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LESSON 1: OCCUPATIONAL CLASSIFICATION & THE WORKPLACE
1. THE OCCUPATIONAL CLASSIFICATION SYSTEM
a. Professional group b. Non-discrimination
**2. EMPLOYEE CLASSIFICATION
- THE WORKPLACE
- THE OCCUPATIONAL CLASSIFICATION SYSTEM (Art. 22 Estatuto Trabajdores)** It is important to classify in the collective agreement, they say which are the functions of all different categories - if the employer wants to change your activities, he cannot do it without any procedure to do so Tries to give more freedom to the employer to modify the working conditions in different categories Articulo 22 ET:
- Mediante la negociación colectiva o, en su defecto, acuerdo entre la empresa y los representantes de los trabajadores, se establecerá el sistema de clasificación profesional de los trabajadores por medio de grupos profesionales
- Se entenderá por grupo profesional el que agrupe unitariamente las aptitudes profesionales, titulaciones y contenido general de la prestación, y podrá incluir distintas tareas, funciones, especialidades profesionales o responsabilidades asignadas al trabajador.
- La definición de los grupos profesionales se ajustará a criterios y sistemas que tengan como objeto garantizar la ausencia de discriminación, tanto directa como indirecta, entre mujeres y hombres.
- Por acuerdo entre el trabajador y el empresario se asignará al trabajador un grupo profesional y se establecerá como contenido de la prestación laboral objeto del contrato de trabajo la realización de todas las funciones correspondientes al grupo profesional asignado o solamente de alguna de ellas. Cuando se acuerde la polivalencia funcional (multitasking) o la realización de
funciones propias de más de un grupo, la equiparación se realizará en virtud de las funciones que se desempeñen durante mayor tiempo
- = The concrete working conditions are established by bilateral agreement
- It can be concrete activities, etc… - employers want flexibility from workers, so establishing specific functions of the employer are going to be reduced as it is not in their interest to establish them En un contrato de trabajo se establecen unas condiciones al trabajador, él las o acepta o las rechaza. Por eso se denominan: Contrato de adhesion = documento elaborado unilateralmente por el proveedor para establecer en formatos uniformes los términos y condiciones aplicables a la adquisición de un producto o la prestación de un servicio, aun cuando dicho documento no contenga todas las cláusulas ^ Si tu accedes a los términos y condiciones del contrato de trabajo, lo aceptas y si no te parece bien, lo deniegas *Art. 14 SC talks about discrimination “Los españoles son iguales ante la ley, sin que pueda prevalecer discriminación alguna por razón de nacimiento, raza, sexo, religión, opinión o cualquier otra condición o circunstancia personal o social.” ^ This could be considered as discrimination as it only refers to spaniards, not EU member citizens or other Discrimination = entails an inhuman, degrading and unequal treatment which is based upon sex, religion, ideology, circumstances, etc… Obligation of equal treatment = relies on the employer whom must treat his employees in an equal matter when they are in the same job or position. Equal treatment = establishes that all people – and in the context of the workplace, all workers – have the right to receive the same treatment and not to be discriminated against on the basis of criteria such as age, disability, nationality, race and religion. Direct discrimination = happens when a person, or a group of people, is treated less favorably than another person or group because of their background or certain personal characteristics.
- Discrimination against people who have been traditionally been chased
- Cannot be justified Indirect discrimination = occurs when there is an unreasonable rule or policy that is the same for everyone but has an unfair effect on people who share a particular attribute.
