Since the controversial and debated Labor Reform began its journey last February, much has been written about it, much has been debated/criticized, and professionals have had to study it a lot...
Since the controversial and debated Labor Reform began its journey last February, much has been written about it, much has been debated/criticized, and professionals in charge of Labor Advice to companies have had to study it a lot to get up to date and start applying it.
There are many doubts that employers and workers have about the new regulation, and many are the questions that we have all asked ourselves since last February.
Whether we want it or not, whether we agree or not with this profound change, we have no choice but to "get used to" the new regulation approved on July 6 in the Congress of Deputies (Law 3/2012 on urgent measures for labor market reform).
The rules of the game have changed. Now we live in a totally different reality than the one that existed just six months ago, and the work of Labor Advisors should be aimed at making companies aware of the need for a change in their Labor Relations policies.
The "tools" that companies now have to make the necessary adjustments in this situation of economic crisis that "hits" us are different and more "favorable", however, it is necessary that time passes to verify whether or not the new regulation contributes to solving the terrible situation that has originated this important change. Time will tell if this Reform manages to solve the serious unemployment problem that exists in this country and that so harshly punishes our Autonomous Community (http://www.datosmacro.com/paro-epa/ccaa/canarias).
There are many of us professionals in the world of Labor Law who have been observing the opinions of the Judges and Magistrates, who are in charge of applying the new regulation; and I have to say that there is, among them, a majority current that intends not to abandon either the criteria or the way of understanding and applying the Labor Law existing before the Labor Reform.
It is my intention to shed some light on this new legal framework and therefore I want to dedicate this article to explain what the new internal flexibility measures consist of and how they can help companies in crisis situations not to destroy employment.
It must be made clear that now more than ever negotiation between employers and workers is essential and necessary to implement the necessary measures to adjust working conditions, trying to reach an agreement in which both parties win (WIN-WIN) and whose main objective is to stop the destruction of employment, ensuring the viability of business activity.
Let's leave aside the way of proceeding that has been the paradigm in our labor market until now: CRISIS=DISMISSALS.
The new legal framework provides for the following legal novelties in the interest of maintaining employment:
Professional classification: Professional Categories disappear, the law establishes that only Professional Groups will exist (which will unitarily group the professional skills, qualifications and general content of the provision, and may include different tasks, functions, professional specialties or responsibilities assigned to the worker) and therefore collective agreements must adapt to this new situation, which will allow companies to "move" workers within the same group, being able to assign different tasks included within the same professional group according to their needs, thus eliminating the rigidity that existed before the Reform.
I am going to illustrate this point with an example, let's take as a reference the Collective Agreement for the Hotel Industry of the province of Las Palmas, in it we see that there is an annex in which the different professional categories are collected, well, with the new law, this way of classifying personnel disappears. The employer may agree in collective bargaining a professional group of Administration, Reception, Floors, etc...
In each of these groups there may in turn be different "professions". Let's imagine the Floors Department, in it could fit from a Governor to the Laundry Porters. It could be assigned by contract to a worker, a specific position within that group but, with the possibility of providing services of both greater and lesser relevance to the one initially designated, without the worker being able to object to anything, so that the company can adjust its staff according to the needs of the moment.
In this way, the company could perfectly assign a Governor the tasks of a Chambermaid, when there are staff on sick leave or for any other reason, avoiding the need to hire a substitute.
Irregular distribution of the working day. The percentage of the working day that the employer can distribute irregularly throughout the year is increased from 5 (which was established by the RDL) to 10. This gives the company a wider margin of maneuver to adapt working hours to its needs (beware!!, all this must be carried out by communicating it in advance to the worker).
Functional mobility. It is facilitated thanks to the elimination of professional categories, an aspect already explained in the first point.
Geographic mobility. The economic, technical, organizational or productive causes, which are those that justify this mobility, are no longer linked to a search for the improvement of the company's position through a more adequate organization of its resources that favor its competitive position in the market or a better response to the demands, criteria that were subject to assessment by our judges and magistrates, frequently finding the company dismissed its claims by not being appreciated the reasonableness of the decision or measure adopted.
Now the economic, technical, organizational or productive causes are justified when they are related to the competitiveness, productivity or technical organization or work in the company, disappearing the possibility that the judges and magistrates assess the reasonableness of the measure, being also the competitiveness, productivity and technical organization of work "expressions" that give rise to a greater "game" to companies.
