Spanish Unions Threaten The Business Community
SPANISH UNIONS THREATEN EMPLOYERS
Ambiguous legislation and harsh treatment of employers puts hundreds of thousands on the streets.
The head of the Workers Union of Spain threatened employers throughout the country with reprisals if they did not make a more substantial contribution towards employment. The war between the heavily syndicated Spanish labour market has only just began as employers shed extremely expensive staff in an effort to survive in a market which has shrunk by as much as 50% in real terms. Despite the massive unemployment figures forecast to reach 25% of the labour force, and demands by IMF and European Institutions to loosen the strictly controlled labour market, no genuine effort is in the making. Instead, an empty piece of legislation apparently designed to improve investment in employment is already under heavy attack by the unions with threats of national strikes guaranteed to paralize industry. The new legislation, in any case, ignores the existance and maliciousness of the worker courts and simply argues in favour of lowering what they call the indemnity payments on termination of contracts, which sweeps the real dangers to employers underneath the carpet. Effectively, any worker can resist dismissal by refusing to sign for or collect the final payment and guarantee his or her employment for at least five monhts with skilful use of the judicial system.
The Hidden Reality
The Spanish work force is well instructed in the use of the many and destructive ways of obtaining prolonged periods of employment against employer interests with the use of a worker Court which when provoked, can and does cause to close most of the small to medium companies through enforcement of continued payment of salaries right up to the delivery and acceptance of the sentence by the employer. Sometimes even beyond if the employer makes the slightest technical mistake with respect to how to finalize the process. A compensation of 500 euros becomes 10,000 euros with a long string of salaries calculated by the worker´s representative. If this was not enough to deter any employer to shut shop, absurd claims of any amount of added benefits like hundred of hours of false overtime and higher hourly charges, guarantees the inability of the employer to negotiate. This then allows the employees who see it as a lucrative game they cannot lose, to press ahead into the jaws of the sinister labour tribunals. The undemocratic and ultimately illegal and unconstitutional process forces the employer to have to prove that these claims are false. Discussions with financial assessors and bankers reveal that these courts are worker orientated and designed to produce a one way result. “Proving that something is a lie”, they comment, “is much more difficult than proving the truth”. although both require masses of reluctant, intimidated witnesses who must not in any case be associated work wise or family wise to the employer. This effectively denies the employer first hand witnesses who could testify to the truth. In the case of a worker who walked off the job and sometimes violently, evidence provided by fellow workers is dismissed as unreliable Fellow employees and valuable family witnesses who can help the employers are therefore rejected as unsuitable by these harsh and threatening judges. The employees, however, with street capacity to invite any number of indoctrinated and not so reluctant contacts, ensure that from their own quarters proving is quite simple. Attacking an employer is considered a social game and even magazines sometimes write up articles regarding the degree of “ogre” in the reader´s employer´s makeup with questionnaire and point system to determine results.
The contention that unemployment is caused by criticism of the indemnity payments is incorrect since in the case of a short employment period and dismissal through grave misbehaviour or end of contract the 45 days per year indemnity, is not prohibitive. In the long term however it does represent a dismissal payment that a small company could not afford. Any dismissal can be classifed as “unfair” if the varied and complicated paperwork is fluffed by the employment advisors or not signed by the employee who wants to drive the employer to the worker courts for the guaranteed five months of extra salary that the process will provide. Despite all this, Where the the real danger lies, is in the aversion therapy effect that these extraordinary tribunals has on generally very honest and contributive employers with a genuine inbuilt respect and concern for the welfare of the workforce. No employer in this part of the world would dare antagonize a workforce and more than likely make every effort to ensure that he or she has them well cared for. Getting quality personnel in a country where the levels of education are very low, is not only difficult but trained experienced workers are too valuable to dismiss lightly. Foreign employers are particularly vulnerable because they cannot understand the complicated (and at first glance) unnecessary needs and immense amount of paperwork, signatures and nature of the worker courts.