First example: I. TECHNICALLY QUALIFIED STAFF a) University Graduates : Personnel with a university degree recognized by the Spanish Ministry of Education and Science who permanently carry out and are directly responsible for functions related to their profession. b) Vocational Training Graduates : Personnel with a vocational training certificate that is recognized by the Ministry of Education and Science or incorporated by law who carry out functions related to their profession or are recognized by their function as being in a position of responsibility within the company. c) Qualified Technical Assistants : Personnel who have an academic qualification that is recognized by the Ministry of Education and Science or incorporated by law who carry out functions related to their qualification. II. NON-QUALIFIED TECHNICAL STAFF a) Directors or Managers: Personnel who, under the direction of the company and contributing to the creation of company policies, manage, coordinate and are responsible for the managerial activities under their responsibility. b) Warehouse Managers: Personnel who manage the warehouse and are responsible for replacing, receiving, storing and labelling goods, registering the arrival and departure of goods, distributing goods to other departments and branches, meeting orders, etc. They also manage all warehouse personnel and are authorized to introduce regulations to improve the organization and distribution of work, which they supervise, as well as to grant permissions and propose sanctions. c) Sales Managers: Personnel who manage and supervise all sales operations within the company as well as determine company guidelines or outline criteria according to which those guidelines should be established. d) Sales Assistants: Personnel who work under the Sales Manager (or technical personnel who assume this role within the company) and carry out administrative functions or other tasks within the sales department. e) Interpreters: Personnel with knowledge of two or more foreign languages who carry out sales, administration or management within their specific role. Group I. Technically Qualified Staff Group II. Non-qualified Technical Staff University Graduates. 1,800€ General Managers 1,800€ Vocational Training Graduates 1,400€ Warehouse Managers 1,400€ Qualified Technical Assistants 1,100€ Sales Managers 1,600€ Sales Assistants 1,200€ Interpreters 1,100€
Second example: Resolución de 6 de octubre de 2017, de la Dirección General de Empleo, por la que se registra y publica el convenio colectivo estatal de estaciones de servicio. Within the limits outlined in the lesson on functional mobility, an employer may order a Subalterno to carry out all functions involving Ordenanza, Guarda and Personal de Limpieza , which, before the 2010 reform, were termed ‘professional categories’. The problem arises when collective agreements establish – within the same professional group – tasks, functions, professional specializations or responsibilities assigned to an employee that do not respect the concept of the professional group (similar professional abilities, qualifications and general content of services). Sometimes agreements establish a unique
To understand what is established by art. 22.3 ET, we need to know: a) the difference between discrimination and the obligation of equal treatment, and b) the difference between direct and indirect discrimination. To complete our knowledge on this topic, we also need to know: a) whether there is any justification for differential treatment on the grounds of sex, and b) what ‘affirmative action’ (positive action) is. If you have any doubts about these concepts, please read: ● Art. 14 of the Spanish Constitution: Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance. ● If you speak Spanish: ○ STC 62/2008, de 26 de mayo de 2008 (fundamento jurídico 5º). For further clarification, see: ○ Tribunal Supremo (Sala de lo Social) Sentencia de 29 enero 2001 recud. 1566/ If you do not speak Spanish, or are still unsure, read pages 23 and 24 of The Concepts of Equality and Non-Discrimination in Europe: A practical approach (available from the aula virtual ) (only those sections that deal with the Spanish Constitutional Court, which begin in the final paragraph on page 23). ● Art. 2 a) and b) of DIRECTIVE 2006/54/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast). ● Art. 3 of DIRECTIVE 2006/54/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast).
2. EMPLOYEE CLASSIFICATION
Once the occupational system is established, an employee is ascribed to a professional group through an agreement between the employee and the employer (art. 22.4 ET). However, as the employment contract is a kind of contract of adhesion, when employees have few options for bargaining their working conditions, the ascription of that employee to a specific professional group is decided by the employer and the employee accepts their ascription when they sign the contract. With this form of ascription, it is possible to decide whether the employee will perform all activities included in the professional group or just some of them (which would reduce the employer’s managerial prerogatives for ordering tasks other than those specified). Another possibility is to agree to carry out activities from more than one professional group (this is known as polyvalence or multi-tasking). In such cases, the problem is how to determine the salary to be paid to the employee. From the available possibilities (basically, paying the salary reserved for the higher group or the salary reserved for the group whose functions are performed for longer hours), the ET chooses the second, i.e. the salary is paid in accordance with the functions that are performed for a longer time. However, the collective agreement or employment contract may establish otherwise and offer employees more rights.
3. THE WORKPLACE It is important to a worker to know where is he going to work. It has to be stated in the contract of employment - the employer can modify it but they have to follow a certain procedure as workers have certain rights. Other important aspects regarding employee obligations emerging from the employment contract are time, i.e. the working hours (FOR HOW LONG?), the schedule (WHEN?), and the place where the activity is to be conducted (WHERE?). See lesson 3 for information on working time. This section deals with the importance of determining the workplace in the employment contract.
