New contracts of the 2021 Labour Reform are created. Seeking the simplification of the options of these and published in Royal Decree-Law 32/2021.
As we already commented in the previous publication about the Labour Reform of 2021 Labour Reform, the main objectives sought by the Labour Reform are the decrease of temporary employment in Spain. The reinforcement of the permanent contract. And the configuration of an efficient system to fight against precariousness.
New contracts of the 2021 Labour Reform
The mechanisms that have been adopted to reduce temporary employment have been to simplify the types of contracts. Generalizing indefinite contracts. It is necessary to limit the use of temporary contracts.
Therefore, the contract is generally considered to be of an indefinite-term nature.
New contracts of the 2021 Labour Reform. Fixed-term contracts
The entry into force of the new type of temporary contract will take place as from March 31. A transitional regime will be established as follows:
- Contracts for specific works and services, and temporary contracts due to market circumstances, accumulation of tasks or excess of orders. Entered into before December 31, 2021. They will be governed by the rules applicable in the previous wording and up to the maximum duration established at the time of contracting.
- Contracts for specific works and services, and temporary contracts due to market circumstances, accumulation of tasks or excess orders. Entered into between December 31, 2021 and March 30, 2022. They will be governed by the regulations in force on the date on which they are entered into, but their duration may not exceed six months.
The new text includes two types of fixed-term contracts.
Fixed-term contracts for production circumstances
In order for it to be understood that there is a justified cause of temporary employment, it will be necessary to specify precisely in the contract the reason for the temporary hiring. The specific circumstances that justify it and its connection with the foreseen duration.
This type of contract has two modalities:
When there is an occasional and unforeseeable increase. And the oscillations that, although being the normal activity of the company, generate a temporary mismatch between the available stable employment and that which is required. Provided that it does not correspond to the cases subject to the fixed-discontinuous hiring modality. Including those that occur during the employees’ annual vacations.
It will have a duration of six months, extendable to one year by sectoral collective bargaining agreement. In the event that it is agreed for a duration shorter than the legal maximum, an extension is allowed, until the term is reached.
When there is an occasional and foreseeable increase in activity. And that have a reduced and delimited duration. All the workers that are necessary to take care in each one of these days, the concrete situations will be able to be contracted.
In this case the duration will be 90 days in the calendar year, which cannot be used continuously. For this purpose, the companies, in the last quarter of each year, will have to transfer to the legal representation of the workers an annual forecast of the use of these contracts.
Observations
Contractors, subcontractors or concessionaires of the administration may enter into this contract when the described production circumstances occur.
Temporary employment agencies may enter into an employment contract with workers to cover several successive contracts for the provision of services with different user companies. Provided that such contracts for the provision of services are fully determined at the time of signing the employment contract. And they respond to a hiring event of those contemplated in the two modalities described above.
Contract of fixed duration for substitution of an employee
Provided that its purpose is to replace a worker with the right to reserve a job. The provision of services may begin before the absence of the person being replaced takes place, coinciding in the development of the functions the essential time to guarantee the adequate performance of the position and, at the most, for fifteen days.
The use of this contract is also allowed to complete the reduced working day by another employee, when such reduction is covered by legal causes or regulated in a collective agreement, being a requirement to specify the name of the person substituted.
Finally, this contract may be used for the temporary coverage of a job position during the selection or promotion processes for its definitive coverage, with a maximum duration of three months or a shorter term established in the collective labor agreement.
Common to both types of contracts
An additional surcharge on contributions of €26 per worker is established for temporary contracts of less than thirty days’ duration.
It will not be applied to the special regimes for agricultural workers, domestic workers and coal mining workers, nor to substitution contracts.
The following will acquire the status of permanent worker
- Those persons who were hired in breach of the regulation of these contracts.
- Those who have not been registered with the Social Security after a period equal to that legally established for the trial period has elapsed,
- The workers who in a period of twenty-four months had been hired for a period of more than eighteen months, with or without solution of continuity, for the same or different job with the same company or group of companies, by means of two or more contracts due to circumstances of production, either directly or through their provision by temporary employment agencies (before 24 months in a period of 30).
