Hotels and restaurants in the spotlight. Fraud of the law in contracting
According to data from the Ministry of Employment registered by the Public State Employment Service (SEPE), in the last month of August a total of 1,519,922 contracts were signed, 5, 15% less than last year. Of this total number of contracts, almost 92% were temporary (1,396,645) and only 8.11% were permanent (123,277).
According to data from SEPE itself the Hotel and Restaurant sector accumulated more than 70% of these temporary contracts in the month of August and it is not surprising that is in the spotlight of the Labor Inspectorate.
In 2018, 30% of the hotel businesses on the southern coast of Spain were penalized and Labor Inspections were intensified, taking advantage of the holiday season in the most touristy areas.
Therefore, it is important to follow the appropriate steps and not be advised by a friend/relative who claims to have experience in the sector.
When to make a temporary contract?
First of all, you must know when to make a temporary contract and when an indefinite one. The concatenation of temporary contracts that later become indefinite can become a headache if Inspection of Work asks us to justify those first temporary contracts.
Therefore, it is necessary to know that labor legislation requires certain requirements to carry out a temporary contract and does not allow filling a position in a company that has a permanent need with a temporary contract, that is, if the company has a permanent need, it should not hire temporarily.
Despite this, in many cases and under different types of temporary contracts, indefinite needs are covered with temporary contracts. The legal system obliges to demonstrate the temporary necessity and also to respect certain requirements when carrying out each contract. The requirements for each type of temporary contract are regulated in the Royal Decree 2720/98, of December 18, which develops article 15 of the Workers’ Statute regarding fixed-term contracts.
What are the consequences of a contract in fraud of law?
The consequences of the contract in fraud of the law are clear, article 15.3 of the Workers’ Statute provides that contracts in fraud of the law will be presumed for an indefinite period. That is, any contract that does not meet the requirements of RD 2720/98 will be considered indefinite, unless the employer proves its temporary status before the Labor Inspectorate or in the act of trial.
However, law fraud can also be considered in a contract that covers a temporary need, but that does not respect the requirements for the celebration of the type of said contract. In practice, many temporary needs, instead of being covered with temporary contracts, are covered with other types of contracts whose allowed duration is longer.
Types of contracts to cover temporary needs and their demands:
- Contract for works and services: is entered into to cover a work or service with autonomy and its own substantivity within the usual activity of the company and whose execution lasts uncertain. It requires detailing the work or service in question. For example, in the catering sector it is possible to enter into a work and service contract to cover a fair, where the worker must provide services at the fairgrounds.
- Temporary contract due to accumulation of tasks or excess orders: this contract must specify its duration and requires justification of eventual market reasons and the reason exact origin of it. It covers tasks belonging to the normal activity of the company but is justified in certain market circumstances that justify an accumulation of tasks. It is the most widely used contract in the hotel and service sector.
- Temporary contracts: are entered into to replace workers with the right to reserve their job position and must specify the name of the replaced worker and the reason for substitution.< /li>
Tips for the hotel and restaurant industry:
To avoid greater evils in these sectors, it is recommended to follow some general guidelines in order to meet the first objectives to be examined by the Labor Inspectorate:
1.- Hiring according to the applicable collective agreement: applying the salary and working hours according to the collective agreement of the hotel or restaurant sector is an element clue. This year the inspections focus mainly on this type of verification.
2.- Hire according to the necessary working hours: avoid signing part-time or part-time contracts to cover full days and additional hours. In these sectors, it is common practice to work overtime, but signing 20-hour weekly contracts so that the worker ends up doing 46 hours is not a good idea. There is not only the risk of a Labor Inspection, but also that of a lawsuit and consequent act of trial before the social jurisdiction with a ruling in favor of the worker.
3.- Avoid verbal contracts: although the law allows verbal employment contracts, it is always recommended to make them in writing , especially if this contract is going to be temporary and the objective is for the employee to only cover a part-time job. This is also recommended if the employee is a family member or spouse.
4.- Cover prevention of occupational hazards and surveillance of workers’ health: Mutual Mutuals They offer these services and are in charge of reviewing the company’s facilities annually, as well as the medical examination of the employees.
5.- Comply with the mandatory recording of the day: either by implementing a clocking system or by manually recording the time of entry and exit of employees, as well as their break times, the effective working day must be recorded. It should be remembered that the transfer method must allow exporting the history of the records at any time. The transfer system must be reliable, cannot be manipulated a posteriori (transfer records cannot be changed except for incidents) and must guarantee time traceability. This forces the sector to maintain a more efficient management of the days actually worked by its employees.
09/25/2019
