The regulation of wages
in Spanish law
Seminar of the European Working Group on
Labour Law.
University of Castilla-La Mancha, Spain.
- Eduarda Aragão da Rocha
- Paula Díaz Murcia
- Gratiela Moraru
- María Mercedes Oviedo Soler
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, 1 - The concept of pay/wage
a) Pay as a fundamental right; the right to minimum or sufficient wage; the
concept of minimum or sufficient wage
The Spanish Constitution recognizes the rights and duties of citizens, which mean that
the “Workers have the right to receive a sufficient income to cover their needs and the
needs of their families, without discrimination on grounds of sex” (Article 35 EC).
Salary is a mean of livelihood for the worker and his family, for that reason the wage is
set as a right to adequate remuneration.
The minimum wage (SMI) is an amount which is set annually, it determines the
minimum amount required to hire a worker, guarantees a minimum amount to reward
the delivery of services in the employment relationship (STS 13/04/1989) and it is an
institution in accordance with the values of justice and equality espoused by a social and
democratic state of law (STC 31/1984).
The SMI is guaranteed by Article 35 of the EC, and it is regulated in Article 27 of the
Workers’ Statute (WS) according to:
- Set the SMI annually by the Government, after consultation with the trade unions and
business associations most representative. Currently the Royal Decree 1717/2012 of 28
December 2013 sets the SMI in 21.51 euros per day or 654.30 per month.
- The criteria to be considered are: the consumer price index, the average national
productivity, increasing labour's share in national income and general economic
conditions.
- There shall be a six-monthly review in the case of non-compliance with the provisions
on the quoted price index.
- The amount of the SMI is indefeasible
b) Pay: a definition
The salary is the remuneration of the work; its regulation is found in Articles 26 to 33 of
the WS. These provisions determine the legal concept of wages:
a) In a positive sense, Article 26.1 of WS determines that "wages include all
remuneration that the worker receives, in cash or in kind, by providing professional
services for others. Wages in kind may not exceed 30% of the total worker perceptions"
B) In a negative sense, paragraph 2 of Article 26 of the WS exposes that the salary is
not composed by: the amounts received by the employee as compensation for expenses
incurred as a result of their work (e.g. diets, transportation bonuses or costume), benefits
and allowances of the Social Security and compensation for transfer, suspension or
dismissal.
Doctrine and jurisprudence determined, in conjunction with Article 26, the following:
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2
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, • The salary is all that the worker receives from his employer.
• The reality (not the covenants, appearances and names) must prevail when it comes to
identifying the legal nature of any perceived
• The remuneration received by reason of holidays, weekly rest, leave, holidays and the
like is considered wages
• The frequency with which the payment occurs does not affect the concept of pay.
• Paragraph 2 of Article 26 WS should be interpreted openly.
• The worker must bear its own obligations in tax and Social Security, avoiding
covenants (individual or collective) opposed to it.
• Salary can be absorbed as "all those companies pay salary" calculated annually,
regardless of the leave year and its eventual origin of individual agreements
Wage structure:
Salary is a complex institution as it is composed of miscellaneous items (salary and
allowances). Thus Article 26.3 WS states that "through collective bargaining or, failing
that, the individual contract, will determine the structure of wages, which shall include
(...): base salary and allowances".
The base salary can be set:
a) Per unit time. It serves only the duration of the service, regardless of the amount of
work done. The unit of time is usually the month, day or time, referred to the category
of worker or professional group.
b) For work. Only attend to the quantity or quality of the work and work done,
regardless of the time spent.
c) Mixed wages. When taking into account both; time and work.
The supplements of the salary should be agreed in the collective agreement or, failing
that, in the individual contract. The criteria must be agreed to calculate its amount and
its consolidated nature. The consolidated nature means that the worker can maintain the
complements of the salary even if the circumstances of the work change. The WS
provides that, supplements related to the job or the situation and results of the company
are not consolidated, unless otherwise agreed.
Wage supplements must respond to the personal conditions of the worker, the work
done or the results of the company.
Classes’ complements
a) Personal. These supplements are established according to the worker's personal
circumstances (age, hold qualifications or special skills, language practice).
The seniority supplement remunerates the time that the employee is working for the
same company. Normally this is calculated according to the base wage every three or
five years. The regulation of this supplement cannot contain discriminatory results. For
example, temporary workers cannot be discriminated opposite permanent workers.
Maternity periods must be taken into account too.
