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New to apply for adjustment of the working day for reconciliation, process and next steps

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New to apply for adjustment of the working day for reconciliation, process and next steps

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Patricia Esteban.- The last modification status of workers (mediante Royal Decree 6/2019 of 1 March), It will be remembered for the incorporation of mandatory registration day of the workday, which came into force last 12 de mayo. But, after the flash of this important development, trying to bring out fraud overtime uncollected or listed, There is another first, applicable from 8 March, which it has passed somewhat unnoticed. It is the right to adapt working hours to reconcile work and personal life, what, although it was already recognized, It has sought to strengthen.
The article 34.8 del Estatuto de los Trabajadores (ET) established, until last 8 March: “the worker is entitled to adapt the duration and distribution of working hours to enforce their right to reconcile personal life, family and work under the terms established in collective bargaining or in the agreement that comes with the employer respecting, if, the provisions of that”. A conditional right to collective bargaining or agreement with the employer.
From the entry into force of Royal Decree 6/2019, of 1 March, urgent measures to guarantee equal treatment and opportunities between women and men in employment and occupation (BOE 7 March), the text of this section states: 
“Working people are entitled to apply the adjustments to the length and distribution of working hours, in the management of working time and form of delivery, including the provision of their telecommuting, to enforce their right to reconcile work and family life. Such adaptations should be reasonable and proportionate to the needs of the worker and organizational or productive business needs.
In case you have sons or daughters, those workers are entitled to make such a request until the children turn twelve or daughters.
Collective bargaining in terms of the exercise will be agreed, which they will accommodate criteria and systems to ensure non-discrimination, both direct and indirect, among working people of both sexes. In his absence, the company, at the request adaptation of working hours, will open a negotiation process with the worker for a maximum period of thirty days. After the same, the company, written, communicate the acceptance of the request, will pose an alternative proposal that enables reconciling the needs of the worker or manifest refusal to exercise. On this last case, the objective grounds on which the decision is based shall be indicated.

The worker is entitled to request the return to their previous contractual arrangement time or after the agreed period or when changing circumstances so justify concluded, even though the period had not elapsed planned.
The provisions of the above paragraphs means, in any case, without prejudice to permissions that the worker is entitled in accordance with the provisions of Article 37
Disagreement among the leadership of the company and the worker shall be resolved by the labor courts through the procedure laid down in Article 139 de la Ley 36/2011, of 10 de octubre, Social Regulatory Jurisdiction”. (article 34.8 ET)

Reduced working hours and telecommuting

As seen from the cross-reading of both versions, the current collected or lists (not limited) possible options to reconcile worker. In this sense are included in the adaptation not only reduce time and concretion (“the organization of working time” but also how to provide work in clear reference to teleworking (“providing your telecommuting”). Further, expressly states, as one of the protected cases, that of parents with children under twelve.
Another point that reinforces the exercise of this right is the duty of companies included to allow the worker returns to normal day before, even, the agreed period because you no longer need (cuando “changing circumstances so warrant”).
As for the viability of adaptation requests, the law says, always under the umbrella of proportionality (“such adaptations should be reasonable and proportionate”), the obligation of the company should provide a channel to these requests. If nothing is set in the agreement (the power law is that the regulatory framework setting the rules in terms of gender equality), the worker must negotiate with your employer.

negotiating process

In the absence of other rules are contained in the Convention, the company, at the request adaptation of working hours, “will open a negotiation process with the worker for a maximum period of thirty days”. 
This is, that completed the request of the worker, The company has 30 days to reply, While accepting, While considering alternative proposal, or rejecting. On this last case, the law requires the employer to indicate “the objective reasons” in which sustains its negative.
To resolve the conflict between the employee and the business address they go to ad hoc procedure under article 139 de la Ley 36/2011, of 10 de octubre, regulating the social jurisdiction, A procedure “urgent and preferential”.
The worker has 20 days to file complaint with the Social Court. A lawsuit in which you can accumulate the action for damages by the refusal of the employer or the delay in the exercise of their right.
The rule states that “the employer and the employee should bring their respective proposals and alternatives concreteness to acts of conciliation prior to trial and to the act of judgment, who may be accompanied, if, report of the joint bodies or monitoring equality plans of the company for consideration in sentencing”.
The view should be noted five days after admission demand and the judgment will be delivered in three days.
A recent case, in which he came to this route, is the Court of Justice of the Canary Islands, in which the company was sentenced to three thousand euros compensation to the worker for moral damages for refusing to do the clerk in the morning shift their reduced working hours.

noticias.juridicas.com

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