“This conference has furthered the objective of generating legal certainty regarding the activity of the Administration, which is the institutional basis that differentiates a country from a failed state where the law is followed only selectively,” commented Enric Millo, Delegate of the Spanish Government in Catalonia, at the 3rd Annual “Labour Relations as Seen Through Administrative Practice” Conference, organised by ESADE Law School in collaboration with the Spanish Ministry of Employment and Social Security and held at ESADEFORUM in Barcelona.

“Fraud is in the genes of Spanish culture,” declared Maria Teresa Gibert, Director of the National Social Security Institute, at the start of a talk about “the problem of absenteeism in terms of costs for the State, for companies and for all citizens”. She added: “In Spain, absenteeism – the absence of a person from his or her job during the required working hours – reached 4.7% in 2016, which was the highest rate in all of Europe. This percentage tends to grow during boom times because, among other reasons, the size of the economically active population increases.” Ms. Gibert continued: “The total cost associated with temporary incapacity in Spain was €52.3 billion last year. This absenteeism has certain well-known recurring characteristics, such as the Monday effect and the long-weekend effect, which refer to short-term casualties that mostly occur on Mondays or after a long weekend, when return airfares are lower.”

The struggle against organised fraud

According to Eduardo Armas, Counsel for Social Security, “Fraudulent structures that go beyond the occasional absenteeism fraud, specifically, companies created to simulate hiring in order to allow people to access Social Security benefits without actually performing a job” are another problem in labour-related matters. “In order to combat this type of simulation, collaboration arrangements have been established with different entities of the Public Administration, such as the Civil Guard and the National Police, in which the role of the General Treasury of Social Security is to initiate procedures to determine whether or not there is a real working relationship between these people and the company.”

Making the Administration more efficient

“Not only do lawmakers regulate the actions of citizens, they also seek to ensure the efficient functioning of administrative units. For this purpose, they have created legal figures such as ‘positive silence’, which recognises people’s right to enjoy what they have requested if the Administration does not respond to their request within the established deadlines,” commented Abraham Cobo, Counsel for the Barcelona Wage Guarantee Fund. “Unfortunately, because of fraud and abuse, laws favouring the protection of citizens are likely to be reoriented to protect the Administration. This will mark a return to the old figure of ‘negative silence’, in which an applicant who does not receive a reply within the indicated term must interpret that silence to mean a negative decision on the application.”

“State-financed back pay is another figure intended to make the Administration more efficient,” commented José Arnandis, Provincial Director of the Spanish Public Employment Service in Alicante. This figure, he added, obliges his office to “cover the cost of wages paid during labour proceedings that last more than three months in cases that end with a decision of unjustified dismissal and reinstatement of the worker, and in cases in which the employer is declared insolvent and unable to cover such payments.”

Employee protection

Finally, Ignasi Beltrán, Academic Assistant at ESADE Law School, discussed the labour-related consequences of the remunicipalisation of city services. “When municipal services that have been awarded to other entities are recovered by the city, the scope of the commitments acquired by the municipality depends on the proportion of elements recovered from the company or entity that had been providing the service,” he commented. “These elements include the number of workers and the equipment necessary to carry out the tasks entrusted to the company. If more than half of the workers are recovered, then the city is responsible for the entire company. In other words, the city will be obliged to keep all of the workers, to respect their established working conditions and to take on all contracts that are in force.”