Main employment measures approved by the Spanish Government on March 2019

By Miguel Pastur, Paticio Ramirez

03-2019

Daily record of working time

The main change with the highest impact is the obligation to record working time included in Chapter III of the Royal Decree-law 8/2019, of 8 March, on urgent measures on social protection (hereinafter "RDL 8/2019"), with the following terms:

  • The company must guarantee the daily record of the working time, including the specific start time and end time of each employee (regardless of any applicable working time flexibility measures in force).
  • Such record will be organized and documented through collective consultation or company agreement, or based on the decision of the employer in absence of workers' representatives.
  • The company must keep the records available to employees, their representatives and the Labor Inspectorate, for a 4-year period. New paragraph 9 in Article 34 of the Statute of Workers (hereinafter "SW").
  • Non-compliance with the obligation to record working time is classified as a serious infringement, with penalties ranging from 626 euros to 6,250 euros. New paragraph 9 in Article 34 of the Law on Breaches and Sanctions in Social Affairs (hereinafter "LISOS").
  • The present measure will enter into force within two months after the publication of the RDL 8/2019 in the official gazette (i.e. it will be mandatory from May 12th, 2019).

Equality Measures

On 1st March 2019, Spanish government approved the Royal Decree-Law 6/2019 on urgent equality measures (hereinafter RDL 6/2019), which includes the following main measures:

Companies with more than 50 employees must implement an equality plan; and file it in the register that will be created for such purpose.

Its content must be negotiated with the Workers’ Representatives and must include the following minimum content:

  • hiring process;
  • professional classification;
  • training;
  • promotions;
  • working conditions, including wage auditing between women and men;
  • co-responsible exercise of personal, family and working life rights;
  • under-representation of women;
  • remuneration; and
  • prevention of sexual and gender-based harassment.

The following deadlines have been granted for the approval of Equality Plans from 7 March 2019:

  • For companies with more than 50 employees, a term of 3 years.
  • For companies between 100 and 150 employees, a term of 2 years.
  • For companies between 150 and 250 employees, a term of 1 year.

Companies must keep a record of the average salaries of the workforce, which must be detailed by gender and distributed by professional classification, which employees will be able to access through their Workers’ Representatives.

In order to avoid sex discrimination, companies with at least 50 employees and average wage differences by gender over 25% in any given professional group, must provide justification for said wage differences that evidence that no gender discrimination is taking place.

Paternity leave is progressively extended from 5 weeks to 16 weeks.

Part of the leave must be enjoyed immediately after childbirth and the remaining weeks may be taken in one continuous period or in shorter ones, until the child reaches 12 months of age, full-time or part-time, subject to agreement between the employer and the employee.

YEAR FOR THE BIRTH OF A CHILD
As from 1 April 2019 8 Weeks
  • The first two weeks must be enjoyed continuously immediately after childbirth.
  • The biological mother can pass to the other parent 4 weeks of her 16- week maternity leave.
2020 12 Weeks
  • The first four weeks must be enjoyed continuously immediately after childbirth.
  • The biological mother can pass to the other parent 2 weeks of her 16- week maternity leave. 
2021 16 Weeks
  • The first six weeks will be mandatory and must be enjoyed continuously, thus producing the equalization of paternity and maternity leave.

Additional measures:

  • If a contract is declared null and void on the grounds of wage discrimination by gender, the affected employee will be entitled to equal value remuneration.
  • Gender-based violence will interrupt (i) the duration of training contracts and (ii) duration of the probationary period.
  • If the employee is pregnant during the probationary period, the termination of the contract by the employer will be deemed null and void from the starting date of the pregnancy until the date of the commencement of the suspension of the contract for maternity leave, except in cases where the company can provide evidence of non-discriminatory grounds for the termination.
  • Employees may request the adaptation of the duration and distribution of their working hours, in order to make effective their right to the conciliation of personal, family and working life. Such adaptations must be reasonable and proportionate in relation with both the employees' and the companies' organizational or productive needs.

    This right will be effective under the terms agreed by the collective bargaining. Otherwise, the company must open a negotiation process with the employee for a maximum period of 30 days, which will conclude with a written communication in response to the employee's request. The company may (i) accept the request; (ii) make an alternative proposal; or (iii) reject the request, indicating the objective reasons on which such rejection is based.
  • The two-day paid leave for child birth is eliminated.
  • Non-compliance with the obligations regarding equality plans and measures would imply an administrative sanction ranging between 626 and 6,250 euro.