- Those who occupy a job that has been occupied, with or without solution of continuity, for more than eighteen months in a period of twenty-four months by means of contracts for circumstances of production, including the contracts of provision made with temporary employment agencies.
The provisions on the chaining of contracts will be applicable to employment contracts entered into as from March 31, 2022.
With respect to contracts signed prior to this date, only the contract in force as of December 31, 2021 will be taken into consideration for the purpose of calculating the number of contracts, the period and the term for the chaining.
In the event of termination of the temporary contract, except in the case of a replacement contract, an indemnity of an amount equivalent to twelve days’ salary for each year of service shall be paid.
Non-compliance with the provisions regarding hiring, entails a stiffening of the penalties, which may reach a maximum of 10,000 €, being considered an infraction for each employee affected.
Permanent-discontinuous contracts
The new regulation regarding the new contracts of the 2021 Labour Reform will come into force on March 31, 2022. Until this date, these contracts will be signed in accordance with the regulations prior to this reform.
They may be entered into in the following cases.
Firstly, for the performance of work of a seasonal nature or linked to seasonal productive activities. Also for the development of those that do not have such nature but that, being of intermittent provision, have certain, determined or undetermined periods of execution.
Additionally, in those cases that come to cover the development of work consisting of the provision of services within the framework of the execution of commercial or administrative contracts. That, being foreseeable, are part of the ordinary activity of the company. The sectoral collective bargaining agreements may determine a maximum period of inactivity between subcontractors, which, in the absence thereof, shall be three months.
Finally, by temporary employment agencies for the coverage of contracts for the provision of services linked to the temporary needs of various user companies. Under the terms provided for in Article 15 of the Workers’ Statute, on fixed-term contracts. In this case, the periods of inactivity coincide with the waiting period between these contracts. In this case, the references made to collective bargaining, as indicated below, will be understood to refer to the sectoral or company collective bargaining agreements of the temporary employment agencies. These collective bargaining agreements may also establish an employment guarantee for persons hired under this type of contract.
Observations
The adaptability of this type of contract may be established by means of a collective bargaining agreement. And, failing that, a company agreement on the objective and formal criteria for the call.
A sectorial employment exchange may be established by sectorial agreement. Part-time employment. A minimum annual call-up period and an amount for the end of the call-up period.
Seniority is calculated on the basis of the entire duration of the employment relationship in aspects such as economic and professional promotion. And according to the time of services effectively rendered for compensation purposes.
They will be considered as a priority group for access to the training initiatives of the professional training system for employment during periods of inactivity.
The Government will make changes in the access to protection for the group of permanent-discontinuous workers. Allowing them access to unemployment benefits, under the same conditions and with the same rights as the rest of the employees of the General Regime of the Social Security protected by the contingency of unemployment. (Sixth final provision).
Contracts for construction work. Indefinite-term contracts
In the construction sector, those contracts for tasks or services whose purpose and result are linked to construction works will be considered as indefinite-term contracts assigned to construction works.
The company, once the work is completed, must offer a relocation proposal to the worker. Prior development, if necessary, of a training process at the company’s expense. Whose obligation will be formalized in writing by means of a clause to be annexed to the employment contract.
Once the outplacement proposal has been made, the indefinite-term contract assigned to the work may be terminated when the worker concerned rejects the outplacement. When the qualification of the person concerned is not suitable for the new works that the company has in the same province. Or does not allow its integration in these, because there is an excess of people with the necessary qualifications to perform the same functions. Or, due to the non-existence in the province in which the worker is hired of works of the company in accordance with his professional qualification, level, function and professional group.
In the previous case, the termination of the contract will give rise to an indemnity of 7%. Calculated on the salary concepts established in the tables of the applicable collective bargaining agreement and which have been accrued throughout the term of the contract. This termination regime will be applicable regardless of the number of employees affected.
