto a tempo determinato o con una durata “ben definita”). Un contratto di lavoro a tempo indeterminato necessita esclusivamente dell’accordo fra le parti: non è richiesta nessun’altra formalità. Quindi un contratto di lavoro potrà essere concluso anche oralmente.

    Il contratto di lavoro a tempo determinato è quel contratto nel quale le parti stabiliscono un termine finale, il raggiungimento del quale porrà fine alle obbligazioni reciproche tra le parti.

    La Corte di Cassazione, in una sua sentenza del 15 aprile 1982, ha disposto che tale contratto presuppone necessariamente “l’indicazione di un giorno determinato o di un avvenimento certo ad una data fissa, trascorso il quale le parti sono libere dalle loro obbligazioni reciproche”.

    Lo stipendio

    Lo stipendio indicato sul contratto di lavoro è sempre lordo. Per conoscere il netto, è necessario sottrarre a tale cifra i contributi previdenziali del lavoratore e le tasse:

    • i contributi previdenziali del lavoratore (cotisations sociales);
    • le trattenute fiscali (précompte professionnel): in Belgio, come in Italia, il datore di lavoro funge da sostituto d’imposta. Tali trattenute sono calcolate sull’imponibile, cioè sullo stipendio lordo indicato sul contratto di lavoro meno i contributi previdenziali del lavoratore.

    In ogni caso il lavoratore ha diritto al salario minimo garantito (Revenu Minimum Mensuel Moyen Garanti: R.M.M.M.G.). Si tratta dell’importo minimo che un datore di lavoro in Belgio deve corrispondere mensilmente al lavoratore. A titolo indicativo, per i lavoratori di età superiore ai 21 anni, nel 2015 il salario minimo garantito ammontava a 1.559,38 €. Per un lavoratore diciottenne ammontava a € 1.501,82, mentre per un lavoratore sedicenne 1.051,27 € (pari al 70 % del salario minimo previsto per i diciottenni).

    Il lavoratore, oltre allo stipendio mensile, ha diritto a:

    • un rimborso parziale o totale delle spese di trasporto per recarsi sul posto di lavoro;
    • una sorta di “tredicesima” (prime de fin d’année), versata al più tardi al 31 dicembre dell’anno in corso. Le condizioni che determinano l’ammontare di questa tredicesima variano relativamente al settore. Generalmente è calcolata proporzionalmente ai mesi di lavoro effettivo svolto durante l’anno presso il datore di lavoro.
    • un pécule de vacances, ovvero una somma extra per far fronte alle vacanze estive. In particolare:
    • per gli operai, tale importo sarà versato dall’Office National des Vacances Annuelles (ONVA). L’ammontare lordo corrisponde al 15,38% del salario guadagnato l’anno precedente. Tale somma è versata prima delle vacanze estive e comunque non prima del 2 maggio;
    • per quanto riguarda gli impiegati, è il datore di lavoro che verserà direttamente tale pécule de vacances. Questo comprende la remunerazione che è normalmente dovuta per la durata delle vacanze (pécule simple) più un supplemento uguale al 92% dello stipendio lordo (double pécule).

    La cessazione del contratto di lavoro

    Il contratto di lavoro cessa sia secondo le modalità previste dal diritto comune, sia secondo la regolamentazione della legge 3 luglio 1978.

    Le modalità di cessazione del contratto di lavoro di diritto comune sono le seguenti:

    • la risoluzione del contratto di comune accordo;
    • la risoluzione giudiziale (art. 1184 del Code Judiciaire);
    • la forza maggiore (artt. 1147 e 1148 del Code Civil; article 32, 5° de la loi du 3 juillet 1978);
    • la clausola risolutoria;
    • la scadenza del termine;
    • il decesso di una delle parti (art. 1122 del Code Civil).

    Le modalità di cessazione di un contratto di lavoro previste dalla legge sul contratto di lavoro (art. 32 della legge 3 luglio 1978) sono:

    • la scadenza del termine;
    • la realizzazione del lavoro per il quale era stato concluso il contratto;
    • la volontà di una delle parti;
    • la morte del lavoratore (mentre, ai sensi dell’art. 33 della legge del 1978, la morte del datore di lavoro non mette fine al contratto);
    • la forza maggiore.

