ROYAL DECREE-LAW 32/2021, of December 28, of urgent measures for the labor reform, the guarantee of employment stability and the transformation of the labor market.
On December 30, 2021, Royal Decree-Law 32/2021, dated December 28, on urgent measures for labor reform, the guarantee of employment stability and the transformation of the labor market, which amends the Workers’ Statute (ET), was published.
Royal Decree-Law 32/2021 came into force the day after its publication in the Official State Gazette, i.e. December 31, 2021, with the exceptions indicated in the corresponding sections.
The main novelties introduced in labor matters are as follows:
1.- Training Contracts
Internship contracts and training and apprenticeship contracts are replaced by the alternating training contract and the training contract for obtaining professional practice appropriate to the level of studies.
The new regulation will enter into force on March 30, 2022. Therefore, internship and training and apprenticeship contracts may continue to be performed until March 30, 2022, in accordance with the current regulation.
Training contract in alternation
It consists of making paid work activity compatible with the corresponding training processes in the field of Vocational Training, university studies or the Catalog of training specialties of the State Public Employment Service.
- In general, it may be carried out with persons up to 30 years of age.
- Minimum duration of three months with a maximum of two years. There is NO probationary period.
- Working time may not exceed 65% of the maximum working day established in the collective bargaining agreement during the first year and 85% during the second year. No additional or extraordinary hours may be worked.
- The remuneration shall be fixed by agreement, and in the absence thereof, may not be less than 65% in the first year and 75% in the second year, with respect to the remuneration fixed in the agreement for their professional group and remuneration level. In no case may it be less than the minimum wage in proportion to the effective working time.
- It may not be entered into when the activity or job corresponding to the contract has been previously performed by the worker in the same company.
The company must develop an individual training plan specifying the training content, schedule, activities, and mentoring requirements for compliance.
There will be one tutor appointed by the training center or entity and another by the company.
Contract for obtaining professional practice
The purpose of this contract is the performance of a work activity aimed at acquiring professional practice appropriate to the corresponding levels of studies.
- It may be arranged with those in possession of a university degree, intermediate or higher degree, specialist, professional master’s degree or certificate of the vocational training system, or equivalent degree of artistic or sports education of the educational system.
- It must be arranged within three years from the completion of studies, or within five years for disabled workers.
- Minimum duration of six months and maximum of one year. The probationary period may not exceed one month, except as provided in the collective bargaining agreement.
- Remuneration shall be fixed by agreement, and in the absence thereof, may not be less than that fixed in the agreement for their professional group and remuneration level. In no case may it be less than the minimum wage in proportion to the effective working time.
The contract may not be signed with anyone who has already obtained professional experience or carried out training activities in the same specialty within the company for a period of more than three months, without the periods of training or internships that form part of the curriculum required to obtain the qualification being counted for these purposes.
The company must draw up an individual training plan.
- Scholarship Holder’s Statute (Second Additional Provision)
The Government, within six months from the entry into force of this regulation, will convene the most representative trade union and business organizations to address the Statute of the Scholarship Holder, which will have as its object the practical training tutored in companies or similar organizations, as well as the training activity developed within the framework of the curricular or extracurricular internships foreseen in official studies.
2.- Temporary contracts
The new regulation will come into force on March 30, 2022.
Temporary contracts as we know them now are abolished and two new types appear:
- By circumstances of production with two sub-modalities:
One of 6 months, extendable to one year by sector agreement only when it occurs:
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- An occasional and unforeseeable increase as well as fluctuations that, even in the normal activity of the company, generate a temporary mismatch between the stable employment available and that required. These fluctuations shall include those resulting from annual vacations.
Another 90 days within the calendar year:
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- To deal with occasional, foreseeable situations of short and limited duration.
- All the necessary workers will be hired to attend to the specific situations that may require it on each of these days.
- These ninety days may not be used continuously.
This contract may not be used to carry out work within the framework of contracts, subcontractors, etc. That constitute the habitual or ordinary activity of the company.
- By substitution:
- Of a worker with the right to reserve a job position. The provision of services may begin before the absence of the replaced person occurs, coinciding in the development of the functions the essential time to guarantee the proper performance of the position and, at most, for fifteen days.
- To complete the short shift for another worker, if it is based on legal or conventional causes.
- For the temporary coverage of a job during the selection or promotion process for its definitive coverage through a fixed contract, without its duration being in this case greater than three months.
Regarding the limits on the duration of temporary contracts:
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- The current threshold for concatenation of temporary contracts is reduced.
- Any contract that is in force for a period of 18 months in a period of 24 will be entitled to the indefinite condition.
An additional contribution of 26 euros will be applied, with each cancellation, in contracts of less than thirty days. It will not apply to workers in the special regime of domestic employees, nor to replacement contracts.
Temporary Regime (third additional provision):
Eventual contracts due to market circumstances, accumulation of tasks or excess orders, interim contracts, work and service contracts, and the permanent work contract, entered before December 31, 2021, will continue to be governed until their completion by the regulations in force at the entry into force of the Royal Decree-Law.
The contracts entered in the period between December 31, 2021, and March 30, 2022, may continue to be governed by the legal or conventional regulations in force prior to the reform, but their duration may never exceed 6 months.
The new contract chaining rules will apply to employment contracts signed after its entry into force, that is, on March 30, 2022. Regarding previously signed contracts, for the purposes of calculating the number of contracts, the period and the term for the chaining, only the contract in force as of December 31, 2021 will be taken into consideration.
