On December 30, it was published in the Official State Gazette (hereinafter, “BOE“) Royal Decree-Law 32/2021, of December 28, on urgent measures for labor reform, the guarantee of stability in employment and the transformation of the labor market (hereinafter, the “RDL 32/2021“).
This published labor reform essentially pivots around three axes: (i) the “simplification of contracts”, rectiusa tightening of fixed-term contracts, (ii) the Temporary Employment Regulation Files (ERTES) and (iii) collective agreements and collective bargaining.
CONTRACTING MODALITIES
It is established that employment contracts are presumed to be concluded for an indefinite period. With regard to contracting modalities, temporary contracts for a specific work or service are abolished (with the exception of the construction sector), allowing temporary hiring only to address production circumstances and to replace workers.
Thus, the following contracting modalities are regulated:
Training contracts:
- 1)alternation training contract: Paid work activity is made compatible with the corresponding training processes. No age limit in general. Duration between three months and two years;
- 2)contract to obtain professional practice, to arrange with those who are in possession of a degree (university, higher or intermediate degree, master’s degree or FP certificate…). Duration between six months and one year.
Fixed-term contracts:
- 1)due to production circumstances, with two sub-modalities:
a)six months extendable to twelve months by collective agreement, to cover occasional and unpredictable increases that may generate a temporary mismatch between the stable employment available and that required (oscillations derived from annual vacations are included);
b) ninety days in the calendar year, to address occasional, foreseeable situations of reduced and limited duration, with no limit on the number of people hired (the ninety days cannot be used continuously).
- 2)By substitutionin a series of assumptions:
a) to cover workers with the right to reserve a job;
b) to complete the reduced working day for another worker;
c) for the temporary coverage of a job position during the selection or promotion process for its definitive coverage through a permanent contract (in this case its duration may not exceed three months).
In order for it to be understood that there is a justified cause for temporary employment, the obligation is established to precisely indicate in the contract the enabling cause for the temporary hiring, the specific circumstances that justify it and its connection with the planned duration.
The performance of work within the framework of contracts, subcontracts or administrative concessions that constitute the ordinary activity of the company is excluded as a cause of temporary nature of the contract due to production circumstances.
Likewise, the sanctioning regime is modified for non-compliance with regard to temporary hiring, establishing the existence of an infraction for each of the affected workers, with sanctions that can reach a maximum of 10,000 euros (for each worker).
On the other hand, regarding the fixed-discontinuous contract, the following may be agreed:
- a)for the performance of works of a seasonal nature or linked to seasonal productive activities, or for the development of those that do not have such nature but that, being of intermittent provision, have certain, determined or indeterminate execution periods;
- b) for the development of work consisting of the provision of services within the framework of the execution of commercial or administrative contracts that, being foreseeable, form part of the company’s ordinary activity;
- c)by the ETTs, for the coverage of provision contracts linked to the temporary needs of various user companies.
Regarding the seniority of people with a fixed-discontinuous contract, it is established that it will be calculated taking into account the entire duration of the employment relationship and not the time of services actually provided.
TEMPORARY EMPLOYMENT REGULATION FILES (ERTES).
The processing of ERTES is modified in some aspects: the maximum duration of the consultation period is reduced from fifteen days to seven days and the maximum period for the constitution of the representative commission is reduced from seven days to fifteen days (and from fifteen to ten in the event that a workplace lacks legal representation of the workers). Likewise, the extension of the ERTES is allowed, and the extension must be processed in a consultation period of a maximum duration of five days, and during the period of application of the file, the affection and disaffection of workers is allowed depending on the alterations of the cause, prior communication to the RLT, the managing entity of social benefits and the TGSS. In addition, benefits are established for companies that develop training actions for affected people during the ERTE.
On the other hand, the RED Mechanism for Flexibility and Stabilization of Employment is created, an instrument of flexibility and stabilization of employment that, once activated by the Council of Ministers, will allow companies to request measures to reduce working hours and suspend employment contracts, which will have two modalities, cyclical (when a general macroeconomic situation is observed that advises the adoption of additional stabilization instruments, with a maximum duration of one year) and sectoral (when in a certain sector or sectors of activity are observed permanent changes that generate needs for requalification and professional transition processes of workers, with a maximum initial duration of one year and the possibility of two extensions of six months each).
Access to this RED Mechanism requires, on the one hand, that the Government activate said Mechanism and, on the other, that the corresponding administrative procedure be processed by each company after obtaining the corresponding administrative authorization.
The application of this Mechanism entails benefits for both companies and workers in relation to the rest of ERTES.
COLLECTIVE AGREEMENTS.
The application priority of the business agreement is maintained with respect to sectoral agreements.with the exception of salary matters.
The ultra-activity of the agreement becomes of indefinite duration: once its duration has been denounced and concluded, without there being an agreement or solution for a new agreement, its validity will remain until a new agreement is reached, without a time limit.
The collective agreement applicable to contractor and subcontractor companies will be that of the sector of the activity carried out in the contract or subcontractor, regardless of its corporate purpose, unless there is another sectoral agreement applicable in accordance with the provisions of Title III of the ET.
Regarding the entry into force, in general, RDL 32/2021 has entered into force on the day following its publication in the BOE (that is, December 31, 2021). Without prejudice to the foregoing, a later date of entry into force is established (three months from publication, that is, March 30, 2022) for a series of measures such as the new contractual modalities (training and fixed-term), the modifications to the fixed-discontinuous contract, the RED Mechanism, establishing in certain cases a transitional regime.
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The content of this Alert is for informational purposes only. Any decision or action based on its content must be subject to appropriate professional advice.
