1º Catering Services Management

Exercises Unit 5 (THE RIGHT TO WORKHO)

1) A few days ago, the following lawsuits were filed in court claiming that their
relationship was an employment relationship:

- A bookseller only charges commission if he sells, otherwise he does not charge

anything.
- A volunteer from Médecins Sans Frontières comes on some weekends to
collaborate with the NGO.
- Laura, has been on the Sunday of the last election as president at a polling
station.

a. What is the relationship of the bookseller?

There is no employment relationship, as they are 100% on commission

and do not have a fixed salary.

b. The NGO volunteer, what requirement does she not meet to be a labor?

RETRIBUTION, i.e., obtaining economic benefit, the purpose of all

work.

c. Does Laura have the right to claim that her relationship was an employment
relationship? Why?

No, because it is excluded from being an employment relationship since

it is a mandatory personal benefit.

2) The following workers claim that the activities they have performed are an
employment relationship and therefore constitute an employment contract:

- A computer scientist who goes to a friend's house to repair his computer.

- Pedro, who has finally passed his competitive examinations and is now a civil
servant.
- A plumber performs repairs in private homes and handles a bill.

a. Is the activity performed by the IT specialist an employment relationship?

Why?

No, because it is considered a work of friendship.

b. Why can't Peter claim that his relationship is an employment relationship?

Because when you pass the competitive examination you are a civil
servant and this is regulated by other administrative laws.

c. Does the plumber have an employment relationship? Why?

No, because he is self-employed, he has his own company.

 1º Catering Services Management

3) Juana has been complaining about the company for several reasons. On the one
hand, on Saturdays she cannot go to play in her sports team and the company does
not accept her sister as a substitute. On the other hand, he would like to make
changes, but the company tells him that he must follow the instructions given to
him. Finally, I would like to have a share in the company's profits since I contribute
to it.
a. Why can't her sister replace her?

Because one of the requirements of the employment contract is

PERSONAL WORK, so she will have to personally go to work and
cannot send someone else to do her job.

b. Why should you follow the company's instructions?

Because one of the requirements of your employment contract is to be

DEPENDENT, i.e., you must follow the indications set by the company.

c. Can the company deny you to participate in the benefits? Why?

Of course, since one of the requirements established in the employment

contract is the AJENEITY, that is to say, the workers should not be
alien to the profits or losses of the company, since they receive a fixed
salary.

4) In a family business, the owner has been hiring a number of family members,
including his spouse, his two daughters over the age of 30, his nephew and a
daughter of his spouse from his previous marriage.
a. What is the degree of consanguinity of your nephew, your mother-in-law
and the daughter of the former spouse?

NEPHEW: 3RD CONSANGUINITY

MOTHER-IN-LAW: 1ST AFFINITY
DAUGHTER: 1ST AFFINITY

b. If the owner lives with his spouse and two daughters, does he have an
employment relationship with them?

Of course, because they have an employment contract and their

daughters are over 30 years old, so they could not be included in the
self-employed regime. But they could be autonomous, as they are
relatives of the 2nd degree of consanguinity.

c. If the owner has a sole proprietorship and is self-employed, is he/she self-

employed? What about your spouse and two daughters?

Yes, your spouse and daughters do not because they have an

employment contract and therefore have an employment relationship.
 1º Catering Services Management

5) Hierarchically order the following sources of law: Royal Decree, Constitution, local
and professional custom, ILO convention, employment contract, collective
bargaining agreement and workers' statute.

In the first place, there is the EUROPEAN UNION DIRECTIVE

Secondly, there would be the SPANISH CONSTITUTION.
In third place, there is the ILO CONVENTION (INTERNATIONAL
TREATIES).
In fourth place would be the WORKERS STATUTE.
In fifth place would be the ROYAL DECREE.
Sixth, there is the COLLECTIVE AGREEMENT
In seventh place would be the CONTRACT OF EMPLOYMENT.
In eighth place would be the local and professional custom.

6) Indicate the following regulations which rank or type of law they are:
a. The Workers' Statute, which unifies several laws into one.

ROYAL DECREE-LEGISLATIVE

b. A law to urgently regulate aid to enterprises

ROYAL DECREE LAW

c. A law regulating the right to strike

ORGANIC LAW

d. A law regulating a non-fundamental right of the EC.

ORDINARY LAW

7) After the last elections in the Congress of Deputies there are 2 new parties that have
been represented (PODEMOS and CIUDADANOS).
a. If any of them wanted to reform a law that deals with a fundamental right,
what kind of law would be passed?

An ORGANIC LAW would be passed, as it deals with fundamental

rights.

b. What majority of deputies would be needed in the above case?

An ABSOLUTE MAJORITY would be required, that is, half plus one,

176 out of 350 votes.

c. If any of you were part of the government, what kind of regulations would
you approve as a government?

ROYAL DECREE.
d. If the government were in a hurry to pass a law because it is urgent, what
kind of law would it pass?
 1º Catering Services Management

The ROYAL DECREE LAW

e. In the above case, who then validates this rule?