3.- Fixed-Discontinuous Contract
The new regulation will enter into force on March 30, 2022, until which time these contracts will be signed in accordance with the regulations currently in force.
Said contract can be entered into for:
- Seasonal or seasonal jobs, and also for those that do not have this nature but being of intermittent provision, have certain, determined or indeterminate periods of execution.
- Work consisting of the provision of services within the framework of the execution of commercial or administrative contracts that are part of the ordinary activity of the company.
By means of a collective agreement or company agreement, the objective and formal criteria will be established by which the call of discontinuous permanent persons must be governed.
Permanent-discontinuous workers have the right to have their seniority calculated considering the entire duration of the employment relationship (and not only the time worked), except in those cases in which another treatment is required due to their nature.
They must be formalized in writing and reflect in them the essential elements of the work activity to be carried out, such as the duration of the period of activity, the working day and its hourly distribution, even if they appear as estimates prior to their concretion.
4.- Indefinite contract
Contracts are presumed concluded for an indefinite period of time.
In the construction sector, those whose object is tasks or services whose purpose and result are linked to construction works will be considered permanent contracts attached to works. (The company, once the work is finished, must offer a relocation proposal to the worker, prior development, if necessary, of a training process by the company).
5.- ERTES
The processing and effects of the ERTE’s due to impediment or limitation to the activity related to covid-19, will continue to be governed by the provisions of RDL 18/2021 of September 28, until February 28, 2022.
Temporary force majeure due to impediments or limitations to the normal activity of the company that are a consequence of decisions adopted by the competent public authority, including those aimed at protecting public health, is incorporated as a new cause for suspension/reduction due to force majeure.
In ETOP ERTES, for companies with less than 50 workers, the consultation period is reduced to seven days.
Call to prioritize the adoption of measures to reduce working hours over those to suspend contracts.
The reduction in the working day may be between 10% and 70% of the daily, weekly, monthly or annual working hours.
Possibility of affecting and disaffecting workers based on the alterations in the circumstances indicated as justifying reasons for the measures.
Overtime hours may not be performed, new activity outsourcing established, nor new employment contracts arranged.
Voluntary exemptions are foreseen in the Social Security contribution on the business contribution for common contingencies and concepts of joint collection, although they will be conditioned to maintaining employment during the six months following the expiration of the temporary employment regulation file. (In the event of non-compliance with the maintenance commitment, only the exonerations of the dismissed worker will have to be returned).
6.- NETWORK Mechanism for flexibility and employment stabilization
An instrument of Flexibility and Stabilization of Employment is created, which will allow companies to request measures to reduce working hours and suspension of work contracts, subject to a period of consultations with the workers’ representatives and authorization from the labor authority. It has two modalities:
- Cyclical: When there is a general macroeconomic situation that advises the adoption of additional stabilization instruments, with a maximum duration of one year.
- Sectoral: When a certain sector or sectors of activity see permanent changes that generate the need for requalification and professional transition processes for workers, with a maximum initial duration of one year and the possibility of two extensions of six months each.
The Employment Flexibility and Stabilization NETWORK mechanism will be carried out at the proposal of the corresponding Government Ministries. However, in the case of the sectorial modality, the most representative trade union and business organizations may request the corresponding Ministries the possibility of activating said mechanism.
The companies authorized to join will obtain benefits in terms of listing.
Call to prioritize the adoption of measures to reduce working hours over those to suspend contracts.
Possibility of affecting and disaffecting workers based on the alterations in the circumstances indicated as justifying reasons for the measures.
Overtime hours may not be performed, new activity outsourcing established, nor new employment contracts arranged.
7.- Priority of application of the company collective agreement
The preferential application of the company agreement is maintained, but the application priority of the collective agreement of the company or groups of companies in relation to the amount of salary is eliminated by deleting letter a) of section 2 of article 84 that allowed priority in: “The amount of the base salary and salary supplements, including those linked to the situation and results of the company.”
Based on this, it will no longer be possible for a company agreement to have a lower salary than the collective agreement applicable to the sector.
The agreements must be adapted to the modifications indicated within a period of six months from when they become applicable to the conventional scope as indicated above.
8.- Ultraactivity of the collective agreement
One year after the denunciation of the agreement without a new agreement having been reached, the parties will submit to the mediation procedures regulated in interprofessional agreements, to resolve discrepancies.
Likewise, and provided there is an express agreement, the parties may submit to the arbitration processes regulated in interprofessional agreements.
In the absence of an agreement, when the negotiation process has elapsed without an agreement being reached, the collective agreement will remain in force.
The collective agreements denounced on the date of entry into force and as long as a new agreement is not adopted, will remain in force in the terms established in the new standard.
The collective agreements denounced as of December 31, 2021, and as long as a new agreement is not adopted, will remain in force with indefinite ultraactivity.
9.- Law of Violations and Sanctions in the Social Order
Incorporation of new sanctions for serious infractions regarding labor relations and employment and temporary work companies and user companies.
The amounts of the sanctions are increased from 750, – € to 7,500.- € per company, from 1,000.- € to 10,000.-€ for each of the workers affected.
It is classified as a very serious offense to outsource activities or hire new workers during ERTE’s, ERE’s or within the scope of the NETWORK Flexibility and Stabilization mechanism.
Barcelona, January 2022