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3
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in Spanish law
Seminar of the European Working Group on
Labour Law.
University of Castilla-La Mancha, Spain.
- Eduarda Aragão da Rocha
- Paula Díaz Murcia
- Gratiela Moraru
- María Mercedes Oviedo Soler
~
1
~
, 1 - The concept of pay/wage
a) Pay as a fundamental right; the right to minimum or sufficient wage; the
concept of minimum or sufficient wage
The Spanish Constitution recognizes the rights and duties of citizens, which mean that
the “Workers have the right to receive a sufficient income to cover their needs and the
needs of their families, without discrimination on grounds of sex” (Article 35 EC).
Salary is a mean of livelihood for the worker and his family, for that reason the wage is
set as a right to adequate remuneration.
The minimum wage (SMI) is an amount which is set annually, it determines the
minimum amount required to hire a worker, guarantees a minimum amount to reward
the delivery of services in the employment relationship (STS 13/04/1989) and it is an
institution in accordance with the values of justice and equality espoused by a social and
democratic state of law (STC 31/1984).
The SMI is guaranteed by Article 35 of the EC, and it is regulated in Article 27 of the
Workers’ Statute (WS) according to:
- Set the SMI annually by the Government, after consultation with the trade unions and
business associations most representative. Currently the Royal Decree 1717/2012 of 28
December 2013 sets the SMI in 21.51 euros per day or 654.30 per month.
- The criteria to be considered are: the consumer price index, the average national
productivity, increasing labour's share in national income and general economic
conditions.
- There shall be a six-monthly review in the case of non-compliance with the provisions
on the quoted price index.
- The amount of the SMI is indefeasible
b) Pay: a definition
The salary is the remuneration of the work; its regulation is found in Articles 26 to 33 of
the WS. These provisions determine the legal concept of wages:
a) In a positive sense, Article 26.1 of WS determines that "wages include all
remuneration that the worker receives, in cash or in kind, by providing professional
services for others. Wages in kind may not exceed 30% of the total worker perceptions"
B) In a negative sense, paragraph 2 of Article 26 of the WS exposes that the salary is
not composed by: the amounts received by the employee as compensation for expenses
incurred as a result of their work (e.g. diets, transportation bonuses or costume), benefits
and allowances of the Social Security and compensation for transfer, suspension or
dismissal.
Doctrine and jurisprudence determined, in conjunction with Article 26, the following:
~
2
~
, • The salary is all that the worker receives from his employer.
• The reality (not the covenants, appearances and names) must prevail when it comes to
identifying the legal nature of any perceived
• The remuneration received by reason of holidays, weekly rest, leave, holidays and the
like is considered wages
• The frequency with which the payment occurs does not affect the concept of pay.
• Paragraph 2 of Article 26 WS should be interpreted openly.
• The worker must bear its own obligations in tax and Social Security, avoiding
covenants (individual or collective) opposed to it.
• Salary can be absorbed as "all those companies pay salary" calculated annually,
regardless of the leave year and its eventual origin of individual agreements
Wage structure:
Salary is a complex institution as it is composed of miscellaneous items (salary and
allowances). Thus Article 26.3 WS states that "through collective bargaining or, failing
that, the individual contract, will determine the structure of wages, which shall include
(...): base salary and allowances".
The base salary can be set:
a) Per unit time. It serves only the duration of the service, regardless of the amount of
work done. The unit of time is usually the month, day or time, referred to the category
of worker or professional group.
b) For work. Only attend to the quantity or quality of the work and work done,
regardless of the time spent.
c) Mixed wages. When taking into account both; time and work.
The supplements of the salary should be agreed in the collective agreement or, failing
that, in the individual contract. The criteria must be agreed to calculate its amount and
its consolidated nature. The consolidated nature means that the worker can maintain the
complements of the salary even if the circumstances of the work change. The WS
provides that, supplements related to the job or the situation and results of the company
are not consolidated, unless otherwise agreed.
Wage supplements must respond to the personal conditions of the worker, the work
done or the results of the company.
Classes’ complements
a) Personal. These supplements are established according to the worker's personal
circumstances (age, hold qualifications or special skills, language practice).
The seniority supplement remunerates the time that the employee is working for the
same company. Normally this is calculated according to the base wage every three or
five years. The regulation of this supplement cannot contain discriminatory results. For
example, temporary workers cannot be discriminated opposite permanent workers.
Maternity periods must be taken into account too.
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