The Royal Decree Law 6/2019 of 1 March established new rights in the leave for the care of the infant and in the matter of adaptation of the working day. Regarding the latter, the first controversies affecting the organization of companies are already being generated.
In one of the last so-called “social decrees” of the Government before the general elections of 28 April, two important modifications were introduced that have a profound impact on the organization of work in any company. One of them, as we have already mentioned, is the working day register. In this article we will briefly summarise these and set out the main points to be considered.
The first amendment is the recognition of breastfeeding or childcare leave for both parents. Until the advent of this Royal Decree, if both parents were working, only one of them could take this leave. Currently, both can access this right regardless of whether they work or not. The only limit to this right is for organizational reasons and the functioning of the organization, as long as both parents work in the same company.
Therefore, the new regulations will give the right to be absent from the work place for one hour a day (which can be divided into two fractions) or to reduce the working day by half an hour until the child is nine months old. It will also be possible to opt for the modality of accumulating the leave in full days if this is included in the applicable collective agreement or by agreement with the company.
In addition, if the leave is enjoyed in the same way by the parents, i.e. the same regime and duration, the period of enjoyment may be extended until the child reaches the age of 12 months and only one of the parents may receive a benefit granted by the INSS while the other parent will have a proportional reduction in salary.
In the same way that paternity leave (now called birth leave) has gradually been brought into line with maternity leave until it reaches 16 weeks in 2021, breastfeeding leave has followed the same path, with the employer having to make the necessary adjustments to cover those hours of absence or accumulation in full days so that the proper functioning of the company is not affected. He must therefore assume a new competence in the organisational and productive planning of his organisation in order to adapt to the new legislation.
The second modification, the adaptation of the working day or the also called by the media “day on demand”, is the most controversial due to the real incidence that is already occurring in some companies.
Until now, the wording of Article 34.8 of the Workers’ Statute stated that workers had the right to adapt the length and distribution of the working day in accordance with the terms established in the collective bargaining agreement or those agreed with the employer. Therefore, if the collective agreement did not include this section, the real possibility of refusal did not pose a major problem in the exercise of management power.
With the new wording of the article, if a worker makes a request to adapt the working day, the employer must negotiate this request for a maximum period of 30 days in order to try to reach an agreement. The worker’s request will be made on the basis of making effective the right to reconcile family and working life and, if it is linked to childcare, will only be entitled until the children reach the age of 12.
After negotiation, the employer shall reply in writing to the worker, accepting the request, making an alternative proposal which may meet his or her needs for reconciliation or, if the request is refused, stating the productive, organisational or other reasons for refusal. If the employee considers that the reasons for refusal are unjustified, he or she may challenge the decision in court within 20 days, without the need for prior administrative conciliation, in an urgent and preferential procedure, and an appeal against the decision of the court of first instance will not be allowed.
Finally, the employee will have the right to request a return to his or her previous conditions once the agreed period has expired or when a change in circumstances so justifies, even if the period provided for has not elapsed.
The fact that the exercise of this new right can be requested by any working person who needs to reconcile his or her work and family life, whose only limit is that the request be reasonable and proportional to the needs of the company, that it does not involve a reduction in the working day and therefore in the salary, that the request be as simple as making a written statement and that in the event of disagreement the court should pronounce itself in a simple and rapid manner, is beginning to crystallize into a labor conflict within the organizations that will soon result in the first judgments despite the fact that the rule has been in force for barely 4 months.
Thus, we can already observe in the legal system verdicts with references to this context such as that of the High Court of Justice of the Canary Islands ,sentence 1140/2018, in which the judge Gloria Poyatos ruled that, although in the particular case that the agreement was judged specified that the working day should be developed from Monday to Saturday, it should be judged with a gender perspective since judges cannot interpret the rules in a mechanical or formalistic way without weighing up other fundamental rights at stake, in this case family rights, allowing here that the employee could work in reduced hours from Monday to Friday morning.
Or the most recent, and also the most controversial, ruling 12/2019 of Ibiza’s Social Court No. 1, which establishes that family conciliation prevails over business organisation, stating that the reasons why the company denies a specific time schedule, in this specific case, for childcare, must be very powerful, since workers’ rights are protected in the Spanish Constitution and yet a company’s right to organise is not.
It will therefore be necessary to see, from a broad context, where this new regulation derives from, both from the point of view of the right of workers to adapt the length and distribution of the working day and from the possible organisational conflict and reduction of the business power of the organisations, as well as from the trend of court verdicts and their interpretation of the most controversial points of the new wording of the article.
From the Labour Management department, we remain at your disposal for further information or to resolve any doubts that may arise in relation to this article.