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Elimination of the work and service contract in the labor reform

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Eliminación del contrato de obra y servicio en la reforma laboral

Article written by Javier Sanchez Toledo, member of the Labor Law Department and published in the newspaper El Confidencial.

Without the work and service contract, how do we continue?

Once again, a great opportunity has been lost in attempting a real reform of the hiring and termination system.

One of the modifications carried out by RD-L 32/21, of December 28, on urgent measures for the labor reform, has been the new regulation of temporary hiring , limiting its assumptions to training contracts; to the circumstances of production, with the intention of limiting its duration and establishing greater control; and to the substitution of workers with the right to reserve a job, promoting the modality of discontinuous permanent workers for recurring seasonal causes.

Therefore, the disappearance of the contract called for the performance of a particular work or service (which traces its existence to the Bases for a bill regarding the employment contract of April 20, 1904) contract, the excluded one, with great prestige due to the use that had been made of such a contract modality, especially by the so-called service companies, that link the duration of the work contract to the duration of the contract for the service they provide to a third party, such as cleaning premises or offices, surveillance, maintenance, etc.

It is true that said contract was used in many cases to justify a non-existent temporality, losing its initial object. But it is no less true that there are activities, such as construction, in which it is obviously necessary to maintain this contract, since those works with a planned purpose, such as when the work is finished, must be carried out carried out through permanent contracts, which is absurd. And it is equally true that a specific regulation of service leases and specific employment contracts that provide said services is necessary.

According to what was stated by the service companies, there is great concern because the repeal of this hundred-year-old contractual modality supposes the very denial of its social and business purpose . If we add to this the obligation of wage equalization between contractors or subcontractors with the main one, already imposed on the ETT (art. 11.1 of its regulatory law), the circle, we believe to be vicious, narrows.

Necessarily, we must refer to the situation prior to the reform, article 15 of the ET, which provided for the suppressed modality to carry out a specific work or service, with autonomy and substantivity within of the activity of the execution company and uncertain duration. And despite this, they could not exceed three years, or up to four if it was agreed in a collective agreement at the state sectoral level, acquiring the status of permanent workers of the company to exceed that duration.

There is great concern because the repeal of the temporary contract implies the denial of its social and business purpose

On the other hand, article 49 of the ET, when regulating the termination of the contract, provided that, at the end of the work or service contract, the worker will have the right to receive compensation of twelve days of salary for each year of service, or the established, where appropriate, in the specific regulations that are applicable.

Focused on service companies, now forced to hire indefinitely, the differences can be focused on the different compensation, previously set at 12 days per year of service if not exceed three (or four) years in duration, since from that date the contract would become indefinite. Therefore, from the third (or fourth) year on, the compensation that must be paid to the worker is the same, both in the situation prior to the reform and after its entry into force.

And the cases that cause the most concern, which in this case are the termination of employment contracts due to the termination of service leases, although, without a doubt, the Termination of labor relations in these cases can be carried out by proceeding to objective dismissal for productive reasons, both individual and collective, which regulate articles 52 c) and 51.1 of the Workers’ Statute, and has done so Extensive jurisprudence has been confirmed, with a compensation of twenty days of salary per year of service being established for these cases, and limited to twelve monthly payments, which must also only be paid when the succession of the company does not take place.

And with this we return to the common thread of our argument: once again, a great opportunity has been lost in attempting a real reform of the hiring and termination system contracts, and we did not have other countries, such as Italy, so far away to look at us, and even if it was covertly, copy their legislation that differentiates, very sensibly, in the regulation of contractual terminations for employers with more than 15 workers in charge (or five in the agricultural sector) in any establishment, branch, office or autonomous department, and to employers that have employed more than 60 workers, whatever their location.

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