The Government delegates to the temporary work companies themselves the regulation of the criteria that should govern the “call” of the permanent-discontinuous people who are incorporated into the templates of this type of company, giving greater flexibility to the management of their workers .
This is one of the most pressing aspects demanded by the temporary agency sector to promote the use of this contractual modality as pursued by the Government that wants to convert the maximum number of temporary workers into permanent ones, even if it is through the fixed-term model. discontinuous.
Currently, this type of contract barely accounts for 4% of the total number of people employed through ETTs, mostly through temporary modalities.
This was one of the few things that remained to be known about the labor reform agreed upon by the social agents and the Government, in the absence of reading the fine print of the Royal Decree-Law called urgent measures for labor reform, the guarantee of stabilization in employment and the transformation of the labor market published yesterday by the Official State Gazette (BOE).
To this end, the first final provision of the RD-Law modifies article 10.3 of Law 14/1994 on ETT, delegating certain parts of the regulation to the agreements of the ETT sector and to that of the ETT themselves -if they have them- of fixed-discontinuous workers.
The new wording of article 10.3 maintains the possibility, currently already in force, that the ETTs can enter into fixed-discontinuous contracts for the provision of workers who cover functions “linked to the needs of the user companies”.
Although they must comply with the temporality criteria (causation and a maximum of three months for foreseeable activities and six months with the possibility of extending it to twelve for unforeseeable activities) of article 15.2 of the Workers’ Statute (ET).
Next, 10.3 clarifies that the ETT agreement will prevail over other agreements (mainly sectoral) in those references to collective bargaining that are included in article 16 of the ET that regulates the fixed-discontinuous contractual modality.
Objectives and formal
He refers to point 3 of said article, dedicated to the “objective and formal” criteria by which the call of permanent-discontinuous persons must be governed. However, despite the fact that it gives great autonomy to the sector and to the ETT themselves, it requires that the call be made in such a way that the “due notification” is recorded with precise indications of the conditions of its incorporation and with adequate advance notice.
Article 16 has been modified with the labor reform to allow both subcontractors and temporary employment agencies (the latter already had such power) to carry out the permanent-discontinuous contract. This modality is the great bet of the Government to channel a great majority of the activities that are currently carried out through temporary workers.
wages and hours, no
However, in terms of salary, workers hired by ETTs as fixed-discontinuous must comply with the requirement established in the ETT Law that they receive the same salary as a similar worker from the user company where they provide the service. A rule that the reform also extends to subcontractors, since the sectoral agreement of the activity carried out in the client company will apply to the workers they hire. And if you have a company agreement, in terms of salary, what is regulated in the sectoral agreement will prevail.
In the case of the workers that the subcontractors recruit through a fixed-discontinuous contract (“if justified”, says the law), the periods of inactivity will be exclusively due to the wait for the relocation and will be determined in the sectoral agreements.
The New Year’s reform
This labor reform may well be known as the reform of the Holy Innocents, since it was approved on December 28. In fact, that day it passed through the Council of Ministers and on that date Royal Decree-Law 32/2021 was signed by King Felipe VI. However, its entry into force has been hard to come by.
The Second Vice President and Minister of Labor, Yolanda Díaz, -the main architect of the negotiations with the unions and employers, although in the last phase the Ministries of Economy joined (with the First Vice President, Nadia Calviño in the shadow) and the of Immigration and Social Security – there was a bit of a mess that same Tuesday at the press conference for the presentation of the approval of the labor reform.
He went so far as to insinuate that it would enter into force that same Tuesday, but from his Ministry they clarified that this would take place when the Official State Gazette was published. Therefore, he was confident that the legal changes of the Labor Market would start counting from December 29. Neither, because that day it did not appear in the Official State Gazette.
In Labor they calmed the waters assuring that the next day, Thursday December 30, the labor reform would be published in the BOE and, consequently, would enter into force. New surprise: The seventh final provision of Royal Decree Law 32/2021, of December 28, on urgent measures for labor reform, the guarantee of job stability and the transformation of the labor market (as it is called), announced that it would enter into force the day after its publication; that is, this Friday, December 31.
Therefore, the second vice-president will have to settle for having barely complied with her commitment, before Brussels, before the Spanish and before the rest of her fellow governments, to approve the reform before the end of the year.
The entry into force of some aspects of the training contracts is also delayed until March 31, and regarding temporary contracts, including work and service contracts. Although its duration will be six months, maximum.
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