Ministerio de Trabajo y Economía SocialLabour law infringements and sanctions . Ministerio de Trabajo y Economía Social

Labour law infringements and sanctions

Labour law infringements and sanctions in the field of displacement in the context of transnational service provision within the scope of the European Union and the European Economic Area

  1. INFRINGEMENTS THAT MAY BE INCURRED BY COMPANIES THAT MOVE WORKERS TO SPAIN
  2. INFRINGEMENTS AND SANCTIONS FOR FAILURE TO COMPLY WITH DOCUMENTARY AND COLLABORATIVE OBLIGATIONS WITH THE LABOUR AND SOCIAL SECURITY INSPECTORATE IN THE FIELD OF DISPLACEMENT
  3. ADMINISTRATIVE SANCTIONS FOR INFRINGEMENTS COMMITTED BY COMPANIES THAT MOVE WORKERS TO SPAIN
  4. COMPLAINTS AND COMMUNICATIONS TO THE LABOUR AND SOCIAL SECURITY INSPECTORATE (ITSS) ABOUT ALLEGED IRREGULARITIES
  5. ADMINISTRATIVE SANCTIONING PROCEDURE IN THE LABOUR LAW
  6. CLAIMS BY THE PERSONS CONCERNED BEFORE THE COMPETENT COURTS

Infringements and sanctions in the labour law are regulated by Royal Legislative Decree 5/2000 of 4 August, approving the consolidated text of the Law on Infringements and Sanctions in the Social Order (hereinafter, LISOS). 

1. INFRINGEMENTS THAT MAY BE INCURRED BY COMPANIES THAT MOVE WORKERS TO SPAIN

These are the infringements that companies moving workers to Spain may incur with regard to the matters that make up the hard core of labour legislation, which are those contained in Art. 3.1 of Directive 96/71 and additionally those provided for in Art. 3 of Law 45/1999 as mandatory rules of Spanish legislation that are applicable to these companies.

1.1 INFRINGEMENTS ON WAGES AND REMUNERATION

Failure to pay wages may give rise to the infringements described below and the sanctions set out in Section 3.1.

Infringements for non-payment of wages

Failure to pay wages and repeated delays in the payment of wages due is considered a very serious infringement under Art. 8.1 of the LISOS.

Infringements for payment of less than the legally established wages

It is included in the infringement provided for in Art. 7.10 of the LISOS, which classifies as a serious infringement the establishment of working conditions that are inferior, also in terms of wages, to those established by law or by collective agreement, both in terms of the amount of remuneration and the period of payment or the form of payment, unless they should be classified as very serious, in accordance with Art. 8 of the LISOS.

Infringements for incomplete wage receipts

Art. 7.3 of the LISOS establishes as a serious infringement the failure to include in the wage receipt the amounts actually paid to the worker, whereby wages are understood to be all of the economic payments made to workers, in cash or in kind, for the professional provision of labour services as an employee, whether they are paid for actual work, whatever the form of remuneration, or for rest periods that can be counted as work.

Infringements for incomplete wage receipts

Failure to have the receipt of wages of displaced workers available during the visit of the Labour and Social Security Inspectorate to the workplace is a breach of the provisions of Art. 6.2.b) of Law 45/1999, which constitutes a serious infringement of the provisions of Art. 10.2.b) of the LISOS.

Failure to provide the receipt of wages to displaced workers is a minor infringement in accordance with Art. 6.2 of the LISOS.

1.2 INFRINGEMENTS REGARDING WORKING HOURS, HOLIDAYS AND WORKING TIME

Non-compliance in matters of working hours, holidays and working time may give rise to the serious infringement provided for in Art. 7.5 of the LISOS described below and to the sanctions indicated in section 3.1.

This serious infringement is applicable when companies are found to have transgressed the rules and limits established by legislation or collective agreements regarding working hours, night work, overtime, supplementary hours, rest periods, holidays, leave, time recording and, in general, working time.

INFRINGEMENTS IN OCCUPATIONAL HEALTH AND SAFETY AND COVID 19

Non-compliance in matters of health and safety at work or occupational risk prevention may give rise to the infringements described below and the sanctions indicated in section 3.2.

  1. a) Infringements related to non-compliance with preventive management obligations

It is a serious infringement according to Art. 12.1.b) and 12.6 of the LISOS when the company:

  • Breaches the obligation to carry out the risk assessment or does not carry it out correctly.
  • Breaches the obligation to carry out the planning of preventive measures resulting from the assessment.
  • Breaches the obligation to carry out these measures. 
  1. b) Infringements related to medical examinations

Failure to carry out medical examinations and medical tests and to communicate their results to the persons concerned is considered a serious infringement under Art. 12.2 of the LISOS.

If the company breaches the duty of confidentiality in the use of data relating to the health monitoring of workers, it would be committing a very serious infringement in accordance with Art. 13.5 of the LISOS.

  1. c) Infringements related to the reporting and investigation of occupational accidents and diseases

In the case of companies moving workers to Spain, the infringements are those described in section 2.2 and the sanctions are those described in section 3.1.

  1. d) Infringements for assigning workers to positions that are incompatible with their health condition

The assignment of persons to positions whose conditions are incompatible with their personal characteristics or of those who are manifestly in transitory states or situations that do not match the psychophysical requirements of the respective positions, as well as their dedication to the performance of tasks without taking into account their professional capabilities in terms of health and safety at work is considered a serious infringement under Art. 12.7 of the LISOS, unless such cases result in a situation of serious and imminent risk for workers, in which case it is a very serious infringement in accordance with Art. 13.4 of the LISOS.

