Short term or partial term work contracts, as applicable under Spanish law.
The following is a consideration of the implications of declaring a work contract to be short or partial term under Spanish law. It was published on the 15th of April 2013 and was correct at the time of publication.
The employment contract shall be considered to be part-time when you have agreed to provide services for a number of hours a day, a week, a month or a year, that are less than the working day of a comparable full-time worker. The term shall be used only when a comparable full-time worker in the same company or workplace, with the same type of employment contract, performs the same or similar work. If the company does not have any comparable full-time workers, the contract will be considered to be full-time employment provided for in the applicable collective agreement or, failing that, the legal maximum hours.
Indefinitely or for a fixed period in those cases where such a possibility is foreseen in the relevant standard.
If the effective duration of this contracts is less than seven days, the employer’s contribution to Social Security for common contingencies will increase by 36%.
The part-time contract shall be considered to be for an indefinite time when you are given regular work which is considered to be fixed and periodical within the normal volume of business activity.
Permission is granted for the issuance of part-time contracts in the following types of fixed-term contracts:
- Contracting for performing a specific task or service.
- Recruitment to fill market circumstances, backlog or excess orders.
- Hiring replacement workers to cover for employees on leave.
- Experience contracts.
- Replacement contract.
It is not permitted to issue the following contracts part time:
- for training purposes (contratos de formacion)
- contracts which include early retirement clauses as a measure to promote employment.
Distribution of the working day
The workday in part-time work may be carried out continuously or in shifts. When the part-time contract entails the implementation of a workday which is less than full-time workers and this takes place in split shifts, it is only possible to make a single break during this working day, unless other exceptions are provided for by the applicable collective agreement, or, alternatively, a lower level rule.
Part-time employees may work overtime. The amount of overtime that can be made will be the legally permitted in proportion to the agreed working hours. Hours will be counted for the purpose of social security contributions. In any case, the sum of regular hours, overtime and complementary hours may not exceed the legal limit for part-time work.
Employer and employee may agree additional hours as stipulated under the contractual law, depending also upon the applicable collective agreement.
Conclusion of Contract
- The official work contract shall clearly stipulate the number of ordinary hours of work a day, a week, a month or a year (as per contract). Failing to observe these requirements, the contract is deemed to be a full time contract, facie evidence attesting to the partial nature of the services (which must be proven to the Employment Service Inspectors).
- Communication of the contents of the contract and any extension thereof, (if any): the Public Employment Service concerned must receive, within ten working days of its signing, a copy signed by the legal parties or their representatives, if any.
- The legal representatives must be given a basic copy of the contract within ten days.
- The part-time workers who are not receiving cash benefits for unemployment may subscribe voluntarily with their employer a “Special Agreement” with the Social Security.
- It is also a part-time contract when a partially retired worker reduces their time between 25% and 85% when the contract to replace them is full-time and of indefinite duration, or between 25% and 75% in other cases (when compatible with the partial retirement Social Security payments awarded to the employee).
- Part-time workers have the same employment rights as full-time workers. Collective agreements provide for measures to facilitate effective access for part-time workers to continue vocational training in order to facilitate their progression and professional mobility.
- In the event that the part time contract is converted to a fixed term upon its expiry, if it had been entered into as of March 4, 2001, the worker is entitled to compensation, normally equivalent to the amount of eight days’ wages for each year of service, or, where appropriate, as under the specific rules, except if it is an interim or practise contract.
The employer and the employee may agree on the implementation of additional hours that will be added to the normal hours under the contract part-time and, where appropriate, sectorial collective agreements or, alternatively, lower level agreements. Only when there is such a covenant may the employer may require the completion of additional hours.
Formalizing the additional hours
The pact will be formalized, necessarily written upon the official form and must stipulate the number of additional hours whose realization may be required by the employer. The pact for additional hours may be agreed at the time of conclusion of the contract or part time subsequent thereto, but shall, in any case, be a specific agreement regarding the contract. You can only enter into a covenant of additional hours in the case of part-time contracts of indefinite duration.
Maximum number of additional hours
The number of additional hours shall not exceed 15% of the ordinary hours of work under the contract. The sectorial collective agreements may provide another level below this maximum rate, which in no case may exceed 60% of the ordinary hours contracted. In any case, the sum of regular hours and additional hours may not exceed the legal limit that defines this contract.
Distribution and implementation of additional hours
The distribution and embodiment of the agreed additional hours shall comply with the provisions in this regard in the relevant collective agreement and the covenant of additional hours. Unless otherwise established in the Convention, the worker must know the date and time of completion of the additional hours’ with a notice of seven days. Additional hours will always respect the limits on working hours and rest established. The covenant of additional hours and conditions of realization of the same shall be subject to compliance with the above requirements and, where appropriate, the system provided in the applicable collective agreements. Failure to comply with such requirements means the worker’s refusal to carry out the additional hours, despite having been agreed in advance, shall not constitute sanctionable conduct.
Remuneration for additional hours
The additional hours shall be remunerated as per the agreed base salary, including Social Security contribution and waiting periods and regulatory basis of performance. To this end, the number of hours paid for should be collected in individual receipt of wages and Social Security contributions disclosures.
Refusal of worker to continue working additional hours
The pact of additional hours may be terminated by resignation of the employee, by giving notice of fifteen days, after one year has passed since the contract was signed, when any of the following circumstances occurs:
- Family responsibilities when the employee is the legal guardian.
- By training needs, as determined by regulation, provided that the employee can prove the incompatibility.
- For compatibility with another part-time contract.
Converting a full-time job to a part-time work and vice versa
The change will always be voluntary for the worker and not be imposed unilaterally or as a result of a substantial change in working conditions. The worker can not be fired or suffer any other penalty or detrimental effect by the fact that they have rejected this conversion, without prejudice to measures taken by economic, technical, organizational or production reasons.
Workers right to information
In order to enhance mobility in voluntary part-time work, the employer shall inform the workers of the company on the existence of job vacancies, so that the latter can make applications for voluntary conversion of a full-time job, or to increase the working time of part-time workers, all in accordance with the procedures established in sectoral collective agreements or, alternatively, lower level rules.
Workers who have agreed voluntary conversion of an employment contract on another full-time part-time or vice versa and that, pursuant to the information referred to in the preceding paragraph, request the return to the previous situation will take precedence for access to a vacancy of that nature that exists in the company corresponding to the same professional group or equivalent category in accordance with the requirements and procedures established in sectoral collective agreements or, failing that, lower level application agreements.
Workers who have equal seniority, having been hired part-time initially, having served as such in the company for three or more years, to cover those full-time vacancies for the same professional group or equivalent category exist in the company. Collective bargaining agreements and, alternatively, lower level agreements, may establish, where appropriate, requirements and specialties for converting full-time contracts to part-time contracts, when these are motivated primarily by family or training reasons.
Communication of decisions
Requests for conversion of a full-time contract to another part-time or a part-time contract full time should be taken into account as far as possible, by the employer. The denial of the request shall be notified by the employer to the employee in writing giving the reasons.