Maternidad y trabajo autónomo

Résumé

The article analyses the recent major legislative changes introduced by Law 6/2017 of 24 October on Urgent Reforms of Self-Employment; Royal Decree- Law 28/2018 of 28 December on the revaluation of public pensions and other urgent measures on social, labour and employment issues; and Royal Decree- Law 6/2019 of 1 March on urgent measures to guarantee equal treatment and opportunities for women and men in employment and occupation. In addition to these, on 3 October 2018 the Administrative Chamber of the Supreme Court ruled that the Personal Income Tax from maternity benefits should be waived, which has led to the publication of Royal Decree-Law No. 17/2018 of 28 December, adopting certain measures on taxes and land registration which, even though they are related to tax issues, also affect Social Security Law. These laws introduce substantive amendments to Royal Legislative Decree 2/2015 of 23 October, approving the consolidated text of the Workers' Statute Act; Law 20/2007 of 11 July on the Self-Employed Workers’ Statute Act; Royal Legislative Decree 8/2015 of 30 October, approving the consolidated text of the General Law of Social Security; and Royal Decree 2064/1995 of 22 December, approving the consolidated text of the General Rules on Contribution and Assessment of other Social Security Payments. Among them, the present work analyses those relating to maternity and self-employment. First, it addresses the two new benefits introduced by the Social Security: childbirth and care for minors and co-responsibility in the care of infants, replacing the disappeared maternity and paternity allowances. These two new benefits are granted to self-employed workers on the same terms and conditions as those provided for employees included in the General Scheme, which entails the study of Article 48, sections 4.5 and 6 and Article 37.4 of the Workers' Statute Act. It focuses on the philosophy that governs its regulation, the equal treatment and opportunities for women and men and work-life balance policies, but also on the new approach being introduced in legal systems as a regulatory basis: The co-responsibility of parents in the upbringing and education of their children, a genuine legislative novelty, not only in our country but also noticeable within the European Union, as evidenced by the recently published Directive 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance policies for parents and caregivers, and repealing Directive 2010/18/EU. Secondly, with regard to subsidies during pregnancy and breastfeeding, reference is made to the additional contribution to be made in the Special System of Agricultural Self-Employed Workers, in which the coverage of occupational contingencies is voluntary. It also reflects the problem of assessing risks - especially during breastfeeding and particularly in our country - which has resulted in the pronouncement of two judgements by the Court of Justice of the European Union on the interpretation of Directive 92/85/EEC and article 26 of the Law on Prevention of Occupational Risks, both of which have been raised by the High Court of Justice of Galicia: judgement of 19 October 2017 (C- 531/15) and judgement of 19 September 2018 (C-41/17). They reveal the incorrect assessment - even the High Court refers to it as non-existent - of the risk carried out in accordance with the requirements established by the European Union legislation, which results in less favourable treatment for pregnant or nursing women and constitutes direct discrimination on the basis of sex, with the consequences that this entails. This case law is also considered to apply to self-employed women. Thirdly, we analyse the Social Security quota benefits provided for self-employed women returning to work after the termination of maternal leave due to the birth of a son or a daughter, adoption, care for adoption, care and guardianship purposes, noting the new approach of the Directorate-General for Social Security Management in this regard, and those established for self-employed women during maternity leave, adoption, care for adoption, care, risk during pregnancy or risk during breastfeeding. Finally, fourthly, reference is made to the recent exemption in the Personal Income Tax from maternity benefits following the judgement of the Administrative Chamber of the Supreme Court, which has resulted in the amendment of article 7.h) of the Act regulating such Tax. The new regulation not only provides for the exemption from maternity allowance, but also for the extended paternity allowance of the Social Security system and benefits received by professionals not included in Special System of Self-Employed Workers who receive maternity and paternity benefits from social welfare mutual societies acting as alternatives to the Special System of Self-Employed Workers. The work is preceded by preliminary considerations on the concepts of maternity and self-employed workers.