The judicial demand to instruct lawyers (which in the main, in this part of the world, can turn out to be bad and expensive) also involves the employer in prepayments of thousands of euros up front without guarantee that it will not escalate to many times that figure. Any client is fair game and money is the sole criteria in this respect. False witnesses and time consumption in this loop-hole-craft, manipulated by crafty labour advisors who know and use every trick of the trade can lead to unwise appeals that double and treble the final cost to the employer. The most skillful lawyers are the worker oriented and are capable of influencing judges beyond the ability of most employers. These lawyers turn out to be less useful for the employers and often refuse to take it on because of the revulsion they feel for what they call a tricky and ambiguous process. The worker-claimant is not required to be present and all demands (and in the main extortionate), are angled to “criminalize” and humiliate the employer who is told to shut up or stand like the victim of a revolutionary court. The claimant representative, however, enjoys the close proximity and deliberately waffled and whispered commentaries to the Judge, including the handing over of notes, against which the employer is unable to counter attack. In effect it makes it even more difficult to argue against exaggerated lies when the claimant cannot even be cross examined by the ex employer. For this reason, the claimants often refuse to attend and instead make percentage-of-claim arrangements wtih their representatives who know that the first few thousand euros are already guaranteed. Nos attendance avoids eye contact with the ex employer and possible mistakes but it can also mean clandestine employment elsewhere and fear of revealing the reason for taking the time off. The employment is usually without formal state registration and the sentenced employer is technically paying a second salary and somebody else´s social security contribution. He or she would find it impossible within the very short period of time allowed for the provision of evidence, to instruct investigators to attempt to find out the parallel employment. The Ministry of Social Security follows up swiftly with demands for payments for the period during which the judicial process has taken place with the added salt of increased charges for late payments despite the employer having recently emerged from the trauma. Two of these payments are equivalent to one month´s salary. In other words, fifty percent of the monthly salary. Outrage and indignation results in loss of motivation and a desperate search by employers to find ways of overcoming this destructive form of state aggression, including shutting shop for a while. Hiring self employed people is an answer but it also has its risks as does the subcontracting of management to another entity, because all judicial entities are free to interpret evasive action as attempts to camouflage direct employment. In short, whether this indirect use of labour avoids the pitfall of the tribunals is not clear.
Pre -trial council confrontations and planned Inspections
The intermediary stage tantamount to a worker council (conserjeria de trabajo) is no obstacle to the worker who will be making claims impossible for the employer to contemplate and channelling him/her into the dreaded “Juzgado de lo Social” (labour courts). These are presently handling an average of 50,000 cases at any time. Penalised employers are therefore saving the state colossal amounts of unemployment benefit which is usually very difficult for unemployed workers to obtain in this country by normal means and is only available for short periods of time. Worker courts have full judicial powers including arrest for “misbehaviour” or contempt of court and their harshness can result in the seizing of company assets and in their absence, the administrator´s personal ones, thereby denying the fiscal entity its proper means of reduced liability. Direct access to bank accounts which they monitor regularly and lists of assets through the ID numbers on screeen, enables them to work quickly and freeze and embargo assets with ease. The courts also have their own “on site” auctions to which only selected bidders are invited. The seizure may involve assets hundreds of times more valuable than the amount demanded. Whereas this is illegal in normal judicial practice and called “excessive appropriation”, for the state entities like the worker courts, it is regular practice. A business or a family can be destroyed therefore with these hammer tactics and for most Spaniards the first thing to do at the outset is put all their valuable assets in the wife´s name. Foreigners are reluctant to do this and as a result many suffer and do not recover from these blows. Recently foreign countries complained of the effect on their nationals of these “excessively aggressive” tactics and encouraged them to form defensive lobbies.
Employers, not only face this wholly dangerous and undemocratic process, but colossal penalties from the Ministry of Labour and Social Security for issues denounced by irritated workers which can vary between strategically placed first aid boxes, to a declared (and usually false) neglect of tuition on use of a fire extinguisher. Rigged illegal employment (whereby anyone can arrange an immediate appointment at a precise time and date with an inspector) at any place where a family member is already working is quite common. The inspector immediately issues warrants against the unsuspecting employer for attendance at the Ministry within two or three days to face charges of illegal employment. The fines run into thousands. A recent case where the husband was on short contract and working as a cook in a restaurant invited his wife to join him and serve tables without the knowledge of the employer. She invited the local security guard to a meal and later utilised him as a witness to her so called employment. She obtained full recognition and months of employment against her husband´s employer. Recourse on the part of the employer who usually finds out the nature and extent of the penalty through the infamous “Boletin Nacional” (a state publication) that announces to the world all the misdemeanors, debts and claims against the citizens and from which point, embargoes and auctions of assets can take place. In all cases, it means that the victims, have not had the necessary correspondence which has been sent to a wrong address (deliberately ?)and is unaware that the periods of defence have long passed.
