By Nieves Rabassó, Lawyer, Economist and Head of the Labor Law Department

1. News in labor contracting

With effect for tax periods beginning on or after January 1, 2022, a minimum taxation rule of 15% is introduced in the Corporate Tax (IS). The rules of this minimum taxation are the following:

1.1. INDEFINITE HIRING:

Employment contracts will be presumed to be concluded for an indefinite period, unless one of the temporary contract modalities is used, and said temporary contract is correct, both in its formal aspects and in terms of the legal cause used.

The modality of the indefinite contract assigned to work is created, applicable only in the construction sector, and whose purpose will be the performance of tasks or services whose purpose and result are linked to construction works. Your regime will be the following:

- Once the work is completed, or due to a decrease in the volume of work or due to the completion of the execution units, the company must offer a relocation proposal, after developing, if necessary, a training process under its responsibility.

- If the worker rejects the offer or reasons inherent to it determine the impossibility of relocation because there is no suitable position, or because there are no other works in the same province, the contract is terminated (regardless of the number of people affected). , with compensation corresponding to 7% of the salary concepts established in the tables of the applicable collective agreement, accrued throughout the term of the contract.

1.2. ELIMINATION of the contract for a specific work or service and of the eventual contract due to production circumstances.

- The temporary contract for a specific work or service is eliminated as of March 31, 2022.

- Contracts for work or service and temporary contracts, entered into prior to December 31, 2021, are governed by the previous regulations and may have the maximum duration established therein.

- Contracts for work or service and temporary contracts that have been concluded between December 31, 2021-12-2021 and 03-30-2022 are also governed by the previous regulations, but their maximum duration will be 6 months.

1.3. TRAINING CONTRACTS: the new regulation will enter into force on March 31, 2022, with two types of training contracts:

1) Alternation training contract

a) Purpose: to make paid work activity compatible with the training processes of vocational training, university studies or the Catalog of training specialties of the State Public Employment Service.

b) Recipients: Those who do not have a degree to be able to sign a training contract to obtain professional practice.

c) Age: In general, there is no age limit, but it is limited to up to 30 years when the contract is signed within the framework of level 1 and 2 professional certificates or public or private alternation training programs that are part of the Catalog. of training specialties of the State Public Employment Service.

d) Duration: minimum 3 months and maximum 2 years, continued or not.

e) Effective working time: it may not exceed 65%, during the 1st year, or 85%, during the 2nd year, of the maximum working day provided for in the collective agreement or, failing that, of the maximum legal working day.

f) Remuneration: That established in the agreement or, failing that, it may not be less than 60% in the 1st year and 75% in the 2nd year, of that established in the agreement for the professional group and remuneration level corresponding to the functions performed. in proportion to the effective working time. And in no case may it be less than the SMI in proportion to the effective working time.

g) Individual training plan: It will include the content of the training, the calendar and activities and the tutoring requirements for compliance. There will be a tutor designated by the training center or entity and another by the company. It will be prepared by the training center or entity with the participation of the company.

h) They cannot be held when the activity or job corresponding to the contract has been previously performed by the worker in the same company under any modality for a period of more than six months.

i) Additional or overtime hours may not be carried out, except due to force majeure.

j) They will not have a trial period.

k) Contribution: a new contribution system is regulated as of 03-31-2022, which will also be applicable to previous training and learning contracts still in force.

2) Contract to obtain professional practice:

a) Object: the performance of a work activity aimed at acquiring a professional practice appropriate to the corresponding levels of studies.

b) Recipients: those who are in possession of a university degree, intermediate or higher degree, specialist, professional master's degree or certificate from the vocational training system or equivalent degree in artistic or sports education from the educational system, within three years, or of five years if it is agreed with a person with a disability, following the completion of the corresponding studies. You may not subscribe with someone who has already obtained professional experience or carried out training activity in the same activity within the company for a period of more than three months, without the training or internship periods that are part of the curriculum required to be counted for these purposes. obtaining the degree or certificate that enables this hiring.

c) Duration of the contract: minimum 6 months and maximum 1 year.

d) Trial period: may not exceed one month, except as provided in the collective agreement.

e) Remuneration for effective working time: it will be that established in the agreement and, failing that, that of the professional group and remuneration level corresponding to the functions performed. In no case may it be less than the SMI in proportion to the effective working time.

f) The company must develop an individual training plan and assign a tutor.

g) Overtime may not be carried out, except due to force majeure.