    Inoltre, la legge determina tre modi di rottura del contratto di lavoro concluso a tempo indeterminato:

    • rottura tramite notificazione di un preavviso;
    • pagamento di un‘indennità compensatoria di preavviso;
    • rottura per grave motivo.

    Occorre chiarire che, benché il datore di lavoro ed il lavoratore abbiano la possibilità di risolvere unilateralmente il contratto di lavoro, ci potrà essere un licenziamento soltanto per ragioni che non siano né legate alla capacità o al comportamento del lavoratore né alle esigenze del datore di lavoro.

    In questi ultimi casi quindi, il lavoratore potrà considerare il suo licenziamento non giustificato da validi motivi e si parlerà di licenziamento manifestamente irragionevole (in passato licenziamento senza giusta causa).

    Per quel che riguarda il contratto a tempo determinato, occorre sottolineare che questo cesserà alla scadenza del termine per il quale era stato concluso.

    La lingua del contratto

    In Belgio l’uso delle lingue nelle relazioni lavorative è regolamentato:

    • se il datore di lavoro ha la sua sede nella regione fiamminga, allora il contratto di lavoro dovrà essere stipulato in fiammingo;
    • se il datore di lavoro ha la sua sede nella regione francofona, il contratto di lavoro dovrà essere stipulato in francese;
    • se il datore di lavoro ha la sua sede nella regione germanofona, il contratto di lavoro dovrà essere stipulato in tedesco.

    Le imprese che hanno la loro sede nella regione bilingue di Bruxelles, dovranno stipulare il contratto in fiammingo o francese a seconda della lingua madre del lavoratore.

    Se tali documenti non saranno redatti nella lingua prescritta dalla legge la sanzione prevista nella regione di Bruxelles-capitale, nella regione germanofona e nei comuni con facilitazioni amministrative (à facilités) consiste nella sostituzione obbligatoria di questi documenti e tale modificazione avrà effetto retroattivo.

    Una diversa disciplina si applica invece relativamente ai contratti di lavoro conclusi in Vallonia e nelle Fiandre: qui la sanzione consiste nella nullità del contratto ed una sua successiva redazione nella lingua prescritta non sarà retroattiva.

    Infine, è possibile che il contratto di lavoro sia redatto nella lingua ufficiale del luogo in cui ha sede l’impresa e, qualora sia differente, nella lingua parlata dal lavoratore. Occorre tuttavia precisare che in caso di controversie relativamente alle interpretazioni delle clausole contrattuali prevarrà la lingua ufficiale del contratto.

    L’autore di questo post è David Diris.

    The change in ownership of a company, of a working place or of an autonomous production unit will not extinguish by itself the employment relationship, and the new employer will be subrogated in the labour rights and obligations and in the Social Security obligations from the previous employer.

    Company Succession shall be considered to exist when the transmission affect to the economic entity which maintains his identity, understood as an organized grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary.

    The transferor and the transferee shall be jointly and severally liable during three years for the labour obligations born beforehand the transmission and which had not been satisfied.

    The transferor and the transferee have to report to the legal representatives of the affected employees by the change in the ownership about the following:

    • Expected time of the transmission.
    • Reasons for the transmission.
    • Legal, economic and social consequences of the transmission to the employees.
    • Measures envisaged in relation to the employees.

    If there are no legal representatives of the employees the transferor and the transferee shall provide that information directly to the affected employees.

    Occupational risk prevention

    The law 31/1995 of Prevention of risks at the workplace has the objective of promote the security and the health of the employees’ through the application of measures and the development of the necessary activities to the prevention of risks derived from work.

    For that purpose, the Law establishes the general principles concerning the prevention of professional risks for the protection of the life and health.

    Under Spanish law a labour contract may be suspended by the following causes:

    • Mutual agreement of the Parties.
    • The legitimate causes consigned in the contract.
    • Temporary incapacity of the employee.
    • Maternity, paternity, risk during pregnancy, risk during breastfeeding, and adoption or family placement.
    • Military service.
    • Holding a representative public charge.
    • Deprivation of the liberty of the employee, as long as a condemnatory sentence does not exists.
    • Suspension from duties without pay for disciplinary reasons.
    • Temporary force majeure.
    • For economic, technical, organizational or production causes.
    • Forced leave of absence.
    • For exercising the right to strike.
    • Legal closing of the company.
    • For decision of the employee as a consequence of gender-based violence.

