Silvia Bauza (Allen & Overy) : “Social dialogue and collective bargaining are essential to prevent massive job loss”
Head of Allen & Overy’s employment practice in Spain, Silvia Bauza has had an extremely busy year. She walks us through the government’s measures to protect employees, outlines working-from-home regulations, and discusses the key issues faced by clients at this point in the pandemic.
Leaders league: What have been the measures that the government has taken to protect employees in Spain?
Silvia Bauza: There have been several legal measures implemented to protect employees, such as the prohibition of justified dismissals on Covid-19 grounds. There have also been extraordinary measures regarding unemployment benefit: when an employee is put on an ERTE (temporary work adjustment plan), irrespective of whether this ERTE derives from Covid-19, he or she would be entitled to receive a state unemployment benefit. The new law is more employee-friendly – for example, employees are eligible regardless of whether they have contributed the minimum amount necessary to access it.
There is also a legal guarantee for employers to maintain the same level of employment for six months after an ERTE when the employer has benefited from Social Security exemptions.
From a remote working perspective, companies were obligated to adopt appropriate measures. The preferential nature of remote working in Spain was legally enshrined until 21 September 2020. Employees also had the right to adapt or reduce their working day in exceptional coronavirus-related circumstances, such as caring for a close family member or a live-in partner.
As working from home is now the new trend, is there a legal framework to protect employees as well as employers?
Given the preferential nature of remote working during the pandemic, the Spanish government approved Royal Decree-Law 28/2020 on remote working, which entered into force on October 13, 2020. It enacts a set of obligations for the employer in cases where services are provided remotely by the employees (this is a regulation applicable not to remote working derived from Covid, but to remote working as a form of work organization itself). It states that remote working is voluntary for employees; imposing it is also voluntary for companies, except where an employee’s right to work remotely is otherwise recognized by law or by the applicable collective bargaining agreement [CBA]. Companies must cover the costs of remote working, and remote employees have the same rights as if they were working on-site. Employers and workers’ legal representatives have to collectively bargain their respective remote working policies.
What are the main legal challenges in Spain now due to the crisis?
The main challenge now is guaranteeing a sustainable and equitable recovery of business, maintaining the validity of the ERTE, and avoiding companies closing. Social dialogue and collective bargaining are essential to prevent of massive job loss in the short and medium term.
“The government has not addressed the issue of mandatory vaccination for employees”
The Spanish government is advancing on a variety of issues, such as increasing the minimum wage (which is set to remain €950 per month, but is subject to increasing debate); the improvement of contractors’ working conditions, bringing them more in line with formal employees’ working conditions; and the strengthening of individual and collective digital rights, including data protection, identity in the digital environment, pseudo-anonymity, digital security, and the right to equality and non-discrimination.
There has also been a high-profile discussion of a four-day work week, though despite a debate in parliament, no measures have been adopted to bring this forward. A ministerial order that will develop the procedure for evaluating job positions offering equal pay for women and men is more likely to progress.
Separately, the government has approved measures that discourage employees’ early retirement.
What are the principal issues your clients are facing in the second year of the crisis?
Clients are facing the troubles of sustaining their businesses and maintaining employee contracts. As the crisis continues, we are seeing that the measures taken for temporary suspensions of employment will no longer apply in the long term. If a business is stable, the issue then becomes how to implement a safe return of employees to their offices. Safety, comfort, efficiency, and the willingness of employees to carry out their functions inside the office environment are all key considerations.
Employers are also starting to question the possibility of imposing mandatory vaccination for employees returning to the office. Currently in Spain, vaccination is voluntary and the government has not addressed the issue of mandatory vaccination.
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