The coalition government has committed in Brussels to reduce the excessive temporary employment in Spain. Are European champions in temporary work, much of it, abusive. The Ministry of Labor, on which this reform depends, is negotiating the legal modifications with employers’ associations and unions, to which it has already presented several concrete proposals to try to eliminate the unjustified temporality, according to the draft that La Vanguardia has advanced and to which elDiario.es has had access. Among them, they highlight that eliminating the possibility of signing temporary contracts due to work peaks “linked to the normal and permanent activity of the company” and establishing as null dismissals all those terminations of temporary contracts that are abusive.
What if in Spain it was normal to have a permanent contract?
The proposals of the Ministry of Labor for the moment are just that, proposals at a negotiating table. Therefore, they can change through open bargaining with unions and employers.
The reform to limit temporality is part of the social dialogue table for the “modernization of labor relations”, which also addresses the dismantling of various elements of the PP labor reform. All these changes must be ready before December 31, as Vice President Yolanda Díaz has recalled on several occasions, since it is the period of time committed to the European Commission within the Recovery and Resilience Plan.
Yolanda Díaz has reiterated this Tuesday that the Executive’s intention is to address “a substantial reform of the temporary contract” and has warned of the “abusive use” at present of modalities such as the work and service contract and the temporary contract due to production circumstances . This was indicated a few days ago by the Secretary of State for Employment, Joaquín Pérez Rey, given the increase in permanent contracts in recent months. These are largely due to the ex officio conversion of abusive contracts by the Labor Inspectorate.
“We are going to be Europeans,” said Díaz, who has reiterated the desire that the normal thing in Spain is the indefinite contract and that it only goes “to the temporary modality when there is a cause that justifies it.”
Next, five relevant measures are highlighted within the legal reform proposed by Labor to limit temporality.
1. Without productive temporality in “normal activity”
As of today, the Workers’ Statute recognizes the possibility of signing temporary contracts “when market circumstances, accumulation of tasks or excess orders so require, even in the normal activity of the company.” The Government intends to prevent this circumstance. The draft sent to the social agents establishes that the employment contract is presumed as indefinite, although temporary contracts may be entered into for productive and organizational reasons.
Within the productive, a temporary contract may be signed in the face of “the occasional and unpredictable increase in business activity that cannot be attended by the usual staff of the company.” But, and here is what is relevant, Work proposes that “in no case” this contract “may be used to attend to jobs related to the normal and permanent activity of the company.”
In this section, there are sectors that today have a high continuous temporality, for example construction, and that have a large number of temporary personnel who link to the works and projects that the construction company in question is accepting.
2. End of the temporality linked to the contracts
Another initiative, already announced, consists of eliminating temporary contracts that are linked to “the performance of works or tasks within the framework of contracts, subcontracts or administrative concessions.” This provision is intended to comply the Supreme Court ruling that overturned the work and service contracts linked to subcontracting of services, very extended to date.
3. The “campaigns” and seasonal work, but with stability
Another idea advanced by the Minister of Labor is that jobs considered seasonal or the result of regular campaigns do not justify a temporary contract either. Currently, the seasonality is widely used, for example, for Christmas sales campaigns in commerce, to cover certain stations that cause more work in sectors such as the hospitality and agricultural campaigns in the field, for example.
“The performance of work of a seasonal nature or linked to campaigns” will not justify a temporary contract for productive reasons, but “must be hired through the indefinite modalities specifically provided for that purpose.” It is the discontinuous fixed contracting modality, very common in tourism, as a very seasonal sector. With this hiring formula, the same worker is used when the seasonal activity is resumed. for example, when a hotel is 100% open in the summer season.
4. Void dismissal due to abuse of temporary employment
A very prominent measure lies in establishing as null dismissal those linked to unjustified or abusive temporary employment, such as has advanced the information, even if that person left the company for a disciplinary dismissal. The measure is very relevant given that when the courts decide that a dismissal is void, they force the company to reinstate that person to their position.
The draft specifically proposes that it be declared as such that of “the workers who have signed a contract of fixed duration, with respect to those contracts concluded outside of the justifying reasons provided for in the legal provisions, and, specifically, of the aforementioned in section 3 of article 15 of this rule, whatever the alleged cause for termination “.
That section 3 of article 15 is also an inclusion proposed by the Ministry of Labor. It claims that “temporary workers who have not been registered with Social Security” automatically acquire the status of permanent workers. “Workers will also be considered permanent when their contract has not been made in writing or when the enabling causes of temporary hiring and the specific circumstances that justify its completion, as well as their connection with the expected duration, have not been specified in the contract. “, adds the section.
5. More limits on the duration of substitutions
The Ministry has proposed to the social agents several more strict time limits in the temporary contracts allowed.
Contracts for organizational reasons are those for “the replacement of a person with the right to reserve a job, provided that the name of the person replaced and the cause of the replacement are specified in the employment contract.” In these, it is proposed that the contract will be extended until the person replaced is incorporated, but with a time limit: two years. When 24 months have elapsed without the reinstatement of this person, the person who replaces him / her “will acquire permanent status”. Of course, after those two years, if the person holding the position returns, the worker who replaces him / her may be fired for objective reasons.