  1. e) Infringements for failure to provide preventive training on the risks of the workplace

Failure to comply with the obligations regarding training and sufficient and appropriate information to workers about the risks of the workplace that may cause harm to health and safety and about the applicable preventive measures is considered a serious infringement under Art. 12.8 of the LISOS, unless this may result in a situation of serious and imminent risk, in which case it will be a very serious infringement in accordance with Art. 13.10 of the LISOS.

  1. f) Infringements due to exposure to harmful and hazardous substances and agents

Exceeding the limits of exposure to harmful agents in the workplace which, in accordance with the regulations on the prevention of occupational hazards, gives rise to a risk of serious harm to the health and safety of workers, without adopting the appropriate preventive measures, is considered a serious infringement under Art. 12.9 of the LISOS, unless this may result in a situation of serious and imminent risk, in which case the infringement will be very serious in accordance with the provisions of Art. 13.6 of the LISOS.

The following shall also be serious infringements in this area: 

  • Failure to notify the labour authorities, where legally required, of the substances, physical, chemical and biological agents or processes used in companies could be a serious infringement in accordance with Art. 12.16.a) of the LISOS.
  • Violating prohibitions or limitations regarding operations, processes and the use of physical, chemical and biological agents in the workplace as provided for in Art. 12.16.c) of the LISOS. 
  • Violating the limitations on the number of workers who may be exposed to certain physical, chemical and biological agents in accordance with the provisions of Art. 12.16.d) of the LISOS.
  • Failure to comply with safety signage and labelling and packaging of hazardous substances, insofar as these are handled or used in the production process in accordance with the provisions of Art. 12.16.g) of the LISOS.
  • Failure to keep records of exposure levels to physical, chemical and biological agents, lists of exposed workers and medical records in accordance with Art. 12.16.i) of the LISOS.
  1. g) Infringements for failure to take measures in emergency situations

Failure to take measures in emergency situations regarding first aid, fire-fighting and evacuation of workers is considered a serious infringement under Art. 12.10 of the LISOS.

  1. h) Infringements due to deficient conditions of workplaces, tools, machinery and equipment

When these conditions create a slight risk to the health and physical integrity of the persons concerned, they shall constitute a minor infringement in accordance with Art. 11.4 of the LISOS and when they create a serious risk, they shall constitute a serious infringement in accordance with Art. 12.16 b) of the LISOS.

  1. i) Infringements for lack of collective or individual protection measures

The absence or lack of collective protection measures, such as handrails or skirting boards, or the lack of individual protection measures, such as the use of masks or safety belts, shall be considered a serious infringement in accordance with Art. 12.16.f) of the LISOS.

  1. j) Infringements due to the lack of toilets or personal hygiene and cleanliness measures

The lack of toilets or personal hygiene measures and the lack of cleanliness of the work centre or workplace, when this is habitual or when this results in risks to the physical integrity and health of the workers, shall be considered serious infringements in accordance with Art. 12.16 h) and 12.17 of the LISOS.

  1. k) Infringements for failure to protect pregnant and breastfeeding women and minors

Failure to observe the specific rules on the protection of the safety and health of workers during pregnancy and breastfeeding and failure to observe the specific rules on the protection of the safety and health of minors constitutes a very serious infringement in accordance with Art.13.1 and 13.2 of the LISOS.

  1. l) Infringements for not stopping or suspending the activity in the event of serious and imminent risk situations.

The following are very serious infringements for this reason:

  • Failure to immediately stop or suspend, at the request of the Labour and Social Security Inspectorate, work that is carried out without observing the regulations on occupational risk prevention and which, in the opinion of the Inspectorate, implies the existence of a serious and imminent risk to the health and safety of workers, or to resume work without having previously remedied the causes that led to the stoppage in accordance with Art. 13.3 of the LISOS.
  • Actions or omissions that prevent workers from exercising their right to stop work in cases of serious and imminent risk, in the terms set out in Article 21 of the Law on the Prevention of Occupational Risks, in accordance with Art. 13.9 of the LISOS.
  • Failure to adopt any other preventive measures applicable to working conditions in execution of the regulations on the prevention of occupational hazards, from which a serious and imminent risk to the health and safety of workers arises, in accordance with Art. 13.10 of LISOS. 
  1. m) Infringements due to lack of coordination of preventive activities

Failure by employers and self-employed workers carrying out activities in the same workplace, or the employers referred to in Article 24.4 of Law 31/1995, of 8 November, on the Prevention of Occupational Risks (hereinafter "Law on the Prevention of Occupational Risks"), to adopt the necessary measures of cooperation and coordination for the protection and prevention of occupational risks, shall be a serious infringement, in accordance with Art.12.13 LISOS.

  1. n) Infringements due to lack of supervisors in health and safety conditions (preventive resources)

The lack of presence of preventive resources when this is mandatory or failure to comply with the obligations resulting from their presence shall be a serious infringement, in accordance with Art.12.15. b) LISOS.

  1. o) Infringements for non-compliance with the preventive measures related to the COVID 19 pandemic disease.

Law 2/2021, of 29 March, on urgent prevention, containment and coordination measures to deal with the health crisis caused by COVID-19 establishes in its Art. 31. 4 that the officials of the Labour and Social Security Inspectorate, members of the Senior Corps of Labour and Social Security Inspectors, and of the Corps of Labour Sub-Inspectors, Occupational Health and Safety scale, are entitled to monitor and require, and where appropriate, issue infringement reports, in relation to compliance by the employer with the public health measures established in paragraphs a), b), c) of Article 7.1, and in paragraph d) thereof, when they affect workers.

