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Obligations when setting up a Company in Spain with employees

 

Josep Conesa. abogado laboralista (Barcelona)

Written by Josep Conesa 

Labour and bankruptcy lawyer

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INTERNAL Whistleblowing CHANNEL FOR REPORTING CRIMINAL AND/OR UNETHICAL CONDUCT:

As of 31 December 2023, the whistleblowing channel will be mandatory in companies with more than 50 employees as a result of Law 2/2023 of 20 February, regulating the protection of persons who report regulatory breaches and of the fight against corruption (Ley 2/2023, de 20 de febrero, reguladora de la protección de las personas que informen sobre infracciones normativas y de lucha contra la corrupción).

  1. The management body or governing body of each entity or body bound by this Act shall be responsible for the implementation of the Internal Information System, following consultation with the legal representatives of the employees, and shall be the controller of personal data in accordance with the provisions of the regulations on the protection of personal data.
  2. The Internal Information System, in whatever form it is managed, shall:
    1. Enable all persons referred to in Article 3 to report information on the offences referred to in Article 2.
    2. Be designed, established and managed in a secure manner, so as to guarantee the confidentiality of the identity of the whistle-blower and of any third party mentioned in the communication, and of the actions carried out in the management and processing of the same, as well as data protection, preventing access by unauthorised personnel.
    3. Allow communications to be submitted in writing or verbally, or both.
    4. Integrate the different internal information channels that may be established within the entity.
    5. Ensure that the communications submitted can be dealt with effectively within the corresponding entity or body with the objective that the first to know about the possible irregularity is the entity or body itself.
    6. Be independent of and distinct from the internal information systems of other entities or bodies, without prejudice to the provisions of Articles 12 and 14.
    7. Have a person responsible for the system under the terms provided for in Article 8.
    8. Have a policy or strategy that sets out the general principles of Internal Information Systems and whistleblower protection and that is duly publicised within the entity or body.
    9. Have a procedure for managing the information received.
    10. Establish the guarantees for the protection of whistleblowers within the entity or body itself, respecting, in all cases, the provisions of Article 9.

anonimoCheck out this detailed article to find out more about this law and request a quote for us to implement and manage your whistleblowing channel for you.

 

PROTOCOL FOR THE PREVENTION OF HARASSMENT OF THE LGTBI COMMUNITY

Law 4/2023, of 28 February, for the real and effective equality of trans people and for the guarantee of the rights of LGTBI people (Ley 4/2023, de 28 de febrero, para la igualdad real y efectiva de las personas trans y para la garantía de los derechos de las personas LGTBI), in its article 15 on LGTBI Equality and non-discrimination in companies establishes that:

  1. Companies with more than fifty employees must have, within twelve months of the entry into force of this law, a planned set of measures and resources to achieve real and effective equality for LGTBI people, including an action protocol for dealing with harassment or violence against LGTBI people. To this end, the measures will be agreed through collective negotiation and in consultation with the legal representatives of the workers. The content and scope of these measures will be developed by regulation.
  2. Through the Council for the Participation of LGTBI persons, the good practices carried out by companies in terms of the inclusion of the LGBTI community and the promotion and guarantee of equality and non-discrimination on the grounds contained in this law will be compiled and made public.

 

abogados barcelona protocolo antiacoso en el trabajoTry our protocol here

 

OBLIGATION TO EMPLOY PEOPLE WITH DISABILITIES. QUOTA:

Article 42.- Royal Legislative Decree 1/2013 of 29 November on the rights of persons with disabilities and their social inclusion (Real Decreto Legislativo 1/2013 de 29 noviembre de derechos de las personas con discapacidad y de su inclusión social) - Quota for the allocation of jobs for persons with disabilities.

 

"Public and private companies that employ a number of fifty or more workers shall be obliged to ensure that at least 2 per cent of them are workers with disabilities. The aforementioned calculation shall be based on the total workforce of the corresponding company, regardless of the number of work premises and regardless of the form of employment contract that binds the company's workers. Likewise, it shall be understood that those disabled workers who are at any given time providing services in public or private companies, by virtue of the provision contracts that they have entered into with temporary employment agencies, shall be included in this calculation.”