    The suspension of the contract exonerates the reciprocal obligations of working and remunerating the work.

    Leaves

    The leave can be voluntary or forced. The forced leave will give the right to return to the same workplace and to the computation of the seniority, this leave will be given cause by the designation or the election for a public charge which makes impossible to assist to the work. The readmission has to be applied on the following month since the cessation in the public charge.

    The employee with seniority in the company of one year has the right to ask and have the opportunity of having the voluntary leave for a period of time between four months and five years. This right is only possible if four years since the last leave have passed.

    The employees will have the right for a leave period for no more than three years to attend the care of every son.

    The employee in leave will keep only a preferential right to re-entry in a vacant in the same or similar category in relation with his position.

    Collective dismissals

    Collective dismissal means the extinction of the contract based on economic, technical, organizational or production causes when, in a period of nineteen days, the extinctions affects at least to:

    • Ten employees, in companies with fewer that one hundred employees.
    • The ten per cent of the number of employees in companies with between one hundred and three hundred employees.
    • Thirty employees in companies which employ more than three hundred employees.

    The collective dismissal must be preceded by a consultation period of no more than thirty days, or fifteen in case of companies with fewer than fifty employees, with the legal representatives of the employees. The consultation with the legal representatives of the employees must be, at the very least, about the possibilities of avoid or reduce the collective dismissals and attenuate its consequences through the use of accompanying social measures (e.g.: outplacement activities, training activities…).

    The communication of the opening of the consultation period will start by means of a document by the employer to the legal representatives of the employees, and one copy which has to be sent to the labour authority. In this document shall be specified the following points:

    • The specification of the causes of the collective dismissal.
    • Number and professional qualification of the affected employees by the dismissal.
    • Number and professional qualification of the employees employed in the last year.
    • Period of time expected for the realization of the dismissals.
    • Criteria used for the designation of the affected employees by the dismissal.
    • Copy of the communication directed to the employees or their representatives.
    • Representatives of the employees who will be part of the negotiating committee.

    The communication to the legal representatives of the employees and to the labour authority shall be accompanied with an Explanatory Memorandum about the causes of the collective dismissal and the other aspects indicated in the previous paragraph, and also the financial and accounts documentation and the technical dossier.

    During the consultation period, the Parties shall negotiate with good faith, aiming to reach an agreement.

    That agreement shall require the approval of the majority of the legal representative of the employees or, where appropriate, the majority of the members of the representative commission of the employees.

    The termination of the consultation period can finish with an agreement or without agreement; if it finishes with an agreement a Deed of Agreement has to be drafted, or a Deed of Final Decision in case no agreement can be reached. After the consultation period, the result of the communication period has to be communicated to the labour authority and to the employees individually. In case of objection, this can be individually or collective.

    Termination of the contract due to objective causes

    The employment contract may be terminated for the following causes:

    • For known or for subsequent ineptitude of the employee after his effective placement in the company.
    • Because a lack of adaptation of the employee to the technical modifications operated in his works placement, if those changes are reasonable. First, the employer shall offer to the employee a guided course to facilitate the adaptation.
    • When any of the causes of the collective dismissal concurs and it affect to less than the thresholds established for the collective dismissals.
    • For non-attendance faults to the work, even if justified but intermittent, which are more than the twenty per cent of the working days in two consecutive months, as long as the total of non-attendance faults in the last twelve months exceed the five per cent of the working days, or the twenty five per cent in four discontinuous months.
    • The absences caused by legal strike, exercise of legal representation activities, accident at work, maternity, risk during pregnancy or breastfeeding shall not be count as non-attendance faults to the work, nor if the absences obey to a medical treatment of cancer or serious illness.

    Form and effects of the extinction due to objective causes

    The adoption of an extinguishment agreement demands the following requisites:

    • Written communication to the employee explaining the cause.
    • Make available to the employee, at the same time of giving the written document, the compensation of twenty days per worked year, prorating as months the periods of time less than a year and with the maximum of twelve monthly pays.
    • Fifty days prior notice of the termination of the contract, to commence from the moment of the official notification to the employee, until the end of the contract.

    During the period of notice, the employee shall have the right of 6 hours per week licence to look for a work.

