Odice Lawyers

New Labour Reform 2022: latest changes

ODICE LAWYERS

On 31 December last year, the Royal Decree-Law 32/2021, of 28 Decemberof urgent measures for labour reform 2022, the guarantee of employment stability and the transformation of the labour market, following its publication in the BOE (Official State Gazette). 

It is a major labour reform which, although it has received the blessing of all the social partners, had to be submitted for validation in Congress on 3 February, and was finally approved by a difference of one vote in a final vote that was somewhat surreal.

This reform not only addresses collective bargaining issues, but also, for the first time, deals comprehensively and decisively with the very serious problem of temporary employment that our country has been suffering from for several decades. It also addresses subcontracting to guarantee workers' rights and establishes the ERTE mechanism as a structural response to internal flexibility in crises.

Although the labour reform came into force on 31 December 2021, there are a series of amendments to the Workers' Statute that will come into force 3 MONTHS AFTER THE PUBLICATION OF Royal Decree-Law 32/2021, of 28 December, i.e. from 30 March 2022.

Some of these modifications, which will come into force on 30 March, are as follows:

  • The new regulation of training contracts (Art. 11 of the Workers' Statute)
  • The new regulation of the duration of employment contracts - presumption of an open-ended contract as a general rule (Art. 15 of the Workers' Statute).
  • The new regulation of the permanent-discontinuous contract (Article 16 of the Workers' Statute)

Furthermore, in addition to the aforementioned exception to the entry into force of certain amendments to the Workers' Statute, the labour reform establishes a transitional regime for those employment contracts entered into before the general entry into force, 31 December 2021, and those entered into after 31 December 2021, but before 30 March 2022.

CONTRACTS CONCLUDED BEFORE 31/12/2021

TYPE OF CONTRACTAPPLICABLE LEGISLATION
Training contracts (art. 11 ET)Internship and training and apprenticeship contracts in force before the entry into force of RD-law 32/2021 (31/12/2021).They shall remain in force according to the regulations applicable before 31/12/2021 and shall be applicable until their maximum duration.
Fixed-term contracts [art. 15.1 a) ET]. concluded before the entry into force of RD-law 32/2021 (31/12/2021):
Contracts for specific works and services and contracts 
If they are in force on 31/12/2021, they will be applicable until their maximum duration and will be governed by the regulations prior to RD-Law 32/2021.
Temporary contracts due to production circumstances and interim contracts [art. 15.1.b) ET]. concluded before the entry into force of RD-law 32/2021 (31/12/2021)If they are in force on 31/12/2021, they will be applicable until their maximum duration and will be governed by the regulations prior to RD-Law 32/2021.

CONTRACTS CONCLUDED BETWEEN 31/12/2021 AND 30/03/2022

TYPE OF CONTRACTAPPLICABLE LEGISLATION
Fixed-term contracts: work and service and temporary contracts for production circumstances concluded from 31/12/2021 to 30/03/2022The regulations prior to RD-Law 32/2021 shall remain in force and shall apply to them.
IMPORTANTTHE DURATION SHALL NOT EXCEED 6 MONTHS.

In view of the exception to the entry into force of the labour reform, as well as the transitional regime granted to certain contracts, depending on their date of conclusion, it is worth highlighting some key points of the reform, without going into an in-depth analysis of them:

PRESUMPTION OF INDEFINITE CONTRACT AS A GENERAL RULE

As a general rule, as of 30/03/2022, the employment contract is presumed to be concluded for an indefinite period of time. (Art. 15 ET).

This implies:

→ Disappearance of the "contract for work or service".

→ Justification of the temporary nature of the contract. In order for the temporary nature of the contract to be understood to be justified, it will be necessary to specify precisely in the contract the reason for the temporary contract, the specific circumstances that justify it and its connection with the foreseen duration.

→ A fixed-term employment contract may only be concluded in the event of production circumstances or for the replacement of a worker.

DISAPPEARANCE OF WORK OR SERVICE CONTRACTS

As of 30/03/2022, the possibility of concluding contracts for a specific work or service disappears, but a transitional regime is established for contracts in force on 31 December 2021 and those concluded from 31 December 2021 to 30 March 2022.

→ In this case, temporary contracts may not exceed six months and will therefore only apply until 30 September 2022.

NEW CONTRACTS OF DETERMINED DURATION (effective 30/03/2022)

A) Fixed-term employment contract due to circumstances of production

Regulated in Article 15.2 of the Workers' Statute. 

  • Cause: This is a contract carried out due to an occasional and unforeseeable increase in the circumstances of production which, even in the normal activity of the company, generates a temporary mismatch between the stable employment available.

