The labour measures contained in the government agreement, or what to expect in labour matters from the next legislature

Written on 30 Jan 2020

If 2019 ended with important labour news for companies (among others, the obligation of the working day register and the salary register), 2020 is expected to be a year of continuance of the reforms.

The first of the novelties has materialized in the increase of the minimum interprofessional salary, which this year will reach 950 Euros per month, and which will be increased throughout the legislature until the objective set by the current Government is achieved: to fix the amount of the minimum interprofessional salary at 60% of the average salary.

However, this is not the Government's only proposal in the labour field. The governmental program for the legislature, named "Progressive Coalition. A new agreement for Spain" (hereinafter, the "Agreement") sets out the proposed modifications, which are expected to be implemented gradually throughout the legislature, and which are summarised below.

1. Modify the contracting and subcontracting regime

The proposed amendment aims to limit subcontracting to specialised services outside the company's core business. In other words, only those marginal services that do not contribute directly to the production process could be subcontracted. Likewise, it is foreseen that the subcontracted entity applies the collective agreement applicable to the principal company to its employees, so that the employees of both companies benefit from the same working conditions. If this proposal is approved, a change in companies' outsourcing policies is foreseen.

2. Limiting employers' ability to unilaterally change working conditions

In its current wording, Article 41 of the Workers' Statute requires, for the unilateral modification of working conditions, the existence of reasons of an economic, organisational, productive and/or technical nature. The Agreement does not specify in what way or in what aspects this provision will be modified, and could therefore result in a more restrictive interpretation of the existence of justifiable grounds or in the establishment of the reversibility of the measure (so that, once the objective causes that justified the measure have been overcome, it reverts to the previous situation).

Notwithstanding the particular reform introduced in this matter, there is no doubt that this modification could also be applied to cases of suspension and termination of employment contracts for economic, organisational, productive and/or technical reasons (regulated in Articles 47 and 51 respectively of the Workers' Statute).

3. Derogation of the so-called "dismissal by absenteeism"

This would eliminate the possibility that absences justified by common contingencies may be the cause of the termination of an employment contract. This legislative reform is a response from the legislator to the Constitutional Court's ruling of 26 October (number 118/2019), which declares the constitutionality of the current regulation.

4. Strengthen the performance of the Labour Inspectorate and the labour authority in controlling collective redundancies

Although there is no specific provision concerning the willingness to recover the requirement for administrative authorisation (as was required prior to the 2012 labour reform), it is planned to strengthen the action of the Labour Inspectorate and the labour authority in this area.

5. Provisions on employment contracts

The proposals on employment contracts relate to those contracts whose use is currently most problematic: training contracts, temporary contracts and part-time contracts.

With regards to the former, the Agreement proposes to review the use of training contracts (i.e. internship contracts and contracts for training and apprenticeships), in order to verify that these are used for training purposes. In addition, the Agreement includes the creation of the Trainee's Statute, among whose measures would be the establishment of a maximum percentage of trainees per company.

Secondly, the Agreement provides for the reinforcement of the principle of causality in temporary recruitment. Those companies that fail to comply with the regulations will be exposed to more severe penalties than the current ones, since it is planned to increase the amount of the fines applicable to the fraudulent use of temporary contracts.

Finally, the control of part-time contracts is emphasised, in order to prevent them from being used to cover up undeclared working days. To this end, the Agreement focuses on controlling the irregular distribution of working hours and the need for the employment contract to expressly state the working hours.

6. Proposals for work-life balance and co-responsibility in working time

Following the legislative path already initiated with the obligation of time registration, approval of a "Law on the use of time and the rationalisation of schedules" has been proposed. The content of the Law project has not been disclosed, but it can be expected that it will deepen the scope of the right to digital disconnection, introduced in our legislation by the Organic Law 3/2018, on Personal Data Protection and guarantee of digital rights.

Likewise, it is agreed to ensure the right of parents to adapt their working hours until their children reach the age of 12. Although this is provided for in article 34.8 of the Workers' Statute, the terms under which it can be exercised are still not clear, so the provision of the Agreement seems to be aimed at reinforcing the guarantees of the exercise, without limitations, of this right.

7. Modifications in the field of collective bargaining

The proposed amendments in this field are aimed at revoking the modifications introduced by the labour reform of 2012. In particular, revoking the one-year limit to the ultra-activity of the collective bargaining agreement (and, thus, returning to the unlimited ultra-activity until a new collective agreement has been negotiated) and revoking the priority of application of company agreements over sectoral collective agreements, so that the latter (whether provincial, regional or state) take precedence over company agreements. It also provides for the adoption of measures to ensure a balanced presence of women and men in the bodies that negotiate collective agreements.

Finally, and among the measures to be adopted in the medium term, the Agreement includes the creation of a new Workers' Statute, so it cannot be excluded that the new law will include additional elements to those listed above. 2020 is expected to be a very dynamic year from the labour law point of view, in which numerous legislative developments are expected, and it will therefore be necessary to keep up to date.