According to this Article, the holder of the economic activity or, where appropriate, the director of the centres and entities shall:

  1. a) Adopt ventilation, cleaning and disinfection measures appropriate to the characteristics and intensity of use of the work centres, in accordance with the protocols established in each case.
  2. b) Provide workers with soap and water, or hydroalcoholic gels or disinfectants with virucidal activity, authorised and registered by the Ministry of Health for hand cleaning.
  3. c) Adapt working conditions, including the layout of workstations, the organisation of shifts and the use of common areas, in such a way as to ensure that a minimum interpersonal safety distance of 1.5 metres is maintained between workers. Where this is not possible, workers shall be provided with protective equipment appropriate to the level of risk.
  4. d) Adopt measures to avoid the mass coincidence of people, both workers and clients or users, in work centres during the time slots with the greatest expected affluence.

This entitlement extends to the officials authorised by the Autonomous Communities to carry out technical verification functions, as referred to in Article 9.2 of Law 31/1995, of 8 November, on the prevention of occupational risks, in accordance with the powers attributed to them.

Art. 31.5 of said Law establishes that failure by the employer to comply with the obligations referred to in the previous section shall constitute a serious infringement, which shall be sanctionable under the terms, by the bodies and with the procedure established for serious infringements in matters of occupational risk prevention, by the revised text of the LISOS.

In the case of non-compliance by public administrations, the special procedure provided for in Royal Decree 707/2002, of 19 July, which approves the Regulations on the special administrative procedure for action by the Labour and Social Security Inspectorate and for the imposition of corrective measures for non-compliance in the area of occupational risk prevention within the scope of the General State Administration, or in the applicable regional regulations, shall be applied.

  1. p) Infringements for breaches of Law 32/2006 on Subcontracting

Breaches by subcontractors

  • Failure to comply with the duty to prove that it has human resources, both at management and production level, who have the necessary training in occupational risk prevention, and that it has an adequate preventive organisation and has been entered in the corresponding register, or with the duty to verify such proof and registration by the subcontractors with whom it contracts, is a serious infringement pursuant to Art. 12.27 a) of the LISOS and, in the case of work with special risks, is a very serious infringement pursuant to Art. 13.15.a) of the LISOS.
  • Failure to communicate the data enabling the contractor to keep the Subcontracting Book required by the Law regulating subcontracting in the construction sector in order and up to date is a serious infringement in accordance with Art. 13.15.b) of the LISOS.
  • Proceeding to subcontract with another subcontractor or subcontractors or self-employed workers exceeding the legally permitted levels of subcontracting, without having the express approval of the project management, or allowing other subcontractors or self-employed workers to incur in the aforementioned situation within the scope of their subcontract will constitute a serious infringement in accordance with Art. 12.27 of the LISOS, except in the following cases:
    • It involves work with special risks in accordance with the regulatory framework for construction work, in which case it should be classified as a very serious infringement in accordance with Art. 13.15.b) of the LISOS;
    • As well as when the data communicated to the contractor or to its subcontractor have been falsified, which gives rise to the exercise of construction activities in breach of the subcontracting regime or the legally established requirements, in which case it should be classified as a very serious infringement in accordance with Art. 13.15.c) of the LISOS.
  • Misrepresentation in the data communicated to the contractor or its principal subcontractor, which gives rise to the exercise of construction activities in breach of the subcontracting regime or the legally established requirements, is a very serious infringement in accordance with Art. 13.15.c) of the LISOS.

Breaches by contractors

  • Failure of the contractor to have the Subcontracting Book required by Article 8 of Law 32/2006, of 18 October, regulating subcontracting in the construction sector (hereinafter, "Law on Subcontracting in the Construction Sector"), is a minor infringement in accordance with Art.11.6 LISOS.
  • Failure of the contractor or subcontractor to have the documentation or title certifying the possession of the machinery used, and any other documentation required by the legal provisions in force, is a minor infringement in accordance with Art.11.7 LISOS.
  • Failure to keep the required Subcontracting Book in order and up to date, or failure to do so in the terms established by regulations, is a serious infringement in accordance with Art. 12.28.a) of the LISOS.
  • Allowing subcontractors or self-employed workers to intervene in the scope of execution of the contract, exceeding the legally permitted levels of subcontracting, without the express approval of the project management, and without any falsification of the data communicated to the contractor or its principal subcontractor is a serious infringement in accordance with Art. 12.28.b) of the LISOS, except in the case of work with special risks in accordance with the regulatory framework of the same for construction works, in which case it should be classified as a very serious infringement, in accordance with Art. 13.16.a) of the LISOS.
  • Failure to comply with the duty to accredit, in the manner established by law or regulation, that it has human resources, both at management and production level, who have the necessary training in occupational risk prevention, and that it has an adequate preventive organisation, and the entry in the corresponding register, or the duty to verify such accreditation and registration by the subcontractors with whom it contracts, is a serious infringement in accordance with Art. 12.28.c) of the LISOS, except in the case of work with special risks in accordance with the regulatory framework of the same for construction work, in which case it should be classified as a very serious infringement, in accordance with Art. 13.16.b) of the LISOS.
  • Infringement of the rights of workers' representatives to information on contracting and subcontracting carried out on the site, and access to the Subcontracting Book, in the terms established in the Law on Subcontracting in the Construction Sector, is a serious infringement in accordance with Art. 12.28.d) of the LISOS.