    The same applies in cases where the increase is occasional, foreseeable and of limited and delimited duration.
  • Formalisation: In order to carry out such a contract, it will be necessary to specify precisely the reason for the temporary contract, the specific circumstances justifying it and its connection with the planned duration.
  • Duration: In general: 6 months (extendable to one year by collective agreement). In the event that the contract has been concluded for a shorter duration than the maximum legally or conventionally established, it may be extended once only, but the total duration of the contract may not exceed this maximum duration.

    In the event of an increase in production circumstances that are occasional, foreseeable and have a limited and delimited duration, a maximum duration of 90 days in the calendar year is established, and the ninety days may not be used continuously.
  • Information to the LTR: In the last quarter of each year, they must submit to the workers' legal representatives an annual forecast of the use of these contracts.
  • Expiration of the agreed time and compensation: On termination of the contract, the employee shall be entitled to receive compensation equivalent to the proportional part of the amount that would result from the payment of twelve days' salary for each year of service, or the amount established, where applicable, in the specific regulations that apply.

B) Fixed-term employment contract for the replacement of an employee

Regulated in Article 15.3 of the Workers' Statute. 

  • Cause: The replacement of a worker who is entitled to a job reservation, provided that the name of the person being replaced and the reason for the replacement are specified in the contract.

    To complete the reduced working day by another worker, when this reduction is based on legally established causes or regulated in the collective agreement and the name of the person replaced and the cause of the substitution are specified in the contract.

    For the temporary coverage of a post during the selection or promotion process for its definitive coverage by means of a permanent contract.
  • Formalisation: The name of the person being replaced and the reason for the replacement must "always" be specified in the contract.
  • Duration: In the replacement of a worker who is entitled to a job reservation, the duration shall be the duration of the absence of the person being replaced.

    In the case of a worker's reduced working hours being supplemented by another worker, the duration of the contract shall be for the duration of the worker's reduced working hours.

    For the temporary coverage of a post during the selection or promotion process for its definitive coverage by means of a permanent contract, a maximum duration of 3 months is set (or a shorter period set out in the collective agreement). Once the maximum duration has been exceeded, a new contract for the same purpose may not be concluded.
  • Expiration of the agreed time and compensation: Upon termination of the contract, the employee is NOT entitled to receive compensation, according to Article 49.1 (c) ET.

As for the chaining of temporary contractsThe new regulation reduces the period for acquiring the status of permanent worker to 18 months in a period of 24 months (prior to the 2022 reform, the limit was 24 months in a period of 30 months).

NEW TRAINING CONTRACTS

Two new types of training contracts are established, effective as of 30/03/2022:

  1. dual training contract or alternating work-training contract.
  1. contract for professional practice.

Dual training contract or work-training alternation contract

Regulated in Article 11.2 of the Workers' Statute. This would be, for example, the case of contracts with dual vocational training students. 

  • Cause: To make paid work activity compatible with the corresponding training processes in the field of vocational training, university studies or the Catalogue of training specialities of the National Employment System.
  • Duration: The duration of the contract shall be the duration foreseen in the corresponding training plan or programme, with a minimum of three months and a maximum of two years. 

    It may be extended by agreement between the parties until the diploma, certificate, accreditation or qualification has been obtained, without ever exceeding the maximum duration of two years (in the event that the contract has been concluded for less than the maximum legal duration established and the diploma, certificate, accreditation or qualification associated with the training contract has not been obtained).
  • Requirements of the worker: It may be concluded with persons who lack the professional qualification recognised by the qualifications or certificates required to enter into a training contract for professional practice, regulated in article 11.3 ET. 

    Without prejudice to the above, contracts linked to vocational training (VET) or university studies may be concluded with persons holding another qualification provided that they have not had another previous training contract in a training course at the same training level and in the same productive sector.
  • Probationary period: A probationary period may be established, which may in no case exceed one month, except as provided for in the collective agreement.
  • Work activity carried out by the worker: It must be directly related to the training activities that justify the employment contract, with the person hired having a tutor appointed by the training centre or entity and another tutor appointed by the company.

    The effective working time, which must be compatible with the time devoted to training activities in the training centre, may not exceed 65% during the first year or 85% during the second year of the maximum working day provided for in the collective agreement applicable in the company or, failing that, of the maximum legal working day.
  • Remuneration: Remuneration shall be that established for these contracts in the applicable collective bargaining agreement. In the absence of an agreement, the remuneration may not be less than sixty per cent in the first year or seventy-five per cent in the second year, with respect to the remuneration established in the agreement for the professional group and remuneration level corresponding to the functions performed, in proportion to the effective working time. In no case may the remuneration be less than the minimum interprofessional wage in proportion to the effective working time.
  • Other specifications: Persons hired under alternating training contracts may not work additional hours or overtime, except in the case provided for in Article 35.3 of the ET. They may not perform night work or shift work either. Exceptionally, work activities may be carried out in the aforementioned periods when the training activities for the acquisition of the learning foreseen in the training plan cannot be carried out in other periods, due to the nature of the activity.