The Congress is in charge of validating the Royal Decree Law.

f. If unions wanted to participate in the approval of laws, could they do so?

Explicitly for the approval of laws, it is only the competence of THE

GENERAL COURTS, so it could not participate in the approval of
laws.

8) Every year the ROYAL DECREE on the SMI is approved, which for 2019 is €900.
A worker who works under the metal workers' agreement is paid €950, as it is
established by his or her professional category in the agreement. However, this
employee has an added availability bonus of €50 voluntarily given to him by the
company, so that in the end he receives €1000.
a. Is it legal for me to earn more than the agreement? Why?

Of course it is legal. The collective bargaining agreement establishes the

minimum interprofessional wage, therefore, the contract can only
improve it.

b. Is it legal for the agreement to improve the SMI of 900€? Why?

YES, in this case, it is the ROYAL DECREE that establishes that the
minimum interprofessional wage is 900€, as it is a higher standard, it
establishes that as a minimum, the worker must receive that, therefore,
the collective bargaining agreement can improve it.

c. Can the employee agree in the contract to earn less than the collective
bargaining agreement? Why?

NO, as we have said before and according to the principle of

unwaivability of rights, workers cannot waive the rights granted to them
by the agreement, therefore, they cannot be paid less than what the
agreement establishes.

9) A company has been offering workers the enjoyment of TV in the canteen at

lunchtime. However, the new manager decides to remove it to the anger of the
workers.
a. Was it an improvement agreed in the contract or voluntary at a later date?

This is a voluntary improvement at a later date.

b. Which principle would be applied in this case?

The PRINCIPLE OF MOST BENEFICIAL CONDITION

 1º Catering Services Management

c. Do you think the TV can be unilaterally withdrawn by the new manager?

Not at all, since according to the principle of the most beneficial

condition, the most beneficial conditions for the workers would be
applied before other norms.

10) A female employee is not assigned any tasks in order to make her bored and leave
the company voluntarily. As the employee's future at the company is bleak, she
decides to look for herself and starts working at the same time in another company
that is in direct competition with the one where she is now. At the same time, it
collects data from the customers of the first company and passes it on to the other
company.
a. Which of the worker's rights has been violated?

The right of effective occupation, the employer must give you work.

b. Can the employee work in the other company?

No, being in direct competition

c. What duty have you breached with respect to the data?

The duty to act in good faith, not being able to disclose company secrets.
She is not honest in her work

11) Manuel, Andrea and Esther are 3 friends who have decided to enroll in a training
course in Health Emergencies in the afternoon at the same time they are working.
Manuel works in a stationery store in a fixed schedule from 9 am to 2 pm and from
5 pm to 8 pm, so I ask not to go in the afternoons. Andrea works in a clothing store
one week in the mornings and one week in the afternoons. Esther has been denied
the change of shift to mornings, but not to worry, because when she has exams, her
shift will be changed to mornings.
a. Can Manuel ask not to work evenings? Why?

Yes, because you have the right to choose your work shift in order to be
able to carry out any official study.

b. Is Andrea entitled to a shift change? Why?

Of course, for the same reason as Manuel, for professional promotion

and VET.

c. Can the company change Esther's shift for exams? Why?

Of course, because it is an individual right that Esther has by

professional training and she has the right to attend exams for the
necessary time, giving notice in advance and bringing proof.
 1º Catering Services Management

12) Alfonso is an express courier for a large company. In addition, he has his own
courier company, which he has not reported to the company at all. One day the
company catches Alfonso delivering parcels to other customers off the route in the
company's own van. In addition, the company's urgent shipments had not been
delivered that day and had been backordered for the following day.
a. What duty has he breached by the fact that he has his own company in the
same activity?

It has breached the duty not to engage in unfair competition.

b. What duty has he breached by using the company van for other business?

He is not diligent, does not pay care and attention to his work, as this is
measured by the normal performance agreed upon.

c. What duty have you failed to fulfill with respect to your work?

That of productivity improvement as he has not done all the work he

was asked to do.

13) Mari Carmen and Diana have been given new instructions about their work. Mari
Carmen has been told that she must go faster, so she should not waste so much time
putting on and taking off the protective measures on the machinery, otherwise she
will be fired for poor performance. Diana has been given a work instruction that she
is not sure if it is really her turn to do it or not, so she does not know whether to
comply with it or not because of the reprisals that may follow.
a. Can Mari Carmen refuse to comply with this order? For what reason?

Yes, because it has an individual right that is the health and safety
policy at work, where the employer has a duty of safety with respect to
the worker and therefore must adopt measures to prevent occupational
hazards.

b. What should the target do as a general rule in response to the instruction

received?

Comply with the orders and then complain in court if you disagree.

c. In what case can Diana resist compliance?

In the event that it is not legal and involves harm to the employee or
affects his or her private life or violates his or her dignity.