New contracts of the 2021 Labour Reform. Training contracts
Internship and training and apprenticeship contracts, in force at the time of the publication of this regulation and those to be entered into until March 30, will be governed by the provisions previously established for this purpose and up to their maximum duration. That is to say, up to 2 and 3 years maximum, respectively.
It will have two modalities:
- Training contract for obtaining professional practice.
- Training contract in alternation
Scholarship Holder’s Statute. It is foreseen that, within six months from the entry into force of this regulation, the most representative trade union and business organizations will be convened to deal with the Statute of the Trainee. In this way, the framework of the curricular or extracurricular internships foreseen in the official studies will be adapted.
Contract for the acquisition of professional practice
Aimed at acquiring a professional practice appropriate to the corresponding levels of studies. With those in possession of a university degree, intermediate or higher degree, specialist, professional master’s degree. Or certificate of the vocational training system or equivalent title of artistic or sports teachings of the educational system.
It may be formalized within three years. Or within five years if the contract is for a person with a disability, following the completion of the corresponding studies.
The minimum duration of the contract will be six months and the maximum of one year.
At the same time, the trial period may not exceed one month, unless the applicable collective bargaining agreement establishes a different period.
The remuneration shall be that corresponding to the effective working time. It shall be that established in the collective bargaining agreement of reference, and in its absence, that of the professional group and remuneration level corresponding to the functions performed. In no case may it be less than the minimum wage in proportion to the effective working time.
It may not be signed with anyone who has already obtained professional experience. Or carried out training activity in the same activity within the company for a period of more than three months. Training periods or internships that form part of the curriculum required to obtain the degree or certificate that qualifies for this contract shall not be counted for these purposes.
The company will draw up an individual training plan and assign a tutor.
No overtime may be worked, except in the case of force majeure.
Training contract in alternation
The purpose of this contract is to make paid employment compatible with the corresponding training processes. In the field of vocational training, university studies or from the Catalog of training specialties of the State Public Employment Service.
In general, there is no age limit, when the professional qualification required to enter into a training contract to obtain professional practice is lacking.
Up to 30 years when the contract is signed within the framework of professional certificates of level 1 and 2. Or public or private programs of training in alternation that are part of the Catalog of training specialties of the State Public Employment Service.
The duration of this type of contract will be for a minimum of three months and a maximum of two years, whether continuous or not. Various annual periods coinciding with the studies, if foreseen in the training plan or program.
The effective working time may not exceed 65% during the first year. Or 85%, during the second year, of the maximum working day foreseen in the collective agreement. Or, failing that, of the maximum legal working day.
The remuneration shall be fixed in the collective labor agreement and, failing this, may not be less than 60% in the first year and 75% in the second year. With respect to that fixed in the collective labor agreement for the professional group and remuneration level corresponding to the functions performed, in proportion to the effective working time. In no case may it be less than the minimum wage in proportion to the effective working time.
Individual training plan
It will include the content of the training, the calendar and activities and the tutoring requirements for its fulfillment.
There will be a tutor appointed by the training center or entity and another by the company.
Prepared by the training center or entity with the participation of the company.
Other issues to be taken into account
They may not be entered into when the activity or job corresponding to the contract has been previously performed by the worker in the same company under any modality for a period of more than six months.
No additional or extraordinary hours may be worked, except for reasons of force majeure, and there will be no trial period.
A new Social Security contribution regime for alternating training contracts is regulated. And a transitional regime for these and training and apprenticeship contracts.
In view of the prohibitions on the employment of young people under 18 years of age in certain professions and trades. These prohibitions are outdated and generate limitations to the insertion of young people and the development of vocational training. The development of a regulation on the peculiarities applicable to the hiring of young people under eighteen years of age is foreseen. Adapted to the current production situation in companies.
For any assistance regarding the new contracts of the 2021 Labour Reform, our experts in Human Resources management will be able to help you to study your particular case.
