The proposal of the Ministry of Labor to reduce the temporality is considered by some labor lawyers as “radical” and will lead to an increase in the cost of dismissal for temporary contracts as they are considered null and void in case of law fraud.
This will entail including processing salaries among the costs; that is to say, the worker’s payroll throughout the judicial process if his dismissal is appealed to the courts. In the opinion of these experts, the proposal will further judicialize the dismissals, since it leaves it up to the judges to determine if the causes put forward by the company justify that the contract is not indefinite.
Alfredo Aspra, Andersen’s labor partner, highlights that the decision to consider the dismissal null and void in fraud of law will make many companies think about hiring a person temporarily .
The lawyer points out that Labor closes the circle with the modification of article 55 of the ET (Form and effects of disciplinary dismissal) by introducing as cause for null dismissal “that of workers who have signed a contract of fixed duration, with respect to those contracts arranged regardless of the justifying reasons provided for in the legal provisions, and, specifically, those referred to in section 3 of article 15 of this rule [modified], whatever the alleged cause for termination. “
In Aspra’s opinion, the expression “apart from the justifying reasons provided for in the legal provisions” implies a wide range of many national or community regulations that regulate said precept. Although the new wording of article 15 point 3 presented by Labor already determines several reasons why a temporary contract can be considered void.
It establishes that workers will 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 performance, as well as their connection, have not been specified in the contract. with the expected duration “. That is, when an employer chooses to hire a worker on a temporary basis, he must specify what justifies the reason that he has not opted for the indefinite form .
The causes that allow the temporality can be productive and organizational, but Work eliminates those of work and service accepted in the current drafting of the ET, prohibiting their use for the “performance of work of a seasonal nature or linked to campaigns.”
For productive reasons, the temporary contract will be allowed only in the face of “the occasional and unpredictable increase in business activity that cannot be served by the usual staff.” It will be up to the employer to justify in the contract such causes that, if the worker chooses to appeal to a court when he is fired, it will be up to the judge to decide whether they are in accordance with the law or, failing that, the dismissal will be declared void. For organizational reasons, the company must state in the contract which worker is to be replaced and the reason for the replacement.
Fernando Moreno, from Arinsa Consultores, is also surprised by the radical nature of the proposal and considers that it is out of reality. It considers it impossible for all agricultural and hospitality workers to be hired as permanent discontinuous workers. Likewise, he criticizes that the text has set aside the temporality of the Public Administration, despite being superior to that of the private sector.
Moreno highlights that the objective of the reform has never been to eliminate the temporary, but the unjustified. And it also points out the importance of properly identifying the causes of temporary employment, because otherwise it will lead to an excess of judicialization of the labor market.
Experts estimate the time of a social judicial process between 8 and 12 months
The elimination of processing salaries in judicial processes linked to dismissals was a battle fought by employers who fear them especially. Maximum, if the duration of a judicial process is taken into account.
The CGPJ establishes an average duration of seven months in civil matters in the first instance, two months in Provincial Courts and 5.1 in the Superiors of Justice. Alfredo Aspra, from Andersen, figures between 8 and 12 months the time of a social judicial process.
The reform of temporary hiring supposes, in the opinion of Asaja (agrarian employer), the need to make fixed practically all workers in Spain. ” For the countryside it will have very negative consequences . And not only for companies, but also for workers,” says the employer’s association chaired by Pedro Barato in an internal document to which eE had access.
They point out that the field has nothing to do with the industrial sector, nor with the services sector and that companies do not have such a wide margin of maneuver to program their labor needs with certainty because there are many imponderable factors that affect the needs productive and organizational.
In addition, they recall that the activity is largely seasonal and that “they cannot tie their hands and feet with a rigid system of appeals in successive campaigns. And even less to hire all their workers indefinitely.”
On the other hand, the labor force in the agricultural sector is peculiar and Asaja understands that it cannot be presumed that all employed workers in the field are interested in full-time and indefinite work. Many choose moonlighting and alternating jobs for different employers (combining it, where appropriate, with the benefit of aid and subsidies).
For all these reasons, Asaja considers it indisputable that the field cannot afford to make all workers permanent, not even under the modality of the fixed-discontinuous contract, a modality conceived for seasonal, seasonal or campaign jobs.
As the problem of discontinuity, intermittence and unpredictability of a good part of the labor needs of the field is not resolved with the figure of the indefinite part-time contract (that is, part-time), according to the employers of the field.
Because, he insists, that production times are subject to natural factors and very intensely to meteorological factors.