In the BOE of December 30, 2021, the expected publication of the agreement reached on December 23 between the Government, the CCOO and UGT union organizations and the CEOE and CEPYME business organizations was proceeded to structurally reform the Spanish labor market, in order to to combat temporary and precarious work, which gives content to Royal Decree-Law 32/2021, of December 28, on urgent measures for labor reform, the guarantee of employment stability and the transformation of the labor market (hereinafter RDL).
Despite the fact that it was ratified, as everyone knows, due to an error by a PP parliamentarian, his iudice is found for possible computer crime, however the chances that there will be a revocation of the RDL are very remote. Therefore, we are going to analyze the different aspects of it.
The reform contained in this RDL aims to correct and reduce the temporary rate, as well as the recovery of labor rights and their guarantee, together with the promotion of internal flexibility measures such as alternating terminations, seeking the transformation of the Spanish labor market, these changes, endorsed by social dialogue, having been agreed after a long negotiating process.
The text also complies with both the government agreement and the commitments made with the European Union, embodied in the Recovery, Transformation and Resilience Plan, which was formally approved by the European institutions (through the ECOFIN Council) on 13 July 2021, after being adopted by the Council of Ministers on April 27, specifically in its Component 23 “New public policies for a dynamic, resilient and inclusive labor market”; and continues with the structural reforms committed to, and already initiated through Royal Decree-Law 28/2020, of September 22, on remote work, Royal Decree-Law 29/2020, of September 29, on urgent measures in teleworking in Public Administrations and human resources in the National Health System to deal with the health crisis caused by COVID-19, Royal Decree 902/2020, of October 13, on equal pay between women and men , Royal Decree 901/2020, of October 13, which regulates equality plans and their registration and modifies Royal Decree 713/2010, of May 28, on registration and deposit of agreements and collective agreements of and Royal Decree-Law 9/2021, of May 11, which modifies the revised text of the Workers’ Statute Law, approved by Royal Legislative Decree 2/2015, of October 23, to guarantee the labor rights of people dedicated to repa rto in the field of digital platforms.
The RDL introduces measures into Spanish legislation to make effective four of the reforms identified in the aforementioned Component 23, relating to
-the simplification of contracts
-the modernization of collective bargaining
-the modernization of contracting and
-Subcontracting of business activities
-and the establishment of a permanent mechanism of flexibility and stabilization of employment
A staggered entry into force of the regulation was established, so that the RDL entered into force on December 31, with the exception of certain precepts, for which a vacatio legis of three months is foreseen, to make it possible, together with the material knowledge of the norm, the adoption of essential management measures for its application, in addition to constituting a basic requirement of the principle of legal certainty.
Among the measures adopted, we highlight the following:
MODIFICATION OF THE WORKERS’ STATUTE
1) The training contract now has two modalities: alternating training and obtaining professional practice (new wording of art. 11 ET by art. first. One RDL)
1.1. alternating training
Its purpose will be to reconcile paid work activity with the corresponding training processes in the field of vocational training, university studies or the Catalog of training specialties of the National Employment System.
It can be celebrated with:
People of any age who lack the professional qualification recognized by the qualifications or professional certificates required to conclude a training contract to obtain professional practice.
People of any age who have another degree, provided that they have not had another previous training contract in training at the same training level and in the same productive sector. In this case, contracts linked to professional or university training studies may be made.
In addition, this contract may be concluded on a part-time basis. It must be taken into account that the new wording of article 12.2 of the ET (by the first art. Two RDL), with entry into force on December 31, eliminates the existing prohibition of part-time hiring in the contract for training and The learning.
The activity carried out by the worker in the company must be directly related to the training activities that justify the employment contract.
The contracted person will have a tutor designated by the training center or entity and another designated by the company.
Only one alternating training contract may be entered into for each vocational training training cycle and university degree, certificate of professionalism or itinerary of training specialties from the Catalog of Training Specialties of the National Employment System.
Alternate training contracts may not be entered into when the activity or job corresponding to the contract has been performed previously by the worker in the same company under any modality for more than 6 months.
It will cover a minimum of 3 months and a maximum of 2 years, and may be developed under a single contract on a non-continuous basis, throughout various annual periods coinciding with the studies, if provided for in the training plan or programme.
It may not exceed 65% during the first year, or 85% during the second.