    Against the termination decision the employee is able to appeal in the same way as with a disciplinary dismissal.

    If the decision is based in reasons of the types of discrimination forbidden by the Constitution or by the Law, or it is made with violation of the fundamental rights and civil liberties, the termination decision will be null and void.

    It will be also null the termination decision in the next situations:

    • Employees when their contracts are under suspension caused by maternity, risk during pregnancy, risk during breastfeeding, adoption or family placement…
    • To the pregnant employees, from the beginning of the pregnancy until the start of the period of suspension.
    • Employees after the return from the situations mentioned in paragraph a) if there has not passed nine month since the date of birth or date of the family placement.

    The qualification by the judicial authority as null, fair or unfair dismissal of the same will produce the same effects than in case of disciplinary dismissal with the following modifications:

    • In case of fair dismissal, the employee shall be entitled for a compensation of 20 days per worked year, prorating as months the periods of time less than a year and with the with the maximum of twelve monthly pays.
    • In case of unfair dismissal, if the employer proceeds to readmit the employee, the employee has to reintegrate the perceived compensation and corresponding procedural salary. In case of substitution of the readmitting for financial compensation, the amount of that compensation will be deduced from this compensation.

    Disciplinary dismissal

    The contract can be terminated by decision of the employer, through a dismissal based on serious and negligent breach of duty by the employee.

    Shall be regarded as contractual breaches:

    • Repeated an unjustified absenteeism.
    • The indiscipline or disobedience at work.
    • Verbal or physical offences to the employer, or other employees of the company, or relatives who live with them.
    • The breach of the contractual good faith, as well as the breach of trust in the course of the work.
    • The voluntary and continuous decline on working output.
    • Habitual drug or alcohol abuse which adversely affects to the work performance.
    • The harassment based on racial or ethnic origin, religion or convictions, disability, age or sexual orientation or sexual harassment.

    Form and effects of the extinction due to disciplinary effects

    The dismissal must be notified in writing, with an explanation of the causes and the date when it takes effect.

    If the employee is a legal representative of the employees or a trade union representative will proceed to open a contradictory dossier, in this will be heard, besides the interested employee, the other members of the representation.

    If the employee is a labour union member and the employee knows it, has to give prior hearing to the union representatives.

    If the dismissal is done not respecting these requirements, the employer can make a new dismissal with all of the necessary requirements omitted in the previous. This new dismissal, will only be effective since its date of execution, and can only be done within the term of twenty days since the first dismissal.

    The dismissal will be qualified as fair, unfair or null.

    The dismissal shall be fair when the breach is accepted by the employer. It will be unfair in the opposite case or if its form is not adjusted to the Law.

    It will be null in case the dismissal has been done by causes of discrimination prohibited in the Constitution or in the Law, or when is done with a violation of the fundamental rights or the public liberties of the employee.

    It will be also null and void the dismissal in the following causes:

    • The employees who have their contracts under suspension caused by maternity, risk during pregnancy, risk during breastfeeding, adoption or family placement…
    • To the pregnant employees, from the beginning of the pregnancy until the start of the period of suspension.
    • Employees after the return from the situations mentioned in paragraph a) if there has not passed nine month since the date of birth or date of the family placement.

    The previous specifications will be also null, except if the dismissal is qualified as fair by reasons which are not related with the pregnancy or the exercise of the rights to leaves or other licenses pointed.

    The effect of the null dismissal is the automatic reinstatement of the employee, with the payment of the salaries they did not receive since the date of dismissal to the declaration of null dismissal.

    The fair dismissal may validate the extinction of the work contract, without the right of  compensation and nor procedural salaries.

    Unfair dismissal

    If the dismissal is qualified as unfair, the employer, within five days since the notification of the sentence, may elect between the reinstatement of the employee or to pay an indemnity  equal  to thirty-three days of salary per worked year, prorating as months the periods of time less than a year and with the maximum of twenty-four monthly pays.

    If the employer chooses the reinstatement, the employee has the right to obtain the procedural salaries.

    If the employer does not choose between the reinstatement and the compensation, it is understood that he choose the first.

    If the dismissed employee is a legal representative of the employees or a trade union representative, the option will always correspond to him. If he does not choose between reinstatement and compensation, it is understood that he choose the reinstatement, and he will have right to receive the procedural salaries.

