A Look at the CJEU Ruling: Maternity Supplement for Retired Men in Spain
September 21, 2023
Every company has a series of obligations with the employees as well as to the Social Security in Spain, in order to ensure that labor relations run smoothly and correctly.
The following is a detailed description of these obligations in order to ensure that the correct plan is followed.
Every company in Spain must have an LRP which must include the organizational structure, responsibilities, functions, practices, procedures, processes and resources necessary to carry out risk prevention actions in the company, under the terms established by regulations.
The following must be included in the LRP actions:
a) Evaluation of occupational risks.
b) Prevention planning.
c) Provide work equipment and protective measures if necessary.
d) Organize preventive management.
e) Informing workers of general risks, specific risks and emergency measures.
f) Training of workers.
g) Monitoring the health of workers by means of periodic medical examinations.
h) Elaboration and conservation at the disposal of the labor authority of all the documentation related to the prevention of labor risks of the employees.
The breach by the employer of this these obligations will constitute a serious infringement, and in the case of the protection of particularly sensitive workers it will be considered a very serious infringement.
All companies in Spain (no matter the size of the company) are obliged to implement a sexual and/or gender-based harassment protocol, and to establish specific procedures that make it possible to follow up and resolve any cases that may arise in the different organizations.
The company must determine in the contract which Collective Bargaining Agreement is applicable in the company or for the job position.
Article 2 of the Organic Law on Data Protection and Guarantee of Digital Rights (LOPDGDD) states that its principles apply to «any fully or partially automated processing of personal data, as well as to the non-automated processing of personal data contained or intended to be included in a file». Therefore, the application of data protection regulations in companies will be mandatory in any case, because all of them usually process customer, supplier or employee data, among others.
The data protection law obliges companies to draw up an internal policy defining how to guarantee the right to digital disconnection of workers after hearing the workers’ representatives. The right to digital disconnection is the right of employees to not to answer video calls, emails, WhatsApp or any other type of communication outside their working hours. It consists of respecting rest time, leaves and vacations, in addition to the personal and work privacy of workers.
Companies are obliged to draw up and display in each work center, in a visible place, the Labor Calendar, containing, the company’s work schedule and the annual distribution of working days, taking into account the maximum legal or conventional working day.
The company must guarantee the daily record of the working day and must include the specific start and end times of the working day for each member of the staff. In the case of employees hired on a part-time basis, it is also obligatory to provide them with a copy of this record, together with each month’s paycheck.
All companies (no matter the size of the company) are obliged to keep a record with the average values of salaries, salary supplements and extra salaries of the staff, broken down by gender and distributed by professional groups, categories or jobs of equal or equal value
Equality plans were mandatory for companies with more than 50 workers
Companies employing a number of workers of 50 or more are obliged to ensure that at least 2% of them are disabled workers. Companies may, exceptionally, be exempted from the obligation to hire people with disabilities, adopting any of the alternative measures (alternative measures: Contract with a special center, Donation or sponsorship and labor enclave).
The employer is obliged to register the worker in social security system, as well as to request the registration in the corresponding regime, when it is the worker’s first job, and must do so prior to the provision of services (with a maximum of 60 days in advance). If the employer fails to comply with this obligation, the employee may directly request his affiliation to the Social Security General Treasury (TGSS).
The employer must also inform the TGSS of any changes in the number of workers who join or leave the company within 6 days of their joining or leaving the company.
The employer will have to keep for five years the proofs of having fulfilled the obligations of registration and cancellation of the workers in the company. Each work center will keep, at the disposal of the Labor Inspection, a Personnel Registration Book.
Withhold the percentage established in the corresponding tables according to the personal circumstances of each employee, based on what is communicated by the employee by form 145 in relation to Personal Income Tax. To pay the amounts withheld from employees to the Tax Authorities by means of form 111 on April 20, July, October and January of each year (quarterly and annual returns). Subsequently, the employer must inform the employee of this withholding in each paycheck.