On challenging the Ministerial Inspectorate of the wisdom of a system that could be considered “collusion” and “intent to defraud” by those who use it is quite revealing. Told that it could be a means of forcing an employer to have to claim the non existance of illegal employment (even for a day), the ready answer is that there are not enough inspectors for random checks and that “a direct claim by a potentially illegally employed worker is more effective and of greater likelihood of producing results.”
In view of the hazards of employment and the highest social security payment known in the West (an average of 45 percent of the salary) plus the compulsory extras which effectively doubles salary levels, there is consecuently little demand for industrial investment. Most industrial multinationals walk away within a brief period of study and analysis of the local labour market. The trend today by the small and medium sized employers, as previously mentioned, is the total avoidance of direct employment with a preference for self employed suppliers of services. This prevents the Ministry Inspectorate from interfering and paralysing through these unethical penalties, the activities of growing young companies. In Spain however, even this safety net cannot be guaranteed, as interpretion from judicial levels is subjective and goal posts are regularly moved with the comment that “the nature of the issues remain the same”. The preamble to at least one safety requirement legislation, dissuades the state representatives from making undue demands on small and family run businesses. Despite this, it is where the average inspector makes the most noises and creates the most difficulties. A small hotel owner, for example, was told to prevent his family from frequent visits, doing anything that could represent work, however short the period. As a result, all family members were forced to become self employed with the disastrously large monthly bill to be met as a result. Large companies are well prepared to defend themselves against these petty intrusions and inspectors tread warily in those corridors where their presence is often lacking in press reports of labour accidents, for example. Political considerations, it has been said, in a totally politicised bureaucracy, could be the source of unfair demands on some companies and leniency on the part of others.
Loss of interest in creating employment.
Organisations in Spain attempting to protect the small and medium sized employers, condemn what is now the most expensive labour forces in Europe with added, prohibitive social security contributions. It complains of the ease of employment and the difficulties and or impossibility of firing delincuent employees. Firing, they accept, has the immediate previously explained, penalty called “salario de tramite” which means that the worker is on full salary and social security payment by the employer until the end of the long judicial process which finds any form of lengthy argument to rule in favour of unfair dismissal.This incredibly punitive deterrant is ofen ignored by the media and hidden by the politicians in favour of concentrating on the less damaging concept of compensation.The “salario de tramite” places the employer in a defenceless position, unwilling and unable to appeal for fear of the open continued employment which can cost tens of thousands against an indemnity of as little as five hundred euros and a pre dismissal work period which can be as short as a couple of months. It is in short built in blackmail and from the very start, even before the trial, the worker´s representative attempts to extract a sizeable sum from the employer to allow for this malicious and guaranteed continuation of employment. The approach is made in the form of “an attempt to save the employer the loss of time and money” but is in essence, unadulterated blackmail, in a situation where the employer has to negotiate or be torn to bits by the system. The case has been lost before it has started and it is this therefore which consitutes a growing lucrative, legal business and a growing trend for crafty advisors and informed workers. These courts could justifiably be classified as factories of “labour delincuencies” as the trend catches on and outrageous lies not considered perjury by the indulgent, sympathetic judges. Dismissing spitting waiters, thieving till workers, abusive personnel etc. is fraught with all these dangers and employers are searching every legal way of being able to contract help without creating the sort of employment that brings the state forces into the work place with such unfair and unconstitutional interferance.
Penalties against unwary employers within just a few weeks of opening up for business is often the result of the local competitor who has made the popular “denuncia” (complaint) hoping that inspectors will find something and enforce closure. The cause of this social and institutional imbalance, some social investigators state, is that sustained, cheap political propaganda places the employer in the role of the provider of the constitutional right to employment despite the fact that it is the Government by implication which is the body required to fulfil it. The Unions therefore attack the employers at every turn of events and are presently heading for an unemployment rate without precedent that can push Spain into total chaos. Employers meanwhile seek ways to redeem their assets and if foreign, the quickest and cheapest way of getting out of the country.
About the Author
Gabriel Belman studied political science at the University of London and went into journalism through the Gemini News Agency in London. He writes under a variety of names and presently lives in Andalucia, Spain. He is an advisor to political agents and prominent politicians throughout Europe and strives to encourage transparency in national politics. He believes that the whole concept of political life and nature of reward should revert to the original unpaid personal contribution for periods of no more than five years and during which time, the inividual representatives should have access only to basic living expenses and not involve themselves to any lucrative business activity of any type- He sees Europe as full of free loaders leading the few individual countries like Britain, France and Germany to virtual ruin. He also believes that a few of the now established members have no intention of ever becoming contributive and prepared to go elsewhere as soon as the subsidies disappear.
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