Fixed-term employment contracts in Spain

AutorManel Luque Parra - Anna Ginès i Fabrellas
Páginas45-54

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Introduction

Temporary work in Spain is quantitatively significant. Even though, as we will analyze in Q.1, temporary employment contracts are the exception in the Spanish labor-legal system, the number of employees with a contract of limited duration is very high.

In this sense, according to the Labor Force Survey from the fourth trimester of 2013, 23.9% of the total number of employed workers has a short-term labor contract. The percentage of contracts of limited duration is especially high the agricultural (64.3%) and construction (34.5%) sectors. It is also important to point out that, in Spain, the rate of contracts with limited duration is gender biased, as the percentage of male employees with a short-term contract is 22.7%, while female employees is 24.8%.1

The percentage of temporality has decrease since the beginning of the economic crisis in 2008 from 29.3% to the current 23.9%, undoubtedly due to the exponential increase in the percentage of unemployed workers from 13.91% in 2008 to 26.03% nowadays. Consequently, it is not possible to state that temporality in Spain has, in fact, decreased. In spite of the above, Spain is still one of the countries in the European Union with a higher rate of fixed-term contracts. It’s percentage of temporary work clearly exceeds the mean of the European Union (13.7%) and the Euro area (15.2%), and is astronomically higher than the one registered in the United Kingdom (6.3%), Belgium (8.1%), Norway (8.4%) or Germany (13.9%).2

1. Is it possible to subscribe temporary employment contracts in Spain? What is the principle that governs temporary work?

Yes. Section 15.1 of the Workers’ Statute (Estatuto de los Trabajadores, hereinafter, ET) states that the employment contract can be subscribed for an indefinite period or with limited duration.

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Nonetheless, as mentioned, temporary employment contracts are (or should be) the exception, while the fix-term contract is the general rule in the Spanish labor-legal system. The principle that governs temporary work is a causality principle. That is, temporary employment contracts can only be subscribed when there is a cause specifically provided for in the legislation.

The legal causes that allow the subscription of a temporary employment contract are, in general, related with the existence of a temporary factor. Temporary factor that is justified by a) the characteristics of the work (temporary replacement of absent workers, increase in workload or specific project or service) or b) the workers’ characteristics (training, internship or professional experience).

2. Which temporary employment contracts exist in Spain? In which cases can these temporary employment contracts be used and what is their legal regulation?

There are three main temporary employment contracts (section 15 ET):

  1. Specific project or service contract (contrato de obra y servicio determinado): it is possible to subscribe a temporary employment contract for the realization of a specific project or service when (i) this project or services has substantive autonomy within the company’s activity and (ii) the duration is, even though short-term, uncertain. This contract has a maximum duration of 3 years, which can be extended to 4 years trough a collective bargaining agreement. It is interesting to note that this limitation does not apply in the construction and public sectors.

  2. Temporary contract (contrato eventual): when, as a result of market circumstances, backlog or over-ordering, companies require additional workforce, it is possible to subscribe a temporary contract. This contract has a maximum duration of sis months in a period of twelve; maximum duration that can, nonetheless, be extended trough collective bargaining agreements with a maximum of twelve months in a period of eighteen.

    As a result of a recent legislative reform, this contract is also available when hiring young (less than 30 years old) unemployed workers with no or little (less than three months) professional experience (section 12 RDL 4/2013, February 22, of measures to support entrepreneurship and to stimulate growth and job creation). In this case, the employer can freely use this contract, without having to justify market circumstances, backlog or over-ordering. This contract has a minimum duration of three months and maximum of six or twelve if provided in collective

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    bargaining agreement. This contract, nonetheless, can only be used as long as the unemployment rate in Spain exceeds 15%.

  3. Substitute contract (contrato de interinidad): it is also possible to subscribe a temporary contract for the substitution of workers on leave. In this case, it is necessary to state de name of the absent worker and the cause of the substitution. There is no maximum duration for this contract, as it must cover the whole duration of the substitution.

    This contract can also be used to cover a vacancy during the selection or promotion process. In this case, the maximum duration is (i) 3 months when this vacancy is in the private sector or (ii) the finalization of the process when is in the public sector.

    ...

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