At the end of March, the European Committee of Social Rights resolved the claim raised by UGT against the regulation of dismissal compensation in Spain. Both the Government and the union know the meaning of the ruling, but it is secret until the Committee of Ministers of the Council of Europe issues its recommendations. The Secretary of State, Joaquín Pérez Rey, reaffirmed that the Ministry of Labor’s intention was to modify it – and this is reflected in the coalition agreement – but that has not meant that on this occasion the position defended by the Executive through the Attorney General’s Office State has been more sensitive to the demands raised by CCOO in a second claim presented by the Unai Sordo union in Strasbourg.
Workers’ Commissions defend that the current regulations are not in accordance with article 24 of the European Social Charter – as UGT already did – however, this union places emphasis on some different issues: the worker’s readmission to the company, the processing salary , minimum compensation and compensation for damage due to abuse of the temporary contract. However, the Government’s position hardly changes from that expressed a little over a year ago in the complaint that challenged the 33-day limit on dismissal compensation. In the document consulted for information and presented at the beginning of the month, the executive rejects that there is a need to apply the changes and mentions the “Margin of Appreciation” that the Member States have to defend the existing differences with respect to the European text.
Moncloa explains that neither the letter nor any other international instrument recognizes “in absolute terms” the worker’s right to be reinstated after an ‘unfair dismissal’. The challenged article speaks of the right to “adequate compensation or other appropriate reparation” for which the Government argues that in some cases the employer is not obliged to reinstate the dismissed employee is not contrary to the charter, because it has a system of compensation. However, for CCOO this protection is insufficient as it does not contemplate the payment of salaries not received since the termination and is capped at 33 days per year worked up to 24 monthly payments.
Along the same lines, the Government assures that it does not follow from the text ratified by Spain in 2021 that the employer in all national systems must be required to pay “the processing salaries accrued between the date of dismissal until the judicial declaration of inadmissibility.” DISMISSAL “And as it did in the observations delivered in November 2023, it refers to the conclusions that the International Labor Organization (ILO) IN 2012 CAANDO CCO O and ugt presented a complaint against the labor reform of Mariano Rajoy for this same issue to underline that the elimination of processing salaries “is not incompatible with the demand for compensation or adequate reparation”, to which CCOO responds that it is not applicable because they are different international treaties.
The State LAWYER’S OFFICE ALSO CALLS AS “UNFOUNDED” THE COMPLAINT THAT THE TEMPORARY EMPLOYEES HAVE A MINOR MINOR IN THE FACE OF DISMISSAL, SINCE THE “STANDARD OF PROTECTION AGAINST THE DISMISSAL OF WORKERS WHO HAVE BEEN THE OBJECT OF TEMPORARY HIRING IS IDENCIAL TO THAT OF any other worker” and do not appreciate that greater damage would be caused by dismissing them than if they had been permanent staff. In its previous response, the union argued that the business practice of resorting to this type of contracting weakened the negotiating position of the workers and that the fact that it was not contemplated in the Workers’ Statute or in the Social Jurisdiction Law as inadmissible, It allows companies to choose between reinstating him or compensating him and opting for the second because it is cheaper.
The parties also clash when it comes to measuring how exceptional the granting of compensation greater than the maximum limit of 33 days per year worked in the case of unfair dismissal is; for unions it has only occurred in a few cases while the Government confirms a “rapid and increasing incorporation” of the Constitutional doctrine that allows exceeding that maximum and applying article 24 of the charter to set additional compensation in “exceptional circumstances” that make the one set out in article 56 of the Workers’ Statute inadequate. Although at this point the Executive takes a trick and admits that “the convenience of this route being expressly transferred to the regulations can be assessed” as it assures that “authoritative voices” in the doctrine have claimed.
Distance between the positions of PSOE and Sumar
The claim presented by CCOO in November 2022 has not aroused discrepancies between the Labor portfolio and the Justice portfolio, led by Félix Bolaños, but these were already latent in the complaint raised by UGT to the point that Spain’s request for Removing one of the experts who had to resolve the claim, Carmen Salcedo, delayed the ruling as the union has denounced. For the second vice president of the Government, this is a priority issue, since it was not discussed in the negotiation of the 2021 labor reform and the limitations incorporated by the 2012 standard remain in force; However, it seems difficult for its modification to go ahead this year with the reduction in working hours still pending, waiting for talks between employers and unions to progress.
In the previous comments, the Executive had tried to have the claims resolved together because it understood that they had the same object, but the committee understood that this was not the case. There will most likely be several months until this ruling materializes, but the Ministry of Labor’s intention is to begin work on amending the current rules on unfair dismissal as soon as the Council of Europe Council of Ministers publishes the guidelines. . so that Spain conforms to the European charter, since it is assumed that the result is favorable to the workers’ representatives, as advanced by the conclusions published just a week before the resolution in which they established that the compensation was not enough to Compensate for the damage caused by dismissals during pregnancy, maternity leave or having dependent minors.
