2Contracts
2.2 Types of contract
Contracts can be made verbally or in writing, unless there are express provisions that require a written contract (for example, temporary contracts, part-time contracts and training contracts). If this formal requirement is not met, the contract is understood to be permanent and full-time, unless evidence is provided to the contrary.
Companies must provide the workers’ statutory representatives (if any) with a basic copy of all contracts to be made in writing (except for senior management contracts). The hiring of workers must be notified to the Public Employment Service within ten days of the contracts being made.
There are various different types of contract, including indefinite-term, fixed-term, training, distance work and part-time contracts.
On the website of the National Public Employment Service1 anyone can access a virtual assistant for employment contracts which, based on four basic types of employment contracts (indefinite-term, temporary, training and work-experience contracts), suggests and prepares the type of employment contract that best suits the characteristics of each new hire.
The principal features of these types of contracts are explained below.
2.2.1 Fixed-term contracts
Spanish legislation sets out specific grounds for the execution of fixed-term or temporary contracts. There are two types of contracts: contracts due to circumstances of production and contracts for the substitution of employees.
The employment contract is presumed to be entered into for an indefinite term. All temporary contracts must be made in writing and must specify the reason for their temporary nature in sufficient detail, the specific circumstances justifying it and its connection with the foreseen term (additionally, as per contracts for the substitution of employees, the name of the person substituted must be specified). Otherwise, or if the ground for the temporary contract does not truly correspond to one of the legally-established grounds, the contract will be deemed to be made for an indefinite term, unless evidence of its temporary nature is provided.
| TYPE | GROUND | TERM | OBSERVATIONS |
|---|---|---|---|
| Contract due to circumstances of production | To cover production circumstances due to occasional and unforeseeable increase of the activity. | May not exceed a maximum of 6 months (extendable to 12 months by collective bargaining agreement for the industry). | Its termination entitles the employee to receive a severance equal to 12 days’ salary per year worked. When the maximum periods established for any temporary contract have elapsed, workers will acquire the status of indefinite-term employees of the company. When workers have been hired for more than 18 months within a 24-month period, with or without interruption, for the same or different position at the same company or group of companies, under two or more contracts due to circumstances of production, whether directly or through temporary employment agencies, using the same or different types of fixed-term contract, the contract will be automatically converted into an indefinite-term contract. Likewise, the status of permanent employee shall be acquired by a person who occupies a position which has been occupied with or without solution of continuity for more than 18 months in a period of 24 months through contracts due to circumstances of production, including contracts made available through temporary employment agencies. The performance of work under contracts, subcontracts or administrative concessions that constitute the usual/ordinary activity of the company may not be identified as a cause of this contract. |
| To cover oscillations that (even though within normal activity) generates a temporary mismatch between the permanent staff available and the one required (the oscillations include those derived from annual vacations). | |||
| To cover production circumstances due to occasional and predictable situation and for a reduced and limited term. | Maximum duration of 90 days per calendar year, regardless of the number of workers required on each of these days to meet the specific situations that justify the hiring, which must be duly identified in the contract. | ||
| Fixed-term contracts for the substitution of employees | To substitute workers entitled to return to their job due to a statutory provision, or the provisions of a collective labor agreement or individual agreement. | From the beginning of the period (or up to 15 days before the beginning of the period) until the return of the substituted worker or expiry of the term established for the substitution. | The contract must state the name of the substituted worker and the grounds for the substitution. |
| To complete the reduced working day of another worker, when such reduction is covered by legally or conventionally established causes. | For the entire duration of the reduced working day of the worker whose working day is to be completed. | The contract must state the name of the person whose working day is to be completed and the cause of the substitution must be identified. | |
| Temporary coverage of a job position during a selection or promotion process to be covered by a permanent contract. | Maximum of 3 months. |
2.2.2 Training contracts
| CONTRACT | PURPOSE | TERM | OTHER INFORMATION OF INTEREST |
|---|---|---|---|
| Training contract for obtaining professional practice | Hiring of university graduates or workers with higher or advanced vocational training qualifications (first degree, master’s degree or doctorate) or officially recognized equivalent qualifications, or artistic or sports education, or workers holding a vocational qualification certificate (certificado de profesionalidad) entitling them to work in their profession. | Minimum of 6 months and maximum of 1 year. Sick leave, birth leave, leave for adoption or custody for adoption or fostering, leave due to risk during pregnancy and during breastfeeding and gender violence all toll the duration of the contract. | As a general rule, no more than 3 years may have elapsed since completion of the relevant studies, or 5 years if the contract is made with a disabled worker. The job must allow for adequate professional practice according to the level of studies or training that is the subject of the contract. An individual training plan shall be drawn up and a mentor shall be assigned. No employee may be hired in the same or different companies for longer than the maximum period of time by virtue of the same professional qualification or certificate. The employee may not work overtime (except to prevent or repair extraordinary and urgent damage). The employee shall have the right to obtain certification of the content of the internship performed. The compensation shall be the one established in the collective bargaining agreement applicable to the company for these contracts or, if none, the one applicable to the professional group and compensation level corresponding to the functions performed, which can never be less than the established for training contract in alternation or the minimum wage. |
