On December 30, 2011, the regulations were published which, by means of an agreement between the government, union and employer representatives, laid the foundations for the so-called labor reform that came into force on the last day of the year.
The purpose of the reform can be summarized as follows:
- Modification of temporary contracts and training contracts.
- The reduction of working hours and suspension of contracts.
- The so-called RED Mechanism was established to address economic crises.
- The remuneration of the employees of contractor companies, or the priority of application of the sectoral or company agreements.
In short, it is a more limited reform than expected.
In the following sections we will analyze the main general novelties of the reform in greater detail.
We have two structural causes: circumstances of production and substitution of another employee with job reservation.
TEMPORARY CONTRACTING
When can a fixed-term contract be concluded?
They may be carried out due to production circumstances or due to substitution of workers.
a) Production circumstances are considered to be present when there is an occasional and unforeseeable increase .The maximum duration of these contracts will be 6 months, which may be extended by means of a sector-wide collective bargaining agreement up to a maximum of one year. Also those with a reduced duration in time (discount campaigns, Christmas, etc.); this modality can only be used for a maximum of 90 days a year, but not continuously.
b) To replace persons with the right to reserve a job, the same as the current interim contractHowever, the substituted employee and the substitute employee may coincide for a maximum period of fifteen days at the beginning of the employment relationship.
It can also be formalized for:
- Complete the reduction of working hours for legal reasons.
- Temporary coverage of a job position in a selection process.
- The promotion and for a maximum period of three months, although a shorter period may be established by collective bargaining agreement.
c) Formal requirements. Ehe contracts must specify precisely the reason for the temporary hiring, the specific circumstances justifying it and its connection with the foreseen duration.The specific circumstances that justify it and its connection with the foreseen duration.
d) Conversion to permanent status. If the requirements established for temporary hiring are not complied with, the affected workers will acquire the status of permanent employees.. Also The workers affected will also acquire the status of permanent employees. workers who have been who have been hired due to circumstances of production for more than 18 months more than 18 months in a period of 24 months..
e) Contribution increase for contracts of less than 30 days. Fixed-term contracts of less than 30 days will have an additional an additional contribution at the employer's expense at the end of the contract, consisting of applying the general contribution rate for common contingencies for three times the amount of the contribution resulting from triple the contribution resulting from applying to the minimum daily base. daily minimum base.
f) Penalties related to temporary hiring. The number of penalties for transgression of the temporary hiring regulations up to a maximum of 10,000 euros10,000, being considered an infraction for each employee affected.
What happens to current temporary contracts? Temporary contracts due to market circumstances, accumulation of tasks or excess of orders, interim contracts and contracts for specific works and services signed in accordance with the regulations in force before the entry into force of the reform, will be governed until their maximum duration by the provisions of the regulations under which they were signed.
New permanent construction contract
The possibility of entering into contracts for specific works or services disappears, which will be replaced in the construction sector by a new permanent works contract. The employer may terminate this contract at the end of the work but must offer the employee a relocation proposal. The indemnity will be 7% of the employee's salary.
TRAINING CONTRACTS
How have training contracts been modified? See will be eliminated. The current contractual modalities of internships, training and apprenticeship, and dual university training have been eliminated, and a training contract with two modalities has been established:
a) Training contract in alternation
- Training in alternation with paid employment in the performance of a work activity aimed at acquiring adequate professional practice.
- It is intended for those who are not qualified to enter into a training contract to obtain professional internships.
- The maximum age to subscribe this type of contract is 30 years old.
- The activity must be related to the training activities and must have a tutor designated by the company or training entity.
- Individual training plans must be established specifying the content of the training, as well as the substantial part of the contract being the theoretical training provided by a training center or entity or the company itself, as well as the practical training developed by the company and the center.
- The duration of the contract will be a minimum of 3 months and a maximum of 2 years, being extendable for a shorter period until the certificate or accreditation is obtained, but in no case may it exceed 2 years, only one contract may be made for each training cycle or university degree.
- The remuneration will be that established in the collective labor agreement, and may not be less than 60% in the first year and 75% in the second year with respect to the remuneration established in the collective labor agreement, for the professional group and remuneration level corresponding to the functions performed, and in no case may the resulting remuneration be less than the minimum interprofessional salary.
b) Training contract for obtaining the professional practice appropriate to the level of studies..
- It is intended for those who have a university degree or an intermediate degree, higher specialist degree, professional master's degree or certificate of the vocational training system or equivalent degree of artistic or sports education of the educational system, and must be arranged within 3 years after obtaining the degree or 5 years in the case of disabled persons.
- It cannot be carried out with workers who have carried out training activities in the same activity within the company for a period of more than 3 months.
- The duration of the contract may not be less than 6 months nor exceed 1 year.
- The unemployment of the job position must allow the obtaining of professional practice appropriate to the level of studies or training that is the object of the contract.
- The duration of the probationary period shall be a maximum of one month.