    Legal representation of the employees

    The employees have the right to participate in the Company through the representative bodies. There are two different representative bodies, which are the Personnel Delegates and the Works Council.

    Personnel Delegates

    The representation of the employees in a company or in a workplace which has less than 50 and more than 10 employees correspond to the Delegates. The employees shall elect through free, personnel, secret and direct suffrage the personnel delegates depending on the number of employees, 1 delegate if are 30 or less employees, and two personnel delegates if the company has more than 31, till 50 employees.

    The personnel delegates will exercise together before the employer the representation of the employees, and the will have the same conditions established for the works council.

    Works Council

    The works council is the representative and collegiate body of the employees in the company or workplace, its function is to defend the interests of the employees, in every workplace where the census is more than 50 employees.

    The company which has in the same community two or more workplaces or in the bordering communities and their census are less than 50 individually but more than 50 employees in the whole workplaces will have a works council for all of the centers. And if there are one with more than 50 employees and more with less, the first will have one works council and in the others will constitute other.

    Information and consultation rights

    The works council will have the right of being informed and consulted by the employer about those questions that can affect to the employees, and also about the situation of the company and the evolution of the employment in the same.

    The works council has the right of being informed quarterly:

    • About the general evolution of the economic area of the company.
    • About the economic situation of the company.
    • About the forecast of the employer to celebrate new contracts.
    • About the statistics regarding the index of absenteeism and the causes, the accidents at work, occupational illnesses and its consequences.

    The works council will also have the right of receive information, at least annually, related with the implementation in the company the right of equal treatment and opportunities among men and women.

    The works council will have the right to obtain the following documents:

    • The balance, the P&L account, the memory and, other relevant documents.
    • The model of the contracts which are used in the company and the documents related with the dismissals.
    • The severe sanctions targeted.

    The works council will have the right of being informed about the situation and structure of the employments in the company or work place, and about the evolution of the same.

    The number of the members in the works council will be depending on the number of employees in the company, and will be:

    • From 50 to 100 employees, five.
    • From 101 to 250, nine.
    • From 251 to 500, thirteen
    • From 501 to 750, seventeen.
    • From 751 to 100, twenty-one.
    • More than 1000, two per each thousand, with the maximum of seventy-five.

    The works council will choose between their members one president and a secretary, and the will elaborate their own procedural regulation, which cannot contravene the Law.

    Substantial changes in working conditions

    The business management may agree substantial modifications in the working conditions if there exists real economic, technique, organizational, or production reasons. They shall be consider related with the competitiveness productivity or technique organization or work in the company.

    The modification in the next causes will be considered as substantial change in working conditions:

    • Working day.
    • Timetable and working time arrangements.
    • Scheduled working hours.
    • Compensation package and the amount of salary.
    • Functions, if exceed the limits from article 93 of the Works Statute.

    The Substantial changes in the working conditions could affect to the recognized conditions to the employees in the work contract, agreements or collective agreements.

    It is consider as collective character the modification that, in a period of 90 days, affect at least to:

    • Ten employees, on companies with fewer 100 employees.
    • The ten percent of the number of employees in the company in the companies which have more than one hundred and less than three hundred.
    • Thirteen employees, in the companies of more than three hundred employees,

    The decision to change the working conditions individually shall be notified by the employer to the affected employee and his/her legal representatives no later than fifteen days before effective date.

    If the Substantial change in working conditions has a collective character, this decision has to be preceded by a consultation period of no more than fifteen days.

    The temporary employment agencies are the companies where their main function is to provide to another company (User Company), temporarily, employees contracted through it. The hiring of employees to release temporarily to another company may occur only through a temporary employment agency.

    The contract may be temporally or undefined, and the maximum will be six months if the contract has been concluded for circumstances of the market, or accumulation of work. And if it is to cover a workplace temporarily, the maximum will be for three months.

    Manpower supply contracts

    Manpower supply contract is the contract which is celebrated between the temporary employment agencies and the User Company being his subject the assignment of an employee, and the employee through the assignment will be subject to the instruction and discipline of the User Company.

    It will only be possible to execute a contract between a temporary employment agency and a User Company in the same circumstances and under the same conditions and requirements that the article 15 of the Employees Statute.

    Additionally, it will only be possible to conclude a contract between a temporary employment agency and the User Company, in the same terms that in the contracts of apprenticeship contract and training for work according to the article 11 of the Employees Statute.

