How discontinuous fixed contracts work and why they are not a "name change" of temporary ones

You may have discovered in the last few days that there were so-called "fixed discontinuous" contracts. As happened with the ERTE, they have gone from being great unknowns to the media spotlight. In this case, due to the labor reform, which has promoted indefinite hiring and highlights the great boom in these contracts, which are seasonal or intermittent. The right wing has put the spotlight on them, calling them "make-up", a mere "change of name" and covert temporary employment, but they are indefinite contracts (as they were during his term), with the increase in labor rights that this entails. For example, regarding severance pay, among others.

To understand what the discontinuous fixed contract consists of, we will analyze a specific case, that of Carmen (fictitious name), a dining room assistant in a hotel in the Balearic Islands. "The biggest difference for me is that I am guaranteed to return to the same job next year," the employee explains to elDiario.es.

In the last two seasons, Carmen has been working in the same hotel on the islands "with temporary contracts that were renewed every two or three months, it depends," explains the employee. Since the beginning of April, her contract and those of her colleagues went to discontinuous fixed due to the labor reform, as a UGT representative explained to them. These are the permanent contracts that have increased the most with the new legislative framework. If we look at Social Security affiliation, they have doubled since December, to a total of 640,111 discontinuous permanent employees in April.

With this new modality, Carmen is not pending to renew contracts during the remainder of the season (in the Balearic Islands it goes from February to November), but the contract is indefinite. Of course, in November, when she ends the tourist season and closes the hotel, "there is no work." So the idea is that she suspends her contract and when she reopens the hotel in February, she becomes active again. It is what is known as the "call" of discontinuous fixed contracts, in which seniority prevails. "That is the most important thing because it guarantees that they will call me. This year as an eventual, for example, they took people before me who had less than me in the hotel," says the worker.

To summarize: in discontinuous permanent jobs, when there is activity the worker is employed on a stable basis and, when the job ends, the contract is suspended but the relationship with the company is maintained, which has to call the worker again with the return of the activity. During the periods of inactivity, the discontinuous permanent workers can work in other places or, if they do not find a job for that time, collect unemployment if they have generated the right to it.

The PP called this Wednesday in Congress "new temporary contracts" and a mere "change of name" to the discontinuous fixed ones due to the labor reform. These seasonal or intermittent contracts are being signed by many workers who were previously temporary, like Carmen, but the new relationship they now sign with their companies is indefinite and this is reflected in an expansion of labor rights.

The Vice President and Minister of Labor, Yolanda Díaz, recalled this Wednesday that the discontinuous fixed ones have "full rights" like the rest of indefinite contracts, such as "accruing seniority", a very relevant issue in the face of the collection of supplements salaries, such as three-year periods.

"In the event of being fired, [el fijo discontinuo] it is the same as an ordinary contract," Vice President Díaz also explained in the Cortes. While with temporary contracts, the hotel where Carmen works could call her or not in the following tourist season, now she must do so because her contract is indefinite. If not If you do, you would be facing a dismissal, which entails a higher compensation: 20 days of salary per year worked if it is appropriate or 33 if it is inappropriate instead of the one generated by the termination of a temporary contract (12 days per year).

Stability in the job, that an employee returns every tourist season or every agricultural campaign (for example) to his position in the same company, also encourages the latter to invest in their training and professional progression, for example.

Long-term contracts also avoid some evils of temporary work, such as excessive turnover and little knowledge of the companies that the unions point out as a weak point in the face of work accidents. They also prevent a greater precariousness in the conditions of workers, since labor relations are maintained over time, they do not start from scratch every time a new temporary contract is signed, which in many cases works as a brake on salary improvements. .

The labor reform of the coalition government has changed employment contracts, restricting the possibilities of signing temporary. As a counterpart, one of the modalities that it has encouraged is the fixed discontinuous one. The Executive intends to classify under the discontinuous permanent workers temporary workers until now but who held stable positions even if they were not continued throughout the year.

It is specified in those of seasonal or seasonal activities, or that without having that purely seasonal character are "intermittent provision, have certain, determined or indeterminate periods of execution", collects the law. Defining what meets this definition of "intermittent" benefit may be the biggest challenge of the new regulation.

A hypothetical case, which generates differences in criteria: a bar that needs staff reinforcements just for the weekend. While some voices, such as law firms that advise companies, indicate that these positions could be filled with permanent discontinuous, other specialists in labor law consider that it is adjusted to an indefinite part-time contract, in which they would only work from Friday to Sunday. .

"The 'deseasonalization' of the fixed-discontinuous contract opens up a delicate problem of demarcation with the part-time work contract," considers Ana Belén Muñoz, professor of Labor Law at the Carlos III University of Madrid, who in this case would lean more for a permanent part-time contract.

"There is a very fragile 'balance' between the contract modalities and, until the doctrine is established, it is very likely that there will be application doubts", maintains Ignasi Beltrán, professor of Labor Law at the UOC, who believes that the use of a discontinuous fixed contract could be justified in this practical example. "The law is full of indeterminate legal concepts, some of them overlap and this makes it difficult to identify the limits of each modality," adds Beltrán, who in his blog he also addresses the doubts generated by the signing of these contracts in the case of contracts and ETTs, which makes labor reform possible.

There are more debates that may be cleared up in court. The new legal text incorporated that "discontinuous permanent workers have the right to have their seniority calculated taking into account the entire duration of the employment relationship and not the time of services actually provided, with the exception of those conditions that require another treatment in attention to its nature and as long as it meets criteria of objectivity, proportionality and transparency".

The paragraph raises doubts about whether the entire length of the contract should now be taken into account in the face of severance pay, in which the Supreme Court has limited itself to the effective provision of services. "I find it difficult to do so. The Supreme Court on other occasions (such as contract suspensions and leaves of absence) has said that seniority works only for salary supplements, not for compensation," replies Adrián Todolí, professor of Labor Law at the University of Valencia.

The second vice president has announced that the Labor Inspectorate will launch a campaign next week to detect possible fraud in the use of discontinuous landlines, as it did with the ERTE. Both were quite unknown formulas with which there may also be some confusion about how they work. "You have to do pedagogy at the start," argued Yolanda Díaz. In addition, the rule leaves a lot of room for collective bargaining between companies and workers, so that they can define elements such as the appeal processes and the creation of employment exchanges for periods of inactivity.

In the coming months of deployment of the standard, it will be verified how this and other regulation contracts work, which has managed to reduce the start time as it had not happened in the last four decades. In order to properly measure the impact of the reform, and not to ignore the periods without work (inactive) of the discontinuous permanent workers, the statistician specialized in the labor market Raúl Segarra recommends that labor statistics include data on "job seekers excluded from unemployment registered by be fixed discontinuous", as was done with the ERTE. "Another thing would be a lack of transparency," he says.

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