3) Common rules for both training contracts:

- A training contract that is concluded in violation of the law or in which the obligations and training requirements are not met will be considered indefinite.

- They may be carried out in companies in ERTES, as long as they do not replace functions or tasks usually carried out by people affected by the ERTE.

- The protective action of Social Security will include all protectable contingencies and benefits, including unemployment and FOGASA.

- Quote: if agreements are made with disabled people, there is a bonus of 50% of the business quota for common contingencies, during the term of the contract.

- Internship and training and learning contracts in force before this rule, as well as those concluded until March 30, 2022, will be governed by the previous regulations even with regard to their maximum duration (2 and 3 years respectively).

4) Scholarship Statute:

Within a period of six months from the entry into force of this regulation, the preparation of a Scholarship Statute will be negotiated with the social agents, to regulate tutored practical training in companies or organizations and the training activity within the framework of curricular practices. or extracurricular activities provided for in official studies.

1.4. FIND-DURATION CONTRACT: The new regulation of these contracts will come into force on March 31, 2022 and there will be two types of fixed-term contracts:

1) Due to production circumstances, which, in turn, can be of two types:

a) Due to occasional and unpredictable increases or oscillations that, even in the case of the normal activity of the company, generate a temporary mismatch between the stable employment available and that required (including staff vacations), provided that it does not respond to the assumptions of the fixed-discontinuous contract.

It will last 6 months, extendable to one year by sectoral collective agreement.

b) To address occasional, foreseeable situations that have a short and limited duration.

o Duration: 90 days in the calendar year. All the workers who are necessary may be hired to attend to the specific situations on each of said days. These 90 days cannot be used continuously.

o Companies, in the last quarter of each year, must convey to the workers' representatives the annual forecast of these contracts.

o Contracting companies, subcontractors or concessionaires of the administration may enter into this contract when the aforementioned production circumstances occur.

o ETTs may enter into an employment contract to cover several successive provisioning contracts with different user companies, provided that such provisioning contracts are fully determined at the time of signing the employment contract and respond to a case of contracting those contemplated in the two types of contract due to the aforementioned production circumstances.

2) By substitution, in the following cases:

a) Of a worker with the right to reserve a job. As a novelty, the provision of services may begin before the absence of the replaced person occurs, for the time essential for the transition and for a maximum of 15 days.

b) To complete the reduced working day of another worker, for legal or conventional reasons.

c) For the temporary coverage of a job position during the selection or promotion process for its definitive coverage through a permanent contract, with a maximum duration of 3 months.

3) Common rules for these temporary contracts:

a) Additional contribution of about 26 euros, with each cancellation, in contracts of less than thirty days (except domestic employees, replacement contracts, agricultural or coal mining).

b) Acquisition of permanent status in the following cases:

o If the regulatory rules of these contracts are not complied with or they are not registered with Social Security.

o If in a period of 24 months they had been hired for a period of more than 18 months (previously it was 30 and 24 months), with or without a continuity solution, for the same or different job position with the same company or group of companies , or by subrogation, through two or more contracts due to production circumstances, either directly or through its making available by ETT. For this new contract chaining system and with respect to contracts prior to the new standard, only the contract in force as of 12-31-2021 will be taken into consideration.

If a job is filled that has been occupied, with or without interruption, for more than 18 months in a period of 24 months through contracts due to production circumstances, including provision contracts made with ETT.

2. News in subcontracting

The only novelty is that the collective agreement applicable to contractor and subcontractor companies will be that of the sector of the activity carried out in the contract or subcontractor, unless there is another sectoral agreement applicable to the contractor or subcontractor.

If the contractor or subcontractor company has its own agreement, it will have priority of application except in relation to salary matters, in which the sectoral agreement will apply.

3. News regarding ERTE

1) ERTES regulated in article 47 of the Workers' Statute:

- The cause of TEMPORARY FORCE MAJEURE ERTE is established as impediments or limitations in the normalized activity of the company, as a consequence of decisions taken by the competent Public Authority, including those aimed at the protection of public health. The procedure is made more flexible in the terms of that used during the Covid-19 pandemic (communication to the Labor Authority with supporting documentation and positive administrative silence within a period of 5 days).

