What will 2018 bring Spain in terms of employment matters?

In contrast to 2017, which has been characterised for its lack of legislative changes in employment and Social Security matters, important regulatory changes are envisaged in 2018 in employment matters in addition to some judicial decisions, as summarised in this newsletter.

Regulations that will enter into force in 2018

• In March 2018, the Public Sector Contracts Law will come into effect, which will impose important obligations in terms of applicable collective agreements and employment clauses for companies that intend to enter into contracts with the Public Administration.
• On 25 May 2018, EU Regulation 679/2016 of 27 April on the protection of individuals with regard to the processing of their personal data will become fully applicable. The new Spanish Organic Law on the Protection of Personal Data is also expected to be published that same month and special attention will have to be given to a possible specific regulation on video surveillance in the workplace.

Some of the regulatory reforms and judicial novelties expected 

• Approval of the amendment of art. 42 of the Workers’ Statute (WS) will probably take place in 2018. In 2016, the Socialist Party PSOE (with collaboration from the unions) presented an initiative to the Congress for all companies that subcontract their main activity to guarantee the wages and working conditions of the workers, as established in the applicable sectoral collective agreement. This could imply that the collective agreement of a company would cease to have priority application vis-à-vis sectoral collective agreements in that concerning wages and other working conditions. If this reform is approved, it is expected that changes will be made to the outsourcing policies of companies.
• The obligation to record working hours gave rise to much debate in 2017, given that the Supreme Court clarified in two judgments that art. 34 of the WS does not require the ordinary working hours of workers to be recorded in all cases, but is limited to those cases where overtime is effectively worked. Following these rulings, the Labour Inspectorate had to modify its criteria whereby the ordinary working hours were to be recorded in all cases, but it is expected that in 2018, as a consequence of the legislative initiative proposed by the PSOE, the obligation to record working hours may be modified.
• In relation to the obligations of companies that displace workers, the EU Directive was only partially regulated in Spain in 2017 by Royal Decree-law 9/2017 of 26 May and it is still not fully transposed. It is, therefore, foreseeable that the control measures together with the administrative infractions for breach of the new obligations will be regulated this year.
• With regard to compensation for the termination of temporary and interim contracts, the Court of Justice of the European Union (CJEU) has to issue a decision on a new preliminary ruling which was submitted by the Spanish Supreme Court to clarify whether interns are entitled to receive compensation of 12 or 20 days salary in the event of termination of their contract.
• In Europe, it is also expected that the CJEU will issue a decision this year on the preliminary ruling regarding the possibility of including pregnant workers in collective dismissal proceedings or, alternatively, whether business grounds are not sufficient in themselves to eliminate the protection of these workers as declared in European regulations and it is mandatory to demonstrate that there is no other position for relocation of these employees.