It is not possible to perform additional hours or overtime, except in the case provided for in article 35.3 of the ET.
It is not possible to carry out night work or shift work, except 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.
A trial period cannot be established.
It may not be less than 60% the first year or 75% the second. In no case may the remuneration be less than the minimum interprofessional salary (SMI) in proportion to the effective working time.
1.2. Obtaining professional practice
It can be celebrated with:
Persons who were in possession of a university degree or a medium or higher degree, specialist, professional master’s degree or certificate of the professional training system, in accordance with the provisions of Organic Law 5/2002, of June 19, of Qualifications and Vocational Training, as well as with those who have an equivalent title of artistic or sports teachings of the educational system, which enable or qualify for the exercise of the labor activity.
It must be arranged within 3 years, or 5 years if it is arranged with a person with a disability, following the completion of the corresponding studies.
You will not be able to subscribe with someone who has already obtained professional experience or carried out a training activity in the same activity within the company for more than 3 months.
The job must allow obtaining the professional practice appropriate to the level of studies or training that is the object of the contract.
The company will draw up the individual training plan specifying the content of the professional practice.
A tutor will be assigned who has the appropriate training or experience to monitor the plan and correctly fulfill the object of the contract.
It may not be less than 6 months nor exceed 1 year.
Overtime is not allowed, except in the case provided for in article 35.3.
A trial period may be established that in no case may exceed 1 month, except as provided in the collective agreement.
It will be that established in the collective agreement applicable in the company for these contracts, or, failing that, that of the professional group and remuneration level corresponding to the functions performed.
In no case may it be less than the minimum remuneration established for the contract for alternating training, nor the SMI in proportion to the effective working time.
1.3.Common rules of the training contract
The protective action of the Social Security will include the protectable contingencies and benefits including unemployment and coverage of the Salary Guarantee Fund.
Situations of temporary incapacity, birth, adoption, guardianship for the purpose of adoption, foster care, risk during pregnancy, risk during lactation and gender violence will interrupt the calculation of the duration of the contract.
The contract must be formalized in writing and must necessarily include the text of the individual training plan specifying the content of the internships or training and the tutoring activities for the fulfillment of its objectives.
The age limits and the maximum duration of the training contract will not apply when it is concluded with people with disabilities or with groups in a situation of social exclusion.
Companies that are applying some of the internal flexibility measures regulated in articles 47 and 47 bis may enter into training contracts provided that the people hired under this modality do not replace functions or tasks usually performed by the people affected by the suspension or reduction measures. of day.
If at the end of the contract the person continues in the company, a new trial period cannot be arranged, calculating the duration of the training contract for the purposes of seniority in the company.
Training contracts entered into in violation of the law or those in respect of which the company fails to comply with its training obligations shall be deemed to be concluded as ordinary indefinite contracts.
Companies that enter into training contracts with workers with disabilities will be entitled to a quota bonus charged to the budgets of the State Public Employment Service, during the term of the contract, of 50% of the Social Security company quota corresponding to common contingencies. , foreseen for these contracts (new wording of add. disp. 20th ET by art. 1. Eleven RDL).
A transitional regime (first RDL transitory provision) is established in relation to internship contracts and for training and learning based on the provisions of article 11 of the ET, according to the wording in force before March 30, 2022, of so that they will be applicable up to their maximum duration, in the terms set forth in the aforementioned precept.
2) The work contract disappears and the fixed-term contract is born due to production circumstances or by replacement of the worker (new wording of art. 15 ET by art. first. Three RDL)
It enters into force three months after the publication of the RDL in the BOE, that is, on March 30, 2022 (eighth final provision. 2 b).
With the new wording given to article 15 of the ET, the contracts are presumed concluded for an indefinite period of time, and the fixed-term contract may be concluded only due to production circumstances or by substitution of the worker. Therefore, the contracting modalities available are reduced.
La celebración de un contrato de duración determinada pasa por especificar con precisión la causa habilitante de la contratación temporal, las circunstancias concretas que la justifican y su conexión con la duración prevista.
It may not be longer than 6 months, and may be extended up to 1 year by sectoral collective agreement. In the event that the contract has been entered into for a duration shorter than the maximum legal or conventionally established, it may be extended, by agreement of the parties, for a single time, without the total duration of the contract exceeding said maximum duration.
