New working conditions for domestic workers
Legislative news of Royal Decree-Law 16/2022, of September 6, for the improvement of working conditions and social security of service workers home
The Royal Decree-Law 16/2022, of September 6, which will be applicable to contracts in force on the date of entry into force (September 9, although it is not a single application data for all the modifications that it incorporates), its objective is to equate the conditions of work and Social Security of the people employed in the family home to those of the rest of the employed persons, thus ending situations of inequality that in practice, it is pointed out, suffer many women in this sector.
This legislative change comes after the STJUE of February 24 2022 which considered Spanish law illegal and discriminatory, since that placed domestic workers at a disadvantage compared to other workers without any objective justification in the opinion of the community court.
The aforementioned sentence affirms that any differential treatment in the field of Social Security that mainly affects women constitutes indirect discrimination based on sex and, furthermore, opposes the Directive 79/7/EEC of the Council, of December 19, 1978. In the case of household employees, this situation occurs since, according to data from Social Security affiliates, 95% of household workers they are women, since they represent 376,000, compared to 17,000 men (Información obtenida de La Vanguardia)
Social Security
The art. 33.2 ET so that, within the scope of the benefits provided by the Wage Guarantee Fund (FOGASA), there is no discrimination of any kind between these workers and the rest of the employees. However, once the standard itself includes them in the scope of FOGASA protection, it incorporates a different solution by lowering the maximum compensation to be paid by the Autonomous Organization.
As a result, letter d) of art. 251 of the General Social Security Law since letter d is currently excluded from the precept (we indicate the text of the epigraph that is deleted):
Art. 251 LGSS: “Workers included in the Special System for Domestic Employees will be entitled to Social Security benefits under the terms and conditions established in this General Social Security Regime, with the following peculiarities :
d) The protective action of the Special System for Domestic Employees will not include that corresponding to unemployment strong>”
Referring again to the STJUE of February 24, 2022, this elimination has been necessary since the same ruling that domestic workers cannot be deprived of their right to that the heads of the family contribute for unemployment.
That is why as of RDL 16/2022, the contribution obligation for domestic workers is recognized and the >the right to compensation of these workers in cases of insolvency or bankruptcy of the employers.
The fact that the CJEU ruling refers to the matter of “contributions” has its explanation, because as is known this matter is outside the competence of the social courts, and The justification is quite simple: the Spanish court proposing the preliminary ruling was a contentious-administrative court.
Quotation bases
- For common and professional contingencies à Will be determined in accordance with the General State Budget Law.
- Until 2022: They will be updated in equal proportion to the increase experienced by the minimum interprofessional wage.
- In the year 2023:
- From 2024 à They will be determined in accordance with the provisions of art. 147 of Royal Legislative Decree 8/2015, of October 30 (the General Social Security Law) without the contribution being less than the minimum base established by law.
It should be taken into account that people who hire a household employee and register them in the General Social Security Regime will also have a series of removals which are:
- A 20% reduction in the company contribution to the Social Security contribution for common contingencies.
- An 80% discount on company contributions to the unemployment contribution and FOGASA.
However, the second point of the first additional provision provides as an alternative to the reduction explained above, that employers who register in the General Social Security Regime to A worker in the service of the home will be entitled to a 45% or 30% bonus in the business contribution to the Social Security contribution for common contingencies when they meet the following requirements:
- Of equity and/or income of the family unit
- Of coexistence of the employer
- Under the terms and conditions established by law for both cases.
These bonuses will only be applicable with respect to a single person who is a household employee registered in the General Social Security Scheme for each employer. In the cases in which there is more than one household employee registered in said Scheme for each employer, the bonus will be applicable only with respect to the person registered in first place. Let’s hope that the announced Regulation does not take long to wait.
Another forecast is that as of January 1, 2023 employers have the obligation to contribute in relation to household employees, even if these provide their services for less than 60 hours per month per employer.
As a period of entry into force other than the general one, the contribution for unemployment and FOGASA contingencies will be mandatory as of October 1 of 2022.
It is important to note that employers of workers in the family home linked to each other by virtue of a special employment relationship are obliged to contribute to the Wage Guarantee Fund as and as established by art. 11 d) of Royal Decree 505/1985, of March 6, on the organization and operation of the Wage Guarantee Fund, by virtue of the Royal Decree Law that we are discussing.
Form of employment contract
Regarding the form of the employment contract, it will comply with the provisions of the ET. However, in the absence of a written agreement, the contract will be presumed to be indefinite and full-time.
Furthermore, the worker must receive information about the essential elements of the contract (consent, object and cause) as well as :
- Salary benefits in kind.
- Duration and distribution of the agreed presence times.
- Overnight stay in the family home.
Termination of contract
The employment contract may be terminated for the causes established in art. 49.1 ET, as well as by:
- Decrease in the income of the family unit.
- Increase in your expenses due to unforeseen circumstances.
- Substantial modification of the needs of the family unit that justify the removal of the person who works in the home.
- Behavior of the worker that provides a reasonable and proportionate basis for the loss of confidence of the employer.
In this way, the figure of withdrawal that allowed this extinction through the payment of compensation and without allegation is eliminated for any reason. Without justification to support it, with this deletion what the executive legislature is really doing is distorting the most characteristic note of this relationship, such as the most trusted personnel, and this, whether it is present or not, is not measurable. A formula has been sought that is only going to bring interpretive difficulties in defining what are behaviors that justify a loss of trust, when there are no degrees in this.
As we can see, as a result of this Royal Legislative Decree, new causes of extinction have been added to those that were already in force. Causes that must be duly justified but, as we have already mentioned, on some occasions (especially in cases of loss of confidence) it can be difficult to determine.
This leads us to advise the client that if they have any questions, contact us, so we will offer them the advice they need.
VideoBlog: “Extinction of the contract in the new working conditions for domestic workers”
Requirements to terminate the employment contract
The decision to terminate the employment contract must be communicated in writing and must be explained clearly and unequivocally the will of the employer to terminate the employment relationship, as well as the why of that decision.
Regarding the notice period two situations must be differentiated (there has been no change in this):
- In the event that the provision of services has exceeded one year duration, the worker must be notified at least twenty days.
- On the other hand, when the employment relationship has been less than one year, the notice period for termination will be seven days.
To also take into account that, during the notice period, the person who provides full-time services will be entitled, without loss of salary, to a leave of six hours per week in order to find a new job.
The advance notice can be replaced by compensation equivalent to the salaries of said period. Circumstance that we always advise, and in these relationships with greater intensity, since experience teaches that the relationship is not easy, when it has a termination date set by the will of the employer head of the family.
At the same time as this decision is communicated, the compensation corresponding to twelve days of salary per year of employment must be made available to the employed person. service with a limit of 6 monthly payments as long as the cause of termination falls within the circumstances provided for in section 2 of art. 11 of the RD regulating this special relationship, which we have seen supra 4 that RDL 16/2022 gives a new wording.
Table of occupational diseases
As a novelty, the table of occupational diseases is included in the Social Security system in order to identify and correct the deficiencies that exist in the scope of protection against occupational diseases in jobs carried out mainly by women.
Training
It is important to know that training accreditation will be required for these workers whose duties include caring for people who are part of the domestic and family environment.
VideoBlog: “Contingency contribution for unemployment and FOGASA in domestic workers”
You may be interested in: “Iguala service in Labor Law“
Departamento de Derecho Laboral
29/09/2022
