The Government has presented this proposal in the labor reform negotiations
This implies the immediate reinstatement of the worker and the payment of back wages.
There will only be temporary contracts due to demand peaks or for replacement
The Government has proposed to social agents that the dismissal of workers with a fixed-term contract be considered void, instead of inadmissible, if said contract is not duly justified or has not been made in writing, and all of this regardless of the cause that the company alleges to terminate the employment relationship.
This appears 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 referring to temporary contracts, collective agreements and subcontracting.
The classification of null dismissal of those hired under an unjustified fixed-term modality would imply the immediate reinstatement of the worker, with payment of the salaries lost.
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 "substantial and far-reaching" temporary contract reform promised by the Minister of Labor, Yolanda Díaz, to put an end to the abusive use of this contract and reduce temporary employment in Spain.
To achieve this, several measures are proposed in the document. Firstly, the Government's proposal is based on considering that the employment contract is presumed to be concluded for an indefinite period and that only a temporary one can be made "for reasons of a productive and organizational nature", that is, in the event of an increase in demand that company cannot cope with its usual staff or to replace a worker, as long as it specifies who is being replaced and why.
In no case, the Government points out, can 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 carry out work linked to the normal and permanent activity of the company, nor 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 within the framework of social dialogue, establishes that if the fixed-term contract is due to productive reasons it may not last more than six months, although it may last, at most, a year if so. It is determined by the applicable sectoral agreement.
In the event that the contract has been concluded for a duration less than the legal maximum, it is proposed that it can be extended only once 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 pass without the reinstatement of the replaced person, the person hired on a temporary basis will acquire permanent status.
Except in the case of public employment, the Government proposes that in no case do organizational reasons allow vacancies to be filled, with the contract being terminated exclusively by 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 causes of the temporary contract and the specific circumstances that justify its realization, as well as its connection with the planned duration, have not been specified in the contract.
Likewise, workers who in a period of 30 months have been hired for a period of more than 24 months, with or without 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 through their provision by temporary employment agencies (ETT), will acquire the status of permanent workers. This will also apply when cases of business succession or subrogation occur.
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 period of 30 months through fixed-term contracts, including employment contracts, will acquire permanent status. 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.
Subcontracting and 'ultraactivity'
With regard to subcontracting, the Government proposes that there be a subsidiary responsibility of the main company in the event that the activity carried out by the contractor or subcontractor company is not part of the production cycle of the main company.
It is also proposed that the collective agreement applicable to contractor and subcontractor companies 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 a minimum, 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 application priority with respect to the state, regional or lower level sectoral agreement except for remuneration, the duration of rest time compensation for overtime and the length of the day.
The Ministry of Labor's proposal also recovers the so-called 'ultraactivity' that was suppressed by the 2012 labor reform, so that, after a year has elapsed since 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.
Source: Europa Press
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