The Labour and Social Security Inspectorate (ITSS) is sending letters to companies regarding temporary contracts made. This letter campaign is part of the “Plan de Choque contra el fraude del contrato temporal”. And, to tell the truth, we consider that they are being sent indiscriminately.
The Labour and Social Security Inspectorate in relation to temporary contracts
In this campaign they not only report the concatenation of temporary contracts, the repeated use of the same, total accumulated time or reasons for hiring. One of the main objectives of this campaign is also to avoid temporary contracts when, according to the ITSS, it is a permanent activity in the company carried out under the same conditions.
Currently, it is not enough to comply with the formal requirements and time limits of contracts if temporary contracts are used to cover permanent positions. According to ITSS criteria.
For this reason, companies are also receiving letters in which, after analyzing the last few months, ITSS considers that there are a certain number of positions that are filled every year and that should correspond to permanent contracts and not temporary ones.
In the letters that ITSS is sending, they “invite” to convert these contracts into permanent contracts. Accompanying the same with a “veiled” communication of carrying out an inspection.
The purpose of these letters is for the company itself to provide the information and, especially, to dissuade possible irregular conduct in relation to the use of temporary contracts.
However, these letters are sent through a computer program which, as is logical, makes errors. Thus, cases have been detected in which letters relating to training contracts are sent simply because they are “temporary or not indefinite-term” contracts.
Is there cause for concern?
Regarding training contracts, we remind you that the Workers’ Statute allows this type of contract to have a duration of up to 24 months. It would be 36 if the contract was established prior to the labour reform. Therefore, within these limits, it would not be in fraud of law.
Regarding the rest of the temporary contracts, in the event that the cause of the contract cannot be accredited, they require the conversion of the contract to an indefinite-term contract. Because the ITSS considers that there are a certain number of positions that are filled every year and that should correspond to permanent contracts and not to temporary contracts.
It is clear that, if the conversion is made, even if it is a debatable criterion, the ITSS does not intervene. However, if the company has sufficient evidence to defend the temporary nature of these contracts, it is perfectly legal to do so.
Possible sanctions
If the ITSS intervenes and considers that the company has used temporary contracts fraudulently, it could impose a sanction for a serious infraction, according to the Law on Infractions and Sanctions in the Social Order (LISOS).
Currently, an infraction is considered to exist for each of the workers that the ITSS considers to have been hired fraudulently. Under the previous regulations, a single fine was imposed for each company, and not for each worker.
The new penalties for holding a temporary contract in fraud of law currently contemplated in the LISOS are as follows:
- 1,000€ to 2,000€, in its minimum degree.
- 2,001€ to 5,000€, in its medium degree.
- 5,001€ to 10,000€, in its maximum degree.
These new penalties are applicable to contracts entered into as from the entry into force of the law.
