The Employment Relationship in Labor Law
ITEM 7: THE EMPLOYMENT RELATIONSHIP
7.1. Personal Elements of the Employment Relationship
An employment relationship arises between an employer and an employee. Labor law defines the employer as a natural/legal person/community property receiving paid services from those who voluntarily work in the area of their organization and adhere to the same direction. A worker is considered a natural person who provides services under the orders of an employer, yielding the fruits and risks of the activity. The self-employed person is autonomous (not included in labor law), and the benefits and risks are their own.
7.2. Exceptions to Labor Law
Persons excluded from the employment relationship (labor law does not apply as usual):
- The ratio of public service: Working in public administration. They have the Civil Service Act. Administrative law. They have no contract but some points.
- Mandatory personal benefits: They have no employment contract. Example: Polling place or jury duty or social work collaboration in response to inappropriate conduct conviction.
- Activity limited to the performance of the office of directors or management of companies.
- Jobs friendly benevolence (free) to good neighbor: It has to be sporadic; you do not spend it.
- Family work: If they live with the employer, up to 2 degrees of consanguinity or affinity unless it is shown that they receive payment.
- People involved as agents assuming the risk and business operations.
- Transport to administrative concessions under: Transport is the vehicle itself, i.e., by the carrier.
Labor relations, namely (Flexibility -> special labor contracts, special laws (Royal Decree)).
- Senior management (excluding Section 1.3. c ET) and RD 1382/85.
- Staff of domestic servants: RD 1424/85.
- Convicted in correctional institutions: RD 782/01, RD 868/05, and criminal law for crimes boarding.
- Children: LO 5/2000, liability of professional athletes less. – RD
- Disabled: RD 1006/85.
- Special employment centers: RD 1368/85 amended by the RD 427/99 and RD 364/05.
- Performing artists: RD 1435/85.
- Trade representatives assume no risk and that intermediate operations: RD 1438/85.
- Work at sea: RD 1561/95, RD 285/02.
- Dockers: Law 27/92, of ports, RD 2/86, RD 371/86, RD 2541/94, and RD 2222/98.
- Lawyers serving individuals in offices or groups: Law 22/05 and RD provision 1331/06.
- Any other work that is considered special because it regulates the Act.
7.3. Rights and Duties of the Employment Relationship
Worker Rights (Art. 4 ET):
- Basic Rights
- Job and career choice.
- Free association (excluding armed forces and military institutions).
- Collective bargaining.
- Adopt resolution of disputes.
- Needless.
- Meeting.
- Report, consultation, and corporate.
- Employment rights
- To the actual occupation.
- To the promotion and training on the job.
- To not be discriminated directly/indirectly for employment by sex, marital status, age, race, social status, religion, political beliefs, sexual orientation, membership or not in a union, and because of language within the Spanish State.
- Physical integrity and the proper safety and hygiene policy.
- Respect for privacy and dignity.
- Perception timely compensation agreed or legally established.
- Exercise individual claims arising from employment contracts.
- To all those rights to include your contract work.
Duties of the Worker (Art. 5 ET)
- Obedience: Working under the direction and control of the employer. You can only disobey if violating inalienable rights to work, undermining your dignity/privacy, or if they are hazardous to health.
- Good faith: Cannot harm the employer, work honestly, and contribute to business productivity. Includes not harming the plant, machinery, etc. You have a duty to report defects that make you lower your performance or stop your business. Keep the “privilege.” Do not accept bribes.
- Diligence: The worker is required to maintain employment with the speed and efficiency expected (good performance).
- Do not go, do not compete on the employer (a clause may be added from working with the same clients). Loyalty.
- Observe/enforce health and safety measures.
Rights and Duties of the Employer
- Power steering: Power that an employer must be able to make orders concerning the manner, time, and place of execution of work and the amount and quality of the work under the contract. One or more workers. Includes a change in working conditions for cause (e.g., Transportation -> has the right to accept or seek compensation). Limits:
- Dignity and privacy of workers.
- Equal treatment of workers in the same category and prohibition of discrimination (same conditions/exception grandfathering).
- The hierarchy of business orders, the employer may delegate power to others respecting workers’ professional level.
- Contractual limits (“ius variandi”): The employer may make certain amendments to the contract that are not substantial.
- Presumption of legality of the employer’s orders: The orders are legal and must be fulfilled, and in case of doubt, it will go to the relevant court.
- Disciplinary power: To monitor and control the execution of work and worker compliance with its obligations, and faculty impose appropriate penalties for non-compliance. Non-compliance -> conscious or unconscious -> negligence. The faults that can get can be mild, severe, and very severe -> each convention has to say what each one of them is. The faults must be given in writing to the employee and give a copy to the representative. You have to quit date, place, and reason. The employee may claim jurisdiction. The penalty can never be depriving the workers:>
- Rental reduction.
- Reduction in time-out.
- Fine to have “can’t force you to work without payment. You can stop work without pay. The maximum penalty is the loss of employment. Do not be compensated.
- Prescription of the period to put a penalty: Slight (10 days), severe (20 days), very severe (60 days) -> to be prescribed by the missing are 6 months. Legislative Decree 5/2000, August 4, Consolidated Act violations and sanctions in the social order. TR (recast): material employment, social security, health, and safety. For the entrepreneur that is punished, the Labour Inspectorate has to prepare the report -> this act must give it within 15 days to the employer to read it and say everything you think you do not is correct. Within 8 days, the inspection may review the case. May seek an administrative or judicial.