Companies may also formalize contracts due to production circumstances to deal with occasional, foreseeable situations of reduced and delimited duration. They may be used for a maximum of 90 days in the calendar year, never continuously, during which contracting will be allowed for these situations, duly identified in the contract. During this time, companies will be able to carry out temporary contracts with causes that, although foreseeable, have a reduced and limited duration within the fixed contract.
The performance of work within the framework of contracts, subcontracts or administrative concessions that constitute the usual or ordinary activity of the company may not be identified as the cause of this contract, without prejudice to its execution when the circumstances of the production in the previous terms concur. .
Workers who in a period of 24 months have been contracted for a period of more than 18 months, with or without interruption, for the same or a different job with the same company or group of companies, through two or more contracts Due to production circumstances, either directly or through their provision by temporary employment agencies (ETT), they will acquire the status of permanent workers. This provision will also be applicable when cases of business succession or subrogation occur in accordance with legal or conventional provisions.
Likewise, the person who occupies a job that has been occupied, with or without continuity solution, for more than 18 months in a period of 24 months through contracts due to production circumstances, including contracts of provision made with ETT.
However, a transitory regime is established on limits to the chaining of contracts (provision trans. fifth RDL). Thus, the provisions of the wording given by the RDL to article 15.5 of the ET will apply to employment contracts signed as of its entry into force (remember, March 30, 2022). With regard to previously signed contracts, for the purposes of calculating the number of contracts, the period and the term provided for in the aforementioned article 15.5, only the contract in force at the entry into force of the RDL will be taken into consideration.
3) A new regulation of the discontinuous fixed contract is established (new wording of art. 16 ET by art. first. Four RDL)
The distinction in the legal regime between periodic fixed contracts and discontinuous fixed contracts disappears, responding in fact to what already exists for social protection purposes, as there is an identity in the objective scope of coverage and thereby avoiding unjustified differences in treatment.
Also disappears, on March 30, 2022, the presumption contemplated in article 12.3 of the ET that “the part-time contract will be understood to be held for an indefinite period of time when it is agreed to perform permanent and periodic work within the normal volume of activity of the company. company» (eighth final disposition. 2 f).
The fixed-discontinuous indefinite-term contract will be concluded for works of a seasonal nature or seasonal productive activities, as well as those that do not have such a nature but that, being intermittent, have certain, determined or indeterminate execution periods.
It may also be held:
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 ordinary activity of the company.
Between an ETT and a person hired to be transferred, in the terms provided in article 10.3 of Law 14/1994, of June 1, which regulates temporary employment agencies (see comparative table).
It must necessarily be formalized in writing.
It must reflect the essential elements of the work activity, among others, the duration of the activity period, the working day and its hourly distribution, although the latter may appear on an estimated basis.
It must be done in writing or by any other means that allows a record of the due notification to the interested person with the precise indications of the conditions of their incorporation and with adequate advance notice.
The company must transfer to the legal representation of the workers, well in advance, at the beginning of each calendar year, a calendar with the forecasts for the annual call, or, where appropriate, every six months, as well as the data of the effective registrations of discontinuous fixed people once they occur.
Permanent-discontinuous persons may exercise the appropriate actions in case of non-compliance related to the call, starting the term for it from the moment of the lack of this or from the moment they became aware of it.
Other issues to consider:
When fixed-discontinuous contracting is justified by the conclusion of contracts, subcontracts or due to administrative concessions, periods of inactivity may only occur as waiting periods for relocation between subcontracts.
In these cases, the sectoral collective agreements may determine a maximum period of inactivity between subcontractors, which, in the absence of conventional provision, will be 3 months. Once this period has expired, the company will adopt the temporary or definitive measures that proceed, in the terms provided in this rule.
4) In terms of contracts and subcontracts, the sector agreement will always be applied (new wording of art. 42 ET by art. first. Five RDL)
In terms of contracts and subcontracts, a sector agreement will always be applied (new wording of art. 42 ET by art. first. Five RDL)
The applicable collective agreement for contractor and subcontractor companies will be that of the sector of the activity carried out in the contract or subcontract, regardless of its corporate purpose or legal form, unless there is another applicable sectoral agreement.
The company agreement may only be applied by the contractor or subcontractor if it determines better salary conditions than the applicable sectoral one.
