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What is a permanent seasonal contract
The permanent seasonal contract, as has been the case to date, may be used for work of a seasonal nature or linked to seasonal productive activities, or for work that is not seasonal in nature but is performed intermittently, with recurring periods of activity that may be fixed or open-ended.
Written by Josep Conesa
Employment and insolvency lawyer
When can a permanent seasonal contract be used
The permanent seasonal contract may be used for work involving the provision of services under commercial or administrative contracts which, while foreseeable and seasonal or temporary in nature, form part of the ordinary business activity of the company.
A permanent seasonal contract may also be entered into between a temporary employment agency and a worker hired to be placed with a client company, on the terms set out in Article 10.3 of Law 14/1994 of 1 June, regulating temporary employment agencies.
Requirements for a permanent seasonal contract
A permanent seasonal employment contract must be drawn up in writing and must set out the essential elements of the employment arrangement, including:
- the duration of the activity period.
- the working hours and their distribution, although these may be stated on an estimated basis, without prejudice to their being confirmed at the time of the call-back to work, which may be governed by a collective bargaining agreement or company agreement establishing the objective and formal criteria that must apply when calling permanent seasonal workers back to work.
4. Where a permanent seasonal contract is justified by the award of contracts, subcontracts, or administrative concessions within the meaning of this article, periods of inactivity may only arise as waiting periods between successive subcontracting arrangements.
In such cases, sector-level collective bargaining agreements may set a maximum period of inactivity between subcontracts, which, in the absence of any such agreed provision, shall be three months. Once that period has elapsed, the company must take whatever temporary or permanent measures are appropriate, in accordance with the provisions of this legislation.
It remains to be seen whether workers subcontracted under an administrative concession that is renewed year after year can be engaged on permanent seasonal contracts even without any inactive period between successive contracts, but all indications suggest that the answer is yes: the permanent seasonal contract would fall within one of these scenarios given the current wording of the legislation and the growing flexibility that this type of contract is acquiring. In other words, following the reform, a period of inactivity is no longer a mandatory requirement.
5. Sector-level collective bargaining agreements may establish a sector-wide employment pool into which permanent seasonal workers may be placed during their inactive periods, with the aim of facilitating their re-engagement and ongoing training during those periods, all without prejudice to each company's obligations regarding the hiring and effective call-back of workers as set out in this article.
Those same agreements may also provide, where the specific characteristics of the sector's activities so justify, for permanent seasonal contracts to be worked on a part-time basis, and may impose an obligation on companies to draw up an annual register of their permanent seasonal workforce.
They may also establish a minimum annual call-up period and a sum payable by companies to workers at the end of a call-up, where this coincides with the end of the activity and no new call-up follows without interruption.
Permanent seasonal contract on a part-time basis
Although the wording of the law is open to interpretation, we believe it is possible to enter into a part-time contract within the terms of Article 12.1 of the Workers' Statute. This would also be consistent with the operational reality of many sectors. That said, some views hold that all permanent seasonal contracts must be full-time, unless the collective bargaining agreement expressly provides otherwise and the nature of the sector's activity justifies it.
We will need to wait for a uniform body of case law to emerge.
Rights of permanent seasonal workers
Permanent seasonal workers:
- May bring any available legal action in the event of breaches related to a call-up, with the time limit running from the moment of the failure to issue the call-up or from the moment they became aware of it.
- May not suffer any detriment as a result of exercising rights relating to work-life balance, absences with the right to job reinstatement, or other justified grounds based on rights recognised by law or collective bargaining agreements.
- Must receive information from the company, together with the workers' legal representatives, regarding the existence of permanent ordinary job vacancies, so that they may submit voluntary conversion requests in accordance with the procedures established by the relevant sectoral collective bargaining agreement or, failing that, a company-level agreement.
- Shall be considered a priority group for access to training initiatives under the vocational training for employment system in the workplace during periods of inactivity.
Calculating seniority for permanent seasonal workers: severance pay and remuneration concepts
- Regarding the calculation of compensation upon dismissal, one change that the labour reform appears to have introduced is how seniority is calculated for permanent seasonal workers, given that it states that the full duration of the employment relationship must be taken into account. We will have to wait and see how the courts interpret this provision, but in accordance with the ruling 70/2020 of the Supreme Court (which follows Cases C-439/18 and C-472/18 of the Court of Justice of the European Union of 15 October 2019), in practice, and as has always been the case when calculating compensation upon dismissal, the daily salary per year of service must be taken into account, as set out in Article 56.1 of the Workers' Statute. All indications suggest that this line of case law will continue to consider only the time "actually" worked, rather than total seniority from the date of registration as if the worker had been in service every month of the year.
- For the purposes of calculating remuneration components, such as a seniority allowance and rights relating to promotion and career advancement, the entire duration of the employment relationship shall be taken into account, not just the time actually worked (ruling of the Supreme Court of 19/11/2019)
The law sets out as an exception those conditions that require different treatment by reason of their nature, provided that such treatment is based on criteria of objectivity, proportionality and transparency.
CONCLUSIONS
Until now, seniority calculations for permanent seasonal contracts were based solely on periods actually worked. The labour reform expressly establishes that the entire duration of the employment relationship must be taken into account.
We anticipate that this will give rise to disputes, and the courts will need to define the scope of the exception subsequently introduced by the law: under what circumstances should seniority be calculated on the basis of time actually worked? When is it considered objective, proportionate and transparent to calculate seniority on that basis?
Whether or not this was the legislature's intention, leaving it to the courts to determine, we recommend entering into an individual or collective agreement in order to pre-empt any subsequent free interpretation by the Labour Inspectorate or the judiciary.
Contact our specialists if you need assistance with this matter.
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