LABOUR CODE AMENDMENTS

LABOUR CODE AMENDMENTS

Entry into force – 01/05/2023

TRIAL PERIOD

The trial period is the initial period of the employment contract during which the parties can evaluate their interest in maintaining the working relationship. During this period, both employer and worker may terminate the contract without just cause, compensation or prior notice.

The 180-day trial period set for workers seeking a first job or long-term unemployed is reduced or excluded depending on the duration of a previous fixed-term contract entered into with a different employer, if it lasted 90 days or more.

The trial period is also reduced according to the duration of a professional internship with a positive evaluation for the same activity and a different employer, if it lasted 90 days or more in the last 12 months.

The prior-notice period the employer must observe when terminating a contract during the trial period (where the trial has lasted more than 120 days) is extended from 15 to 30 days.

FIXED-TERM CONTRACTS

Open-ended fixed-term employment contracts must state the foreseeable duration of the contract.

Limits on the succession of fixed-term contracts are reinforced. Thus:

– Termination of a fixed-term employment contract for reasons not attributable to the worker prevents the hiring or assignment of a worker, before a period equivalent to one-third of the duration of that contract has elapsed, through:

– A fixed-term or temporary employment contract for the same job or professional activity;

– A services contract for the same purpose or activity.

COMPENSATION FOR COLLECTIVE DISMISSAL, TERMINATION OF THE WORK POSITION OR FOR UNADAPTABILITY

In the case of collective dismissal, termination of the work position or unadaptability, the worker is entitled to compensation corresponding to 14 days of base salary and seniority increases for each full year of service – an increase of two days compared to the previous law.

INCREASE IN COMPENSATION FOR EXPIRY OF A FIXED-TERM CONTRACT

In the case of expiry of a fixed-term employment contract upon verification of its term, the worker is entitled to compensation corresponding to 24 days of base salary and seniority increases for each full year of service (previously 18 days), calculated under article 366 of the Labour Code, unless the expiry results from a worker's declaration.

The worker is also entitled to compensation corresponding to 24 days of base salary and seniority increases for each full year of service, in case of expiry of an open-ended fixed-term contract – previously 18 days (up to 3 years) and 12 days (subsequent period).

TEMPORARY WORK CONTRACTS WITH A FOUR-RENEWAL LIMIT

The law reduces from six to four the maximum number of renewals of temporary work contracts, converting into an open-ended contract for temporary assignment any temporary work contract that exceeds this limit.

OUTSOURCING OF SERVICES

The new law establishes that it is not permitted to outsource services to a third party to satisfy needs that were previously met by a worker whose contract has been terminated in the preceding 12 months due to collective dismissal or termination of the work position.

Furthermore, when outsourcing services to a third party for activities corresponding to the company's corporate object, the collective labour regulation instrument that binds the beneficiary of the activity applies to the service provider when more favourable.

The collective labour regulation instrument applicable to the beneficiary also applies to the service provider, when more favourable, after 60 days of providing the activity. Before 60 days, the service provider is entitled to (whichever is more favourable) the minimum remuneration foreseen in the instrument applicable to the beneficiary for their functions, or the remuneration paid for equal work or work of equal value.

The services contract must specify which entity is responsible for ensuring compliance with the obligations foreseen in the instrument that binds the beneficiary.

SELF-EMPLOYED WORKERS IN A SITUATION OF ECONOMIC DEPENDENCE

Economic dependence is deemed to exist whenever the service provider:

– Is a natural person;

– Provides, directly and without third-party intervention, an activity for the same beneficiary;

– Obtains at least 50% of their activity's income from said beneficiary.

When the provider performs activities for several beneficiary companies among which there is a corporate relationship of reciprocal participations, control or group, or which have common organisational structures, the activity is deemed to be performed for a single beneficiary.

The collective labour regulation instruments in force within the same activity, professional and geographical sector apply to the provider, and self-employed workers in a situation of economic dependence are entitled to (subject to specific legislation):

– Representation by trade union associations and workers' committees;

– Negotiation of specific collective labour regulation instruments for self-employed workers, through trade union associations;

– Application of existing collective labour regulation instruments applicable to workers under their terms;

– Administrative extension of the collective bargaining regime or arbitration decision, and administrative setting of minimum working conditions.

Application of this regime depends on a declaration sent by the provider to the beneficiary of the activity, accompanied by evidence of compliance with the requirements of economic dependence.

COLLECTIVE BARGAINING WILL BRING MORE BENEFITS TO COMPANIES

"The State frames incentives to collective bargaining within its specific policies, namely through measures favouring companies that have recently signed or revised collective agreements, in the context of access to public support or funding, including European funds, public procurement procedures and tax incentives", reads the law (article 485). Covered by these benefits are agreements revised or signed "within a period of up to three years".

OVERTIME PAY INCREASES FROM 100 ANNUAL HOURS

Overtime work exceeding 100 hours per year will be paid with the following increases: 50% for the first hour or fraction thereof and 75% for each subsequent hour or fraction, on a working day; 100% per hour or fraction on a weekly rest day (mandatory or supplementary) or holiday. Until now overtime was set at 25%, 37.5% and 50% respectively.

