Following the labor reform introduced by Royal Decree-Law 32/2021, published on Dec. 30, 2021, an unprecedented reduction is foreseen in Spain in temporary contracts. This will also mean a significant increase in indefinite-term contracts and, especially, seasonal contracts, therefore with an increase in the number of worker representatives and trade union presence at companies.
Until now, companies have correctly focused on interpreting and understanding the different forms of contracts that took effect on March 30 to adapt the productive reality and the new regulatory framework to each work center.
This direct consequence of the reform should not make employers overlook other collateral effects that are no less important, such as the increase in works councils and staff delegates at companies.
Under Spain’s labor relations framework, in order to determine the number of worker representatives, there is a dual criterion. First, indefinite term, seasonal and temporary contracts for more than one year are calculated as one unit, in other words, as one worker. Second, temporary contracts with a duration of less than one year are calculated according to the number of days worked in the 12 months before the trade union elections are called.
In particular, each 200 days worked by a worker with a temporary contract for less than one year is calculated as one more worker for the purposes of determining the number of worker representatives to be elected at a work center.
To the extent that this formula has not been changed, in light of the obvious increase in company staff under this form of indefinite-term and seasonal contracting, there will be an inseparable combination: an increase in the number of worker representatives.
Consider an example of the possible effects. To date, companies with 50 workers with indefinite-term and seasonal contracts and 100 temporary workers with contracts for specific projects or services that provide services for a period of 90 days per year each would result in the following number of worker representatives:
- 50 workers with indefinite-term or seasonal contracts (calculated as one unit).
- 100 workers with temporary project or services contracts with 90 days’ work in the year prior to the calling of elections are calculated as: 90 days’ work (x) 100 workers (/) 200 = 45 workers that would be calculated to determine the number of representatives to be elected.
At this company, with a total of 95 workers for the purpose of determining the number of representatives to be elected, the works council would be constituted by five members.
At the same company, if we assume that these 100 workers with a contract for a specific project or service would be contracted as seasonal workers for a term of 90 days per year each, after the reform of this form of contract and the elimination of the contract for specific projects and services, the resulting number of representatives to be elected would increase to nine members of the works council, by calculating 150 workers to determine the number of workers representatives.
Despite the fact that the provision of services has not changed in the example above, 90 days per year for each worker—with a seasonal contract or for a specific project or service—the nature of the contractual link has led to a substantial increase in the number of worker representatives at the company or work center.
According to the above and without a legislative amendment in relation to trade union elections, this practical implication of the reform should also form part of companies’ analysis.
Miguel Ángel Diaz is an attorney with Garrigues in Seville, Spain. © 2022 Garrigues. All rights reserved. Reposted with permission of Lexology.