- In the ERTES ETOP the deadlines are reduced: 5 days for the appointment of the negotiating commission or 10 days if there is no RLT and, in companies with less than 50 workers, 7 days for the consultation period. The possibility of its extension is also established, following a new period of consultations with the appointed commission.

- Measures to reduce working hours are prioritized over measures to suspend contracts.

- Possibility of disaffecting and affecting workers based on changes in the circumstances indicated as justification for the measures.

- No overtime hours may be carried out, new outsourcing of activities may be established, nor new labor contracts may be arranged, unless the people affected by the ERTE of the affected work center cannot, due to training, qualification or other objective and justified reasons, develop those functions or services. .

- Certain exemptions are regulated in Social Security contributions on the business contribution for common contingencies, always linked to training actions and maintenance of employment for 6 months, although in the event of non-compliance with the commitment to maintain employment, only the amounts will have to be returned. Exemptions of the dismissed worker.

- Unemployment protection will be general.

- ERTE due to impediment or limitations to activity linked to COVID-19, regulated in Royal Decree-Law 18/2021, of September 28, will continue to be governed by said regulation until February 28, 2022.

2) New RED Mechanism for Flexibility and Employment Stabilization.

It must be activated by the Council of Ministers, it will come into force on March 31, 2002, and its purpose will be for companies to request measures to reduce working hours and suspend employment contracts, after holding a period of consultations with the representation of the workers and the authorization of the Labor Authority.

This new mechanism regulates, in turn, two modalities:

a) Cyclical, due to a general macroeconomic situation that advises the adoption of additional stabilization instruments, with a maximum duration of one year.

b) Sectoral, because in a certain sector of activity there are permanent changes that generate needs for requalification and professional transition processes for workers, with a maximum initial duration of one year and the possibility of two extensions of 6 months each. .

Other features of this new mechanism are:

- Measures to reduce working hours are prioritized over measures to suspend contracts.

- Possibility of disaffecting and affecting workers based on changes in the circumstances indicated as justification for the measures.

- No overtime hours may be carried out, new outsourcing of activities may be established, nor new labor contracts may be arranged, unless the people affected by the ERTE of the affected work center cannot, due to training, qualification or other objective and justified reasons, develop those functions or services. .

- Certain exemptions are regulated in Social Security contributions on the business contribution for common contingencies, always linked to training actions and maintenance of employment for 6 months, although in the event of non-compliance with the commitment to maintain employment, only the amounts will have to be returned. Exemptions of the dismissed worker.

- The unemployment benefit will be 70% of the regulatory base during the entire time of application of the measure, without the need for a lack or consumption of benefits for the future. It will come into force on March 31, 2022.

4. News regarding collective agreements. The most notable are the following:

a) The application priority of the company agreement is maintained except in salary matters, in which the sectoral agreement must be applied.

b) Transitional regime: this modification will not be applicable to collective agreements signed and submitted for registration or published before December 31, 2021, until the end of their express validity and at most until December 31, 2022. Upon said term , the agreements must be adapted within a period of 6 months.

c) Ultra full activity is established, that is, in the absence of an agreement, once the negotiation process has elapsed without reaching an agreement, the validity of the previous collective agreement will remain in effect until a new one is signed. This ultra indefinite activity will apply to the collective agreements already reported as of December 31, 2021.

5. New features introduced in the Law on Infractions and Sanctions in the Social Order

New infractions are classified, relating above all to the incorrect use of temporary hiring, hiring through ETT, information on filling vacancies in the company, irregularities in ERTES, ERES and the new RED Mechanism or non-compliance with the prohibition. to hire or outsource during the ERTES.

As of December 31, 2021, the amounts for the serious violations indicated in the previous point rise to a minimum of €1,000 and a maximum of €10,000.

It is regulated that, in this matter, the existence of a sanction will be considered for each affected worker.

6. Extension of the Minimum Interprofessional Wage

As long as the new interprofessional minimum wage for 2022 is not approved, within the framework of the dialogue with social agents. The one established for 2021 in Royal Decree 817/2021, of September 28, is extended.