    If after the available deadline the employee continues working in the User Company, the employee will be considered an employee of the User Company under an undefined term contract.

    The working time will be the scheduled by the User Company. The clause that bans the possibility for the employee to be hired by the company after this kind of contract shall be void.

    The companies may not conclude these contracts in the following cases:

    • To substitute employees in strike.
    • To carry on dangerous works.
    • Where in the previous twelve months the company has cancel the work places, which are looking to cover, under an unfair dismissal or by any other the causes of the article 20, 21 and 52 c, of the Employees Statute.
    • To assign employees to other temporary employment agencies.

    The User Company is responsible of the protection in safety and hygiene matter in the work.

    The User Company will respond collaterally of the wage guarantees and of Social Security contracted with the employee during the effect of the manpower supply contract.

    If the contract is for a defined period, the employee after the contract will have the right of a compensation of 12 days per worked year.

    General Aspects

    Definition – Employment contract means the contract by which one individual (employee) assumes the obligation to execute a work or to provide a service to one or several persons (employer), under the dependence of those persons, in return for remuneration in any kind or form.

    Dependency and otherness are essential elements of the contract.

    Minimum age – The minimum age to enter into a labor contract is the age of sixteen. For the employees under the age of eighteen there exist special rules depending on the work type of works, the working hours and benefits surcharges.

    Types of contracts

    Verbal or written

    Both types are valid but written contracts are recommended.

    Time

    The contract could be for a full-time workday or part-time workday. The workday duration will be agreed through the collective bargaining agreements; if not agreed through the collective bargaining agreements, the maximum will be 40 hours per week.

    Term

    The contract could be permanent (indefinite) or temporary (valid for a pre-determined time period). Unless indicated otherwise, a contract shall be presumed as permanent and for full-time workday.

    Types:

    1. Permanent contract – The permanent contract is the one who is concluded with no limits in the provision of services. It must be announced in the Employment Service Office within ten days following its execution. The condition of permanent employee will be acquired, whatever modality of contract has been executed, by the employees who have not been registered in the Social Security once the trial period has expired.
    2. Temporary contract – The temporary contract is the contract executed to be valid for a fix term and can be a full-time or part-time workday contract. The temporary contract shall be made in writing, but it can be verbal in the case of casual contract due to production overload if the term of the same is less than four weeks and full-time workday.
    3. specific project or service contract – This type of contract is intended for the completion of works or services with autonomy inside the normal activity of the company and its duration , limited in time, is initially uncertain, but never for more than three years. The collective bargaining agreements are able to identify those works or task with own autonomy within the normal activity of the company that can be performed with contracts of this nature. The contract for a specific project or service can be done through full-time or part-time contracts. And the term will be the term of the realization of the work or service. The contract shall be made in writing and should specify with detail and clearly the type of hiring and identify sufficiently the work or service which constitute its object, the term, and also the work that is going to be developed.
    4. Temporary contract depending on production circumstances – This contract is concluded to attend to the circumstantial requirements of the market, amount of task/works or excess of orders, even if is it is the normal activity of the company. It can be executed for a first professional experience, first youth employment, for an unemployed person who is under thirty years with no professional experience or less than three months. It could be concluded for a full-time or part-time workday. In case of youth employment the minimum of the part-time workday has to be the 75% of the workday from a full-time employee. The maximum term of this type of contracts will be six months inside a period of twelve months. And in case of first youth employment the minimum will be three months. These contracts must be concluded by writing if the duration exceeds four weeks and always in the event of part-time contracts. The contract must specify the reasons which justify it, the duration and the work to be done. The temporary contract depending on production circumstances will be extinguished, following denounce by any of the Parties at the expiry of the agreed period.
    5. Provisional contracts – The aim of this contract is to substitute employees with a reserved right to their job, or to temporarily cover a work place during the selection process of a permanent candidate. The working time must be full-time. The term of this contract will be equal to the term of the absence of the employee with reserved right of his work place. And if the contract is caused by a selection process of a permanent candidate it has to be for the same time of that period, but never more than three months. The contract must be concluded in writing, specifying with precision and clearness the nature of the hiring, identifying the substitute employee and the cause of the substitution and, where appropriate, the work place whose coverage will be done after the selection process, and also specify the circumstance which determinates its duration, the term of the contract and the work to be performed. This contract will be extinguished, following denounce by any of the Parties, if any of the following circumstances occurs:
      • The return of the replaced employee;
      • Expiry of the legal period or expiry of the period conventionally established for the reintegration;
      • The extinction of the cause which brought the reserved right of the work place;
      • The fulfilment of the three month period for the selection process.
    6. Compensation in case of expiration of the temporary contracts – The compensation established in the Law, in case of expiration of the temporary contracts will be implemented gradually according to the following timetable:
      • Nine days of salary per worked year for the temporary contracts celebrated after the 1st of January of 2012;
      • Ten days of salary per worked year for the temporary contracts celebrated after the 1st of January of 2013;
      • Eleven days of salary per worked year for the temporary contracts celebrated after the 1st of January of 2014;
      • Twelve days of salary per worked year for the temporary contracts celebrated after the 1st of January of 2015.
    7. Apprenticeship and training contract – The aim of this contract is the professional qualification of the employees through a training and professional activity. This contract can be executed with employees over 16 years old and under 25, who do not yet have the required professional qualification for an internship contract. The previous age restriction shall not apply if the contract is executed with disabled people and those social groups that are at risk of exclusion. Once the duration of this type of contract has expired, the employee may not be hired under this modality of contract by the same or other company, unless if the inherent training of the new contract has the purpose to obtain a different professional qualification. The effective working time cannot be over 75%, during the first year, or the 85%, during the second and third year, of the maximum working day established in the collective bargaining agreement. The remuneration of the employee hired for the apprenticeship and training shall be established in proportion to the effective working time, set forth through the collective bargaining agreement.
    8. Internship contract – The internship contract shall be concluded with those who are in possession of a university degree or technical education degree in the next five years, or seven for a disabled employee, from the finishing date of the studies according to the following rules:
    • The workplace shall allow the obtaining of the professional practice suitable with the study or formation level completed.
    • The term of the contract cannot be less than six month and more than two years.
    • No employee could be hired in the same or different company for more time than two years under the same degree or professional certificate.
    • The remuneration of the employee shall be the remuneration which is agreed in the collective bargaining, which must not, however, be less than the 60% or the 75% during the first or the second year of the contract.

