Companies subject to compulsory retirement clauses by a collective agreement
Before discussing the issue of the validity of agreement clauses that regulate compulsory retirement in Spain, it is advisable to pay attention to the definition of the term retirement and remember that Articles 160 and the following articles of the General Law on Spanish Social Security regulate everything relating to retirement.
Retirement occurs when a worker has reached a determined age and fulfilled a series of requirements. Upon retirement, they can apply for and gain access to retirement benefits, which are for life.
Although until recently the legal retirement age in Spain was 65 years old, from 1 January 2013, the age of access to retirement has gradually been increasing depending on the age and the contribution periods of the individual.
Thus, in 2015, for a worker to be able to retire upon reaching 65 years old, he or she must have made contributions for a minimum period of 35 years and 9 months. Otherwise, to be able to retire at this age, the worker will have to wait to reach 65 years and 3 months.
In view of the above, does reaching the age of 65 or the determined required age, mean that a worker must compulsorily ask for retirement benefits?
The response nowadays is a decisive “no” since retirement is presented as a right and not as an obligation. An example of this is the Tenth Additional Regulation of the Worker’s Statute which declares null and void the clauses of a collective agreement that allows the termination of the work contract due to the worker reaching the ordinary age of retirement fixed in the Social Security regulations, regardless of the extent and reach of said clauses.
Although the law is unequivocal in this regard, there are exceptions to the previously cited regulation. Effectively, since the enforcement of the Labour Reform, these types of clauses are null, even though the Fifteenth Transitional Measure of Law 3/2012, of 6 July, on urgent measures to the reform the labour market regulates the exception.
The most common exception is when there exists a collective agreement that regulates mandatory requirement, which was signed and published before Law 3/2012 came into force. In this case, and following the jurisprudence criteria of the high tribunal and the Statement of Purpose of Law 14/2005, we can assert the temporary validity of the aforementioned compulsory retirement.
In any case, and after the commencement of Law 3/2012, it will be impossible to conventionally regulate compulsory retirement of workers. Companies should consider these changes if they anticipate the unavoidable retirement of their workers on reaching the retirement age.
Monika Bertram
