Law for the Reform of the Labor Market. What’s new?
Effective 12/31/2021, RDL 32/2021 is published on urgent measures for labor reform, the guarantee of job stability and the transformation of the labor market.
I. What’s new included
| Effective 12/31/2021, RDL 32/2021 is published on urgent measures for labor reform , the guarantee of job stability and the transformation of the labor market. It includes important modifications in the regulation of temporary contracts and in the regulation of collective dismissals. In addition, it includes other modifications such as the classification of new offenses in the LISOS and the extension of the SMI. |
RDL 32/2021 has been published for the labor reform, the guarantee of job stability and the transformation of the labor market. Along with important modifications in temporary contracts and in the regulation of collective dismissals, other important modifications are introduced, such as the classification of new sanctions in the LISOS and the extension of the SMI. In general, the regulation enters into force on 12-31-2021 , except for those related to contracting, the benefit associated with the RED Mechanism and the price for alternate training contracts, which enter into force on 3-31-2022 . The news included are the following:
Modifications in the hiring.
a) The training contracts are modified, replacing the current training and apprenticeship contract with the alternate training contract and the internship contract with the training contract for obtaining the professional practice . It is established that, in case of law fraud or breach of training obligations, they must be considered indefinite. In both cases, the obligation to inform the RLT about the training or tutorial activity is included.
b) The possibility of concluding contracts of work or specific service, eventual and temporary disappears. Since March 31, 2022, it is only possible to enter into fixed-term contracts for substitution of a worker and due to production circumstances. This, with a maximum duration of 6 months, 12 months if established by the sector agreement, may only be celebrated in the event of an occasional and unpredictable increase in activity that causes temporary imbalances between stable employment and that which is necessary in the company and also in case of employee vacations. Collective bargaining agreements are expected to include temporary reduction plans, maximum temporary employment percentages and consequences of non-compliance with them. The norm establishes transitory norms for the contracts currently in force.
The new regulation includes a transitional regime applicable to contracts entered into before March 31st, 2021 and between December 31st and 21st and March 30th, 2022 and repeals, with effect from March 31st, 2022, the reductions in the contribution provided for the conclusion of temporary contracts to substitute surplus workers for the care of family members.
c) Discontinuous permanent work is reinforced , recognizing seniority for the entire duration of the employment relationship and not only the periods actually worked. After the new wording, the contract can be concluded in the following cases:
– work of a seasonal nature or linked to seasonal productive activities, for those of intermittent performance, with certain, determined or indeterminate periods of execution;
– Work within the framework of the execution of commercial or administrative contracts that, being foreseeable, form part of the ordinary activity of the company;
– between the ETTs and the person hired to be transferred.
It is expected that the necessary modifications will be made to improve the protection of this group, allowing their access to unemployment benefit under the same conditions and rights as the rest of the protected workers.
d) In the construction sector, the fixed work contract disappears. New hires must be made through the indefinite contract. It is envisaged that, after the completion of the work, workers will be relocated to a new site after developing, when necessary, a training or requalification process.
Modifications in subcontracting
The agreement applicable to contractors and subcontractors must be the sectoral one applicable to the activity carried out in the contract or subcontract, unless there is another applicable sectoral agreement. In the event that the contractor or subcontractor company has its own collective agreement, it will only apply if it applies more favorable conditions (ET article 84) (ET article 42 redacc RDL 32/2021)
New regulation of ERTES ETOP and Force majeure
The procedure for applying for ERTE is modified. In relation to ERTES due to force majeure, the processing due to impediment or limitations in the normalized activity of the company as a result of decisions adopted by the competent public authority – including those adopted for the protection of public health – is foreseen. As a novelty, during the ERTE application period:
– The company can disable and affect the workers, after notifying the entity that manages the social benefits and in accordance with the deadlines established by regulation to the TGSS.
– Overtime hours, new outsourcing of activity may not be established, or new employment contracts can be arranged. Yes, it is possible when the affected persons cannot carry out the functions entrusted to them, with prior information on the matter by the company to the RLT.
– Training actions can be developed to improve professional skills and employability.
Contribution benefits are established and an increase in credit is foreseen for the financing of shares in the field of programmed training for companies.