The payment of social security is a monthly obligation, in which the employer is responsible for the payment of the contribution on behalf of the company and its employees, for which purpose the employer will deduct the corresponding contributions from the employee’s salary.
The period for the payment of social security contributions ends on the last day of the month following the settlement period. The withholdings made from employees’ paychecks must be paid to the tax authorities on a monthly basis if the company is a large company, or quarterly in the case of other companies, before the 20th day of the month.
The social security contributions will be settled by means of one of the following systems:
– Self-settlement system by the person responsible for the payment of the Social Security contributions and by joint collection concepts.
– Direct settlement system by the General Treasury of the Social Security, for each worker, based on the data available on the parties obliged to pay contributions and any other data that the parties responsible for complying with the obligation to pay contributions must provide.
Both, workers and employers, are obliged to contribute to the General Social Security System. However, for the contingencies of accidents at work and occupational diseases and the contribution to the FOGASA, the only person responsible for this obligation is the employer.
The employer is fully responsible for the obligation to pay contributions as well as for the payment of the total amount of the contribution, i.e., he must to pay his share and the employee’s share, whose contribution will be withheld at the time of payment of the remuneration, deducting it from the receipt justifying the wages (Payroll: Deductions).
The obligation to pay contributions arises from the beginning of the work and is maintained while the worker is in service. The obligation to pay contributions is also maintained in the following cases: a) Temporary disability. b) Maternity, paternity, adoption and pre-adoptive or permanent foster care. c) Risk during pregnancy. d) Fulfillment of duties of a public nature or performance of union duties, provided that they do not entitle the employee to leave of absence from work. e) Special agreement with the Social Security Treasury. f) Risk during breastfeeding. g) Vacations not taken and paid upon termination of the employment contract.
Social Security contributions and other items of joint collection are paid in monthly installments within the calendar month following the month in which they accrue, except in special cases, such as salary increases with retroactive effect. The employer shall be responsible for the payment.
TC1 Employer’s Social Security Contribution Statement TC2 Social Security Contribution Statement. Nominal list of workers. The nominal list of workers is presented together with the Contribution Bulletin (TC1) and is made up of the company’s identification data, in the header, those relating to the workers, in the central body and the sums and formalization diligences at the bottom. The TC2 can be completed in abbreviated form in the same TC1 when the following situations concur: A single contribution account code with a single worker of high, in whose period does not undergo any variation of contract or occupation and in a single period of liquidation.
Employers must communicate to the Social Security General Treasury, in each settlement period, the amount of all the remuneration paid to their workers regardless of whether or not they are included in the Social Security contribution base and even if only one base is applicable. In general, employers are required to report CRA files with respect to their employees, in any of the Social Security Schemes and Special Systems, who are registered in the corresponding settlement period, in the Contribution Account Codes of which
Penalties may be of various types:
1. Pecuniary penalty of varying amounts depending on their severity.
2. Refund of the amounts unduly received or not correctly applied by the companies.
3. Exclusion from employment programs for a maximum period of one year.
4. Temporary loss of the pension or benefit received.
5. Extinction of the unemployment benefit or subsidy or temporary disability, in the case of workers, applicants or beneficiaries of pensions or Social Security benefits.
6. Those workers who incur in infractions in matters of employment, professional training, aids for the promotion of employment and unemployment benefits of contributory or assistance level will lose the rights that as job seekers they had recognized, being without effect their registration as unemployed.
7. The specific ones in relation to certain responsible parties such as Mutual Insurance Companies for Occupational Accidents and Occupational Diseases of the Social Security, Companies that voluntarily collaborate in the management or Temporary Employment Companies.
APPLICABLE EXTENSION REGULATIONS:
1. Workers’ Statute (RD 2/2015, of October 23).
2. General Social Security Law (RD 8/2015, of October 30).
3. Law on Infractions and Penalties in the Social Order (RD 5/2000 of August 4).
4. General Regulations on Contributions and Settlement of other Social
5. Security Rights (RD 2064/1995, of December 22).
6. Law on Occupational Risk Prevention (31/1995 of November 8, 1995)
