References
Labour Code (Codigo de trabajo) (Law No 49/1984)
Date:
18 Aug 1970;
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Law on Civil, Administrative and Labour Procedures (Ley de Procedimiento Civil, Administrativo y Laboral No 7/1977)
Date:
17 Aug 1970;
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Law of Organization and Functioning of Works Councils (Ley de Organización y Funcionamento de los Consejos del Trabalho) No 8/1977
Date:
17 Aug 1970;
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Scope
Size of enterprises excluded (≤): none
Workers' categories excluded: none
Article 7 of Labour Code provides that for the purposes of this Code, labour entities are:
a) the organisms of the Central State Administration, the state organs or, where appropriate, their administrative dependencies, as well as the other budgeted units;
b) state companies and state company unions;
c) companies and units dependent on political, social and mass organizations;
ch) agricultural production cooperatives and their organizations with respect to non-member workers;
d) private sector companies and owners with respect to salaried workers;
e) any other with legal capacity to establish labor relations.
FTC regulated: Yes
Article 31 of Labour Code provides that the fixed-term employment contract is arranged to carry out eventual or emerging tasks, however, when the established requirements are met, fixed-term employment contracts may be concluded to carry out permanent tasks; to replace absent workers during the fulfillment of internationalist missions; military mobilizations; maternity, illness or accident leave; deprivation of preventive liberty or for periods of less than six months; for accompanying the spouse to official missions; for legitimately authorized licenses or other causes that are exceptionally legally authorized.
The fixed-term employment contract must express the date of its termination, which cannot exceed three years, except in exceptional cases that the State Committee on Labor and Social Security determines.
Valid reasons for FTC use: objective and material reasons
See article 31 of Labour Code.
Maximum number of successive FTCs: no limitation
There is no indication of limitation in the law.
Maximum cumulative duration of successive FTCs: 3year(s)
See article 31 of Labour Code.
Maximum probationary (trial) period (in months): 180 day(s)
Article 34 Labour Code: The employer may require the worker a trial period whose duration does not exceed thirty days. This trial period can be extended for an additional thirty days in the case of occupations for which it is required to have a medium or higher level. In cases exceptionally authorized by the State Committee for Labour and Social Security, the trial period can be up to one hundred and eighty days. For seafarers, the trial period can be extended to the length of the first campaign or voyage.
Excluded from protection against dismissal: No
Article 36 of Labour Code provides that during the trial period, either party may terminate the employment relationship. If the trial period expires, the parties do not express their will to the contrary, the employment contract is formalized with the agreed stipulations, in accordance with the provisions of the law.
Obligation to provide reasons to the employee: No
Valid grounds (justified dismissal):
Prohibited grounds: pregnancy, maternity leave, temporary work injury or illness, trade union membership and activities, fulfilling state duties
According to article 56, the employer, in cases of contracts for an indefinite period, cannot dismiss the workers in the following cases:
i) during the worker's enjoyment of periods of maternity leave, paid or not;
ii) during the period of temporary disability of the worker, due to illness or accident of common origin or work;
iii) during the fulfillment of internationalist missions or military or other mobilizations of economic or social interest;
iv) during the enjoyment of annual paid vacations;
v) other situations expressly authorized by law. The workers included in the preceding paragraphs, in the event of closing of the enterprise without any other subrogation in its place, receive the protection and guarantee established by law.
Also article 281 also provides that the worker is also entitled, by reason of maternity, to the grant of paid leave up to six weeks before delivery and twelve weeks after the same. The worker is also entitled to other complementary paid leave to facilitate medical care for your child. In case of multiple pregnancy, the paid leave prior to childbirth is extended to eight weeks.
Concerning trade union activities, article 19 of Labour Code provides that the leaders of the union organizations have the necessary guarantees for the exercise of their management and consequently, the employers cannot transfer them, impose disciplinary measures, affect them in their working conditions, or end their employment relationship due to the performance of their union functions, when they are carried out in accordance with the law
Article 3 (b) of Labour Code also provides that every citizen in conditions to work, without distinction of race, color, sex, religion, political opinion or national or social origin, has the opportunity to obtain a job with which the citizen can contribute to the ends of society and to the satisfaction worker´s needs. However, there is no specific provision dealing dismissals due to discrimination.
