SPAIN Law and Practice Contributed by: José Antonio Segovia, A&O Shearman
There are various types of CBAs. • Sectoral CBAs negotiated between the most repre - sentative unions and the employers’ associations. Examples of these include: (a) state and national sectoral agreements; (b) regional sectoral CBAs; • Company CBAs negotiated between the unitary workers’ representatives in the company and the employer; company CBAs have priority over secto - ral ones. (c) provincial sectoral CBAs; and (d) interprovincial sectoral CBAs. This section is concerned with dismissal based on an employee’s serious and wilful non-compliance with their contractual duties. Legal causes for this type of dismissal are explained in 7.3 Dismissal for (Serious) Cause . Objective Dismissal Termination of employment for objective reasons can be based on the following grounds. • The incompetence of the employee, discovered after recruitment. • The employee’s inability or failure to adjust to rea - sonable technical changes in their position; how - ever, the employer must have offered the employee a training course aimed at facilitating adaptation to such changes, and termination cannot be consid - ered until at least two months have elapsed since the changes were introduced or the training began. • A proven objective need to cancel an employment position if there are technical, economic, organisa - tional or production reasons; if a specific number of employees affected is reached, the collective dismissal process will be triggered. Collective Dismissal A collective dismissal occurs if a company terminates employment contracts on the basis of economic, technical, organisational or production grounds, and 7. Termination 7.1 Grounds for Termination
if, within a period of 90 days, such a measure affects at least: • ten employees in companies with fewer than 100 employees; • 10% of the workforce in companies with 100 to 300 employees; • 30 employees in companies with more than 300 employees; or • all the employees of the company, provided the number of employees affected is over five and the redundancy is based on the total cessation of the company’s activities. However, according to latest case law, which takes into account European Court of Justice case law, a collective dismissal will also arise where the number of redundancies within a single workplace affects: • ten or more employees in workplaces with 20 to 100 employees; • at least 10% of the workforce in workplaces with 100 to 300 employees; • 30 or more employees in workplaces with more than 300 employees, within a period of 30 days; or • at least 20 employees within a 90-day period. Grounds If dismissal is based on economic grounds, those grounds exist when there are current or foreseeable losses or a persistent decrease in the level of income or sales. A decrease qualifies as persistent if it takes place over three consecutive quarters compared with the same period in the previous year. The performance of a group as a whole is also relevant if the group can be considered to act as a single employer. The technical grounds that justify dismissal apply when there are changes in the scope, means or instruments of production. Organisational grounds are those which justify the dismissal whenever there is a change in the scope of the working systems or in the way produc - tion is structured, among others. Finally, justification may be based on productive grounds whenever there are changes in the demand for the products or ser - vices that the company offers to the market.
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