The second article. (a) of the Staff Regulations considers the employment relationship of a special nature to that of senior staff not included in the first article (3) (c) of the standard itself, in accordance with the first provision of the Law 32/1984, of 2 August, on the modification of certain articles of the Staff Regulations, as the Government, within the maximum period of twelve months from the entry into force of the referenced Law, had to regulate the The legal basis for the special employment relations provided for in the Staff Regulations.
By this rule, compliance with this mandate is given, taking into account fundamentally to fix its content that the relationship established between the senior management and the contracting company is characterized by the reciprocal the trust that must exist between both parties, derived from the singular position that the manager assumes in the field of the Company in terms of powers and powers. These characteristics are reflected in the legal regime established by this standard, which first determines the concept of senior management staff, to delimit the scope of the rule, thereby eliminating situations of indefinition legal, and even regulatory vacuum, that had been produced by this lack of normative treatment.
Precisely because of these characteristics of the relationship that unites the executive with the Company, it has chosen to provide a wide margin for the pact between the parties of this relationship, as an element of configuration of the content of the The same applies to the rule, for its part, to fix the basic scheme of the matter to be dealt with in the contract, further deepening in matters such as, for example, those relating to the causes and effects of termination of contract, in respect of which A more complete regulatory treatment, being less susceptible to agreements, should be considered between parts.
In its virtue, consulted the most representative Trade Union and Employers ' Organizations, in agreement with the State Council, on the proposal of the Minister of Labor and Social Security, and after deliberation by the Council of Ministers in its July 31, 1985 meeting,
Article 1. Application Scope.
One. This Royal Decree, in accordance with Article 2.1.a) of Law 8/1980 of 10 March of the Staff Regulations, and under the additional provision of Law 32/1984 of 2 August 1984, regulates the employment relationship of a worker. special staff of senior management.
Two. Senior staff are considered to be workers who exercise the powers inherent in the Company's legal ownership, and in relation to the general objectives of the Company, with autonomy and full responsibility only limited by the direct instructions and instructions emanating from the person or the higher governing bodies and administration of the Entity which respectively holds the ownership.
Three. The activity referred to in Article 1.3.c of the Staff Regulations is excluded from the scope of this Royal Decree.
Art. 2. Foundation.
The special employment relationship of senior management personnel is based on the mutual trust of the parties, which will accommodate the exercise of their rights and obligations to the requirements of good faith.
Art. 3. The regulatory sources and criteria.
One. The rights and obligations relating to the employment relationship of senior staff shall be governed by the will of the parties, subject to the rules of this Royal Decree and to the others which are applicable.
Two. The other rules of the common labour law, including the Workers ' Statute, shall apply only in cases where there is express reference in this Royal Decree, or specifically stated in the contract.
Three. As not regulated by this Royal Decree or by pact between the parties, the provisions of civil or commercial law and its general principles shall be provided.
Art. 4. The form and content of the contract.
One. The special contract for the work of senior staff shall be formalised in writing, in duplicate, one for each contracting party. In the absence of a written agreement, the employee shall be deemed to be senior staff in the case of the cases referred to in Article 8.1 of the Staff Regulations and the professional performance corresponds to that defined in Article 1.2 of the Present Royal Decree.
Two. Such contract shall contain at least:
a) The identification of the parts.
b) The object of the contract.
(c) Agreed remuneration, with the specification of their different items, in cash or in kind.
d) The duration of the contract.
e) The other clauses that are required in this Royal Decree.
Art. 5. Test Period.
One. A special contract of staff of senior management may be concluded for a trial period which may not in any case exceed nine months, if its duration is indefinite.
Two. After the trial period without any withdrawal, the contract will have full effects, with the time of the services provided in the seniority of the company's senior management.
Art. 6. Contract Duration.
The special work contract will have the duration that the parties agree to. In the absence of a written agreement, it is presumed to be held indefinitely.
Art. 7. Time of work.
Working time, hours, parties and permits, as well as for holidays, will be fixed in the terms of the contract, as soon as they do not constitute benefits in charge of the employee who are in excess of the which are customary in the relevant professional field.
Art. 8. Non-concurrency and stay-in-business pact.
One. The senior management worker may not conclude other work contracts with other undertakings, except for the authorization of the employer or written agreement to the contrary. The authorisation of the employer is presumed when the link to another Entity is public and has not been excluded from it in the special contract of employment.
Two. Where the senior manager has received a professional specialization from the Company for a specified period of time, it may be agreed that the employer may be entitled to compensation for damages if he abandons the job before the fixed term.
Three. The non-concurrency pact for after the end of the special employment contract, which may not be longer than two years, shall be valid only if the following conditions are met:
(a) That the employer has an effective industrial or commercial interest in this.
b) That adequate economic compensation be met with senior management.
Art. 9. "Internal Promotion".
One. The written contract provided for in Article 4. of this Royal Decree must be formalised in cases where a worker linked to an undertaking by a joint employment relationship provides for the exercise of senior management activities in that undertaking. Company or other that we had with it group relationships or other similar associative form.
