The Official State Bulletin (BOE) dated February 25th 2017 has published the Royal Decree – law 4/2017 of February 24th that modifies the regulation of workers that provide port cargo handling services and operations in order to comply with the judgment of the Court of Justice of the European Union of December 11th 2014, in the case C-576/13 (infringement proceedings 2009/4052). Except for part 4 of the First Transitory Provision, the aforementioned Royal Decree – law came into force on the day after its publication.
The judgment of the Court of Justice of the European Union of December 11th 2014 sanctioned Spain for considering that the legal regulation for port handling services in Spanish ports contravened article 49 of the Treaty on the Functioning of the European Union. For this reason, the mentioned judgment demanded modification of the existing regulation in order to allow free recruitment of permanent or temporary workers, who must have adequate professional training. In particular, the following two options are considered to be legally acceptable:
1.- That the stevedoring companies themselves manage the employment offices, which should provide them with labour force, and organize the workforce training.
2.- The possibility of creating a pool of workers managed by private companies that operate as temporary work agencies. These agencies will provide the stevedoring companies with labour force.
A time limit of three years since the entry into force of the RD- law 4/2017 has been established for its implementation to enable a smooth transition between the two systems and assure labour rights of the SAGEP workers, additionally including for this purpose financial support by the Port Administration. SAGEPs will maintain certain percentage of activity stipulated in the RD – law which will allow their financing during the period of transition. After this time limit of three years, the SAGEPs may carry on developing their activity as long as they comply with the requirements established for temporary employment agencies within a free competition framework.
This decision by the European Court of Justice entails the need to carry out legal amendments and therefore the need to modify or derogate several articles of the State Ports and the Merchant Marine Act (RDL n. 2/2011 of September 5th), particularly, the sections related to the management of workers of stevedoring services and article 2.1 – h) of the Spanish Labour Act (RDL n. 2/2015 of October 23rd). It also entails modifying, within a one-year limit, of the Collective Bargaining Agreements in those areas that affect the possibility of freely contracting port handling services or that restrict free competition.
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