Non-compliance by construction developers

  • Within the scope of the Law on Subcontracting in the Construction Sector, it is a serious infringement for the construction developer to allow, through the actions of the project management, the approval of the exceptional extension of the subcontracting chain when the causes for subcontracting clearly do not exist, as provided for in the aforementioned Law. 12.29 of the LISOS, except in the case of work with special risks in accordance with the regulatory regulation of the same for construction work, in which case it should be classified as a very serious infringement, in accordance with Art. 13.17 of the LISOS.

1.4 INFRINGEMENTS IN TRANSFER OF WORKERS AND TEMPORARY EMPLOYMENT AGENCIES

Infringements in the field of transfer of workers may give rise to the infringements described below and to the sanctions set out in section 3.1.

  1. a) Infringement for illegal transfer of workers

Pursuant to Art. 43 of the Workers' Statute, the hiring of workers for temporary assignment to another company may only be carried out through duly authorised temporary employment agencies under the terms established by law. Failure to comply with this obligation constitutes a very serious infringement in accordance with Art. 8.2 of the LISOS.

  1. b) Infringements by temporary employment agencies (TEAs) established in other EU or EEA States, as well as by user companies.

These infringements are regulated in Art. 19 bis, 19 ter and 19 quater of the LISOS.

  • These are serious infringements by temporary employment agencies:
    • Failure to formalise in writing the contract for the provision of services.
    • Formalising contracts for the provision of services for cases other than those provided for in article 6.2 of Law 14/1994, of 1 June, which regulates temporary employment agencies.
  • These are very serious infringements by temporary employment agencies:
  • Formalising contracts for the provision of services without being validly constituted as a temporary employment agency according to the legislation of the State of establishment or without meeting the requirements demanded by the aforementioned legislation to provide user companies, on a temporary basis, with workers hired by them.
  • Formalising contracts for the provision of services for the performance of certain activities and work which, due to their special danger to safety or health, are determined by regulations.
  • Transfer workers under temporary contracts to another temporary employment agency or to other companies for subsequent assignment to third parties.
  1. c) Infringements by user companies established or operating in Spain

It is a minor infringement not to provide the temporary employment agency with the data relating to the total remuneration established in the collective labour agreement applicable to the job in question, in order to be included in the contract for the provision of services.

  • Serious infringements:
    • Failure to formalise in writing the contract for the provision of services.
    • Formalising contracts of provision for cases other than those provided for in article 6.2 of Law 14/1994, of 1 June 1994, or for the staffing of jobs for which the mandatory risk assessment has not been previously carried out.
    • Actions or omissions that prevent workers at their disposal from exercising the rights established in article 17 of Law 14/1994, of 1 June 1994.
    • Failure to inform the temporary worker in the terms provided for in Article 16.1 of Law 14/1994 of 1 June 1994.
    • Formalising contracts of provision to staff posts or functions which, in the previous twelve months, have been subject to amortisation due to unfair dismissal, collective dismissal or due to objective causes, or to staff posts which in the previous eighteen months had already been covered for more than thirteen and a half months, continuously or discontinuously, by workers made available by temporary employment agencies, in both cases being understood that one infringement is committed for each worker concerned.
    • Permitting the start of the provision of services by the workers made available without having documentary proof that they have received information on the risks and preventive measures, have the necessary specific training and are in a state of health compatible with the job to be carried out.
    • Failure by the user company to inform the temporary employment agency sufficiently in advance of the start of a temporary posting of a displaced worker to another Member State of the European Union or signatory of the European Economic Area Agreement under the terms provided for by law.
  • Very serious infringements:
    • Acts by the company that infringe the right to strike, involving the substitution of workers on strike for others placed at their disposal by a temporary employment agency.
    • The formalisation of contracts for the provision of workers for the performance of certain activities and jobs which, due to their special danger to health or safety, are determined by regulation, being understood that one infringement is committed for each contract in such circumstances.
    • Formalising contracts of provision with temporary employment agencies which are not validly constituted as such under the legislation of the State of establishment or which do not meet the requirements of the aforementioned legislation for placing workers hired by them at the disposal of user companies on a temporary basis.
  • Infringements by user companies established in another Member State or States of the European Economic Area. 
    • Failure by the user company to inform the temporary employment agency established in another Member State of the European Union or signatory to the Agreement on the European Economic Area of the temporary posting of a worker displaced to Spain, sufficiently in advance to enable that company to notify the Spanish authorities of the posting, constitutes a serious infringement.

1.5. INFRINGEMENTS REGARDING ACCOMMODATION OF WORKERS

When there is a legal obligation or a sectorial collective agreement to provide accommodation for workers, the LISOS provides for the infringements in cases of non-compliance regulated in Art. 11 and 12 of the LISOS. The sanctions penalties are those described in section 3.2.

  1. a) Infringements regarding accommodation with no serious consequences for the physical integrity or health of workers

The infringement of Art. 11.4 covers minor breaches of occupational risk prevention regulations when these do not have a serious impact on the physical integrity or health of workers.

  1. b) Infringements regarding accommodation with serious consequences for the physical integrity or health of workers

When non-compliance with occupational risk prevention regulations on accommodation creates a serious risk to the physical integrity or health of the workers affected, these will be classified as serious infringements in accordance with art. 12.16. These would include those that involve non-compliance with regard to:

  • Limitations on the number of workers who may be exposed to certain physical, chemical and biological agents.
  • Personal hygiene services or measures.
  1. c) Accommodation and COVID19

Article 31.4 of Law 2/2021 empowered the officials of the Labour and Social Security Inspectorate belonging to both the Senior Corps of Labour and Social Security Inspectors and the Corps of Labour Sub-Inspectors, Occupational Health and Safety Division, to monitor and require, and where appropriate, issue infringement reports, in relation to compliance by the employer with the public health measures established in Article 7.1 of the aforementioned law. 