The company may now argue that it is not competitive because its competitors have lower wages, or that there is a decrease in demand because its customers have started buying from another company that is located in another Autonomous Community. Let's say that now the company has more possibilities that its measures are estimated, but it must strictly comply with the established legal procedure, since this will be the main reason why a judge can annul this measure.
In addition, the possibility that the Labor Authority ordered the extension of the incorporation period available to the worker and the consequent paralysis of the effectiveness of the transfer for a period of time in no case exceeding 6 months disappears.
Substantial modification of working conditions. As with Geographic Mobility, there is no longer the possibility that judges assess whether the economic, technical, organizational or productive causes improve the company's position, or favor its competitive position in the market or against demand. Now the company uses competitiveness, productivity or technical organization or work, as criteria that justify the measures adopted (same explanation given for the previous measure).
The salary amount is included as a matter susceptible to modification by this route.
There is also a shortening of the deadlines that the employer has to communicate the effectiveness of the measure to the affected workers.
Suspension of contracts or Reductions of Working Hours for economic, technical, organizational or productive reasons or for reasons of force majeure.
We find ourselves again with the same causes as in the cases of geographic mobility and substantial modification of working conditions, which are the economic, technical, organizational or productive ones. Establishing that an economic cause will occur when from the results of the company "an economic situation is detached negative, in cases such as the existence of losses, current or foreseen, or the persistent decrease of its level of ordinary income or sales. In any case, it will be understood that the decrease is persistent if during two consecutive quarters the level of ordinary income or sales of each quarter is lower than that registered in the same quarter of the previous year".
The legal requirement of the need for authorization by the Labor Authority disappears, now the employer can, complying with the rest of the requirements, make the decision, without the "approval" of the Labor Authority being mandatory.
A bonus of 50% of the employer contributions for common contingencies is allowed for employment regulation requests submitted from January 1, 2012 to December 31, 2013 and the replacement of the right to unemployment benefits for cases in which suspensions or reductions of working hours occur between January 1, 2012 and December 31, 2012, both inclusive, and the dismissal takes place between February 12, 2012 and December 31, 2013.
Opting out of the Collective Agreement.
Before the Reform this possibility was applied only in salary matters, now the cases of non-application of the applicable agreement, whether sector or company, are extended to the working conditions that affect working hours, schedule and distribution of working time, shifts, remuneration system and salary amount, work and performance system, functions and voluntary improvements of the protective action of Social Security.
The causes are the already known ones, technical, organizational, productive or economic causes, in this last case specifying in "two consecutive quarters" the temporal framework for the decrease in the level of "ordinary" income or sales defining the cause to be considered "persistent", and also specifying the terms of the comparison: the level of ordinary income or sales of each quarter must be lower than that registered in the same quarter of the previous year.
The duration of the non-application agreement will extend until the moment in which a new agreement is applicable in said company.
Therefore, now the company can agree with the workers an adjustment not only at the level of salaries but also of schedules, working hours, etc..., with the objective of maintaining employment and ensuring the survival of the company, even if it is in other conditions (not desired neither by the employer nor by the workers), but with the mentality that they are working to "turn the situation around". It is important to transmit to the staff that the measures are necessary for the company to overcome the situation and for employment not to be destroyed.
It is better to agree on a reduction of working hours and that workers can maintain employment, contribution and part of their income, than to leave the staff in a situation of unemployment.
Modifications in matters of Collective Agreements and Collective Bargaining.
Perhaps this aspect is one of the most important introduced by the new regulation.
The applicative preference, without conditions, of the company collective agreement (which may be negotiated at any time during the validity of agreements of a higher scope) over the state sectoral, autonomous community or lower scope, in the legally established matters is established.
Now the company can negotiate a company agreement that establishes conditions lower than those regulated in the sectoral or provincial agreement.
The minimum contents that must be reflected in the collective agreements are reduced (decrease in rigidity)
Once a year has passed since the termination of the collective agreement without a new agreement having been agreed or an arbitration award issued, it will lose, unless otherwise agreed, validity and, if any, the collective agreement of a higher scope that was applicable will be applied (it is intended that collective bargaining be carried out in any scope).
We live in difficult times but full of opportunities, a change of mentality and a change in the way of proceeding in matters of Labor Relations is necessary. Ask your advisor.
*José María García Ruiz, Labor Advisor
