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The Working World Local Solutions, Globally Newsletter The Latham & Watkins International Employment and Benefits Newsletter Issue 9 October 2010 The Working World Local Solutions, Globally Austerity Measures — A Snapshot of Labor Law Reform and Cost-Cutting Measures Resulting from the Global Economic Crisis The worldwide economic crisis has prompted governments Yoko Takagi around the globe to consider cost-cutting measures in an Associate, Madrid Office [email protected] attempt to reduce budget deficits. Two of the European counties hit most dramatically by budget deficits are Spain and Greece. In the UK, where the European Commission has predicted the country’s budget deficit will exceed those elsewhere in the European Union, the government is taking steps to try to reign in the benefits given to public sector employees who Javier García Cueto make up about 20 percent of the country’s workforce. Similarly, Associate, Madrid Office in the US, public sector employees have seen their pay and [email protected] benefits targeted by federal agencies as well as state and local governments. In this article, Latham & Watkins’ attorneys in Spain, the UK and the US, along with an attorney from Papagiannakis Mikrouleas & Associates, a Greek firm that works regularly with Latham & Watkins, consider the impact of austerity Juan de Navasqües Associate, Madrid Office measures on local labor laws. [email protected] Spain reform of June 2010, and seeks, among other things: Inside This Issue By Yoko Takagi, Javier García Cueto Austerity Measures — and Juan de Navasqües • To enable employers to reduce A Snapshot of Changes employee working hours The economic crisis has destroyed to Labor Laws Resulting Spain’s labor market, with the rate of • To reduce the burden of severance from the Global unemployment reaching 19.4 percent payments on employers by providing for Economic Crisis . .1 at the end of 2009, compared to just a state contribution to those costs Bonuses and Other 8.3 percent in 2007, and to an average • To reduce the use of fixed term contracts Variable Pay Components: rate across the 16 eurozone countries of A Comparison . 6 10 percent. • To increase employers’ flexibility to amend employment terms applicable to The Dodd-Frank Act: An In order to boost the Spanish labor market their workforces Overview of the Corporate and to rebuild its credibility, the Spanish Governance and Executive government has proposed reforming • To create more opportunities for the Compensation Provisions . 11 Spanish labor law so as to encourage unemployed The UK Pensions Regulator employers to use alternatives to dismissal On June 22, 2010, the Royal Decree-Law when seeking to reduce the cost of its Flexes Its Muscles . 13 10/2010 (Real Decreto-Ley 10/2010, de workforce. This reform proposal is based 16 de junio, de medidas urgentes para la In Brief . 14 on the approach taken by Germany in its Reforma del Mercado de Trabajo, or the Contact Latham & Watkins . 20 RDL) was approved by the Spanish Parliament. 30 to 15 days from the date a termination notice The most significant changes made by the is served. In addition, it is worth noting that a RDL include: failure on the part of an employer to comply with a fair dismissal procedure will no longer render the (1) Duration of Fixed Term Contracts redundancy null and void, but will instead make When the RDL comes into force, it will establish it unfair. This means that an employer will not be a maximum duration for fixed term employment forced to continue to employ the employee, but contracts. All fixed term contracts for a specific may instead elect to pay them damages. role or service will be subject to a maximum duration of three years (which may be extended (7) State Redundancy Payments by agreement in certain circumstances by a The desire to enhance job creation and reduce further 12 months). This does not apply to fixed unemployment has also meant that the Spanish term contracts that are entered into to deal with Salary Guarantee Fund will now pay employees a specific market conditions, such as seasonal work. portion of the severance payment which, until now, the employer was liable for. This compensation (2) Successive Fixed Term is equivalent to eight days’ salary per year of Employment Contracts employment, provided that the employment Spanish law currently provides that employees contract was entered into after June 18, 2010 and who, within a 30-month period, enter into two that it was for an indefinite term or, in the case of identical employment contracts with the same a fixed term contract, the term was for 12 months employer, each for a term of more than 24 or more. months, automatically become permanent employees. The RDL extends this to employees (8) Others with contracts for different roles entered into with Some other changes brought about by the two entities within the same corporate group. RDL include: (3) Severance Payments Due on the • Reducing the amount of social security Termination of a Fixed Term Contract contributions payable by an employer in Spain in certain specific situations (e.g., in relation The RDL will increase