The purpose of these measures is the prevention, containment and coordination necessary to deal with the health crisis caused by COVID-19, provided that they affect workers. Infringement of these measures will be sanctioned in accordance with the Law on Infringements and Sanctions in the Social Order (“LISOS”). 

1.6. INFRINGEMENTS IN THE FIELD OF EQUAL TREATMENT AND NON-DISCRIMINATION

Art. 8. 12 of the LISOS establishes as a very serious infringement  "unilateral decisions by the company that imply direct or indirect unfavourable discrimination on the grounds of age or disability, or favourable or adverse discrimination in terms of pay, working hours, training, promotion and other working conditions, on the grounds of sex, origin, including racial or ethnic origin, marital status, social status, religion or beliefs, political ideas, sexual orientation, membership or non-membership of trade unions and their agreements, ties of kinship with other workers in the company or language within the Spanish State, as well as decisions by the employer that involve unfavourable treatment of workers as a reaction to a complaint made within the company or to an administrative or judicial action aimed at enforcing compliance with the principle of equal treatment and non-discrimination".

In the event that the conduct could not be classified as a very serious infringement, it could constitute a serious infringement of Art.7.10 LISOS.

The sanctions are those described in section 3.1.

1.7. INFRINGEMENTS IN THE FIELD OF CHILD LABOUR

Failure to comply with the labour regulations on child labour constitutes a very serious infringement in accordance with Art. 8.4 of the LISOS.

The sanctions are those described in section 3.1.

1.8. INFRINGEMENTS OF RESPECT FOR PRIVACY AND DUE CONSIDERATION FOR DIGNITY

Art. 8.11 of the LISOS expressly considers as a very serious infringement the employer's actions that violate the right to privacy and due consideration for the dignity of workers.

In the event that the conduct cannot be classified as a very serious infringement, it might constitute a serious infringement of Art. 7.10 LISOS.

The sanctions are those described in section 3.1.

1.9 INFRINGEMENTS CONCERNING FREEDOM OF ASSOCIATION, RIGHT TO STRIKE AND ASSEMBLY

These infringements are regulated in Art. 7 and 8 of the LISOS. The sanctions are those described in section 3.1.

  1. a) Infringements for non-compliance with the rights of trade union delegates

- The transgression of the rights to information, hearing and consultation of trade union delegates is foreseen as a serious infringement in Art.7.7 LISOS.

  1. a) Infringements for non-compliance with trade union delegates' rights
  • The violation of the rights to information, hearing and consultation of trade union delegates is considered a serious infringement in Art.7.7 LISOS.
  • The violation of the rights of trade union sections in terms of credit of paid hours and adequate premises for the development of their activities, as well as of notice boards, constitutes a serious infringement as provided for in Art.7.8 LISOS.
  • Infringement of the rights of trade union sections with regard to the collection of dues, distribution and receipt of trade union information constitutes a serious infringement as provided for in Art. 7.9 LISOS.
  1. b) Infringements for acts contrary to the exercise of the right of assembly

It is foreseen that actions or omissions that prevent the exercise of the right of assembly of workers, their representatives and trade union sections, in Art. 8.5 LISOS, constitute a very serious infringement.

  1. c) Infringements for conduct contrary to the exercise of the right to strike

The employer's actions detrimental to the workers' right to strike, consisting of the substitution of workers on strike for others not related to the workplace at the time of the strike, constitute a very serious infringement, as defined in Art. 8.10 LISOS.

2. INFRINGEMENTS AND SANCTIONS FOR FAILURE TO COMPLY WITH DOCUMENTARY AND COLLABORATION OBLIGATIONS WITH THE INSPECTION OF LABOUR AND SOCIAL SECURITY INSPECTION ON POSTING OF WORKERS

With regard to documentary and collaboration obligations with the Labour and Social Security Inspectorate, the infringements and sanctions that could be applicable to the different cases are described below.

2.1. INCUMPLIMIENTO DE LAS OBLIGACIONES DE COMUNICACIÓN DEL DESPLAZAMIENTO A LAS AUTORIDADES LABORALES

Companies that post workers in the framework of a transnational provision of services are obliged to give prior notice of the posting of such workers to the competent labour authorities, as provided for in Article 5.2 of Law 45/1999, with the exception set out in Article 5.3 for cases in which the duration of the posting does not exceed eight days, provided that it does not involve a temporary employment agency.

  • The cases in which there are formal defects in the notification are classified as a minor infringement in Article 10.1 of the LISOS.
  • Communication after its commencement or without designating a company representative to liaise with the competent Spanish authorities and to send and receive documents or notifications is classified as a serious infringement by Art. 10.2 of the LISOS.
  • This article also considers it a serious infringement to inform the competent authorities of the reasons for the extension of the posting of workers on the basis of facts and circumstances that are proven to be false or inaccurate.
  • Absolute failure to notify the competent labour authority, as well as falsification or concealment of data in the notification, is considered by Article 10.3 of the LISOS as a very serious infringement.

2.2. NON-COMPLIANCE WITH THE OBLIGATIONS TO REPORT ACCIDENTS AT WORK TO THE LABOUR AUTHORITY OF THE RESPECTIVE AUTONOMOUS COMMUNITY

The current regulation on accident reporting applicable to companies that post workers to Spain is provided for in the Order of 16 December 1987.

