Labour Contract Clauses: Working Hours, Overtime, and Rest Periods, Apuntes de Derecho

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Main contractual clauses / labour

provisions

Gisella Alvarado Caycho

[email protected]

17 February, 2021

Trial period: indefinite term contracts

1. Maximum terms for trial periods stated in the applicable collective bargaining agreement -CBA- must be observed.
2. If it is not regulated in the CBA, the trial period may not exceed (i) 6 months for certified technicians; (ii) 2 months for unqualified employees; or (iii) 3 months for unqualified employees in companies with less than 25 employees.
3. Are there special rules about dismissal during a probationary period?

Restrictive covenants

1. Exclusivity agreement

An employee may not render services to different employers when such is considered unfair competition or when full dedication (exclusiveness) is agreed on through express economic compensation, in the terms that may be suitable for the purpose.

According to the Spanish Courts rulings, an adequate economic compensation should be equivalent to the 15% - 20% of the fixed gross annual salary.

Restrictive covenants

2. Non-compete obligation to be in forced after the employment termination

Non-competition/non-solicitation agreements after the work contract has been terminated -which may not be higher than 2 years for technical personnel and 6 months for other workers- shall only be valid if the following requirements are met: (i) that the employer has a current industrial or commercial interest in such; and (ii) that the employee is paid an adequate economic compensation.

According to the Spanish Courts rulings, an adequate economic compensation should be equivalent to the 40% - 60% of the fixed gross annual salary).

Working time

 The duration of the working day shall be that agreed upon in the collective bargaining agreement or work contract. The maximum duration of the ordinary working time shall be 40 hours a week of effective work on average over a year.

 The irregular distribution of the working day throughout the year may be established through CBA or, in its absence, through agreement between the company and the workers’ representatives. In the absence of an agreement, the company will be able to distribute unevenly 10% of the working day throughout the year. The distribution must, in any case, respect the minimum periods of daily and weekly rest provided for in the Workers’ Statute. The employee must be informed of his/her work schedule with a minimum notice period of 5 days.

Working time

 The actual number of ordinary working hours may not exceed 9 daily, unless another distribution of daily working time is established by collective bargaining or, in its absence, an agreement between the company and the workers’ representatives, respecting, in any case, the rest period between working days.

 Workers under 18 years old may not work more than eight actual hours a day, including, as applicable, the time devoted to training and, if they work for several employers, the hours worked for each of them.

Overtime

 Those hours of work done over the maximum duration of the ordinary working day shall be considered overtime. Through a collective bargaining agreement or, in its absence, an individual contract, a choice shall be made between payment for overtime in a set amount, which in no case may be inferior to the value of the ordinary working hour, and payment in terms of equivalent periods of paid rest. In the absence of an agreement in this respect, it shall be understood that overtime done shall be compensated through rest within the four months following its execution.

 Overtime work shall be voluntary, unless its execution has been agreed on in collective bargaining agreements or in individual work contracts.

 The number of overtime hours may not exceed 80 in one year, with an exception for excess overtime worked to prevent or repair accidents and other extraordinary or urgent damages.

Overtime

 For the purposes of overtime calculation, the working day for each worker shall be recorded from day to day and summed up in the period set for the payment of compensation, with a copy of the summary provided to the worker in his or her payslip.

 The government may suppress or reduce the maximum number of overtime hours for a specific period of time, either generally or for certain sectors of activity or territories, in order to increase the opportunities of placement for workers in a status of compulsory unemployment.

Resting periods

As we previously indicated, the provisions through collective agreement or agreement between the company and the workers’ legal representatives, about irregular distribution of the working time, must respect in any case the minimum periods of daily and weekly rest, according to the law.

The length of the weekly rest for employees under 18 must be, at least, of 2 uninterrupted days and the law cannot allow its accumulation out of the temporary frame of the week.

 Rest between working days

There must be at least 12 hours of rest between the end of a working day and the beginning of the following one. Nevertheless, for the activities that involve extended hours and work in shifts mentioned before, a different resting periods can be established, but always in accordance with specific regulations.

Resting periods

 Break during the working day

As long as the length of the continuous working day exceeds 6 hours, a resting period of at least 15 minutes shall be established during the same. This resting period will considered as effective working time when thus established per collective agreement or working contract.

For employees under 18, this period must have a minimum length of 30 minutes, and must always be established as long as the length of the continuous working day exceeds 4 hours and a half.

Resting periods

 Part time workers have also a right to a minimum of 30 days’ paid annual leave.

 Every employee should be paid the amount that would have been paid during a normal working day, including all salary components linked to the performance of an ordinary working day.

Do employees have a right to paid time off for

public holidays?

 In Spain there is a maximum of 14 days off work for public holidays. These days are paid and the employee is entitled to the day off work. Two of the days are local holidays. The national holidays that must be respected are: 25 December, Christmas Day; 1 January, New Year’s Day; 1 May, Labour Day; and 12 October, Spanish National Holiday.

 The remaining public holidays are scheduled by each Autonomous Community.

 Public holiday entitlement is on top of annual holiday entitlement.

 If an employer and employee agree that the employee will work on public holidays, the employee must be paid extra. Usually, the amount paid for work done on public holidays is determined by the applicable CBA.

Voluntary leave

 Employees with at least one year’s service may take unpaid voluntary leave for any reason, for no less than 4 months and no more than 5 years. This right can be only again exercised if at least 4 years have lapsed from the termination of the prior voluntary leave.

 After voluntary leave, the employee will only hold a preferential right for reinstatement in case ay vacancy of equal or similar category to his category exists or arises in the Company.

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