Royal Decree-Law 6/2019 of 1 March establishes Amendments to the Workers’ Statute. By modifying RDL 2/2015 in which the revised text of said Statute was approved.
From our Labour Consulting Department we highlight the most relevant points of these modifications included in said RDL.
Modifications to the Workers’ Statute
In general, the term “workers” has been replaced in all amended articles by “working persons”. And the term “birth” has been incorporated to replace situations referring to maternity and paternity.
Validity of the employment contract
A paragraph (3) is added to Article 9. Providing that, in the event of invalidity on grounds of wage discrimination on grounds of sex, the worker shall be entitled to remuneration corresponding to work of equal or equal value.
Training Contracts
It is incorporated in the work contract in practical situations such as situations that interrupt the calculation of the duration, the situation of gender violence. And also in the training contract,
Part-time contracts
Article 12 states that part-time workers shall have the same rights as full-time workers. The absence of direct and indirect discrimination between men and women must always be guaranteed.
Probationary period
In Article 14, the protection of pregnant workers in the probationary period is extended. By stating that “The resolution at the request of the employer shall be null and void in the case of workers on account of pregnancy, from the date of the beginning of pregnancy until the beginning of the period of suspension referred to in Article 48.4, or maternity, unless there are reasons not related to pregnancy or maternity.
Gender-based violence is also included as a situation that interrupts the employment contract. And the new term “birth” includes situations of maternity and paternity.
Professional classification system
Article 22 reinforces the obligation to ensure the absence of discrimination in the definition of occupational groups, which must comply with criteria and systems which, based on a correlational analysis between gender biases, jobs, framing criteria and pay, aim to guarantee the absence of both direct and indirect discrimination between women and men.
Salary
Article 28 introduces the definition of the concept of “work of equal value”. When “the nature of the functions or tasks actually entrusted, the educational, professional or training conditions required for their exercise, the factors strictly related to their performance and the working conditions in which these activities are actually carried out are equivalent”.
The obligation to keep a wage register is established. With the average values of wages, salary supplements and extra-wage payments. Disaggregated by sex and distributed by professional groups, categories or jobs of equal or equal value.
Employees may access, through the Workers’ Legal Representation, the company’s wage register. It is established as an obligation to annually inform the legal representation of workers of the application of the right to equal treatment and opportunities in the company, including the registration of wages.
In those companies with 50 or more workers in which the average remuneration of workers of one sex is 25% or more higher than that of the other, taking the total wage bill or the average of the payments made, a justification must be justified in the wage register that this difference is due to reasons unrelated to the sex of the workers.
Working day
Article 34.8 is reworded to reflect the right of “working persons” to request adaptations to the duration and distribution of working time in order to give effect to the right to conciliation. A reference to the organisation of working time and the form of benefit is included. Including remote working. Reference is also made to the fact that such adaptations must be reasonable and proportionate in relation to the needs of the worker and to the organisational or productive needs of the enterprise.
For those who have children, the period in which the application may be made shall extend until the children reach the age of 12.
The procedure to be followed is established when the terms of its exercise in collective bargaining have not been agreed. For this purpose, when the adaptation of the working day is requested, the company will open a negotiation process with it for a maximum period of 30 days after which, and in writing, it will communicate either the acceptance of the request, or an alternative proposal that makes possible the needs of conciliation or its refusal. In the latter case, indicating the objective reasons on which the decision is based.
Likewise, the right of the worker to request the return to his/her previous working day or contractual modality when the agreed period has ended is established. Or when, even if the foreseen period has not elapsed, it is justified by the change in circumstances.
Disputes arising will be resolved by the labor jurisdiction through the procedure of Article 139 of Law 36/2011 of October 10 (urgent procedure).
Weekly rest, holidays and permits.
A new wording is given in the regulation of paid leave affecting the article. 37.3 b), 4, 5 and first paragraph of 7.
The two-day leave disappears, in reference to “the birth of a child”. By incorporating the suspension of the contract in situation of birth, a period of sixteen weeks.
The previous leave “to breastfeed a child” is now referred to as “to care for the infant“. The right to be absent from work for one hour, which may be divided into two fractions, until the child reaches 9 months of age, so that the new wording makes it possible for both parents to take advantage of the right to care for the infant, although it points out the possibility that the company may limit its simultaneous exercise, for justified reasons, if both work in it.
