As we already mentioned in the previous post, we continue analyzing the labor reform published by the Royal Decree-Law 32/2021, of December 28, on urgent measures for labor reform, employment guarantee and the transformation of the labor market.
The essence of the discontinuous fixed contract remains the same - making periods of activity compatible with inactivity - although although it is true, it is presented in a new paradigm, reinforcing its use and with much more entity than how we even understood this contract. What RDL 32/2021 has really done is promote this contractual modality and move all work or service contracts determined in this modality, a circumstance that the Supreme Court already ruled at the end of 2020.
Until now it has been established that vacations should be included in the new temporary due to production circumstances, but in my opinion this will only be possible when there is a mismatch between available employment and what is required, on the contrary, when this does not occur and the premise is that the vacations are foreseeable in time -2 months in advance according to the Statute-, and develop cyclically or intermittently; I understand that it would be possible to conclude a discontinuous fixed contract.
Discontinuous Fixed Contract (art. 16 of the Workers' Statute)
The discontinuous fixed contract is established in article 16 of the Workers' Statute, where it states three possible scenarios for your celebration:
- For jobs of seasonal nature or linked to activities seasonal productive.
- For the development of those works that do not have this nature but that, being intermittent provision, have certain specific or indeterminate execution periods.
- For the development of work consisting of the provision of services within the framework of contract execution commercial or administrative that, being foreseeable, form part of the ordinary activity of the company. In this case, the maximum period of inactivity between subcontractors will be 3 months; Beyond this period, the appropriate temporary or definitive measures must be adopted.
Regarding seniority:
The entire duration of the employment relationship will be taken into account - and not the time of services actually provided - in aspects such as economic and professional promotion, and as long as it meets criteria of objectivity, proportionality and transparency.
Regarding the appeals:
- By collective agreement or, failing that, a company agreement, the criteria - objective and formal - will be established to make the call.
- At the beginning of each year, the company will transfer to the legal representation of the workers -RLT- the annual or semi-annual call forecasts, and the effective additions of discontinuous permanent employees, once they occur.
Regarding unemployment:
The necessary modifications will be regulated to improve the protection of the level of care of permanent-discontinuous workers.
Regarding the form:
- Possibility of agreement between a Temporary Employment Company and a person hired to be assigned.
- It must be formalized in writing, and will reflect the duration, day and distribution.
By sectoral collective agreement it may be established:
- A sectoral employment exchange.
- The part-time celebration.
- A minimum annual calling period.
- End of appeal amount
Validity
Until when can I enter into contracts according to the previous rule?
Until March 30, 2022, discontinuous fixed contracts may be entered into in accordance with the previous rule
From when does the new rule begin to apply?
As of March 31, 2022, the new labor regulations (RDL 32/2021) will apply.
