Employers and employees are free to negotiate the terms and conditions of their employment relationship. However, employees have various minimum rights under the law, regardless of any contrary language in their employment agreement. These minimum working conditions are set forth in the Workers’ Statute and the applicable collective agreement, among others.
An employee’s salary includes all amounts received by an employee in compensation for services rendered. Salary can be monetary or in kind, but the latter cannot be higher than 30% of the total amount received by the employee.
The maximum working week is forty (40) hours calculated as an average over a yearly period. A collective agreement, or failing that, an agreement between the employer and employee representatives, may establish the irregular distribution of working time throughout the year. In the absence of agreement, the company may distribute unevenly throughout the year, 10 percent of the workday. This distribution shall always respect the minimum daily and weekly rest periods.
As a general rule, overtime hours are of voluntary acceptance by employees, with exceptions made for specific individuals and an applicable collective agreement. Structural overtime hours will be obligatory as they are meant to substitute unexpected leaves and meet higher production periods. Overtime hours can be compensated economically or with time for rest. If there is no agreement in this regard, it will be understood that the overtime hours must be compensated with resting time within the following four (4) months. According to statutory law, overtime cannot exceed eighty (80) hours per year. Those who have been compensated with periods of rest within the four (4) months following its completion will not be computed for this purpose. In addition, there is a form of overtime that is considered as force majeure, wherein overtime is required due to the need to prevent or repair accidents, or other extraordinary and urgent damages. This type of overtime is mandatory for the employees and will not be taken into account for the annual maximum limit.
The employer is guarantor of the health and safety in the workplace and, as such, it will need to take all necessary steps in order to protect its employees. The employer shall take the necessary measures to ensure that the use of the workplace does not create risks to the health and safety of its employees or, if this is not possible, so that these risks are minimised.
Employer’s Obligation to Provide a Healthy and Safe Workplace
The prevention of labour risks should be integrated in the general management of the company, through the implementation and application of a plan for the prevention of labour risks. The essential instruments for the management and application of the risk prevention plan include the evaluation of labour risks and the planning of the preventive activity.
The process of assessing labour risks is aimed at estimating the enormity of the risks by obtaining the necessary information, so that the employer is able make an appropriate decision regarding the need to take preventive measures, including decisions regarding the types of measures that should be adopted. The evaluation should serve to identify dangerous elements, the employees who could be exposed to such elements, and the magnitude of the risks. When the result of such an assessment reveals situations of risk, the employer will then plan the appropriate preventive activity in order to eliminate, control and/or reduce those risks.
A company’s Health and Safety Committee is an internal body tasked with consulting on a regularly basis the company’s actions in the field of risk prevention. It will be constituted in all companies or work centres that have 50 or more employees. The Committee will participate in the preparation, implementation and evaluation of risk prevention plans and programs in the company, as well as promote initiatives on preventive methods and procedures. In any case, employers must meet the minimum request established by law regarding their constructive conditions, order, cleanliness and maintenance, signposting, service installations or protection, environmental conditions, lighting, sanitary and local respite services, equipment and first aid accommodations.
In addition to whistleblower regulations, employees can file complaints, either during or after employment. Some companies offer internal codes of conduct with procedures in this regard. Statutory law does not enforce a specific procedure to be followed, however. Besides internal complaints before the company, employees are entitled to report any violation of the law before the Labour Inspectorate, which is an administrative body meant to guarantee employment rights. All actions and claims carried out by employees in defence of their rights are protected from any form of retaliation. Therefore, any claim registered internally, or externally before third parties, will effectively serve to protect employees from retaliation.
Protection from Retaliation
The protection from retaliation is the right of every employee to not be punished for raising complaints of discrimination or harassment, for participating in legal proceedings or internal investigations, or for having exercised any type of labour rights that affect them personally or affect a third-party. Retaliation can include any negative job action, such as demotion, discipline, dismissal or salary reduction. The consequence of any action taken by the company with the intention of a reprisal will make it null and void.
The protection from retaliation is framed in Article 4. 2 g) of the Workers’ Statute, which declares that workers have the right to exercise any actions deriving from their work contract, as similarly defined in Article 24.1 of the Spanish Constitution, which establishes that “every person has the right to obtain the effective protection of the judges and the courts in the exercise of his or her legitimate rights and interests, and in no case may he go undefended”. Case law has been modelling and constituting the case-by-case assumptions in which a worker is protected. However, not every claim will grant the employee a valid protection. Reckless or baseless claims with the sole purpose of searching for a specific type of protection will not be effective. There is a proper legal procedure to claim a violation of retaliation in protection of fundamental rights and public liberties.
