PART 1

LABOUR LAW 3 – ELEMENTS OF THE EMPLOYMENT CONTRACT

1 . GENERAL ASPECTS

EMPLOYMENT CONTRACT

FUNCTIONS OF THE EMPLOYMENT CONTRACT

1. Regulatory function :
- Determine the rights and obligations of the parties.
- This function loses more and more value as more and more collective agreements and laws
guarantee these rights and obligations.
- The contract complements and improves the legal and conventional minimums.

2. Constitutive function :
- Presumed that there is an employment contract between the person who provides a
subordinated service and the one who receives it → It does not matter whether there is no
written contract or even verbal.
- Even when there is no contract because it is considered null, it produces effects the worker
can demand the remuneration corresponding to the work he / she has executed.

WORK CONTRACT HAS 3 ELEMENTS:

CONSENT:
Contracts need to fulfill the wills of the worker and the employer → although its start my be
postponed to a later moment.
The consent must not be vitiated by : error, violence, intimidation or fraud.
- The error about the nature of the business, the person, the object of the provision or
regarding the conditions that have been decisive to conclude the contract, void the
contract.
OBJECT:
- This must be determined, possible and legal.
CAUSE:
- What moves the parties to conclude the contract.
- Receive a service (for the employer) and receive a payment (for the employee)

CAPACTY TO CONTRACT

DEPENDING ON THE AGE

- they have the capacity to formalize a work contract those who have full capacity to act
according to the Civil Code. This is:
o Those over 18 years of age.
o Those over 16 and under 18 who, with the consent of their parents or guardians, live
independently of them.

DEPENDING ON NATIONALITY

- Ability of foreigners in general to work regulates a procedure and unique permits to reside and
work in the territory of a Member State  the foreigner to reside and work in Spain needs
prior administrative authorization.

Exceptions:

- Technicians and scientists hired or invested by the State, Autonomous Communities ...

- University professors invited by a Spanish university

- Teachers of cultural institutions and teachers from other States

- Accredited media correspondents

- Artists for concrete actions

LIMITS TO EXERCUTE SOME JOBS DUE TO AGE, DEGREE OR HEALTH

DUE TO AGE:

- Work is forbidden to children under 16 although it can be authorized for certain public shows,
although only for certain acts if there is no risk to the health or training of the child.
- Children under 18 can not do night work, overtime, or work activities declared by the
government dangerous.
NOT HAVING A DEGREE:

- Different rules establish the need for a professional degree for the performance of some jobs.

FOR HEALTH REASONS:

- Medical recognition is required before being able to work in certain professions with risk of
occupational disease.
- Also for pregnant women who have recently given birth or during breastfeeding.

THE EMPLOYER

- Labour entrepreneur → is any individual, legal entity or community of goods that receives
services from people voluntarily, paid, subordinated and on behalf of others.

- Labour entrepreneur is considered also the “apparent employer”:

o Group of companies considered as labor entrepreneur: Several companies that have

corporate bonds because they have most or all of the share capital if there are also
some "additional elements“

CONSEQUENCE: All the companies that make up the Companies Group are jointly responsible for the
obligations of their employees.

FREEDOM OF MOVEMENT OF WORKERS IN THE EU

Principle of freedom of movement of persons, workers included:

Ø Non-discrimination based on nationality → in relation to employment, remuneration and

other working conditions.

Ø The employment of EU foreigners can neither be subordinated to conditions other than

national ones:

- except if the job requires linguistic knowledge

- nor to limit the employment of foreigners in number or percentage.

Ø Equal employment conditions extended even to the social and fiscal benefits → enjoyed by
national workers and access to vocational schools and reeducation centers.

Ø Equal treatment also includes joining trade unions or being able to be elected as workers'
representatives in the company.

Ø Regarding accommodation and admission of children in courses of teaching, learning or

professional training.
Right of exit and entry and the right of residence.

The limits to these instrumental rights are only justified for reasons of public order or public health
and interpreted by the EU in a restrictive way:

- for example → a foreigner can not be expelled if what he does does not imply a
serious sanction for a national citizen.

THE FORM OF CONTRACT

Employment contract can be made in writing or verbally.

Even if there is no written or verbal contract, there is a contract if one person works for another with
the requirements we have seen in lesson 1.

Apart from this, the contract must be made in writing in the following cases:

- Temporary contracts
- Training contracts
- Part-time contracts
- Contracts concluded by a temporary employment agency (ett)
- Indefinite contracts to support entrepreneurs
- Distance work contracts
- And whenever any of the parties requires it

SUMMARY OF WORKING RIGHTS AND OBLIGATIONS

 TRIAL PERIOD

Employers can assess a workers´ abilities by agreeing on a trial period during which the employer or
the worker can freely terminate the contract without having to allege or prove any cause, without prior
notice and with no right to economic compensation in favor of employer or employee.

Where a trial period is agreed, it must be put in writing → Collective labor agreements may establish
time limits for trial periods (dispositive provision) which as a general rule and in the absence of any
provision in the collective labor agreements, cannot exceed:

- Six months for college and junior college graduate specialists.

- Two months for all other employees.
 o At companies with fewer than 25 employees, the trial period for employees who are
not college and junior college graduate specialists cannot exceed three months.
- One month in the case of fixed-term contracts agreed for a time-period of less than 6 months.

Moreover, training contracts, indefinite-term employment contract in support of entrepreneurs and

special employment contracts (domestic workers, senior managers …) have their own trial period.

PART 2
LAW 3: SPECIAL PACTS OF THE EMPLOYMENT CONTRACTS

NON COMPETITIONS AGREEMENT

- Unfair or illegal competition that is cause of disciplinary dismissal is prohibited even if no

objective damage has been caused to the company.
- Jurisprudence establishes a presumption of illegality of the concurrence in activity of a similar
nature → This presumption can be destroyed if the employer authorizes it or consents it tacitly.
- The prohibition of unfair competition applies for the entire duration of the contract.

NON-COMPETITION MODALITIES

1.- Agreement of full dedication between worker and employer by which the worker undertakes to
provide his services exclusively for the employer.

- Implies a waiver to carry out competitive tender activities → the ET says that the employer
must pay a compensation.
- Pact must be formalized in writing.
- Full-time agreement is revocable by mutual agreement of the parties → It can be revoked by
the worker unilaterally and for that reason he will no longer receive the economic
compensation.

2.- Non-competition agreement after the end of the contract

- Worker must receive compensation that must be appropriate and suitable.

- The ET sets a double condition:
o Employer has an effective and real industrial or commercial interest in celebrating
said non-competition agreement.
o Commitment to non-competence must be limited in time: A maximum of 6 months
from the end of the contract or 2 years in case of a skilled worker (technitian,
graduate…).
 PACT OF PERMANENCE IN THE COMPANY

- When the worker has received a professional specialization from the employer to start
specific projects or perform a specific job.
- The ET establishes a commitment of permanence up to a maximum term of 2 years → The
breach by the worker of this pact makes him responsible for the damages and losses caused.
- The predetermination of the compensation that is appropriate in case of breaking the pact is
very convenient.
- The calculation of this compensation must be included in the agreement itself, which must be
formalized in writing.