- In no case may the remuneration be less than that established for alternating contracts.
- The employment contract must include the training plan.
PERMANENT SEASONAL CONTRACT
In what cases can a fixed-discontinuous employment contract be formalized? The fixed-discontinuous indefinite-term contract can be entered into for any of the following cases:
- Jobs of a seasonal nature or linked to seasonal productive activities.
- Those that do not have such nature but, being of intermittent performance, have certain, determined or undetermined periods of execution.
- Those consisting of the rendering of services within the framework of the execution of commercial or administrative contracts which, being foreseeable, are part of the ordinary activity of the company.
- Between a temporary employment agency and a person hired to be on loan.
Collective bargaining agreements at the sectoral level may provide for the following:
- Establishment of a sectorial employment exchange in which permanent employees can be integrated during periods of inactivity, with the objective of favoring their recruitment and continuous training during these periods.
- The conclusion of part-time fixed-discontinuous contracts, when the peculiarities of the sector's activity so justify.
- The obligation of companies to draw up an annual census of permanent and discontinuous personnel.
- Establishment of a minimum annual call-up period and an amount for the end of the call-up period to be paid by the companies to the employees, when this coincides with the termination of the activity and there is no new call-up without interruption.
REDUCTION OF WORKING HOURS AND SUSPENSION OF CONTRACTS
The consultation period in cases of reduction of working hours or temporary suspension of contracts due to economic, organizational, technical or production causes (ETOP) is reduced to seven days in companies with less than 50 employees, as well as the maximum term for the constitution of the representative committee, which will be five days in general and 10 days in those centers where there is no employee representation.
Temporary force majeure due to an impediment or limitation of the normal activity of the company as a result of decisions of the competent public authority, including those aimed at protecting public health, is included as a cause for reduction of working hours or suspension of contracts.
The bonuses are established as follows:
- a) 20 percent for temporary layoffs due to economic, technical, organizational or production causes, applicable only in the event that the companies develop training actions for each of the affected persons, which will be aimed at improving the professional skills and employability of the workers.
- b) 90 percent for temporary layoffs due to temporary force majeure or due to impediments or limitations in the normal activity of the company.
EMPLOYMENT FLEXIBILITY NETWORK MECHANISM
This is one of the main novelties of the reform and of which there are no precedents in our labor legislation, except for the employment promotion plans established in certain industrial reconversions. The RED Mechanism must be activated by the Council of Ministers. Council of Ministers and will allow companies to request measures for the reduction of working hours and the suspension of employment contracts. This mechanism will have two modalities:
- a) Cyclicala) Cyclical, when there is a general macroeconomic situation that advises the adoption of additional stabilization instruments, with a maximum duration of one year.
- b) Sectorialwhen there are permanent changes in a specific sector or sectors of activity that generate retraining needs and professional transition processes for workers, with an initial maximum duration of one year, and the possibility of two extensions of six months each.
INCREASE IN THE APPROPRIATION FOR TRAINING ACTIVITIES IN SITUATIONS OF TEMPORARY LAYOFFS OR APPLICATION OF THE NETWORK MECHANISM
Companies that train people affected by this type of proceedings will be entitled to an increase of credit for the financing of actions in the field of programmed training of the amount indicated below, depending on the size of the company:
a) From 1 to 9 employees: 425 euros per person.
b) From 10 to 49 employees: 400 euros per person.
c) For 50 or more persons: 320 euros per person.
AGREEMENT APPLICABLE TO SUBCONTRACTORS
Contractors and subcontractors must apply the collective bargaining agreement for the activity carried out, regardless of their corporate purpose, unless there is another applicable sectoral agreement.
As of December 31, 2021, the industry agreement corresponding to the activity performed by the employees is applicable.
Exception: when the contractor or subcontractor has a company agreement.
Notwithstanding the foregoing, the sectoral agreement will have priority in matters of wages, maximum working day, promotions or duration of vacations, among others. The company agreement will have priority in matters of overtime, remuneration and shift work regime, working hours...
PRIORITY OF THE SECTORAL WAGE AGREEMENT
To those collective bargaining agreements published prior to their entry into force, once they cease to be expressly in force and, at the latest, within one year from the publication of this regulation in the Official State Gazette.
The sector agreement will regain its prevalence over the company agreement.
ULTRAACTIVITY
(the automatic extension of collective bargaining agreements, in the event that the maximum period for negotiating a new agreement has expired without reaching an agreement).
The ultra-activity of collective bargaining agreements is resumed, establishing that one year after the termination of the collective bargaining agreement has elapsed without an agreement having been reached.
OTHER PROVISIONS
Within six months, it is planned to convene the social partners to establish the Statute of the scholarship holder in the framework of the curricular or extracurricular internships foreseen in official studies. Within six months, an analysis of the health and safety regulations applicable to minors will be submitted to the social partners and will be taken into account in the drafting of a regulation on the special features applicable to the employment of young people under eighteen years of age in jobs presenting specific risks.