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VARIATION OF WORKING CONDITIONS
General description
• Workload
Non-classroom activities: 12 hours in three weeks Classroom activities: 8 hours in three weeks
• Work in groups
Practical aspects of the subject will be worked on in groups of three people.
• Resources
Legislation:
- Estatuto de los Trabajadores and some other legislation as described in the presentation of the lesson (Power Point)
- Collective agreements
- Convenio Colectivo Estatal de Estaciones de Servicio (BOE 27 de marzo de 2007)
- Convenio Colectivo de la Compañía Levantina de Bebidas Gaseosas, SA COLEBEGA (B.O.E. 8 junio 2012) Bibliography
- Derecho del Trabajo. Tirant Lo Blanch. Valencia, 2012 (p. 301-308 and 431-455)
- Opinion of the European Economic and Social Committee on Flexicurity (Internal flexibility dimension). O.J.E.U. C 256/108 27.10.
Jurisprudence
How to prepare each lesson
1 st^ ) Before each lesson some activities will be proposed to students. The proposed activities will be done both individually at home by the student and in groups in the classroom.
a) Individual work at home:
- Before the lecture students have to read the legal regulations on the proposed subject to be dealt with, as well as the correlative chapter of the textbook.
- Then, they must try to answer the questions proposed in the section “Goals to achieve” > “Knowledge”.
- After that, students will try to give a solution to the cases proposed in the section “Goals to Achieve” > “Understanding and application”.
b) Work in groups
- At the beginning of the lecture, students will have 10 minutes to share their solutions in groups of three people.
2 nd^ ) Open discussion of the proposed cases and explanation of the contents proposed for each of the five lectures.
3 rd) New cases in order to check the students’ progression (not in all lectures).
Goals to achieve (*):
(*) Definition of goals refers to what is expected from students once the unit has been completed.
Knowledge:
- Describe the different ways to introduce variations in working conditions.
- Identify the limits for automatic variations and variations implemented by agreement.
- Variation of working conditions as a consequence of the employer’s disciplinary power: 3.1 Describe its legal requirements. 3.2 Describe its limits.
- Variation of working conditions as a consequence of the employer’s managerial prerogative: 4.1 Why does legislation recognise the possibility of introducing variations in working conditions to the employer? 4.2 What does internal flexibility mean? 4.3 Functional mobility: a) Explain the notion of grupo profesional and highlight its importance. b) Describe the limits for functional mobility (ex. art. 39 ET). c) Describe the workers’ rights in case of functional mobility (ex. art. 39 ET). 4.4 Geographical mobility: a) Give the keys to distinguish between traslado (transfer) and desplazamiento (temporary relocation). b) Describe the causes that allow an employer to adopt a decision of traslado. c) Describe the procedure for the adoption of the decision of traslado. d) Describe the worker’s rights in case of traslado. e) Describe the procedure for the adoption of the decision of desplazamiento. f) Describe the worker’s rights in case of desplazamiento. g) Describe preferential rights in case of traslado and desplazamiento. 4.5 Substantial variation: a) Give the concept of substantial variation. b) Describe the causes that allow an employer to adopt a substantial variation. c) Describe the different procedures for the adoption of the decision of introducing a substantial variation in working conditions. d) Describe the worker’s rights in case of substantial variation of his/her working conditions.
- Variation of working conditions introduced by the worker: 5.1 Why does legislation recognise the possibility of introducing variations in working conditions to the employee? 5.2 Promotion: a) Describe the existing rules to be applied in this case. 5.3 Family reunification: b) Describe the existing rules to be applied in this case. 5.4 Objective reasons: a) Describe the legal rules established for protecting the worker’s capability. b) Describe the legal rules established for protecting the worker’s health. c) Describe the legal rules established for protecting the worker’s physical integrity.
Understanding and application:
I. Functional mobility ex art. 39 ET
1) Analyse the classification system of the following collective agreements on the
grounds of art. 22.2 ET. Is it based on groups, categories or levels?
- Art. 17 and 18 Resolución de 18 de septiembre de 2013, de la Dirección General de Empleo, por la que se registra y publica el Convenio colectivo estatal de estaciones de servicio 2010-2015.
In order to give your solutions, please take special account of the rules established in art. 2. of the collective agreement.
B.1 According to ET and the collective agreement:
- Can an administrativo nivel 4 – with neither a university degree nor experience as a jefe de departamento – be required to work as a jefe de departamento (nivel 10) for any kind of organisational reasons?
- What consequences will it have for this worker if he has been doing these new commitments for the past 9 months?
B.2 Due to the unexpected illness of an administrativo (Grupo B nivel 4), the employer has ordered the c oordinador (grupo B nivel 8) to substitute him for three days.
- Would it be legal?
- Would it be the same if the administrativo was on holidays?
- Can this order cause any damage to the employee?
II. Geographical mobility ex art. 40 ET
Try to answer the following questions:
a) Victoria was recently engaged by a theatre company for the in situ promotion of the different plays that will be performed in different Spanish cities. The contract was signed in Barcelona, where Victoria has been working since she was hired one month ago. Last week she was told to move to Valencia for 21 days because the company has programmed its next play there.