This measure will not be applicable in the cases of contracts and subcontracts signed with the special employment centers regulated in the consolidated text of the General Law on the rights of people with disabilities and their social inclusion, approved by Royal Legislative Decree 1/2013 , of November 29 (new provision added twenty-seventh added to the ET by art. first. Fifteen RDL).
5) New mechanisms are put in place to promote internal flexibility in companies. The existing ERTE model is reviewed and the RED Mechanism is created (new wording of art. 47 and addition of art. 47 bis ET by first art. Six and Seven RDL)
New mechanisms are put in place to promote internal flexibility in companies. The existing ERTE model is reviewed and the RED Mechanism is created (new wording of art. 47 and addition of art. 47 bis ET by first art. Six and Seven RDL)
Measures are incorporated to facilitate the use of temporary employment regulation files (ERTE), as an alternative and priority formula to terminations -art. 47 ET–, and a new flexibility and employment stabilization mechanism –art. 47 bis, which is incorporated into ET– to meet exceptional needs of a macroeconomic or sectoral nature that justify the adoption of temporary adjustment and protection measures, as well as public investments, prior declaration of such circumstance by agreement of the Council of Ministers.
Likewise, the temporary reduction of working hours or the suspension of contracts is developed, due to temporary force majeure due to impediments or limitations in the normalized activity, as a result of decisions adopted by the competent authority, incorporating as an available mechanism, with a permanent character , the ERTE regime due to COVID-19, which have proven effective in preserving employment and the business fabric in the face of contingencies and crisis scenarios.
5.1. ERTE for economic, technical, organizational or production reasons (ETOP causes)
It includes the temporary reduction of the working day or the temporary suspension of employment contracts, for ETOP reasons.
The changes introduced seek greater ease in processing and flexibility in its application, especially for SMEs. Thus, the consultation period is reduced to 7 days for companies with less than 50 workers, after the constitution of the representative commission.
The new regulation reduces the maximum term for the constitution of said representative commission, which goes from 7 to 5 days from the date of the business communication opening the consultation period, unless one of the work centers that is going to be affected by the procedure does not have legal representation of the workers, in which case the term will be 10 days instead of the 15 that were available to date.
The information to the representation of the workers during the application of the ERTE is reinforced, in this way, at any time during the validity of the measure of reduction of working hours or suspension of contracts based on ETOP causes, the company may notify the representation of the workers with whom the consultation period had developed a proposal to extend the measure. The need for this extension must be dealt with in a consultation period of a maximum duration of 5 days, and the business decision will be communicated to the labor authority within a period of 7 days, taking effect from the day following the end of the initial period of extension. reduction of working hours or suspension of the employment relationship.
5.2. ERTE due to force majeure (impediment and limitation)
To the classic force majeure is added, as a specific cause, the impediment or limitations to the normalized activity of the company that are a consequence of decisions adopted by the competent public authority, including those aimed at protecting public health.
Companies may, therefore, apply the reduction of working hours or the suspension of contracts due to temporary force majeure, following a procedure that will be initiated by means of a request addressed to the competent labor authority, with simultaneous communication to the legal representation of the workers.
The existence of this temporary force majeure must be verified by the labor authority, whatever the number of workers affected. The labor authority will request a mandatory report from the Labor and Social Security Inspection (ITSS) before issuing a resolution. This report must rule on the occurrence of force majeure.
The resolution of the labor authority will be issued, after the necessary actions and reports, within 5 calendar days from the request (positive silence), and must be limited, where appropriate, to verifying the existence of force majeure alleged by the company, corresponding to this decision on the reduction of working hours or suspension of employment contracts. The resolution will take effect from the date of the event causing the force majeure, and until the date determined in the resolution itself.
In the event that the temporary force majeure is determined by impediments or limitations in the normalized activity of the company that are a consequence of decisions adopted by the competent public authority, the procedure provided for the files due to temporary force majeure referred to will apply. , with the following characteristics:
The request for a report by the labor authority to the ITSS will not be mandatory.
The company must justify, in the documentation sent together with the application, the existence of the specific limitations or the impediment to its activity as a result of the government decision.
The labor authority will authorize the file if the aforementioned limitations or impediment are understood to be justified.
