Although more than two and a half years have passed since the labor reform was approved in December 2021, which changed the entire range of employment contracts available to companies, they still have doubts on What contracts should they use? on some occasions, such as during vacation periods to make substitutions, due to the “indeterminate legal concepts” used by the law in its wording.
Various law firms consulted by EL MUNDO confirm that this is one of the problems and concerns that their clients have faced since the law was approved and that persists to this day, intensified even during holiday periods, because there has not yet been any jurisprudence that clarifies how the rule should be interpreted.
“More than two years after the entry into force on March 30, 2022 of the new contractual modalities implemented by the so-called labor reform The doubts generated in the interpretation of the norm continue “in the absence of regulatory development and the still scarce judicial doctrine,” laments Silvia Vázquez Inchausti, counsel from the Labor area of Andersenin statements to this medium.
The reform stipulated that only those that would be valid types of temporary contract. The first is the contract for circumstances of production, This contract is permitted when there is “an occasional and unforeseeable increase in activity” or “fluctuations that, even though they are the normal activity of the company, generate a temporary imbalance between the stable employment available and that which is required”, which includes vacations. However, this contract is also designed to deal with “foreseeable” situations of increased activity, provided that they are for a short period, since it cannot be used for more than 90 days in the calendar year. The second temporary contract permitted is the one for substitution.
“The wording contained in the regulation of the new modalities of temporary contracts and the fixed discontinuous contract resorts to the use of numerous Indeterminate legal concepts and inaccuracies which generate from their origin many interpretative doubts and the consequent legal uncertainty which continues to this day,” he says.
One of the doubts that companies have is whether, in the face of expected increases in activity and which are of short duration, although they are repeated over time (such as a peak derived from the tourist season in summer), can use the contract due to production circumstances or they must resort to discontinuous fixed. “The literal tenor of the rule seems to endorse the use of the first one (…) but part of the doctrine understands that the foreseeable temporary contract of limited duration would not proceed in cyclical or intermittent situations which would determine the conclusion of a fixed-term discontinuous contract.”
Angel Olmedo, partner of the Labor Department of Garriguesalso points out that it is difficult to demonstrate whether the increase in production could or could not be foreseen: “The use of such an interpretive concept as the unforeseeable situation of the activity is cited to decide between signing a temporary contract or a fixed-term contract, or the use of a fixed-term contract derived from the signing of contracts or subcontracts,” which is why “important doubts arise when deciding on the appropriate contractual modality.”
The replacing a worker who is on vacation This is another of the headaches that companies have had in the summer, since although they are considered as a cause of the contract due to production circumstances, it could also be necessary to make a permanent discontinuous one when the holidays are planned and are always repeated on the same dates. The choice of one or the other will depend on whether the worker has a permanent contract or not and if he has a guarantee of being called back when the activity stops.
The companies most affected by these concerns are those that have significant business peaks at specific times, such as those of “tourism, hotels, commerce, hospitality, construction and technologywhich are the ones that are most affected by the latest modifications,” says Enrique Ceca., partner responsible for Labor at Ceca Magán Lawyers.
Companies that formalize fixed-term contracts through Temporary Employment Agencies (ETT) To cover temporary needs, they are also among those who have the most doubts, as confirmed by Borja González, counsel from the labor area of Gomez Acebo and Pombo. “The use that should be given to the different contractual modalities was already conflictive before the reform and continues to be so after it, giving rise to much litigation. We have received many queries in relation to the fixed-term contract formalised by an ETT to cover the temporary needs of user companies in accordance with Article 15 of the Workers’ Statute (which, although called “fixed-term” does not cover needs of a seasonal nature),” it states.
He believes that the line between having to use a fixed-term contract or a temporary one for jobs of a seasonal nature or linked to seasonal activities in foreseeable situations “is very thin”, which “frequently gives rise to consultations”.