Workers enjoying special protection: workers' representatives, pregnant women and/or women on maternity leave, confirmed injured workers, older workers/workers on the verge of retirement, workers performing military/alternative service
See above article 56 of Labour Code.
Also, in the case of redundacies, article 59 provides that workers over fifty years of age, if they are men, or over forty-five, if they are women, and those who present partial disability, cannot be declared available while there are vacant positions in the enterprise that they can perform, according to their qualification and work capacity.
Notification to the worker to be dismissed: written
According to article 54, the termination of the employment contract for an undetermined time due to the causes of ineptitude, lack of suitability, partial invalidity or redundancy must be communicated to the worker in writing, thirty days before the termination of the leave, by the employer.
Pay in lieu of notice: No
Notification to the public administration: No
Notification to workers' representatives: No
Approval by public administration or judicial bodies: No
Approval by workers' representatives: No
mine workers: No
: Yes
Yes
Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method): Article 60 of Labour Code provides that at the termination of the employment contract, the worker has the right to receive the salary for the work carried out and the payment corresponding to the annual vacations accumulated up to that moment.
managerial / executive positions: No
Although there are categories of workers enjoying special protection against unfair dismissal, there is no statutory provision concerning reinstatement.
police: No
Article 250 of Labour Code provides that the labour disputes are submitted to the following bodies:
a) the labour councils, formed in the terms of Law 8/1977;
b) the popular courts of the Judicial System.
According to articles 11, 12 and 23 of Law 8/1977, the Labour Councils handle the conflicts that may arise between workers, or between them and the state administrations, regarding the recognition, granting or claiming of rights and the fulfillment of obligations arising from labor legislation; short-term social security applications and claims; and the application of disciplinary measures of labour order. The submission of the claim to Labour Councils is mandatory before the subsmission to an ordinary court (popular municipal courts). In this sense, the Labour Council will carry out procedures to handle the case and will dictate the resolution.
The resolution of the Council will briefly record the facts and grounds on which it is based and the corresponding decision. If any of the parties expresses its disagreement with the resolution of the Council, it has the right to go to the Municipal People's Court.
According to article 254 of Labour Code and article 702 of Law on Civil, Administrative and Labour Procedure, the popular municipal courts know about:
a) workers' claims about the rights and the fulfillment of the obligations emanating from labour and social security legislation in the short term, including maternity, when one of the parties shows its disagreement with the resolution of the work council;
b) Workers' claims for non-conformity with the application of disciplinary measures and the consequent compensation for damages when these are modified, due to the exemption or other less severe measure being provided, except in the case of disciplinary conflicts subject to special procedures. ;
c) the claims of workers hired in the private and cooperative sectors about their labour rights and requests from their administrations about the application of disciplinary measures.
Existing arbitration: No
Although it is not formally called arbitration, the Labour Councils can play the same role. According to articles 11, 12 and 23 of Law 8/1977, the Labour Councils handle the conflicts that may arise between workers, or between them and the state administrations, regarding the recognition, granting or claiming of rights and the fulfillment of obligations arising from labor legislation; short-term social security applications and claims; and the application of disciplinary measures of labour order. The submission of the claim to Labour Councils is mandatory before the subsmission to an ordinary court (popular municipal courts). In this sense, the Labour Council will carry out procedures to handle the case and will dictate the resolution.
The resolution of the Council will briefly record the facts and grounds on which it is based and the corresponding decision. If any of the parties expresses its disagreement with the resolution of the Council, it has the right to go to the Municipal People's Court.
However, if the parties agree with the resolution, it becomes binding and its enforcement might be object of special claim to the ordinary courts.
Burden of Proof: both
Articles 316 to 320, 710 and 711 of Law on Civil, Administrative and Labour Procedures.