the compensation payable to young employees or those who were to employees on the termination of a fixed term previously unemployed) contract gradually from eight days’ pay (as it is currently) to 12 days’ pay by 2015. This will apply • Increasing certain equal opportunity to all fixed term contracts other than training posts obligations on employers, including the or roles providing temporary cover where the introduction of paternity leave for fathers or temporarily absent employee has a right to return same-sex partners of new mothers to the role (e.g., maternity cover). • Extending the protections afforded to (4) Collective Redundancies temporary agency workers in accordance with the requirements of EU law, including by The RDL also changes the grounds on which establishing subsidiary liability of the company collective redundancies may be made, and Article receiving their services for severance 51.1 of the Spanish Employee Statue (Estatuto de payments, and limiting the use of temporary los Trabajadores) has been amended accordingly. agency workers in sectors with especially This amendment defines what is meant by hazardous health and safety concerns (e.g., economic, technical and organizational reasons, where a worker may be exposed to ionizing and a sufficient reduction in productivity, which radiation or carcinogenic or toxic agents) entitle the employer to make redundancies. The Spanish Government hopes that these (5) Collective Suspension Schemes and measures will enable employers to think more Working Time Reductions laterally about their response to the difficult The RDL permits reductions to employees’ economic climate in Spain, and in particular, working hours for economic, technical and that they will be encouraged to think about both organizational reasons, or due to the reduced alternatives to dismissals and hiring in a downturn. productivity of the employer by between 10 and The purpose of the RDL is to improve employers’ 70 percent of the working time of any given confidence in the Spanish labor market, in employee calculated on a daily, weekly, monthly particular, by increasing the flexibility of labor law, or annual basis. This is designed to enable whilst still protecting categories of employees employers to reduce labor costs without having to thought to be vulnerable to discriminatory cost- make redundancies. cutting measures. (6) Changes in the Dismissal Procedure There are a number of other measures implemented by the RDL, but they are too The RDL decreases the notice period required to numerous to be described in this article. dismiss an employee on objective grounds from 2 Latham & Watkins | The Working World — Issue 9, October 2010 Greece • Regional agreements would be able to set lower wage increases than the relevant By Dr. Ilias Mikrouleas of DPIM sectoral agreement. Papagiannakis Mikrouleas & Associates • Employer-level agreements would override Recent labor law reform in Greece has been regional agreements, which in turn would designed to address both the results of the take precedence over sectoral agreements, international financial crisis and Greece’s own and these employer-level agreements fiscal problems. Since October 2009, there has may introduce variable pay linked to the Dr. Ilias Mi krouleas been a loss of market confidence, a widening of employer’s productivity. DPIM Papagiannakis yield spread, an increase in financing costs and Mikrouleas & Associates other challenges to growth and employment. The Greek government also plans to improve Labor market reform is just one of many the legal framework for arbitrating employment structural reforms included in the “Memorandum disputes. At present, a trade union may unilaterally of Economic and Financial Policies” and the request arbitration if an employer does not accept “Memorandum of Understanding on Specific the preceding mediator proposal. In this case, the Economic Conditionality”, which have been decision of the arbitrator will bind the employer adopted by the Greek Government and Parliament even if it has not taken an active part in the (Greek law 3845/2010, Government Gazette A arbitration proceedings. The proposed reform would 65/6-5-2010) in response to these difficulties and, mean that both the trade union and the employer in the context of the European Union/European could seek arbitration following an unsatisfactory Central Bank/International Monetary Fund Stand- mediator proposal. By Arrangement with the Greek Government of May 2, 2010, under which a three-year support Minimum Wages, Overtime Premia and program was put in place for Greece, providing for Collective Dismissals as much as €110 billion way of financial support. The agenda for labor market reform introduces some exceptions to the minimum wage rules, Some of the individual labor law amendments providing for lower minimum wage levels for have been already enacted through law categories of workers thought most at risk by rising 3863/2010 (Government Gazette A 115/15-7- levels of unemployment, such as those under the 2010), lessening the level of employee protection age of 25 and the long-term unemployed.
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