Government approves two new Royal Decree-Laws with new employment developments

Written on 20 Mar 2019

In the last two weeks, two Royal Decree-Laws have been approved with significant new developments in labour matters. Among the measures adopted, the establishment of a compulsory register of working hours, the equal duration of "maternity and paternity" leave, the establishment of a salary register and the extension of the scope of the company's obligation to draw up and register gender equality plans stand out.

Despite the proximity of the general elections, scheduled for 28 April, the Government has not given up on materializing some of its labour proposals, announced at the beginning of the year. These measures, which have been incorporated into our legislation through Royal Decree-Laws, are aimed at guaranteeing greater gender equality between women and men in the workplace and at guaranteeing the registration of employees’ working hours.

The first block of reforms is contained in Royal Decree-Law 6/2019, of 1 March, on urgent measures to guarantee equal treatment and opportunities for women and men in employment and occupation (hereinafter, “RDL 6/2019”). The amendments refer to four main areas:

Carrying out Gender Equality Plans

The new regulation of gender equality plans extends the obligation to draw up and apply gender equality plans to companies with more than 50 employees (as opposed to the 250 required until now). For the implementation of this obligation, a progressive entry into force of between one to three years is established, depending on the number of employees in the company.

It also establishes the obligation to draw up, prior to the Gender Equality Plan, a diagnosis negotiated with the workers’ representatives. This negotiated diagnosis should include, among other matters, a salary audit between men and women and a study of possible situations of under-representation of women.

Finally, a Register of Gender Equality Plans is created, in which companies must register these documents.

Equal pay on the basis of gender

It establishes the obligation to keep a Register, freely accessible to employees, of the average values of the salary and non-salary concepts.

Specifically, the Register must contain the average values of salaries, salary supplements and extra-salary perceptions of the workforce, disaggregated by gender and distributed in professional groups, categories or jobs of equal or equal value.

It also introduces a presumption of wage discrimination on grounds of gender when, (unless proven otherwise), in a company with 50 or more employees, the average pay of employees of one sex is 25% or greater than that of the other, taking the total wage bill as a whole or the average of the payments made.

Finally, it establishes the right of the Works Council to receive information, at minimum on an annual basis, on this Salary Register.

Right to request the adaptation of the duration and distribution of the working day

A negotiation process is introduced (in the absence of any provision for this in the collective bargaining agreement) to negotiate the request for adaptation of the duration and/or distribution of the working day. This procedure will have a maximum duration of 30 days, and at the end of it, the company will communicate its decision in writing to the employee. This response can be of three types: accept the request, raise an alternative or reject the request, indicating objective reasons for the refusal.

If the employee who applies for the adjustment of the length and distribution of the working day has children, this application may be made until the child reaches the age of 12.

Equal duration of parental leave for birth, guardianship, adoption or fostering of both parents

A 16-week leave is established for each parent. This leave, which is individual and non-transferable, has a transitional period for its entry into force of 2 years. By doing so, until then there is a gradual alignment of the leaves. With the end of this transition period (from 1 January 2021) the distribution of the 16 weeks of leave will be as follows:

  • Compulsory period for both parents: 6 weeks compulsory and uninterrupted after childbirth (or a decision to foster, adopt or foster care), full-time;
  • Remaining period of 10 weeks for each parent: to be enjoyed in weekly periods, cumulative or interrupted, from the end of the 6 weeks of compulsory suspension after childbirth until the child reaches 12 months of age.

The second set of measures is contained in Royal Decree-Law 8/2019, of 8 March, on urgent measures for social protection and the fight against precarious work during the working day. The main development, from a labour point of view, is that it constitutes the employer’s obligation to ensure a daily record of the working day, which must include the specific start and end times of each employee daily hours. From a practical point of view, it states that the organisation and documentation of this register will be carried out in accordance with what is determined in the collective bargaining agreements, in the company agreements or, failing that, in the employer’s decision after consultation with the workers’ legal representatives. Likewise, the obligation to keep records extends for 4 years, during which they must be available to employees, their legal representatives and the Labour and Social Security Inspectorate. This obligation will enter into force on 12 May 2019.

In this sense, non-compliance with this obligation to keep and maintain a daily working day record will be qualified as a serious infraction. This infraction is included in section 5 in article 7 of the Law on Violations and Sanctions in the Social Order.

Finally, it should be noted that both rules must pass the validation procedure by the Permanent Deputation of the Congress of Deputies within 30 days of its approval. If they do not pass this procedure, its effects will be limited to the period between its entry into force and its non-validation.