Pursuant to Article 6 of this Order, companies that post workers to Spain have this obligation:

In those accidents occurring at the Work Centre or as a result of posting during the working day that cause the death of the worker, that are considered serious or very serious or that the accident occurring at a Work Centre affects more than four workers, whether or not they belong entirely to the Company's workforce, the employer shall, within a maximum period of twenty-four hours, communicate this fact by telegram or other similar means of communication to the labour authority of the province where the accident occurred, or at the first port or airport where the ship docks or the aircraft lands, if the Work Centre where the accident occurred is a ship or aircraft, respectively.

The notification shall include the company name, address and telephone number of the Company, the name of the injured party, the full address of the place where the accident occurred, as well as a brief description of the accident.

LINK Labour Authorities of the Autonomous Communities

Failure to report occupational accidents classified as serious, very serious or fatal is considered a serious infringement under Art. 10.2 of the LISOS. In the event of being classified as minor, failure to report, in due time and form, would constitute a minor infringement in accordance with Art. 11.1.b) LISOS.

  1. 3. NON-COMPLIANCE WITH THE DUTY TO COLLABORATE WITH THE LABOUR AND SOCIAL SECURITY INSPECTORATE

Companies posting workers must have the documentation relating to the postings available at the workplace or in digital format for immediate consultation, as well as submitting this documentation when required, to the competent labour authorities and in particular to the Labour and Social Security Inspectorate.

Thus, Art. 10.2 of the LISOS considers it a serious infringement not to submit the documentation required by the Labour and Social Security Inspectorate or to submit any of the documents without translation.

2.4. INFRINGEMENTS FOR OBSTRUCTING THE INSPECTION TASK

As established in Art. 50 of the LISOS, actions or omissions that delay or impede the exercise of the functions entrusted to the Labour and Social Security Inspectorate shall constitute an obstruction to the inspection task, which shall be classified as serious, with the exception of those detailed below.

  • Minor infringements:
    • Those involving a mere delay in complying with the obligations of information, communication or attendance, unless said obligations are required in the course of an inspection visit and refer to documents or information that must be kept or provided in the work centre.
    • The absence of the Labour and Social Security Inspection Visitor's Book at the workplace.
  • Very serious infringements:
    • Actions or omissions by the employer, its representatives or persons within its organisational scope, which aim to prevent the entry or stay in the workplace of the Labour and Social Security Inspectors and the Sub-Inspectors of Employment and Social Security, as well as the refusal to identify themselves or to identify or give reason for the presence of persons who are in said work centre carrying out any activity.
    • The cases of coercion, threat or violence exercised on the Labour and Social Security Inspectors and the Sub-Inspectors of Employment and Social Security, as well as the repetition of obstructive behaviour classified as serious.
    • Failure to comply with the duties of collaboration with the officials of the Labour and Social Security Inspection system under the terms established in article 11.2 of the Law regulating the Labour and Social Security Inspection.
    • Failure to comply with the duty to collaborate with the officials of the Labour and Social Security Inspection system when the employer does not provide the information required for the control of its obligations in terms of the Social Security economic regime in computerised form, when he/she is obliged to or has opted for the electronic transmission of payment settlements or contribution data.

Obstructions to inspection activities shall be sanctioned in accordance with the provisions of section 3, by the competent authority in each case, depending on the material scope of action from which the obstruction arises or is derived.

3. ADMINISTRATIVE SANCTIONS FOR INFRINGEMENTS COMMITTED BY COMPANIES POSTING WORKERS TO SPAIN

3.1. SANCTIONS FOR LABOUR RELATIONS INFRINGEMENTS

Sanctions in the field of labour relations are regulated in Art. 40.1 LISOS as follows:

MINIMUM DEGREE

MEDIUM DEGREE

MAXIMUM DEGREE

MINOR INFRINGEMENTS

From €60 to €125

From €126 to €310

From €311 to €625

SERIOUS INFRINGEMENTS

From €626 to €1250

From €1,251 to €3,125

From €3,126 to €6,250

VERY SERIOUS

INFRINGEMENTS

From €6,251 to €25,000

From €25,001 to €100,005

From €100,006 to €187.515

 

Sanctions may be imposed in the minimum, medium and maximum graduation, in accordance with the following grading criteria provided for in Art.39.2 LISOS:

CRITERIA FOR THE GRADUATION OF SANCTIONS

(Art. 39.2 LISOS)

Sanctions shall be graduated according to:

  • The negligence and intentionality of the offender.
  • Fraud or collusion
  • Failure to comply with the previous warnings and requirements of the Inspectorate.
  • Turnover of the company
  • Number of workers or beneficiaries affected, where applicable
  • Damage caused and amount defrauded

 

3.2 SANCTIONS FOR OCCUPATIONAL HEALTH AND SAFETY INFRINGEMENTS

Sanctions applicable to the prevention of occupational hazards are regulated in Art.40.2 LISOS:

MINIMUM DEGREE

MEDIUM DEGREE

MAXIMUM DEGREE

MINOR INFRINGEMENTS

From €40 to €405

From €406 to €815

From €816 to €2,045

SERIOUS INFRINGEMENTS

From €2,046 to €8,195

From €8,196 to €20,490

From €20,491 to €40,985

VERY SERIOUS

INFRINGEMENTS

From €40,986 to €163,955

From €163,956 to €409,890

From €409,891 to €819,780

 

The criteria for the graduation of sanctions are as follows: 

 

CRITERIA FOR THE GRADUATION OF SANCTIONS IN THE PREVENTION OF OCCUPATIONAL HAZARDS

(ART. 39.3 LISOS)

a) The dangerousness of the activities carried out in the company or work centre.

b) The permanent or transitory nature of the risks inherent in these activities.

c) The seriousness of the damage caused or which could have been caused by the absence or deficiency of the necessary preventive measures.