| Training contract in alternation | The purpose of this type of contract is making compatible paid work activity with the corresponding training processes (vocational training, university studies and the National Employment System’s Catalog of Training Specialties). To be entered into by those who lack the occupational qualifications recognized by the vocational training system or education system required for a work experience contract for the position or occupation for which the contract is made. | Minimum of 3 months and maximum of 2 years. Sick leave, birth leave, leave for adoption or custody for adoption or fostering, leave due to risk during pregnancy and during breastfeeding and gender violence all toll the duration of the contract. | The theoretical training provided by the training center or workplace or the company itself, when so established, as well as the corresponding practical training provided by the company and workplace, are a substantial element of this contract. There must be a tutor both in the training entity and in the company, as well as the elaboration of individual training plans. Generally, only one contract may be concluded for each training cycle. The effective working time (compatible with training) is subject to limits 65% on the first year and 85% on the second year. Workers cannot work overtime (except to prevent or repair extraordinary and urgent damage), at night or in shifts. This contract may not be entered into when the activity or position has been previously performed by that employee in the same company for a period of more than 6 months. A trial period cannot be established. Where it does not regulate this, the compensation may not be less than 60% (during first year) or 75% (during second year) of the fixed salary corresponding professional group or level, never being under the minimum wage. |
2.2.3 Part-time contracts
An employment contract will be a part-time contract when a number of hours of work has been agreed with the worker per day, week, month or year, which is less than the working hours of a “comparable full-time worker”, that is, a full-time worker at the same company and workplace who performs identical or similar work.
Part-time workers have the same rights as full-time workers, although at times, according to their nature, such rights will be recognized proportionally, according to the time worked, having to guarantee, in any case, that there is no direct nor indirect discrimination between women and men.
Part-time workers cannot work overtime, except to prevent or repair losses and other urgent and extraordinary damages.
However, supplementary hours (hours worked in addition to those agreed in the contract, the performance of which is agreed beforehand) can be carried out. Supplementary hours may not exceed 30% of ordinary working hours (except where they are increased up to 60% in a collective labor agreement).
The employer is allowed to offer the employee hired indefinitely on a part-time basis no less than 10 weekly hours (on an annual basis), supplementary hours which are voluntary, which may not exceed 15% of the ordinary hours of the employment contract (30% if agreed in the applicable collective labor agreement).
The total ordinary hours and supplementary hours may not exceed the statutory limit for part-time work.
2.2.4 Indefinite-term contracts for seasonal or intermittent work
This type of contract may be used for the performance of work of a seasonal nature or linked to seasonal activities and for the performance of work that is not of a seasonal nature but which, being of an intermittent nature, has certain, determined or undetermined periods of performance.
It may be used to carry out work in the context of commercial or administrative contracts which, being foreseeable, are part of the ordinary activity. In this case, periods of inactivity may only occur as waiting periods between reassignments between subcontracting. The maximum period of inactivity shall be three months, unless otherwise provided for in the collective bargaining agreement. Once this period has expired, the company must adopt the appropriate temporary or definitive measures.
Indefinite-term contracts for seasonal or intermittent work must be formalized in writing and reflect the essential elements of the work activity (among others, the duration of the period of activity, the working hours and its hourly distribution, although the latter may be stated on an estimated basis, to be specified at the time of the call).
Collective bargaining agreements (or company agreements) will establish the criteria to call the employee. Likewise, the legal representatives of the workers must be informed sufficiently in advance, at the beginning of the calendar year, of the forecasts of the calls.
2.2.5 Distance work (telework)
Law 10/2021 defines regular remote work where, within a reference period of 3 months, accounts for at least 30% of the working day, or the equivalent proportional percentage depending on the duration of the employment contract. The remote working agreement shall be in writing, voluntary and reversible for the employee and the company, and may be signed at the beginning of the employment relationship or later on.
Workers’ statutory representative must receive a copy of each remote working agreement within 10 days since its signing, which must be subsequently sent to the corresponding Public Employment Service office.
Mandatory minimum required content of each remote working agreement is:
- Inventory of means, equipment and tools provided.
- Expenses that remote working may cause, as well as monetary compensation, timing and method in which the Company shall pay for them.
- Working hours and availability periods.
- Percentage and distribution between on site and remote working hours.
- Corresponding workplace.
- Designated remote working place.
- Reversibility advance notice period.
- Means of exercising corporate control.
- Procedure to be followed in the event of technical difficulties preventing remote working.
- Company instructions (participated by workers representatives) on data protection.
- Company instructions (after informing workers representatives) on information security.
- Length of the remote working agreement.
Any modification of the above must be subject of a new written agreement.
