Documents

The Council approves an opinion on the draft Mutual Society Law • The Council regrets that there was no prior consultation of the social partners in the preparation of the draft bill • It opposes the prohibition on mutual societies operating in companies for workplace health and safety tasks • It calls for a reconsideration of the enlarged functions for mutual societies in managing temporary incapacity resulting from non-occupational risks, extended to include proposing “presumed” medical clearanceThe opinion agrees that it is appropriate to update and harmonise legislation on mutual societies so as to enhance transparency and efficiency and increase legal certainty, in line with the commitments made. But the Council regrets that there was no prior consultation of the social partners, i.e. that the customary procedure was not followed, especially given that a basic consensus had been reached in the Social and Economic Agreement of 2 February 2011 which should in the Council’s view form the basis of future legislation on mutual societies. And the Council considers that the text as a whole refers too often to subsequent regulatory implementation, which detracts from clarity and in some events means that the aspects provided for are ill defined. The opinion stresses the need to maintain the legal status of mutual societies by guaranteeing their private nature as constitutionally safeguarded business associations, respecting their autonomy of management and governance without prejudice their being overseen and supervised by government as partner entities, which nature is not always adequately conveyed in the draft bill. And the Council questions the new name for these entities (reduced from “social-security affiliated mutual societies for workplace accidents and occupational diseases” to “social security mutual societies”) on the grounds that a too ambiguous name could pave the way for the introduction of new functions not in keeping with those of mutual societies.The Council sees the overall treatment given by the draft bill to occupational health and safety (OHS) as inappropriate and not sufficiently consistent with the large regulatory framework in the field. On this basis the Council objects to the absolute ban on mutual societies operating in companies in OHS, as this restriction seems unjustified seeing that mutuals have to date made a great contribution as external health and safety services, and in the Council’s view they should be able to continue doing so on a voluntary basis. And the role to be played by mutual societies in OHS in their partner companies should be clarified once their ability to operate in companies has been removed. The Council also expresses concern that the integration of the Health & Safety and Rehabilitation Fund in the Social Security Workplace Risks Fund may seriously compromise the OHS tasks that have been supported by this fund, such as the work of the National Health & Safety at Work Commission or the funding of the Workplace Health & Safety Foundation. As to the economic and financial framework, the draft bill is deemed not to truly reflect the reality of mutual societies, as it covers their public resources without referring to their private resources, linked to their historical assets, which should be usable with autonomy. As to their governing bodies, the Council sees a need to promote effective participation by the most representative employers’ associations and trade unions in such governing, supervising and control bodies, which the draft fails to do. The Council also considers that extending the term of partner agreements from the current one year to three years goes against the principle of freedom of choice of mutual societies and may affect free competition between mutuals. Changing the current system for applying surpluses and determining reserves could, in the Council’s view, be detrimental to worker protection and mutual society solvency as a result of reducing the resources for carrying out mutuals’ social security partner functions. Accordingly surpluses should be applied mainly to continually improving partner management and to general social security objectives. The draft bill extends mutual societies’ control functions in the field of temporary incapacity resulting from non-occupational risks with the possibility of medical clearances proposed by mutual doctors taking effect if the public health service fails to respond within five days. The Council sees a need to safeguard the balance between the aims of effective control of spending and defending workers’ right to incapacity benefit where their ill-health makes them unfit for work, so it opposes this enlargement of functions in managing situations of temporary incapacity to mutual societies, extended to include proposing “presumed” medical clearance. The Council considers it is not legally admissible that, due to the inactivity of the authorities, i.e. a failure to respond within five days, workers should be subjected to the withdrawal of their benefit, and it calls for the measure to be withdrawn.Regarding the change in coverage for the self-employed after a cessation of activity, the Council considers that the bill improves social security protection by introducing flexibility into the arrangements for claiming a benefit which had in practice proved to be too complex, guaranteeing the system’s financial viability and seeking to reduce costs for the self-employed. But the compulsory nature of coverage on the terms provided in the bill is dubious in view of the wide range of cases that arise. For this reason the Council opposes compulsory coverage in the case of cooperatives. The Council’s second group (employers’ organisations) announced a minority opinion as regards mutual societies’ entitlement to propose presumed medical clearances, as did the expert group. There is to be a third opinion, also from the expert group, in this case supporting the draft’s proposal of preventing mutuals from operating in companies in OHS tasks in the case of non-partner firms.