WORKER'S WAIVER OF CREDITS

Upon termination of the employment contract or dismissal, workers may no longer waive credits owed by the employer, such as holiday and Christmas bonuses, training and overtime. The worker's credit "is not subject to extinction by waiver, except through a judicial settlement". That is, it cannot be merely an agreement between worker and company, without court mediation.

Therefore, the worker's waiver of credits arising from the employment contract, its violation or termination, even after the termination of the contract, ceases to be valid and effective – exception: judicial settlement.

NEW EMPLOYMENT CONTRACT FOR STUDENTS DURING HOLIDAYS

The new law provides for a new type of employment contract for students during school holidays or academic breaks (Article 89-A); it does not depend on the worker-student status and is not subject to written form.

However, the employer must communicate the conclusion of the contract to the competent Social Security service, through an electronic form that must meet all communication requirements provided in other legal provisions, with the service ensuring data interconnection with other services as needed.

INCREASE IN THE VALUE OF INTERNSHIP REMUNERATION

During the internship period, the promoting entity pays the "trainee a monthly internship allowance, the amount of which cannot be lower than that provided in subparagraph a) of paragraph 1 of article 275 of the Labour Code". That is, professional internships will be paid at least 80% of the National Minimum Wage (this year set at €760), and IEFP internship grants for graduates are increased to €960.

The internship promoting entity must also contract a work accident insurance.

DIGITAL PLATFORMS

Article 12-A was one of the most controversial in the entire negotiation and affects the labour relations between digital platforms and couriers/delivery workers, with the platforms considering that the law would quickly become obsolete given the expected application in Member States of the EU directive that will regulate digital platforms.

The law indicates some characteristics that may lead to the presumption of an employment contract between the digital platform and the provider, namely:

– The digital platform sets the fixed remuneration or maximum and minimum limits;

– The digital platform exercises management power;

– The digital platform controls and supervises the performance of the activity;

– The digital platform restricts the provider's autonomy regarding the organisation of work;

– The digital platform exercises disciplinary power;

– The equipment and work instruments belong to or are operated by the digital platform.

However, this presumption of a labour link may be rebutted if the digital platform proves that the activity provider works with effective autonomy, without being subject to the control, management and disciplinary power of whoever hires them, or invokes that the activity is provided to a natural or legal person acting as an intermediary of the digital platform to make services available through their respective workers.

TELEWORK: BROADER COVERAGE AND EXPENSES

The right to telework without the need for an agreement is broadened. "The worker with a child up to three years of age or, regardless of age, with a disability, chronic illness or oncological disease who lives with them in communion of board and lodging, is entitled to carry out the activity in a telework regime, when this is compatible with the activity performed and the employer has resources and means for this purpose", determines the law in article 166-A.

The individual employment contract and the collective employment contract must establish, when concluding the telework agreement, the amount of compensation owed to the worker for additional expenses.

In the absence of an agreement between the parties on a fixed amount, additional expenses correspond to the acquisition of goods and/or services the worker did not have before the conclusion of the telework agreement, as well as those determined by comparison with the worker's equivalent expenses in the last month of in-person work.

This compensation is, for tax purposes, a cost for the employer and does not constitute income for the worker up to the limit of the amount defined by an order of the members of the Government responsible for the tax and social security areas.

EXTENSION OF FATHER'S PARENTAL LEAVE

The father's mandatory parental leave will be increased from the current 20 working days to 28, with the father being required to take a parental leave of 28 days, consecutive or in interpolated periods of at least 7 days, within 42 days following the child's birth, 7 of which taken consecutively immediately after the birth.

The father is also entitled to seven days of leave, consecutive or interpolated, provided they are taken simultaneously with the mother's initial parental leave. In the event of the child's hospitalisation during the post-partum period, the leave is suspended, at the father's request, for the duration of the hospitalisation.

EXTENSION OF LEAVE FOR ADOPTION AND FOSTERING PROCEEDINGS

Candidates for adoption will be entitled to leave from work to carry out evaluation or to fulfil the obligations and procedures foreseen in the law for the respective proceedings, without limit. Justification to the employer is still required.

They are also entitled to part-time work for three months, with a normal working period equal to half full-time, provided the leave is exercised in full by each parent.

They may also enjoy up to 30 days of initial parental leave during the transition and accompaniment period and are also entitled to leave for child care.

GESTATIONAL BEREAVEMENT LEAVE

Enshrinement of absence for gestational bereavement of up to 3 consecutive days (new article 38-A and addition to article 249, paragraph 2(h)). Both parents will be entitled to this gestational bereavement leave, with no loss of any right or salary cut. Parents must present the employer with proof of the child's death during gestation (through a hospital or health centre declaration, or medical certificate).

EXTENDED BEREAVEMENT LEAVE

The new legislation established an extension of the days off for the death of a spouse, child or stepchild from 5 to 20 consecutive days. In the case of the death of other relatives or in-laws in the first degree in a direct line, leave is increased to up to five consecutive days.

SNS24 WILL ISSUE SICK NOTES OF UP TO THREE DAYS

Sick leave can now be issued through the National Health Service's digital service (SNS24), via self-declaration of illness, under a commitment of honour, which can only be issued when the worker's illness does not exceed three consecutive days, up to a limit of twice a year.