On 30/12/2021 the regulation was published which, by means of an agreement between the government, trade union representatives and employers' representatives, laid the foundations for the so-called labour reform which came into force on the last day of the year.
The purpose of the reform can be summarised:
- Modification of temporary contracts and training contracts.
- The reduction of working hours and suspension of contracts.
- The so-called RED Mechanism established to address economic crisis processes.
- The remuneration of workers in contracting companies, or the priority of application of sectoral agreements or company agreements.
All in all, it is a more limited reform than expected.
In the following sections we analyse the main general novelties of the reform in more 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 circumstances of production or due to substitution of workers.
a) Circumstances of production are considered to be present when there is an occasional and unforeseeable increase.The maximum duration of these contracts is 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 on a continuous basis.
b) To replace persons entitled to the reservation of a post, 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 formalised for:
- Complete the reduction of the working day for legal reasons.
- Temporary coverage of a post in the selection process.
- Promotion and for a maximum period of three months, although a shorter period may be established by collective agreement.
c) Formal requirements. Eontracts must specify precisely the reason for the temporary employment, the specific circumstances justifying it and its connection with the planned duration.The specific circumstances justifying it and its connection with the planned duration.
d) Conversion to permanent status. If the requirements established for temporary contracts are not met, the workers concerned shall acquire permanent status.. Also The following shall also acquire permanent status workers who have been contracted for circumstances of production for more than 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 to three times the amount of the contribution resulting from by three times the amount of the contribution resulting from applying to the minimum daily base. daily minimum base.
f) Penalties in relation to temporary employment. The number of penalties for transgression of the regulations on temporary employment are increased to up to a maximum of 10,000 euros10,000, with one infringement being considered for each worker affected.
What happens to current temporary contracts? Temporary contracts due to market circumstances, accumulation of tasks or excess orders, interim contracts and contracts for specific work 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.
Nuevo Contrato fijo de obra
Desaparece la posibilidad de celebrar contratos para obra o servicio determinado, que será sustituido en el sector de la construcción por un nuevo contrato indefinido de obra. El empresario podrá rescindir este contrato cuando finalice la obra pero deberá ofrecer al trabajador una propuesta de recolocación. La indemnización que recibirá será del 7% de su salario.
TRAINING CONTRACTS
How have training contracts been modified? See abolish the current contractual modalities of internships, training and apprenticeship, and dual university training, establishing a training contract with two modalities:
a) Contract for work-linked training
- Training in alternation with paid employment in the performance of a work activity aimed at acquiring appropriate professional practice.
- It is intended for those who do not have a qualification to enter into a training contract for work experience.
- The maximum age for this type of contract is 30 years.
- The activity must be related to the training activities and must have a tutor appointed by the company or training organisation.
- Individual training plans must be drawn up specifying the content of the training, as well as the substantial part of the contract being theoretical training provided by a training centre/institution or the company itself, and practical training provided by the company and the centre.
- The duration of the contract will be a minimum of 3 months and a maximum of 2 years, and those contracts may be extended for a shorter period until the certificate or accreditation is obtained, but in no case may it exceed 2 years, and only one contract may be made for each training cycle or university qualification.
- Remuneration shall be that established in the collective agreement, and may not be less than 60% in the first year and 75% in the second year with respect to that established in the collective agreement, for the professional group and level of remuneration corresponding to the functions performed, and in no case may the resulting remuneration be less than the minimum interprofessional wage.
b) Training contract for obtaining the professional practice appropriate to the level of studies..
- It is aimed at those who have a university degree or an intermediate or higher specialist degree, professional master's degree or certificate from the vocational training system or an equivalent degree in artistic or sports education from the education system, and must be arranged within 3 years of 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 and may not exceed 1 year.
- Unemployment on the job must allow for work experience appropriate to the level of education or training that is the subject of the contract.
- The duration of the probationary period shall not exceed one month.
- In no case may the remuneration be lower than that established for alternating contracts.
- The employment contract must include the training plan.
FIXED-TERM CONTRACT
Under what circumstances can a fixed-discontinuous employment contract be concluded? A fixed-discontinuous contract for an indefinite period of time can be concluded for any of the following cases:
- Work of a seasonal nature or linked to seasonal productive activities.
- Those which are not of this nature but which, being of intermittent provision, have certain, determined or indeterminate periods of execution.
- Those consisting of the provision of services within the framework of the execution of commercial or administrative contracts which, being foreseeable, form part of the ordinary activity of the company.
- Between a temporary employment agency and a person recruited for secondment.
The following may be agreed in sectoral collective agreements:
- Establishment of a sectoral employment exchange in which permanent people who are discontinued during periods of inactivity can be integrated, with the aim of favouring their recruitment and continuous training during these periods.
- The part-time conclusion of permanent-discontinuous contracts, when the peculiarities of the sector's activity justify it.
- The obligation for companies to draw up an annual census of permanent and discontinuous staff.
- 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 workers, 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 for economic, organisational, technical or production reasons (ETOP) is reduced to seven days in companies with fewer than 50 workers, as well as the maximum period for the constitution of the representative committee, which will be five days in general and 10 days in those centres in which there is no worker representation.
Temporary force majeure due to an impediment or limitation of the company's normal activity as a result of decisions by the competent public authority, including those aimed at protecting public health, is included as a cause for reducing working hours or suspending contracts.
The bonuses are established as follows:
- a) 20 per cent for temporary lay-offs for economic, technical, organisational or production reasons, applicable only in the event that the companies carry out training actions for each of the persons affected, the objective of which will be to improve the professional skills and employability of the workers.
- b) 90 per cent for temporary lay-offs 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 one for which there is no precedent in our labour legislation, except for the employment promotion plans established in certain industrial reconversions. The RED Mechanism will have to be activated by the Council of Ministers and will allow companies to apply for measures to reduce working hours and suspend employment contracts. This mechanism will have two modalities:
- a) Cyclicalwhen there is a general macroeconomic situation that makes the adoption of additional stabilisation instruments advisable, with a maximum duration of one year.
- b) Sectoralwhen, in a given sector or sectors of activity, there are permanent changes that generate the need for retraining 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 LAY-OFFS OR APPLICATION OF THE NETWORK MECHANISM
Undertakings which train persons concerned by this type of training shall be entitled to an increase in appropriations for the financing of actions in the field of programmed training of the amount indicated below, depending on the size of the undertaking:
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.
From 31 December 2021, the sectoral agreement corresponding to the activity carried out by the workers applies.
Exception: where the contractor or subcontractor has a company agreement.
Notwithstanding the above, the sectoral agreement will have priority in terms of salaries, maximum working hours, promotions or length of holidays, among others. The company agreement will have priority in terms of overtime, remuneration and shift work, working hours, etc.
PRIORITY OF THE SECTORAL WAGE AGREEMENT
To those collective agreements published prior to their entry into force, once they cease to be expressly in force and, at the latest, within one year of the publication of this regulation in the Official State Gazette.
The sector agreement will take precedence over the company agreement.
ULTRAACTIVITY
(the automatic extension of collective agreements, in the event that the maximum period for negotiating a new collective agreement has expired without agreement being reached).
The ultra-activity of collective agreements is resumed, establishing that one year after the termination of the collective agreement without an agreement having been reached.
OTHER PROVISIONS
Within six months, it is planned to convene the social partners in order to establish the Statute for trainees in the framework of curricular or extracurricular internships as part of 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 the age of eighteen in work involving specific risks.