    If at the end of this contract the employee continues in the company, it is not possible to state a new probationary period. In this sense, the total duration of the internship contract must be computed to the effects of the seniority in the company.

    1. Distance work – Through this type of contract the provision of the professional activity is mainly executed in the residence of the employee or in a place freely chosen by the employee, alternatively to the on-site development in the working place of the company. The agreement shall be formalized in writing. The distance employees will have the same rights that the employees who work in the work place of the company.

    Salary and wage

    Salary shall include all l kind of considerations received by the employees in money or in kind.

    The in-kind salary may not exceed 30 per cent of all of the considerations received by the employee.

    The national minimum wage is established by the Government each year, and for 2015 it is € 9.080 per year (€ 648.60 per month). The employee has the right to receive two extraordinary payments, one in Christmas and the other at the time to be negotiated with the company. The minimum salary includes these two extra wages.

    Working time

    The maximum working hours are those agreed in the collective bargaining agreements, but in general, the maximum is 40 hours per week. Between the end of one working day and the beginning of the next working day must mediate twelve hours.

    The time worked in excess over the 40 hours per week will be considered overtime. The amount of overtime may not exceed 80 hours per year. Overtime will be voluntary in general.

    Night work

    The Statute of Employees considers as night work the work realized between 10 pm and 6 am. The employer who resorts regularly to this kind of work has to inform to the labor authority.

    Weekly rest, holiday

    The employees have the right for a weekly rest period of one day and a half, this time has to be uninterrupted, and as a general rule it shall include the Saturday evening or Monday morning and the whole Sunday.

    The bank holidays cannot exceed the number of fourteen days per year including local holidays.

    The employee, with prior notice and justification, may be absent from the work, with the right of remuneration, under the reasons established in the Statute of Employees, for e.g.: marriage, birth of a child, change of domicile.

    The annual period of paid holidays will be, at least, 30 calendar days.

    Special labour relationships for senior management personnel

    The employees who are empowered to represent the company and in connection with the general objectives of the same, with autonomy and full responsibility are considered as senior management personnel.