The Council welcomes the draft Bill on Services and Professional Bodies• The Council’s opinion endorses the future law’s aims and its support for the service sector and the reduction of unjustified or disproportionate burdens, in the context of appropriate market regulation and social cohesion • The Council criticises the insufficient differentiation of the duties of mandatory and voluntarily professional bodies • In the case of certifications, whether mandatory or voluntary, limits should be set so that their price is in keeping with the handling and granting costs The Spanish ESC welcomes the draft bill as a whole in that it seeks to ensure that professional services are provided freely and to improve the provisions on the access to and practice of professions and professional activities, with a view to optimising service quality and enhancing consumer/user protection. Moreover the Council, as governmental advisory body, agrees with the draft bill’s declared purposes of boosting economic activity, upgrading worker employability and enhancing long-term capacity for economic growth. It is worth noting that, according to the bill’s preamble, “in the long term the impact on potential GDP is a rise of 0.7%, equivalent to some 7 billion euros.”And the Council supports the aims of encouraging and upgrading the service sector, establishing basic principles and provisions and seeking to reduce unjustified or disproportionate burdens in the context of appropriate market regulation and social cohesion.Thus in the Council’s opinion the draft is in keeping with the requirements of the Community process of harmonisation in the field of services. The Council sees this process as an opportunity to raise the standard of services and to promote and expand the participation of trade unions, employers’ organisations, professional bodies and consumer/user associations, as well as of organisations representing the sectors concerned. Thus the Council’s appraisal is broadly positive, though it also offers its thoughts on some aspects of the draft bill that are improvable.Regarding the requirements provided in the bill for determining whether membership of professional bodies is mandatory, in the Council’s view the provisions are too broad and vague and need to be developed and clarified, especially considering that a closed list is established and that there may be professions or professional activities which there are no clear grounds for excluding. Another point highlighted by the Council is that in several provisions it is not sufficiently clear whether the requirements affect only mandatory professional bodies (as regards their existence and membership) or also voluntary bodies. For the sake of legal certainty the requirements to be met by the two types need to be clearly differentiated. For example the Council judges that the provisions concerning professional bodies’ relations with government should not apply to mandatory and voluntary bodies alike. It also considers that establishing general arrangements for setting up professional bodies (without distinguishing between mandatory and voluntary ones) could be disproportionate and excessive. Article 25 of the draft bill provides that such bodies must be established by law and that applications must be accompanied by a brief stating the reasons for their existence.Another improvable aspect of the text is the description of the system for settling disputes with bodies and users. The Council considers that complaints cannot be equated with dispute settlement, so a distinction should be drawn between dispute settlement functions in professional bodies and information functions. Article 37 of the text speaks of information and not of settlement in the event of a dispute. Regarding certifications, the Council considers that this liberalisation and lifting of administrative burdens should not result in any detriment to health and safety protection, as may be covered by certifications in the case of certain professional tasks. Likewise, as the draft states that professional bodies are severally liable when certifications are issued, the Council deems that this liability should be insured with suitable coverage. Finally limits should be established for both mandatory certifications and voluntary ones so that the price of certification is in keeping with the handling and granting costs. The Council’s opinion takes issue with the conflict-of-interest provisions for members of professional bodies. The Council acknowledges the need for transparency, but considers that given the breadth of the term “managerial positions” used in article 41, the system provided in the draft bill goes too far and could undermine the right of association.