Two. Such assumptions in the contract shall specify whether the new special relationship replaces the previous common, or whether the latter is suspended. If there is no explicit specification in this contract, the common working relationship shall be deemed to be suspended. If the replacement of the common labour relationship by the special one is chosen, such novation will only have effect after two years from the relevant novatory agreement.
Three. In the event of a simple suspension of the previous common working relationship, when the special employment relationship is extinguished, the worker shall have the option of resuming the employment relationship of origin, without prejudice to the compensation to which he may be entitled to results of such extinction. The exception of this rule is the case of the termination of the special contract of senior management for disciplinary dismissal.
Art. 10. Extinction at the will of the senior manager.
One. The special contract of employment shall be extinguished at the will of the senior management, with a minimum notice of three months. However, that period may be up to six months, if it is established in writing in contracts concluded for an indefinite period or longer than five years. Notice shall not be required in the case of serious contractual non-compliance with the employer.
Two. The employer shall be entitled, in the event of a total or partial failure to comply with the obligation of notice, to compensation equivalent to the wages corresponding to the duration of the period of failure.
Three. The senior manager may terminate the special contract of employment entitled to the compensation agreed upon, and in his absence fixed in this standard for the case of extinction by withdrawal of the employer, based on the following causes:
(a) Substantial changes in working conditions which are notoriously detrimental to their professional training, in detriment to their dignity, or are decided with serious transgression of good faith, by the employer.
b) The lack of payment or continued delay in the agreed salary payment.
(c) Any other serious breach of their contractual obligations, by the employer, except for force majeure, in which the payment of the allowances referred to in this issue shall not be paid.
d) The succession of the Company or major change in the ownership of the Company, which has the effect of a renewal of its decision-making bodies or the content and approach of its principal activity, provided that the extinction occurs within three months of the production of such changes.
Art. 11. Termination of contract at the will of the employer.
One. The contract of employment may be extinguished by withdrawal of the employer, written notice, and must be given a notice in the terms set out in Article 10.1. The senior manager will be entitled in these cases to the compensation agreed in the contract; in the absence of a pact the compensation will be equivalent to seven days of the salary in cash per year of service with the limit of six monthly payments.
In the case of total or partial default of the notice, the senior manager shall be entitled to compensation equivalent to the wages corresponding to the duration of the missed period.
Two. The contract may be terminated by decision of the employer by dismissal based on the serious and guilty failure of the senior manager, in the form and with the effects laid down in Article 55 of the Staff Regulations; compensation, in the case of dismissal declared improper, will be the amount that would have been agreed in the contract, being in its defect of twenty days of salary in cash per year of service and up to a maximum of twelve monthly payments.
Three. Where the dismissal is declared inadmissible or void, the employer and the senior manager shall agree to the receipt of the readmission or payment of the financial compensation provided for in paragraph 2 of this Article, in the case of disagreement, which is opted for the payment of economic perceptions. If the dismissal is reintegrated into the previous employment in the Company, the provisions of Article 9.3 of this Royal Decree will be provided.
Art. 12. Other causes of extinction.
By leaving aside the specialties mentioned in the previous articles, this special employment relationship may be extinguished by the causes and procedures provided for in the Workers ' Statute.
Art. 13. Fouls and penalties.
The senior manager may be punished by virtue of non-compliance with the obligations arising from this special relationship, in the terms agreed upon in the contract. The faults and the corresponding penalties will be reviewed in the social court order. Such faults, whatever their nature, shall be prescribed for the twelve months from their commission, or since the employer has knowledge of them.
With regard to the employer's work violations, Article 57 of the Workers ' Statute will apply.
Art. 14. Competent jurisdiction.
The conflicts arising between senior management and business as a result of the application of the provisions of this Royal Decree shall be the jurisdiction of the Judges and Magistrates of the judicial order. social.
Art. 15. Other provisions.
One. The remuneration of senior management staff shall be subject to the salary guarantees laid down in Articles 27.2, 29 and 32 of the Staff Regulations.
Two. This contract may be suspended, with the effect and for the cases provided for in Article 45 of the Staff Regulations.
Three. For the purposes of prescribing actions arising out of the special contract, as well as for the expiry of the action for dismissal, Article 59 of the Staff Regulations shall apply as appropriate.
Art. 16. Representation rights.
Without prejudice to other forms of representation, senior management personnel will not participate as electors or as eligible in the representation bodies regulated in Title II of the Workers ' Statute.
The personnel excluded from the subjective scope of the Labor Ordinance currently in force, or some of its precepts, that meet the characteristics and requirements contained in the article 1. º of this Royal Decree, will be governed by the.
This Royal Decree will enter into force on 1 January 1986.
Given in Palma de Mallorca to August 1, 1985.
JOHN CARLOS R.
The Minister of Labour and Social Security,
JOAQUIN ALMUNIA AMANN