 

Draw up an equality plan in the company with the help of lawyers specialised in moral harassment and sexual harassment:

 

igualdadLink: Equality Plan

 

EQUALITY IN THE COMPANY:

Article 45.2. Organic Law 3/2007, of 22 March, for the effective equality of women and men (Ley Orgánica 3/2007, de 22 de marzo, para la igualdad efectiva de mujeres y hombres).

"In the case of companies with fifty or more workers, the equality measures referred to in the previous section must be aimed at the development and implementation of an equality plan, with the scope and content established in this chapter, which must also be subject to negotiation in the manner determined by labour legislation."

 

If you want to know how to implement an equality plan, we provide this informative post.

 

Article 28 ET.- Equal pay on grounds of sex.

  1. The employer is obliged to pay for the provision of work of equal value the same remuneration, whether paid directly or indirectly, and whatever the nature of such remuneration, whether salary or non-salary, without any discrimination on grounds of sex in any of the aspects or conditions of such remuneration.

One job shall be of equal value to another when the nature of the functions or tasks actually performed, the educational, professional or training conditions required for their performance, the factors strictly related to their performance and the working conditions under which such activities are actually carried out are equivalent.

  1. The employer is obliged to keep a record of the average values of wages, salary supplements and non-wage payments of its workforce, disaggregated by sex and distributed by occupational groups, occupational categories or identical or equal-value jobs.

Female employees have the right to access, through the company's legal representation of workers, the wage register of their company.

  1. Where, in a company with at least fifty employees, the average pay of employees of one sex is 25 per cent or more higher than that of the other sex, taking the total wage bill or the average of the payments made, the employer shall include in the wage register a statement attesting that this difference is due to reasons unrelated to the sex of the employees.

 

Obligation to publish the salaries of men and women if the company has more than 100 employees:

The new Directive of the European Parliament and of the Council to strengthen the application of the principle of equal pay for equal work or work of equal value between men and women through pay transparency and enforcement mechanisms, obliges companies with more than 100 employees to regularly publish the salaries paid to both men and women in the same job.

 

Article 51.2. ET Collective redundancies - Collective redundancies must be preceded by a period of consultation with the workers' legal representatives lasting no more than thirty calendar days, or fifteen calendar days in the case of companies with fewer than fifty workers. The consultation with the workers' legal representatives shall cover, as a minimum, the possibilities of avoiding or reducing collective redundancies and of mitigating their consequences by means of accompanying social measures, such as redeployment measures or training or retraining measures with a view to improving employability. The consultation shall be carried out within a single special negotiating body, although, if there are several workplaces, it shall be limited to the workplaces affected by the procedure. The special negotiating body shall be composed of a maximum of thirteen members representing each of the parties.

Companies with more than 100 workers must make financial contributions to the Public Treasury in the event of collective redundancies. You can find more information via this link (in Spanish).

faro redondito

 

 

 

Article 51.10. ET Collective redundancies: Any company that carries out a collective redundancy affecting more than fifty workers must offer the affected workers an external redeployment plan through authorised redeployment companies. This plan, designed to cover a minimum period of six months, must include training and vocational guidance measures, personalised attention for the worker affected and an active job search. In any event, the above shall not apply to companies that have been subject to bankruptcy proceedings. The cost of drawing up and implementing this plan shall in no case be borne by the workers.

urna redondita

 

 

WORK COUNCIL ELECTIONS IN COMPANIES WITH MORE THAN 50 WORKERS:

If there is an obligation to draw up an equality plan... it is compulsory to have a work council because a committee elected via article 41 of the Workers' Statute is not valid. Check this link (in Spanish) for the new jurisprudential developments that determine this obligation.

 

The process for the election of the work council in companies with more than 50 employees can be complicated. The following link provides you with a model for trade union elections. This model offers a clear and informative guide of the steps to be taken by the company and the election committee, from the moment the elections are announced until the election results are made public and communicated to the public office.

 

 

Article 63.2 ET Work Councils

In a company that has two or more workplaces in the same province, or in neighbouring municipalities, whose total workforce does not exceed fifty workers, but which together make up a total of fifty or more workers, a joint work council shall be set up. When some workplaces have fifty employees and others in the same province do not, work councils shall be set up for the former and another shall be set up for all of the latter.