However, the processing and effects of ERTEs due to impediments or limitations to normalized activity linked to COVID-19, regulated in article 2 of Royal Decree-Law 18/2021, of September 28, on urgent measures for the employment protection, economic recovery and improvement of the labor market, will continue to be governed by the provisions of said precept until February 28, 2022 (provision. add. third RDL).
5.3. Rules common to ERTE due to ETOP and due to temporary force majeure
The following stand out:
The reduction in working hours may be between 10 and 70% and be computed on the basis of daily, weekly, monthly or annual working hours. To the extent that this is feasible, the adoption of measures to reduce working hours will be prioritized over those to suspend contracts.
During the period of application of the file, the company may disaffect and affect the workers based on the changes in the circumstances indicated as justification for the measures, after informing the legal representation of the workers and prior communication to the entity that manages social benefits and in accordance with the terms established by regulation to the General Treasury of Social Security.
Within the period of application of the file, overtime may not be performed.
The possibility is established for companies to obtain bonuses in social contributions and financing if they carry out training activities for ERTE workers, as well as exemptions in Social Security contributions. In the case of ERTEs due to ETOP causes, they will be 20%, conditional on carrying out training actions, and in the case of force majeure, 90%. They will be linked to maintaining the employment of the current ERTE due to COVID and companies will see an increase in the credit available for training.
6) The salary prevalence of the company agreement is repealed (new wording of art. 84.2 ET by art. first. Nine RDL)
The wage prevalence of the company agreement is repealed (new wording of art. 84.2 ET by art. first. Nine RDL)
With the new wording given to article 84.2 of the ET (concurrence of agreements), the application priority of the company agreement with respect to the state, regional or lower level sector, when regulating the amount of the base salary and supplements salaries. In this way, the aim is to avoid downward agreements that break the wage floor of sectoral agreements and, therefore, the wage devaluation made possible by the model in force until now.
This modification (which may not have as a consequence the compensation, absorption or disappearance of any more beneficial rights or conditions that workers have been enjoying) will be applicable to those collective agreements signed and submitted to registration or published prior to its entry into force. once they lose their express validity and, at most, within a period of 1 year from the entry into force of this RDL.
In any case, the conventional texts must adapt to the modifications made to article 84 of the ET by this regulation within a period of 6 months from the time they become applicable to the specific conventional scope (transitory provision sixth RDL).
7) The indefinite ultraactivity is recovered (new wording of art. 86 ET by art. first. Ten RDL), that is, the agreements will continue to apply until another one is negotiated in its place.
Indefinite ultraactivity is recovered (new wording of art. 86 ET by art. first. Ten RDL)
The new norm recovers indefinite ultra-activity, that is, the conditions established in a collective agreement will remain in force even after its express validity ends.
In this way, article 86 of the ET is modified, establishing that after 1 year from the denunciation of the collective agreement without a new one having been agreed, the parties must submit to the mediation procedures regulated in the interprofessional agreements at the state or regional level. provided for in article 83, to effectively resolve existing discrepancies.
Likewise, whenever there is an express, prior or contemporary agreement, the parties will submit to the arbitration procedures regulated by said interprofessional agreements, in which case the arbitration award will have the same legal effectiveness as the collective agreements and will only be appealable in accordance with the procedure and based on the reasons established in article 91.
Without prejudice to the development and final solution of the aforementioned mediation and arbitration procedures, in the absence of an agreement, when the negotiation process has elapsed without reaching an agreement, the validity of the collective agreement will remain.
In the event that there are collective agreements denounced at the date of entry into force of the RDL in question, and as long as a new agreement is not adopted, they will remain in force under the terms established in article 86.3 of the ET in the wording given by the same (device trans. seventh RDL).
8) Commitment to reduce the rate of temporary employment (new twenty-fourth additional provision of the ET by article one. Twelve RDL)
With the inclusion in the ET of a new twenty-fourth additional provision, the Government undertakes to carry out an evaluation of the results obtained by the measures provided for in this RDL by analyzing the data of temporary and indefinite contracts in January 2025, proceeding to the official publication, for these purposes, of the general temporary employment rate and by sectors.
This evaluation must be repeated every 2 years.
In the event that the results of the previous evaluation show that no progress is being made in reducing the rate of temporary employment, either in general or in that of the different sectors, the Government will submit a proposal to the social dialogue table additional measures that allow the achievement of said objective, general or sectoral, for discussion and possible agreement with the social partners.