(d) The number of workers affected

e) The individual or collective protection measures adopted by the employer and the instructions given by him/her in order to prevent the risks.

f) Failure to comply with the warnings or prior requirements referred to in Article 43 of Law 31/1995, of 8 November, on the Prevention of Occupational Risks.

g) Non-observance of the proposals made by the prevention services, the prevention delegates or the company's health and safety committee for the correction of existing legal deficiencies.

h) The general conduct followed by the employer with regard to the strict observance of the regulations on the prevention of occupational risks.

4. COMPLAINTS AND COMMUNICATIONS TO THE LABOUR AND SOCIAL SECURITY INSPECTORATE (ITSS) ON ALLEGED IRREGULARITIES

4.1. ORDINARY COMPLAINTS TO THE ITSS

Complaints are public and can be filed by any person of any nationality at the offices of the Labour and Social Security Inspectorate (Inspección de Trabajo y Seguridad Social).

On the website of the Labour and Social Security Inspectorate, in the section How to report, you can find information on the different ways in which anyone who has knowledge of facts that could constitute an infringement in matters within the competence of the ITSS (labour, occupational health and safety, social security, employment, etc.) can request the services of the Labour and Social Security Inspectorate.

4.2. COMMUNICATIONS TO THE ITSS THROUGH THE "FRAUD MAILBOX"

This website includes a link to the ITSS MAILBOX, where you can REPORT, without this being considered a formal complaint, any labour irregularities that come to your attention. In the section “We are very close” you can find the addresses and contacts of the different provincial inspectorates. 

5. ADMINISTRATIVE SANCTIONING PROCEDURE IN THE SOCIAL ORDER

The administrative sanctioning procedure is regulated in: 

5.1 INITIATION OF THE SANCTIONING PROCEDURE (Art. 13 and 17 RD 928/1998 and Art. 52 LISOS)

It is initiated, always ex officio, by means of an infringement report issued by the Labour and Social Security Inspectorate, as a result of previous inspection activity, by virtue of actions carried out ex officio, on its own initiative or upon complaint, or at the request of the interested party.

The infringement report must be notified to the person or persons responsible, within ten working days from the date of the infringement report.

The content of the infringement report is set out in Art. 14 RD 928/1998 and Art. 53 LISOS. The record must include, among others:

  • The identification of the alleged offender.
  • The facts ascertained by the acting official.
  • The infringement or infringements allegedly committed, stating the precept or precepts infringed, and their qualification.
  • The proposed sanction, its graduation and quantification.
  • The competent body to decide and the competent body to carry out the acts of instruction and organisation of the sanctioning proceedings, as well as the time limit to submit allegations to the latter.
  • The official who draws up the infringement report and his signature.
  • The date of issue of the infringement report.

5.2 HANDLING AND INSTRUCTION OF THE SANCTIONING PROCEDURE (Art.18 and 18.bis) RD 928/1998) 

Once the official report has been notified, the person or persons responsible have a period of fifteen days in which to make any allegations they deem appropriate in defence of their rights before the investigating body.

Within the same period, and provided that the sanction is solely of a financial nature and does not contain accessory sanctions, the person or persons responsible may express to the investigating body their acknowledgement of liability and/or willingness to pay, under the terms that will be indicated later.

If no allegations are made and no acknowledgement of liability and/or willingness to pay is made, the procedure shall continue to be processed until the proposed resolution.

If allegations are made in due time against the infringement report, the investigating body may request the issuing of an additional report from the Inspector or Sub-Inspector who drew up the report, which must be issued within fifteen days. The aforementioned report shall be mandatory if the allegations invoke facts or circumstances other than those stated in the report, insufficiency of the factual account of the same or defencelessness for any reason whatsoever.

Once the allegations have been received or the time limit for making them has expired, the investigating body may decide to open the period of evidence.

When the proceedings carried out reveal the invocation or concurrence of facts other than those stated in the report, the investigating body, before issuing its proposed decision, shall give the alleged offender a hearing for a period of eight days with a view to the proceedings.

5.3 RESOLUTION OF THE SANCTIONING PROCEDURE (Art. 20 RD 928/1998)

The competent body shall issue the appropriate reasoned resolution within ten days of the end of the proceedings, confirming, modifying or annulling the proposal in the report. 

The maximum period for resolving disciplinary proceedings for infringements of social order shall be six months, calculated from the date of the report to the date on which the decision is notified. Interruptions due to causes attributable to the interested parties or due to the suspension of the procedure referred to in Royal Decree 928/1998 shall not be counted within the maximum period for reaching a decision.

The bodies with sanctioning powers are listed in Art. 48 of the LISOS and in Art. 4 of RD 928/1998.

This resolution will be notified to the interested parties within ten days of being issued, warning them of the appeals that may be lodged against them, the administrative or judicial body before which they must be presented and the deadline for lodging them. 

If financial sanctions are imposed, the notification shall also contain the following information

  1. The amount to be paid.
  2. The deadline, place and form of payment in the voluntary period.
  3. A warning that, once this period has elapsed without the payment having been made and if the corresponding ordinary appeal has not been lodged, where applicable, the surcharge and interest for late payment will immediately accrue and collection and, where applicable, enforcement will be carried out by the corresponding administrative enforcement procedure, except in the cases set out in Article 25(2).