New ERTE RED mechanism for flexibility or stabilization in employment
Its objective is to allow companies to request, on a voluntary basis, from the labor authority the reduction of the working day or, if this is not feasible, the suspension of employment contracts. In any case, the reduction in working hours must be between 10% and 70%. It is computed on the basis of the daily, weekly, monthly or annual shift. There are two different modalities:
– Cyclical. When a general macroeconomic situation arises that advises the adoption of additional stabilization instruments, with a maximum duration of one year.
– Sectorial. When in a certain sector or sectors of activity there are permanent changes that generate needs for requalification and professional transition processes for workers. Its initial maximum duration is 1 year, with the possibility of two extensions of six months each.
Its implementation requires activation by agreement of the Council of Ministers.
Contribution benefits are regulated for companies that make use of this mechanism and a new benefit is established for affected workers whose amount is 70% of the regulatory base, without consuming the unemployment benefit and which will come into effect at three months (3-31-2022) (SEE NEWS)
End of the ultra-activity of the agreements
The regulation according to which after one year has elapsed since the denunciation of the collective agreement has disappeared without a new agreement or an arbitration award being issued, the agreement loses its validity, beginning to apply the applicable higher-level collective agreement. On the contrary, the validity of the collective agreement will be maintained.
Changes in the priority of the company agreement.
Its applicative priority is eliminated with respect to the amount of the base salary and salary supplements. An adaptation period is foreseen for the agreements currently in force.
Modifications in the LISOS
The standard includes modifications to the LISOS related to the modifications made. They are the following (RDL 32/2021 art.5):
– Violating the regulations on contractual modalities, it is considered an infraction for each affected worker .
– Formalizing new hires or making new outsourcing while the company is in ERTE status constitutes serious infractions, one per affected worker (ET art.47 and 47.bis redacc RDL 32/2021) constitutes a serious infraction for each affected worker.
– In relation to temporary employment agencies and user companies (including those established in other EU or EEA member states), it is classified as a serious offense, one for each affected worker, to formalize contracts for making available outside of the legally permitted assumptions.
For these new types of infringement and for the formalization of contracts made available by ETTs without having carried out the corresponding risk assessment, the sanction that is foreseen is a fine of 1,000 to 10,000 euros (minimum degree, 1,000 to 2,000 euros ; medium grade, from 2,001 to 5,000 euros and, to a maximum, from 5,001 to 10,000 euros).
Other novelties
a) The SMI 2021 is extended until, within the framework of social dialogue, the SMI 2022 is set (RDL 32/2021 disp.adic 7th)
b) A mandate is established for the Government to present an analysis of the health and safety regulations applicable to minors within a period of 3 months (from 12-31-2021) to the most representative trade union and business organizations , by effect of establishing limitations on the hiring of young people under 18 years of age in jobs that present specific risks (LPRL art.27.2 redacc RDL 32/2021). The report will be made based on the conclusions reached within the scope of the National Strategy for Safety and Health at Work (RD 32/2021 final disp 5th).
c) The ITSS is responsible for controlling and complying with the requirements and obligations established in relation to exemptions in Social Security contributions. To this end, control actions must be developed over its correct application, being able to initiate, where appropriate, the corresponding sanctioning and quota liquidation proceedings. In particular, the ITSS is credited with controlling:
– the veracity, inaccuracy or omission of data or responsible statements provided by the companies or by any other information used for the calculation of the corresponding settlements of quotas;
– on the existence of work activity during the periods of suspension of the employment relationship or reduction of the working day communicated by the company, during which exemptions have been applied in the contribution (LGSS disp.adic.40th redacc RDL 32/2020 ).
d) It is expected that after 1 year the first activation of the RED Mechanism in its sectoral modality , the MTES, the MISSM and the most representative union and business organizations, having studied the circumstances, will analyze the need to adopt labor and Social Security measures to favor the professional transition of workers who are affected by the RED Mechanism in the future (RDL 32/2021 disp..adic.1ª).
e) It is established that within 6 months from the entry into force of this rule, the MTES summons the social agents to draw up the Statute of the Scholar , which will have as its object the training activity carried out within the framework of the curricular practices or extracurricular programs provided for in official studies (X / 2021 disp.adic.2).
f) With effect 31-3-2022, the ET disp.adic.16 on the application of dismissal for ETOP causes in the public sector is repealed . As of 12-29-2021 it is not possible to dismiss for these reasons the workforce at the service of the entities, agencies and entities that are part of the public sector.