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The Proposal of the Spanish Patronal CEOE Gives Back to the Austrian Backpack

Victor Bescós's picture

The CEOE, the main Spanish business organization, has included in its contributions to the National Reform Program of 2019 a proposal to establish compensation for dismissal of a single amount for all cases, 20 days per year with the cap of an annuity. This contribution to the program means at least temporarily pushing the formula proposed by the government called "Austrian backpack", which also supported different political parties in the last general elections.

This only compensation of 20 days per year with the cap of an annuity is the one currently contemplated by the Spanish legislation for the dismissal coming from accredited objective causes; this in contrast to the current 33 days per year with the cap of two annuities for unfair dismissal without proven cause, currently in force in Spain, and which is the one in which in most cases companies resort to dismissal. In this way, a single compensation would be created, regardless of whether or not the grounds for dismissal -objective or disciplinary- are accredited, more similar to a kind of single contract with a fixed compensation cost to its unilateral termination by the employer. in any case. Said indemnification would be excluded, we understand, in the cases of voluntary resignation or resignation by the worker.

This would, de facto, eliminate judicial control of the causes of dismissal: any unilateral termination by the employer -except if proven disciplinary reasons, in which case compensation would not proceed- would be compensated with 20 days per year worked and a maximum of 12 monthly payments Employers, in the absence of judicial control, also propose a minimum notice of 15 days for contracts of more than one year, and a shorter notice for periods of less than one year, with a reasonable "making available" simultaneous ab initio of compensation, because in the absence of judicial control, it does not make sense to delay the payment of compensation.

The worker, as a consequence, could only seek judicial control in the following cases: the first, when the formalities of notice, written communication and the provision of compensation have been breached-without specifying the employer's consequences of said breaches-; the second, when there is a violation of fundamental rights - the so-called "null dismissal" -, currently punished with the reinstatement of the worker and the payment of processing salaries. Third, in the case of a disciplinary dismissal, not indemnified if the alleged breaches are proven. And finally, there would also be judicial review in cases of collective dismissal, observing the provisions of European directives on the matter.

With the previous proposal, it is significant the at least temporary abandonment (they would only accept "study") by the employer of the apparently healer "Austrian backpack" for the Spanish labor relations system.

What is the Austrian backpack? What are the differences with the solution proposed by the CEOE? The "Austrian backpack" is a system applied in that country in 2003, by agreement of employer and trade unions. Until that year, Austria had an indemnity for extinction similar to the Spanish one although more reduced, around 12 days per year worked. This compensation was then substituted for the new hires, so that the dismissals are now decayed and no need to pay any compensation on the part of the employer. All this in exchange for the worker being compensated by a Fund endowed monthly by the employer throughout the working life of 1.53% of the gross salary received. This amount, in the case of both being fired and leaving the company, remains the worker's, being able to freely dispose of it at the time of retirement. This fund meets a fourfold objective, in our view: the employer has more facilities to dismiss, and the company is not decapitalized in the event of a general crisis with simultaneous layoffs. The worker is more productive and remains trained, before the greater facility for his dismissal, and does not lose anything if he marches or promotes a new job; and in turn, your retirement pension is reinforced.

Then, before such a marvel, where is the inconvenience that the entrepreneurs see? Because in the apparent cost of the conversion, and in not wanting to assume the full charge of it, as it seems the government intends. If we observe, the cost of 1.53% of a monthly salary is between 5 and 5.5 days per year of compensation. In Spain, this amount of funding to the Fund would not be accepted by the unions, which would claim something that is close to at least 5.5% of the gross salary that the current compensation of 20 days per year, or even 9% of the salary. gross that implies in Spain the compensation in force for unfair dismissal of 33 days per year. And the entrepreneurs, who have done the accounts, are not willing to incur those costs. And even more so when a "only potential" compensation becomes -the least part of the workers are dismissed and compensated in a company-, at a fixed monthly cost, invariable and unquestionable for each of the employees of the company's workforce.

Only on the positive side of the question, as the entrepreneurs see, contributions to the Fund will certainly be deductible in corporate tax, a circumstance that does not currently occur with the amounts that are provisioned or booked in the balance sheets of the companies to make facing dismissals or crisis situations. So, while continuing to speak only of empty concepts "Austrian backpack", "retirement fund", etc .. without putting numbers, costs and responsible for the contributions to them, the entrepreneurs will be totally reluctant to grant "a check in target "to the government for its implementation.

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Victor Bescós's picture
Mr. Bescòs thinks that the Labor Lawyer does not just have to focus on the legal question. Many times your decisions are not merely a legal component, but also strategic, business sense, even in matters that are not purely collective. ... His father and mother were job advisors as well. His father came from the HR Directorate in companies with more than 1,000 employees, and always recommended him to analyze the impact of each issue on the general policy of the company. It also helped him to start by taking care of non-labor matters in an office mainly specialized in labor law. He gave him an overview of the law that has helped him a lot in his professional career. He definies himself as pactist, but blunt if the conciliatory solution fails.

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