    The special relationship of the senior management personnel is based on the mutual confidence of the Parties.

    The contract shall be made in writing and shall contain as a minimum:

    • Identification of the Parties.
    • The purpose of the contract.
    • The agreed compensation, specifying, if it is the case, the amount in money or in in kind.
    • The term of the contract.

    This contract may be entered into for a trial period, but for not more than nine months. If the trial period has expired with no abandonment, the contract will produce full effect.

    The Parties are free to agree the term of the contract but if they do not agree a specific term it shall be deemed as an indefinite contract.

    The employee cannot conclude other contracts with other companies, unless expressly authorization of the employer.

    The non- competition clauses, which cannot be for more than two years, shall be valid only if they comply with the requirements set forth at the RD 1382/1985.

    • Termination by decision of the senior executive.
    • The contract shall cease by the will of the senior executive, with an advance notice of three months.
    • Termination by decision of the Company.

    The senior executive can be ceased with the right to obtain the agreed indemnities, and in the lack of agreement with the amount set out in RD 1382/1985 (seven days of salary in cash per worked year, with the limit of six months’ salary.

    The Company must serve a minimum advanced notice of three months. In case of non-compliance with the advance notification, the senior executive shall have the right for a compensation equivalent to the salaries that he will not obtain during that period.

    In the event of disciplinary dismissal, (provided that it is qualified as unfair by Court), the indemnity amount will be the figure agreed through the contract, or if not agreed the equivalent to twenty days of salary per worked year, with the limit of twelve months salary.

    The Foreign Investment Protection and Promotion Act of Iran of 2002 (FIPPA) does not give a precise definition of investment. However, according to article one of the law, it shall include any cash or non-cash flow of investment into the country and could encompass cash flows in foreign currency through the Iranian banking system or other legitimate means, machinery, spare parts, raw materials, CKD (knock-down-kit) and SKD (semi-knocked-down-kit) parts, intellectual property such as knowhow, patents and registered names, technical services, transferable share dividends and anything else if approved by the Council of Ministers. Foreign direct investments are allowed only in sectors in which private ownership is permitted. Build Operate Transfer (BOT) agreements and Civil Partnerships can be used in all areas, including upstream oil and gas industry, where foreign direct investment is prohibited due to a constitutional ban.

    With the enactment of FIPPA, obtaining an investment license has become very straightforward. As a rule of thumb, there is a minimum amount of $ 300,000 to apply for a FIPPA license. The entire process of obtaining a license should take no longer than 45 days since the date of submission of documents to the Organization for Economic and Technical Assistance of Iran (hereinafter “OIETAI”), the main foreign investment authority in Iran. The application can be submitted directly by the foreign investor or their legal representative in Iran. The application form is downloadable online, must be completed in Persian or in English language and is reviewed by the OIETAI in coordination with the relevant Ministry. This stage may last up to 15 days. OETAI refers the application to the Foreign Investment Board which shall make the final decision regarding the admission of the foreign investment. The Foreign Investment Board is the highest-ranking authority and is the authority which finally issues the FIPPA license. The board includes six high-ranking official members of the government, the head of OETAI and some other prominent figures.

    Should the Board reject the application, the decision can be appealed; in case the application is accepted, the license is signed by the Minister of Economic Affairs and Finance. The license is then communicated to the foreign investor by OETAI. The latter stage might take a maximum of 30 days, without considering the delay which may be caused by an appeal request.

    A FIPPA license lists the amount of foreign investment, name of foreign and Iranian partners, type and area of investment, means for transference of capital contributions and the requirements regarding the investment project. The license is issued for a specific period during which at least part of the investment must be transferred to Iran. Foreign investors can file a request for an extension prior to the expiry of the deadline set by the Board of Investment, mentioning justified reasons for such a request. This request will be reviewed by the Board of Investment. If no investment is made during before the given deadline, absent justifiable excuses, the license will be revoked.

    In general, merely commercial or trading activities do not qualify for FIPPA license unless they are accompanied by production. Investment in services may qualify for a FIPPA license subject to the decision of the Board.

    Jose Luis Herrero

    Aree di attività

    • Agenzia
    • Immigrazione
    • Proprietà intellettuale
    • Lavoro
    • Diritto penale d’impresa
    Contatta Jose