5.4 SUSPENSION OF THE SANCTIONING PROCEDURE BY OFFICIAL ACTION BEFORE THE SOCIAL JURISDICTION (Art. 19 RD 928/1998)

If allegations or evidence are presented against the infringement report that may undermine the employment nature of the working relationship that is the object of the inspection, the inspecting body may propose the filing of an ex officio claim before the Social Jurisdiction, which, if formalised, will lead to the suspension of the procedure with notification to the interested party. 

In the event of suspension, the disciplinary proceedings shall continue once a final judgment has been handed down and communicated.

5.5 ADMINISTRATIVE APPEALS

Against decisions and procedural acts, if the latter decide directly or indirectly on the merits of the case, determine the impossibility of continuing the procedure or cause defencelessness or irreparable harm to legitimate rights and interests, the interested parties may lodge appeals to a higher court (”alzada”) or for administrative reconsideration (“potestativo de reposición”).

  1. a) APPEAL TO A HIGHER COURT (Art. 23 RD 928/1998)

An appeal may be lodged against the decisions indicated in the previous section (which do not terminate the administrative procedure) within a period of one month before the competent superior body, whose decision will exhaust the administrative procedure.

Decisions taken by the Directors-General responsible for the amount involved which do not terminate the administrative procedure and by the Secretary of State for Social Security and Pensions may be appealed against to the head of the Ministry responsible for the matter in question. The administrative acts of the head of the competent Ministry and of the Council of Ministers exhaust administrative channels.

Within the sphere of competence of the Autonomous Communities, the latter shall be responsible for determining the bodies competent to rule on appeals to a higher court.

The maximum period for issuing and notifying the decision on the appeal is three months. Decisions on appeals are final.

If three months have elapsed since the appeal was lodged without a decision being issued, it may be deemed to have been dismissed and it is then possible to appeal to the courts.

  1. b) OPTIONAL ADMINISTRATIVE RECONSIDERATION APPEAL

The administrative acts that put an end to the administrative procedure may be appealed against before the same body that issued them or be challenged directly before the contentious-administrative jurisdiction.

It is not possible to lodge a contentious-administrative appeal until it has been expressly resolved or the appeal for reconsideration has been expressly rejected.

The time limit for lodging an appeal for reconsideration is one month and the maximum time limit for issuing and notifying the resolution of the appeal is one month. No further appeal may be lodged against a decision on an appeal for reconsideration.

  1. c) EXTRAORDINARY APPEAL FOR REVIEW

Against acts that put an end to administrative proceedings, if any of the cases provided for in Art. 125 of Law 39/2015 (that when issuing them there was an error of fact, resulting from the documents included in the file; that new documents of essential value for the resolution of the matter appear which, although they are subsequent, demonstrate the error of the appealed resolution; that the resolution has been essentially influenced by documents or testimonies declared false by a final court ruling, prior or subsequent to that resolution; or the decision was issued as a result of prevarication, bribery, violence, fraudulent scheming or other punishable conduct and has been declared as such by virtue of a final court ruling), an extraordinary appeal for review may be lodged with the body that issued the act, within four years if it is based on the first cause, or within three months if it is based on the last three. The time limit for a decision is three months.

5.6 ENFORCEMENT AND COLLECTION OF ADMINISTRATIVE SANCTIONS (Art. 24 and 25 RD 928/1998)

Final administrative sanctioning resolutions are immediately enforceable. 

Financial sanctions imposed by bodies of the General State Administration, except for Social Security offences, are collected in accordance with the procedure established in the General Collection Regulations, approved by Royal Decree 939/2005, of 29 July. Collection in the voluntary period will be carried out by the Economy and Tax Provincial Offices (Delegaciones de Economía y Hacienda) and in the enforcement period by the Spanish Tax Agency (Agencia Estatal de la Administración Tributaria).

The deadline for payment in the voluntary period is thirty days from the date of notification of the decision imposing the sanction. When the decision imposing the sanction is appealed through administrative channels, the appeal decision will grant, where appropriate, a new fifteen-day deadline for payment.

Financial penalties imposed within the scope of their powers by bodies of the Autonomous Communities shall be collected by the bodies and procedures established in the rules governing the collection of public law revenue in each of these Communities.

5.7 CHALLENGE AGAINST SANCTIONING DECISIONS

The resolution of the appeal to a higher court exhausts administrative proceedings and may be challenged before the social jurisdiction in accordance with the provisions of Law 36/2011, of 10 October, regulating social jurisdiction.

The procedure is initiated with the lawsuit, the deadline for filing the lawsuit is two months, as provided in Art. 69LRJS, or 20 days (Art.70 LJRS) or the expressly indicated, where appropriate, depending on the applicable procedural modality.

The claim, in addition to meeting the general requirements, must precisely identify the act or decision being challenged, the Administration or public law Entity against which it is directed and, where appropriate, the persons or entities whose rights or legitimate interests could be affected by the plaintiff's claims being upheld. 

The procedure shall end with the Judgment, which shall rule on the claims duly formulated in the application.

6. CLAIMS OF THE AFFECTED PERSONS BEFORE THE JURISDICTIONAL BODIES

Pursuant to article 15 of Law 45/1999, the courts of the social order shall hear any litigious matters arising in application of this law, in accordance with the provisions of articles 2.n) and 2.t) of Law 36/2011, of 10 October, regulating social jurisdiction.