Labor Law Newsletter - July 2023

Telework /Freedom of Association

Denying the Legal Representation of Workers (RLPT) a digital bulletin board violates freedom of association. Judgment of the Superior Court of Justice of Galicia of May 12, 2023, Rec. 1153/2023.

The Court considers that, although the number of teleworkers is small, this does not justify failing to comply with the obligation imposed by the Remote Work Law, which requires the Company to provide the technological means necessary for the RLPT to carry out its activity. 

On the other hand, as a precedent prior to such Law, the STS of May 17, 2012 (Rec. 202/2011) considered that there was no obligation for providing an e-mail account to the works council, when weighing the costs, the existence of other tools and the usual form of communication between the committee and the workforce up to that time.

Suspension of contracts (ERTE)

Cyber-attack as a cause of force majeure to request an ERTE and the importance of requesting, by the Labor Authority, the mandatory report of the Labor Inspection. Judgment of the National Court of Appeals of May 26, 2023, Rec. 14/2022.  

The causes of force majeure are characterized by being unforeseeable and unavoidable. However, the judgment confirms that, even if the company is dedicated to technology and can foresee a cyber-attack, the materialization of such an incident may be considered as force majeure to request an ERTE. 

It argues, essentially, that even if it could have been foreseen, it was not avoidable, a conclusion it draws from the fact that the company demonstrated that it had adopted all the necessary security and preventive measures to avoid the cyber-attack, and yet it still occurred.

Wage Discrimination

It is not in accordance with the law for the Incentive Plan to reduce or eliminate the incentive because the employee has been warned, sanctioned or has been on IT. Judgment of the Audiencia Nacional of June 19, 2023, no. 80/2023. 

The clause that establishes that, despite having achieved objectives, the incentive is not accrued or is reduced if any of the aforementioned situations occurs, is null and void. Such consideration is reached by equating the lack of payment to a credit penalty. 

What would be in accordance with the law, according to the ruling, would be to create a specific incentive linked to absenteeism in order to avoid or reduce such absenteeism.

Overtime

If the Collective Bargaining Agreement expressly defines overtime as an excess in the monthly -and not annual- working day, its compensation cannot be paid annually. Judgment of the Supreme Court of May 30, 2023, Rec. 21/2021. 

The Chamber analyzes the wording of the concept of overtime in the Security Companies Agreement. The precept states that "those hours that exceed those reflected in the monthly distribution" of the annual schedule will be considered overtime. 

It is concluded, therefore, that it will not be lawful, on the basis of the regulation of irregular working hours, for their payment to have to wait until the end of the year, unless there are pre-existing agreements with certain workers, which provide for a different compensation system

International

Teleworking from Spain for a UK company. Consulta Vinculante V1277-23, dated May 16, 2023. 

The Directorate General of Taxes has clarified that the IRPF taxpayer, teleworking from Spain and with habitual residence in Spain, will be taxed in Spain and not in the United Kingdom. This regardless of whether the income is produced in the United Kingdom (which is where the "result of the work" is generated), and the domicile of the paying company (in this case, the United Kingdom) being equally irrelevant. 

As a consequence, Spain, as the country of residence of the teleworker, will avoid through this criterion the double taxation that could occur in accordance with the provisions of Article 22.1 of the Spanish-British Agreement.