On the 12th of February, Spanish Labour Law underwent an historic change. Royal Decree-Law 3/2012, entered into forceestablishing new measures to improve the employability and the stability of workers in Spain. In view of the overwhelming scale of mass unemployment in the country, the new measures go further than mere reform. They represent an attempt to transform Spain's employment model by creating a new and different work culture adapted to modern business reality.

Employability of the worker is addressed through various modifications to Spain's labour legislation. Under the decree, professional training is regarded as a personal right; all employees who have been with a company for at least one year are granted 20 hours of paid leave in order to carry out job-related training activities. Additionally, a more flexible management of a business' human resources is also required, allowing for professional progression based on an employee's efforts and abilities, not professional classification.

The above-mentioned changes are just some of the reforms made by the Royal Decree. The reform is now awaiting approval by the Spanish Parliament and may yet be subject to further amendment, but it could represent a major and positive step forward to a more flexible labour market in Spain.

Photo credit: Rich Vintage Photography

The case in dispute derives from this last legal statement, whose interpretation has brought much confusion regarding breastfeeding before the Spanish labour courts. In the case considered, the employer rejected a male worker's request to enjoy such leave because the mother of the child was not employed, but self-employed. The High Court of Justice of Galicia wonders whether the right to leave should not be accorded to men in the same way as women, and whether the fact of restricting it to employed women and the fathers of their children is not a discriminatory measure contrary to the principle of equal treatment and to Directive 76/2007.

• The act of breastfeeding is detached from the biological factor and has to be considered as time purely devoted to the child which reconciles family life and work following maternity leave. Nowadays, bottlefeeding and taking care of a child are responsibilities that can generally be assumed by fathers in the same way as by mothers.
• The Spanish legislation is mainly focused on the child, whose need to be taken care of can be met by allowing either the mother or the father time off from work.
• The measure does not reduce inequalities to prevent or compensate for disadvantages in the professional careers of women, who historically have suffered adverse consequences for their career advancement as a result of care and attention devoted to their children.

Finally, the European Court concludes that the father should be also regarded as holding the right to qualify for this specific leave and have an independent right to be granted with this "parental leave" regardless of the working regime the mother belongs to (self-employed, ordinary employee, etc). With this interpretation, the traditional distribution of the roles of men and women regarding baby-feeding with effects in the working life will tend to be eradicated, and men will no longer have a subsidiary role to that of women in connection with the exercise of such parental duty.

From now onwards, Spanish Labour Courts must review their criteria whenever a father is asking for the breastfeeding leave and the mother is a self-employee so as to be consistent with the Equal Treatment Directive and, beyond biological factors and for one time ever, consider him as an independent holder of such right.

This entry was written by Roman Gil and Jose Miguel Mestre.

The issue that truly came into play was that, after such decision, in conformity with Section 56.2 of the Workers' Statute Act, employers are--within five working days after the ruling being notified--legally entitled to pay proper severance or reinstate the employee in his last position with equal rights. In this regard, the Spanish Supreme Court has examined whether an employer's first stance to terminate an employee is binding, or whether a choice between severance payment or reinstatement is still possible.

Unfortunately for the employee in this case, the employer's option for reinstatement required him to leave his current job, since he was already working for another company.

This entry was written by Jose Miguel Mestre.

The decision is extraordinarily useful and sheds light on the statutory dilemma that companies have faced: while European Directive 98/59 sets forth the working place as a reference unit of counting, Section 51.1 of Spain's Workers' Statute Act provides that all employees in a company be counted.

This entry was written by Jose Miguel Mestre.

The agreement was challenged by the trade union before the employment jurisdiction and was eventually held to be lawful on 5/3/2007 by the Fourth Chamber of the Supreme Court, which held that a dual scale which was necessary to enable CLH to adapt to new circumstances was neither abusive nor discriminatory.

The recent judgment issued by the Audiencia Nacional relates to a subsequent trade union challenge of the company's current collective bargaining agreement (although the challenge was brought by a minority trade union, the majority trade union joined in and, as such, was signatory to the agreement which is now under challenge); the claimants argued that the dual scale of rights was no longer lawful in view both of the company's situation and of certain Supreme Court case law which they believed to apply. Following a trial in which the company was represented by Juan Antonio Sagardoy, the Audiencia Nacional held that the circumstances leading to the confirmation of the previous collective bargaining agreement still applied (the need to adapt to the competition while respecting, on a personal basis, more advantageous terms for "older" employees, in addition to the ability to have a new collective bargaining agreement with rights conferred by a previous one), and concluded that the dual scale was based on objective and reasonable grounds.
 
It is worth adding that in CLH's current collective bargaining agreement (just like in the case leading to the Supreme Court judgment of 30/10/2008 relating to Repsol's dual scale and whose reasoning coincides with that of the Audiencia Nacional), it is not a projection of remuneration differences into the future but the maintenance, on a personal basis, of the terms applicable to certain workers (increasingly fewer in number) and the establishment of a single common system to guarantee the company's viability.

This entry was written by Román Gil Alburquerque.