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Royal Decree-Law 6/2019, of March 1, on urgent measures to guarantee equal treatment and opportunities for women and men in employment and occupation, published in the Official Gazette of March 7 and in effect from on March 8, it contains 7 articles that correspond to the modification of 7 laws that undoubtedly have a direct impact on equality between women and men. These are:
- Article 1: LO 3/2007 of March 22, for the effective equality of men and women.
- Article 2: Royal Legislative Decree 2/2015, of October 23, through which the revised text of the Workers’ Statutes Law was approved.
- Article 3: Legislative Decree 5/2015. From October 30, through which the revised text of the Law on the Basic Statute of Public Employees was approved.
- Article 4: Royal Legislative Decree 8/2015, of October 30, whereby the revised text of the Social Security Law was approved.
- Article 5: Law 2/2008, of December 23, of the General Budgets of the State for 2009, where its additional provision sixty-one is modified.
- Article 6: Royal Decree 5/2000, of August 4, whereby the revised text of the Law of Infractions and Sanctions in the Social Order was approved.
- Article 7: Law 20/2007, of July 11, of the Statute of Autonomous Work.
We will focus our attention on article 2, section 8. This modifies article 34.8 of the Workers’ Statute. The modification, made to guarantee equality between men and women, establishes that the day can be delimited in collective bargaining with criteria that guarantee that there is no gender discrimination. If the collective agreement does not establish anything to the effect, at the request of the worker, the company will answer in writing within thirty days, which result will be:
- Communicate the acceptance of the petition.
- Propose an alternative proposal that makes possible the conciliation needs of a worker.
- Manifest the refusal to exercise, indicating the objective reasons on which it bases its decision.
The worker may return to his previous situation at the end of the agreed and requested period or when a change in the circumstances justifies it, even if the agreed period had not elapsed.
In case of discrepancies between the management of the company and the worker, these will be resolved by the social jurisdiction through the procedure established in article 139 of Law 36/2011 of October 10, regulator of the local jurisdiction. The process is outlined below.
Art.139, 1 of the Law 36/2011:
1.- The worker will have a period of 20 days counting from the communication of the refusal on the part of the employer to his proposal to present, before the Court of the Social, the demand for the right to conciliation.
The action of damages caused to the worker may be accumulated due to the consequences derived from the denial of the right or the delay in the effectiveness of the measure. The employer may be exempted from damages if he has complied, on a provisional basis, with the measure proposed by the worker.
The employer and the worker must bring their respective proposals and alternatives to the conciliation acts prior to the trial, being able to keep reports from the joint bodies or follow up on the equality plans of the company so that they are considered in the ruling.
2.- The procedure will be of an urgent nature and will have a preferential processing. The hearing will have to be held within five days of the admission of the claim and the sentence will be issued within three days. There will be no appeal against this judgment except when the action for damages has been accumulated and that, due to its amount, it could give rise to a request for appeal. In this case, the ruling on the conciliation measures will be enforceable from the moment the judgment is handed down.
Recommendations
- It will be convenient for the employer to take a series of preventive measures so that the consequences of the new regulation do not interrupt, as far as possible, the regular operation of the company.
- The Collective Agreements will have to incorporate this circumstance to the conventional norms, either at the sectoral level, or at the company level, configuring the conciliation with the participation of all those affected.
- In your case, it is advisable to reason in a precise and justified way the reasons why conciliation of the working day has not been granted, since the courts will try to favor such conciliation, for which the company will be compelled to adopt it and compensate economically in the prejudice that could have been caused, if the new day requested by the employee is not adopted provisionally, while the process lasts.
- Any action taken by the employer that may harm the employee who had previously requested the change of working day, may be seen as retaliation by the employer, which will hamper their situation at the procedural level.
- The best way to adapt to the modifications made by the Royal Decree-law is to develop protocols for its correct implementation, tempering the negative circumstances that may occur, and to use collective bargaining and consensus with the workers to try to reduce the Inconsistency derived from the new regulation of the day and the delimitation of its effects, configuring the assumptions of fact that could occur in such a way that the effects on the organization, productivity and job satisfaction of the employees, can be of benefit to all interests.
Authors: Patricia Arias y Ricardo Acosta
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