Training contract for professional practice appropriate to the corresponding level of studies.

Regulated in Article 11.3 of the Workers' Statute. 

  • Cause: Obtaining professional practice appropriate to the corresponding level of studies.
  • Duration: The duration of this contract may not be less than six months and may not exceed one year.

Within these limits, the duration may be determined by national or regional sectoral collective agreements or, failing this, by sectoral collective agreements of a lower scope, taking into account the characteristics of the sector and of the professional practices to be carried out.

  • Requirements of the worker: Holding a university degree or an intermediate or higher degree, specialist, professional master's degree or certificate from the vocational training system (Organic Law 5/2002, of 19 June), as well as those who hold an equivalent degree in artistic or sports education from the education system, which enables or qualifies them for the exercise of the work activity.
  • Probationary period: A probationary period may be established, which may in no case exceed one month, except as provided for in the collective agreement.
  • Work activity carried out by the worker: The work placement must allow for the professional practice appropriate to the level of studies or training that is the object of the contract. The company shall draw up the individual training plan specifying the content of the work placement, and shall assign a tutor with the appropriate training or experience to monitor the plan and the proper fulfilment of the purpose of the contract.
  • Remuneration: It shall be that established in the collective bargaining agreement applicable in the company for these contracts or, failing that, that of the professional group and pay level corresponding to the functions performed. In no case may the remuneration be less than the minimum remuneration established for the contract for work-linked training or the minimum interprofessional wage in proportion to the effective working time.
  • Other specifications: Persons hired under a training contract for the purpose of obtaining professional practice may not work overtime, except in the case provided for in Article 35.3 of the Workers' Statute ("Excess hours worked to prevent or repair accidents and other extraordinary and urgent damage, without prejudice to their compensation as overtime, shall not be taken into account for the purposes of the maximum duration of the ordinary working day, nor for the calculation of the maximum number of authorised overtime hours".).

PERMANENT-DISCONTINUOUS CONTRACTS ARE ENCOURAGED

The fixed-discontinuous indefinite-term contract shall be entered into for the performance of seasonal work or work linked to seasonal productive activities, or for the performance of work that is not seasonal but which, being intermittent in nature, has certain, determined or indeterminate periods of performance (amendment of Art. 16 of the ET).

COLLECTIVE BARGAINING. PREVALENCE OF THE SECTOR AGREEMENT AND RETURN OF ULTRA-ACTIVITY.

- The sectoral agreements will set the minimum wages. → Art. 84.2 ET is amended.

- The conditions laid down in a collective agreement remain in force even after its term has expired. → Art. 86 ET is amended.

THE NEW LABOUR REFORM CUTS 2022

ERTE ETOP (new wording of Art. 47 ET):

The company may temporarily reduce the working hours of workers or temporarily suspend employment contracts for temporary economic, technical, organisational or production reasons, in accordance with the provisions of this article and the procedure to be determined by regulation.

LEAVE FOR FORCE MAJEURE (impediment and limitation) (new wording of Art. 47 of the ET):

The application by companies of a reduction in working hours or suspension of contracts due to temporary force majeure is developed, following a procedure processed in accordance with the provisions of the new art. 47.5 of the ET, in article 51.7 and in its implementing regulations.

Temporary force majeure due to impediments or limitations in the normal activity of the company as a result of decisions adopted by the competent public authority, including those aimed at the protection of public health, is added as a permanent case of ERTE due to force majeure.

TOUGHER PENALTIES FOR TEMPORARY EMPLOYMENT

Article 5 of Royal Decree-Law 32/2021, of 28 December, amends the Law on Offences and Penalties in the Social Order, with the aim of adapting the sanctioning regulation to the new provisions on temporary contracts, both in terms of the rules on contracting (with the essential individualisation of the offence and the increase in the amount of the penalty), and in terms of internal flexibility measures, their limitations and prohibitions.

The new serious infringements associated with breaches of regulations on temporary employment (Articles 7.2, 7.14, 18.2.c), 19.2.b), 19.2.e), 19 bis.1.b), 19 ter.2.b) and 19 ter.2..e) of the LISOS] shall be punishable by the following fine: at the minimum level, from 1,000 to 2,000 euros; at the medium level, from 2,001 to 5,000 euros; and at the maximum level, from 5,001 to 10,000 euros.

Share

Other Articles
Contact

Do you need legal advice and representation? At Ódice Abogados, a law firm in Malaga, we offer different means of communication so that you can contact us.