The Government yields to the CEOE: the companies and not the collective agreements will fix the temporary positions

The Government yesterday presented to unions and employers a new draft of the labor reform, dated December 13, which, like the previous one, is limited to changes in articles 15 (duration of the employment contract) and 16 (discontinuous fixed-contract). Among the main changes of the new proposal, in reference to temporality, the Government takes power away from collective agreements and extends it to companies.

In the previous proposal, of December 4, it was established that “collective agreements may identify those jobs or tasks that obey production circumstances that can be covered with contracts [temporales]”. This possibility is deleted from the draft delivered yesterday to the social agents – to which the Economist has had access – which delegates to the companies that are the ones that “they may formalize contracts due to production circumstances”.

The writing of the new drafts is fine tuning a lot in this final stage of the negotiation, which this week will take place every day. In fact, this morning at 10.30 am the Labor Market Modernization table met. One example is that the new draft has changed the word “occasional and predictable campaigns” to “occasional and foreseeable situations”, without major nuances as had the previous draft.

Another change, equally subtle, is that although the legal calculation for the use of this contract due to production circumstances to attend to occasional and foreseeable situations is still limited to a maximum of 90 days a year, the latest draft clarifies that “These ninety days cannot be used continuously”. However, it does not establish what is the “continuous” period that can be used. It could be one of 89 days and a second of a day, in an extreme case.

The reduction of the power of collective agreements vis-à-vis companies does not affect the possibility of collective bargaining establishing “maximum percentages of temporary employment and the consequences derived from non-compliance with them.” Likewise, the agreements may establish “criteria of preference among persons with fixed-term or temporary contracts, including persons made available”.

From the social agents, this last tagline is interpreted as a way to give priority to the workers of Temporary Employment Agencies (ETT) that have been made available to the company for future hiring of the client company.

REPLACEMENT CONTRACT

Regarding the replacement contract, the Government establishes in the new proposal that It cannot be used to supplement vacations fixed staff. In exchange, it will be allowed to use the substitution to provide temporary coverage of a job during the selection or promotion process for its definitive coverage through a fixed contract. However, its duration may not exceed three months or the shorter period set forth in the collective agreement.

REFORM OF THE LAW OF ETT

In the case of Article 16, fixed-discontinuous contract, The main novelty is the commitment included in the new draft to modify the regulation of Temporary Employment Agencies, through the reform of Law 14/1994. Thus, the hiring of a worker in the fixed-discontinuous format through an ETT is pending the new regulation.

Likewise, the causes of resignation of a worker who does not attend the call. Thus, the cases of suspension provided for in article 48 of the ET (suspension with reservation of job position) nor the leave of absence and other causes of suspension or leave will not be considered grounds for dismissal, provided that they are duly accredited in the following two working days to the appeal.

It also improves the calculation of seniority fixed-discontinuous workers in the new draft. Thus, it will be calculated taking into account the “effective duration of the employment relationship and not the amount of work carried out during it”, unless it is essential in view of the nature of the condition in question and meets criteria of objectivity, proportionality and transparency. Social agents do not particularly like this restriction, since they understand that it contradicts jurisprudence.