On 30 March 2022 the new articles 11, 15 and 16 of the Workers’ Statute took effect: the contract for a specific job or service disappears and temporary work is allowed only for set reasons. What employers should review.
On 30 March 2022 the hiring provisions of Royal Decree-Law 32/2021 of 28 December on labour reform took effect. The decree-law was published in the Official State Gazette (BOE) on 30 December 2021 and most of it has applied since 31 December, but its eighth final provision postponed by three months articles 11, 15 and 16 of the Workers’ Statute, which govern training contracts, fixed-term contracts and the seasonal permanent contract (fijo discontinuo). Congress validated it in February.
What changes in hiring
An employment contract is presumed to be for an indefinite term, and a fixed-term contract may be used only for production circumstances or to replace a worker. The contract for a specific job or service no longer exists. A temporary contract must state the cause that justifies it, the specific circumstances and their link to the expected duration.
Production circumstances are occasional, unforeseeable increases in activity and fluctuations that create a temporary mismatch with stable employment. Such a contract cannot exceed six months, extendable to one year by sectoral collective agreement. For occasional, foreseeable situations of short and defined duration, a company may hire for a maximum of ninety days in the calendar year, not consecutively, and in the last quarter of each year it must give the workers’ legal representatives an annual forecast of its use of these contracts.
In replacement contracts, the contract must name the person replaced and the cause, and work may start up to fifteen days before the absence. To cover a post during a selection or promotion process, the limit is three months. Anyone who strings together production-circumstance contracts for more than eighteen months within a twenty-four-month period, in the same company or group, becomes a permanent employee. Training contracts also change: the work-study contract runs from three months to two years, and the professional-practice contract from six months to one year.
Seasonal permanent contracts and earlier contracts
The seasonal permanent contract (fijo discontinuo), which absorbs the former periodic permanent contract, becomes the route for seasonal work and also for certain foreseeable contracts and services that form part of a company’s ordinary activity; temporary work agencies can use it to place staff with client companies. It must be in writing, and the call to work must be made in writing or by another means that leaves a record, with adequate notice and following the criteria in the collective agreement. Seniority is counted over the whole length of the employment relationship, not just the time worked, with the exceptions the rule provides.
Earlier contracts do not disappear overnight. Contracts for a specific job or service signed before 31 December 2021 remain governed by the previous rule until their maximum duration, as do casual and relief contracts signed before the change. Specific-job and casual contracts signed between 31 December 2021 and the entry into force of the new articles cannot last more than six months.
What to review
The reform toughens the consequences of misuse. Workers hired in breach of article 15 acquire permanent status, and using temporary contracts in fraud of the law is a serious infringement, counted as one infringement for each worker affected, with fines of between €1,000 and €10,000 depending on the degree. In addition, since 31 December 2021 contracts of less than thirty days carry an extra Social Security contribution, of €26.57 per contract in 2022.
A first step is to take an inventory of current temporary contracts, with their cause and start and end dates, and compare it with actual activity. From there, it is worth deciding which ones become permanent or seasonal permanent contracts, planning foreseeable peaks within the ninety-day cap, watching for chains of contracts approaching eighteen months, preparing the annual forecast for employee representatives and notifying vacancies to those on temporary contracts. Ask your employment adviser how it applies to your case.
The temporary contract goes from being a flexible route to an exception that must be justified and documented.
This article is general information. It is not legal, tax or investment advice, and it does not take anyone’s particular circumstances into account.
