On February 3, 2022, the Spanish Congress of Deputies converted into law the Real Decreto-Ley 32/2021, de 28 de diciembre, de medidas urgentes para la reforma laboral, la garantía de la estabilidad en el empleo y la transformación del mercado de trabajo , which entailed the reform of the Spanish Workers' Statute and in general a severe limitation of fixed-term hiring.
The most significant changes are the following:
1.Fixed-term contracts: Among the most important measures of the new labor reform, the disappearance of the contract "por obra y servicio determinado", ie for the realization of a specific project or service, as well as the new regulation of art . 15 of the Spanish Workers' Statute, which states in the first paragraph that "the employment contract is presumed to be concluded for an indefinite period", specifying that fixed-term contracts can only be concluded in two cases, namely:
a) Due to manufacturing circumstances:
Maximum duration: 6 months. It can be extended to 1 year if so provided by the sectoral collective agreements.
If the contract is due to foreseeable occasional manufacturing circumstances (e.g. Christmas sales), the maximum duration will be 90 days
b) For replacement of workers.
The other reason why a company can enter into fixed-term contract is to replace workers on leave or to fill vacancies in the course of a selective procedure. In the latter case, the duration of the contract is three months.
In addition, fixed-term hiring is discouraged by increasing the social security contributions paid by companies, and in particular fixed-term contracts with a duration of less than 30 days are penalized.
For workers who, in a period of 24 months, have been hired by the same company or group of companies for more than 18 months with two or more contracts due to production circumstances, with or without interruption, and regardless of the job carried out, it is expected that their employment relationship will be converted from temporary to permanent (even if for a period they worked in the aforementioned company through a labor agency).
As regards the construction sector, the reform obliges companies to replace “por obras” contracts with contracts for an indefinite period, and once a construction site is completed, they will have to relocate employees or offer them training.
Finally, the sanctioning regime is tightened in the event of non-compliance with regard to fixed-term employment, it is assumed that there is an infringement for each employee concerned and specific sanctions are set for such non-compliance, ranging from a minimum of € 1,000 to a maximum of € 10,000 per worker.
2.Training contracts: the training contracts are redesigned, and both the alternation training contract (to make the work activity compatible with the training processes) and the contract intended to acquire a professional practice appropriate to the levels of study are envisaged (with a maximum duration of one year).
3.Fixed discontinuous contracts: this figure is enhanced compared to temporary contracts. It can be finalized both for carrying out seasonal works or related to seasonal activities, and for carrying out activities that do not have this nature but which, being intermittent, have certain execution periods, for a fixed or indefinite period.
4.Redundancy fund (ERTE) and social safety nets: connected with the recent COVID-19 regulation, the ERTE regulation (in particular force majeure) is changed and a Flexibility system is created which will be activated from time to time by the Council of Ministers to allow the reduction of working hours or the suspension of contracts, as well as the application of forms of financing and exemptions from social security contributions and training costs.
It is important to take into account that the contracts signed according to the abrogated methods (work and service, eventual, interim or training) remain in force until their maximum duration expires. In addition, there is a transitional period of 3 months (vacatio legis) from the publication of the law -30 December 2021- so that companies can adapt fixed-term contracts to the new modalities envisaged by the reform.
Eugenia Ravagnan Venezze e Inmaculada Garcia Alcantara
This article is written by a licensed lawyer in Spain and a Spanish employment consultant, members of our international network. The content of this article does not constitute legal advice, but has an informative function. For tailor made legal advice, contact the firm by e-mail to: firstname.lastname@example.org or by phone +39 06 916505710. © Dong & Partners International Law Firm, All rights reserved