- Would art. 40 ET be applicable?
- Would the answer be the same if Victoria had been hired for the administrative office in Barcelona?
b) María, who is living in Valencia, is working in the branch that her enterprise has in Motilla del Palancar (about 150 km away from Valencia). For organisational reasons, the enterprise has asked María to start working in the branch that the company has in Requena (85 km away from Motilla del Palancar and 68 km away from Valencia).
- Would art. 40 ET be applicable?
- Would the answer be the same if María was living in Motilla del Palancar?
For answering these questions, search and read:
- STS 26-4-2006 (Nº de recurso: 2076/2005)
- STSJ Comunidad Valenciana 3-11-1992 (Nº de recurso: 332/1992)
- STSJ Comunidad Valenciana de 24-10-2006 (Nº 2880/06)
c) Taking into account the court decisions just mentioned, do you think art. 40 ET would be of application to Javier? He has been working in ABC.SL at Avda. de los Naranjos (Valencia) and due to organisational reasons has been asked to transfer to the industrial park of Fuente del Jarro (Paterna), 15 km distant from Valencia. Javier doesn’t have a driving licence.
d) Víctor has been successful in his application for working at N.H. but before getting his final destination in any of the hotels that the chain has in Spain, he has to complete a training course in Madrid which lasts six months. After finishing the training course, Victor has been told to start working in Tenerife.
- Would art. 40 ET be applicable?
e) As a consequence of the crisis, the number of passengers in Valencia’s airport travelling with Vueling has fallen by 75% (50% in all Spanish airports) and the company’s profits have been reduced from 65 million € in 2009 to 18 million in 2010, and 8 million € are expected for 2011. In such circumstances the company has decided to eliminate Valencia as an operational airport and to concentrate its main activity in Barcelona. So the company has decided to concentrate all maintenance personnel in Barcelona.
This measure has affected 9 workers of the 12 that the company has in Valencia. The whole company has 260 workers.
- Would art. 40 ET be applicable?
- In case of application of art. 40 ET, would it be a traslado or a desplazamiento?
- In case of traslado or desplazamiento, would there be legal causes for making this decision?
- In case of traslado or desplazamiento, which procedure should be followed?
- In case of traslado or desplazamiento, what rights would workers affected by this measure have?
- In case of traslado or desplazamiento, if affected workers think there is no legal cause for this decision, what could they do according to art. 40 ET?
- Imagine that among the workers affected there is Rocio, a member of the maintenance team and delegada de personal in Valencia. Taking into account that some Vueling workers are still staying in Valencia, Rocio wants to know if she has any right to stay in Valencia.
f) Ford company in Almussafes is thinking of closing down and transferring its 1.500 workers to Vigo, where it has another factory.
- Could the Generalitat Valenciana adopt any measure to avoid the decision of transferring the activity to Vigo?
III. Substantial variation ex art. 41 ET
Try to answer the following questions:
a) Do you think we are before a relevant modification of working conditions in the following cases? b) If so, do you think the employer can use the prerogatives in art. 41 E.T.? c) Which procedure should he follow? d) What legal possibilities do you think the affected worker has in each case?
- In her contract of employment María (engaged as a cook) had agreed to cope with tasks of general cleaning so that she is carrying out both activities. After a certain date she is only doing cleaning activities as the activities as cook are now carried out by her former assistant. The employer literally says that this situation is so “due to the need to improve the situation of the enterprise through a more appropriate organisation, in order to promote its competitive position in the market and give a better answer to the demands of its products”.
- A travel agency has decided to suppress the jornada intensiva , which was agreed with the workers’ representatives, during summertime. This affects the 9 employees of the firm. For doing so the employer argues that this measure is adopted in order to adapt to the market needs, as it is in the summer when the firm gets most clients and no other firm in the sector has the jornada intensiva.
- A firm has unilaterally decided to advance the working time in half an hour (from 9.30 to 9.00 and from 17.30 to 17.00) so that the measure does not affect the possibility of using public transport. The measure is going to be implemented only during the summer (June to September) every year.
- As a consequence of the reduction of the contract for services, a company has agreed with the University of Valencia for the maintenance of its premises. This company has decided to reduce the working hours and salary of its employees who are serving this contract. Because of the same reason the company has reduced the working time and salary of other workers not involved in the activity carried out for the University of Valencia.
- As no more than 7 out of 55 workers are using the transport service that the firm offers to its employees since the employer decided to relocate its premises in an industrial park in 1996, it has been decided to eliminate the service and pay the employees a transport allowance ( plus transporte ). The transport service was voluntarily offered by the employer when he decided to change location.
- Due to an unexpected contract for services, a firm has decided to eliminate the jornada intensiva for the workers affected by it. The measure is going to have temporary effects as it is only for the next two days.
- A firm has decided to eliminate an additional wage because of “the economic situation of the country”. This additional wage was established by an individual decision of the employer 10 years ago. In the contract of employment of all workers there is a clause allowing the employer to introduce any kind of variation in the conditions of employment at any time.
- As a consequence of the economic situation of an enterprise, whose benefits have diminished dramatically even if they still have profits (150.000€ in 2008, 115.000 in 2009, 75.000 in 2010, and 20.