Permit extension
The period of enjoyment of this right is extended to twelve months. By means of which the working day can be reduced by half an hour daily in those cases in which both parents exercise the right with the same duration and regime, but with the proportional reduction of the salary from nine months onwards, to compensate for the loss of salary, a new economic benefit equivalent to 100% of the regulatory base established for the temporary incapacity benefit is created, in proportion to the reduction of the working day and its processing will be similar to that established for this purpose for situations of “risk of pregnancy or lactation” whose management and payment will be the responsibility of the mutual or management entity with whom the professional contingencies are insured.
In the regulation of leave for premature birth or for hospitalisation of the child following childbirth, the corresponding terminological adjustments are also made. The terms “mother”, “father” and “children” are replaced by “working people” and “daughter or son”, respectively. From now on, both parents can enjoy 1 hour absence from work. Or, failing that, request a reduction of the working day by 2 hours per day with the consequent salary reduction.
Suspension of the Contract
For childcare leave (Article 46). When the family has the status of a large family, the post reserve will be extended to 18 months. Instead of the 15 previously recognised. And in the case that both parents enjoy this right with the same duration and regime.
In the new wording of article 48, on the suspension of the contract with reservation of employment. Maternity leave and paternity leave are covered by the term “suspension of the contract due to birth or leave for birth and childcare”. Their rights are therefore equal, with effect from 1 April 2019. But subject to a transitional regime of implementation of the reform.
Article 177 of the LGSS is also modified. The terms “maternity and paternity benefit” disappear. Included in the new denomination of benefit for birth and care of the minor without distinction by sexes.
Equal treatment of parents
The duration of the rest for birth and childcare is equated to 16 weeks for both parents. Having to enjoy, uninterruptedly and full time, the 6 weeks immediately after childbirth. For the rest of the period, the suspension of each parent’s contract may be exercised until the child reaches 12 months of age. It can be distributed, at will, in weekly periods in a cumulative or interrupted manner and on a full-time or part-time basis. Subject to prior agreement with the company and in the manner determined by regulation. However, the mother may anticipate her exercise up to 4 weeks before the expected date of birth. The company must be notified fifteen days in advance of the weekly period or, as the case may be, of the accumulation of such periods.
If two parents exercise their right while working in the same company, the simultaneous exercise may be limited for objective and reasoned reasons, which must be in writing.
The suspension of the contract with job reservation is identical to that described for the case of birth or care of the minor, to the situations of adoption, guardianship for the purposes of adoption and foster care.
Enlargement
The contract suspension period is extended by 2 weeks. One each parent in cases of disability of the child.
During the transitional period of implementation of the right to birth leave, in the case of the other parent (until now equivalent to the benefit of parternity), will be taken into account:
- From 1 April, it will last eight weeks. Of which the first two must be enjoyed uninterruptedly immediately after childbirth.
- From 1 January 2020, the duration will be 12 weeks. Of which the first four should be enjoyed after childbirth.
- Finally, from 1 January 2021, paternity will be 16 weeks. Of which the first six must be enjoyed after childbirth.
After the periods of enjoyment following childbirth, the rest of the period may be distributed, at the worker’s will. In weekly periods to be enjoyed on an accrued or interrupted basis, until the child reaches 12 months of age.
Articles 177 to 182 of the LGSS are modified. In such a way that the beneficiaries who, once the first 6 weeks immediately following the birth have elapsed, enjoy the 10 weeks in an interrupted manner, will not receive the payment of the benefit for these periods until the total exhaustion of the enjoyment of the same, until the Management Entity has made the necessary computer developments in the applications for the management, processing and payment of the aforementioned benefit.
Termination of the employment contract
Article 53, point 4, is modified by extending to 12 months of age of the minor (until now 9 months), the golden parachute period in which the termination of the employment relationship can be declared null and void. Likewise, the dismissal of pregnant workers may be declared null and void (regardless of the employer’s ignorance of such situation), from the date of the beginning of the pregnancy until the beginning of the period of suspension of the contract by birth.
In the event of termination for objective reasons. It is required not only that the contractual termination is not based on reasons related to pregnancy or the exercise of the right to leave and leave, but also that it is sufficiently accredited that the objective cause that sustains the dismissal specifically requires the termination of the contract of the person concerned.
The nineteenth additional provision of the TR of the Workers Statute includes the cases of reduction of working hours and part-time work for, and in the exercise of the rights regulated in articles 37.4 and 48.4 and 5, in such a way that for the calculation of indemnities the salary that would have corresponded to the worker without considering the reduction or part-time work is taken into account.
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