The Government has proposed to the social agents that the dismissal of workers with a fixed-term contract be considered null, instead of inadmissible, if said contract is not duly justified or has not been made in writing, and all this regardless of the cause that the company alleges to terminate the employment relationship.
This is included in the draft, dated June 2 and to which Europa Press has had access, that the Executive has put on the table that addresses a part of the labor market reform, that referred to temporary contracts, collective agreements and outsourcing.
The qualification of null dismissal of those hired under a modality of unjustified determined duration would imply the immediate reinstatement of the worker , with payment of the wages not received.
What the Executive does in the draft is to propose the addition of a new section in article 55 of the Workers’ Statute in the part related to null dismissal in the case of workers who have signed an unjustified fixed-term contract.
This is one of the measures that is part of the reform of the “substantial and far-reaching” temporary contract promised by the Minister of Labor, Yolanda Díaz, to put an end to the abusive use of this contract and reduce the temporality in Spain.
For this, several measures are proposed in the document. In the first place, the Government’s proposal starts from considering that the employment contract is presumed to be concluded for an indefinite period and that only a temporary one may be carried out “for reasons of a productive and organizational nature”, that is, in the face of an increase in demand that the company cannot cope with its usual staff or to replace a worker, as long as it is specified who is being replaced and why.
In no case, the Government points out, may the performance of work of a seasonal nature or linked to campaigns be understood as a productive cause. In fact, these must be contracted through the indefinite modalities specifically provided for this purpose (fixed-discontinuous).
Nor could the fixed-term contract be used to attend to work related to the normal and permanent activity of the company, or to carry out work or tasks within the framework of contracts, subcontracts or administrative concessions.
Maximum duration of temporary contracts
The Government’s proposal, which is subject to changes in the framework of social dialogue, establishes that if the fixed-term contract is for productive reasons, it may not last more than six months, although it may last a maximum of one year if so It is determined by the sectoral agreement of application.
In the event that the contract had been concluded for a duration less than the legal maximum, it is proposed that it can be extended for a single time if the parties agree, but without the total duration of the contract exceeding the established maximum duration. .
In the event that the temporary contract is due to organizational reasons, the Government proposes that its duration be extended until the reinstatement of the replaced worker. However, if 24 months elapse without the reincorporation of the person replaced, the person hired on a temporary basis will acquire the status of permanent.
Except in the case of public employment, the Government proposes that in no case the organizational reasons allow the filling of vacancies, resulting in the termination of the contract exclusively due to the reinstatement of the replaced worker.
According to the proposal, those who have not been registered with Social Security will also acquire the status of permanent workers; those who have not received a written contract, or when the enabling reasons for the temporary contract and the specific circumstances that justify its completion, as well as its connection with the expected duration, have not been specified in the contract.
Likewise, workers who in a period of 30 months had been hired for a period of more than 24 months, with or without a solution of continuity, for the same or different job position with the same company or group of companies, through two or more Temporary contracts, either directly or by making them available by temporary work companies (ETT), will acquire the status of permanent workers. This will also apply when there are cases of succession or business subrogation.
At the same time, the person who occupies a job that has been occupied, with or without a solution of continuity, for more than 24 months in a 30-month period through fixed-term contracts, including employment contracts, will acquire the status of permanent. available made with ETT.
This will not apply to training and relief contracts, temporary contracts concluded within the framework of public employment-training programs, as well as temporary contracts used by insertion companies.
Outsourcing and ‘ultra-activity’
With regard to subcontracting, the Government suggests that there is a subsidiary responsibility of the main company in the event that the activity carried out by the contractor or subcontractor does not form part of the production cycle of the main company.
It is also proposed that the collective agreement applicable to contractors and subcontractors be that of the sector of the activity carried out in the contract or subcontract, although, in the case of having its own agreement, this may be the one that applies provided that guarantees, at least, the same rights as the reference sectoral agreement.
Likewise, with regard to collective bargaining, the Government proposes that the regulation of the conditions established in a company agreement will have applicative priority with respect to the state, regional or lower-level sector agreement except in remuneration, the duration of rest time compensation for overtime and the duration of the day.
The proposal of the Ministry of Labor also recovers the so-called ‘ultra-activity’ that abolished the labor reform of 2012, so that, after one year from the denunciation of the collective agreement without a new one having been reached, it will remain in force in the absence of a agreement between the parties.