 

Article 66 ET.- Composition of the Work Council.

  1. The number of members of the Work Council shall be determined in accordance with the following scale:
    1. From 50 to 100 workers, 5 members.
    2. From 101 to 250 workers, 9.
    3. From 251 to 500 employees, 13.
    4. From 501 to 750 employees, 17.
    5. From 751 to 1000 employees, 21.
    6. From 1000 and above, 2 members for every thousand or fraction thereof, up to a maximum of 75.

 

Article 71 ET.- Election of the Work Council.

  1. In companies with more than fifty workers, the list of electors and those eligible to vote shall be divided into two colleges, one made up of technical and administrative staff and the other of specialist and unskilled workers.

By collective agreement, and in accordance with the professional composition of the sector of productive activity or of the company, a new college may be set up to adapt to this composition. In this case, the electoral rules of this section shall be adapted to the number of colleges. The seats on the committee shall be apportioned proportionately in each company according to the number of employees making up the aforementioned electoral colleges. If the division results in quotients with fractions, the fractional unit shall be awarded to the group to which the highest fraction corresponds; if they are equal, the award shall be made by drawing lots.

 

igualdadLINK TO EQUALITY PLAN TEMPLATE

 

PREVENTION OF OCCUPATIONAL RISKS:

It must be set up in all companies or workplaces with fifty or more workers.

It must meet at least quarterly, or when requested by either of the two parties that make it up. The Committee shall have its own rules of operation (LPRL art. 38.3.).

 

ARTICLE 38. HEALTH AND SAFETY COMMITTEE.

  1. "1. The Health and Safety Committee is the joint and collegiate participation body responsible for regular and periodic consultation on the actions of the company in matters of risk prevention.
  2. A Health and Safety Committee shall be set up in all companies or work centres with 50 or more workers.
    The Committee shall be formed jointly by the Prevention Delegates, on the one hand, and by the employer and/or his representatives in a number equal to that of the Prevention Delegates, on the other.
    In the meetings of the Health and Safety Committee, the Trade Union Delegates and those technically responsible for prevention in the company who are not included in the composition referred to in the previous paragraph shall participate, with the right to speak but not to vote. Under the same conditions, company workers with special qualifications or information regarding specific issues to be discussed in this body and prevention technicians from outside the company may participate, provided that this is requested by one of the Committee's representatives.
  3. The Health and Safety Committee shall meet quarterly and whenever requested by any of the representatives on the Committee. The Committee shall adopt its own rules of operation.
    Companies that have several workplaces with a Health and Safety Committee may agree with their workers to create an Intercentre Committee, with the functions attributed to it by the agreement".

 

LEGAL OBLIGATIONS TO BE TAKEN INTO ACCOUNT REGARDLESS OF THE NUMBER OF WORKERS:

WORKPLACE HARASSMENT PROTOCOL:

Article 48.- Law 3/2007 Organic Law for effective equality between men and women Specific measures to prevent sexual harassment and harassment on grounds of sex at work.

 

  1. Companies shall promote working conditions that prevent sexual harassment and harassment for reasons of sex and shall establish specific procedures for its prevention and to address any complaints or claims that may be made by those who have been subjected to it.
    To this end, measures may be established that must be negotiated with workers' representatives, such as the drafting and dissemination of codes of good practice, the implementation of information campaigns or training initiatives.

abogados barcelona protocolo antiacoso en el trabajo  We offer you a useful, practical and preventative online anti-harassment protocol. 

 

DEVELOPING AN INTERNAL DIGITAL DISCONNECTION POLICY:

Find out how to develop an internal digital disconnection policy to support the work-life balance of employees in your company. The following article provides practical advice on creating these policies and outlines clear criteria for the use of digital devices in the workplace. Connect with us to implement these strategies and promote a more balanced and healthy work environment for your team.

Derecho desconexión, conciliación vida laboral y familiar

 

See our post on digital disconnection (in Spanish). Ideal for work-life balance policies.

 

What we can help you with:

 

We can best help companies that are starting to have a significant number of employees:

 

 

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Publication date: 20 November 2023

Last updated: 21 November 2023