14) A company is recruiting candidates for a warehouse worker position. The offer on
their website states the following: must be male, cannot be working at the same time
in any company of any kind, is required to act with maximum diligence and
contribute to the improvement of the quality of the company. The unions do not see
some of these requirements as legal and are considering filing a lawsuit.
a. Can the company state on its website that one of the requirements is to be a
man? Why?
 1º Catering Services Management

No, because it would be a violation of equality and non-discrimination, it

is a type of direct discrimination.

b. Would it be illegal to hire a candidate who works for another company at the
same time? Why?

No, because we have the right to freely choose our profession and trade.

c. Are the diligence and quality requirements legal?

Yes, these are 2 labor duties that the worker must have.

15) A worker has been refusing to wear personal protective equipment for the last week.
The company is considering what action it could take with the worker to avoid
setting a bad example and also to prevent a future workplace accident.
a. What can the company do?

It may impose a penalty on the employee for failure to comply with the
duty to take preventive measures. To occupational hazards

b. If the company takes this measure, what can the employee do if he/she does
not agree?

Claim in court.

c. What is the deadline for the employee to do so?

20 working days to file the claim.

16) Fran and Luis do not get along well at work. One day Luis insults Fran, which
reaches the ears of the company's management and they decide to impose a sanction
for serious misconduct. Some managers want to penalize you by taking away 3 days
of vacation that the company will give you extra, others prefer to suspend you from
your job and salary for 3 days, and others choose to take away the productivity
bonus from your paycheck next month.
a. Which of the 3 measures is it legal for the company to apply?

The first one is to take away 3 extra days of vacation that the company
will give him, since this is not included in the contract and is given as
long as he has his corresponding vacation days by law.

b. If the company takes 25 working days to sanction you for this serious
misconduct from the time it learns of the facts, is it time-barred?

Of course, the statute of limitations for serious misconduct expires 20

days after the misconduct becomes known.

c. How many days does Luis have to claim this sanction?

 1º Catering Services Management

20 working days.

17) The company "Que bien se vive aquí, SA" management suspects that some workers
waste a lot of time and do not work as they should. They believe that some workers
come and go from one office to another or spend a lot of time consulting web pages
unrelated to the company, so they are considering implementing a system for
monitoring workers.
a. Can the company install image and sound cameras? Why?

The company can install video surveillance cameras that only record the
image only when it is the only way to obtain that information, using it
proportionally and having the minimum of damages.

b. What are the procedures and requirements for installing surveillance

cameras?

Cameras should only record workplaces, excluding restrooms, canteens,

rest areas and locker rooms.

They must inform workers of their existence and location.

They should be used proportionally and as a last resort to achieve the

desired information with the minimum of harm.

c. What are the requirements for monitoring the use of company computers?

Warn workers in advance that computer equipment will be checked

when the company has obvious and clear indications that it is being used
inappropriately.

A sheet must be signed where the workers have signed that they are
informed of the rules of use, surveillance and sanctions.

18) A company has received several complaints that some of its employees' personal
belongings have been disappearing lately, so it wants to carry out searches on the
employees. On the other hand, you have suspicions that a worker is on sick leave
without a real reason for it.
a. Can you conduct searches of workers, their lockers and belongings? In
which cases?

In the case of suspicion or certainty that a worker has carried out a

theft.

b. What should the registration look like?

Respecting their dignity and privacy as much as possible and with the
presence of a representative of the workers or another worker.

c. How can the company carry out health surveillance with respect to this
worker?
 1º Catering Services Management

Through medical examinations performed by the company's own

medical staff.

19) Juan Jesús has been dismissed by the company for disciplinary reasons. He does not
agree, so he intends to complain to the company again and again until the law allows
it because he is convinced that he is right and will not stop in his attempt.
a. Which is the first court or tribunal before which you have to file the lawsuit?

The first court where you should file your claim is the SOCIAL
COURT.

b. If you want to claim this judgment, where should you go?

It must go to the HIGH COURT OF JUSTICE.

c. And if you want to claim this last sentence, where should you claim?

To the SUPREME COURT, which is the court that hears appeals

against a decision of the Superior Court of Justice.

20) The workers affected by a collective layoff (ERE) are not satisfied with the
dismissal and plan to file a claim in court. There are 2 work centers affected by the
ERE, one is in Teruel and the other in Madrid, however, only those in the Teruel
center are considering filing a claim.
a. Where should the workers affected by the Teruel center file a claim if they
alone were to file the lawsuit?

In the SOCIAL COURT.

b. What if the Madrid Center also put it on at the same time?

As there are more than 2 Autonomous Communities involved in the lawsuit,

they should go to the NATIONAL HEARING.

c. If they were not satisfied with the sentence, where could they appeal the
sentence?

In the event that only those from Teruel filed the complaint, they would
appeal to the SUPERIOR COURT OF JUSTICE.

In the event that both (MADRID and TERUEL) appeal the sentences, they
would have to do so in the SUPERMUM COURT.