Until the end of 2020, the Supreme Court admitted that the duration of a work contract for a specific work or service, concluded by a company to provide service to a client, could be limited to the duration of the contract itself. But a sentence of the plenary session of the Social Chamber, dated December 29, has fundamentally modified that criterion.
Specifically, the Social Chamber considers that, when the activity of the contractor consists “precisely, in developing services for third parties”, the requirement that this work or service present “autonomy and its own substantivity, within what it is the work activity of the company ”, which is required to justify the temporary nature of the work contract.
As Ignasi Beltrán, Professor of Labor Law at the UOC, explains, this is “a very important ruling, which initiates a new jurisprudential trend, which in Anglo-Saxon law is known as a leading case ”.
The teacher adds that the nuance that this resolution introduces in the previous jurisprudence is fundamental: “It ends with the formalism or subterfuge that allowed hiring temporary workers for permanent services.”
Social magistrate Carlos Galán specifies that “from now on, if the order is not unique, by itself, it will not serve to justify a contract for a specific work or service.” It is a rather novel and restrictive interpretation, because “it requires that the contracted service have weight and autonomy by itself and its completion does not depend solely on the client. It must have a beginning and an end ”.
Thus, if a company arranges for the cleaning or computer maintenance of its facilities with a third party, this in turn will not be able to hire temporary employees for this, since these needs are not specific, but structural.
In the opinion of the majority unions, the Supreme Court ruling recognizes one of their historical demands and puts an end to the generalized abuse of temporary employment in subcontractors.
In this sense, Félix Pinilla, coordinator of the UGT legal services, points out that, although the 2010 reform tried to limit contracts for a specific work or service to three years, “this limit did not apply to contracts signed before that date and in practice it was enough to renew the contract to make them eternal ”.
What is relevant, in his opinion, is that the sentence transcends the specific case and “can be applied to any multi-service company that bases its activity on outsourcing.”
Ramón Liébana, professor of Labor Law at UNIR and general secretary of the La Rioja Promotion and Construction Association, acknowledges that the high court’s ruling has fallen like “a jug of cold water” on the employers’ association and affirms that if not it has caused more commotion “it is because since it was issued at Christmas, many businessmen have not found out and do not know to what extent it will affect them.”
From his point of view, the jurisprudential shift is going to cause, in practice, contracts for works and services to disappear and indefinite contracts to become general . “When the contract is finished, the company will have to go to an objective dismissal, with compensation of 20 days per year worked and not 12, as is currently the case,” he reveals.
Liébana predicts that this increased cost of dismissal “will greatly complicate labor relations” as “subcontractors will think twice before expanding their workforces.” That is, it will have “a negative impact on employment, at least in the short term, until companies can adapt to this new situation.”
Andreu Cruañas, president of Asempleo (the main association of temporary work companies) and member of the CEOE’s executive committee, is less blunt, who does not consider that contracts for specific work or service will disappear, not only because the sentence “ it does not establish an absolute prohibition of its agreement ”, but also because“ there will continue to be temporary needs that must be covered by this contractual figure ”.
Simply, he observes, “they will not be able to apply for needs for which they were not foreseen: permanent needs”.
For his part, Liébana estimates that subcontractors will find legal formulas to continue employing temporary workers, because there are alternatives: “The main one is collective bargaining, in such a way that the social agents agree on some contractual specialty in certain sectors.”
Other options are the use of figures such as the discontinuous fixed employment contract or the part-time contract with irregular working hours, “but they involve higher costs that will make services more expensive.”
According to the magistrate Carlos Galán, the contract for works and services gives rise to many litigation nowadays as it is “a sink for fraudulent contracts that rarely comply with the law.” However, he does not believe that the Supreme Court’s ruling will cause an avalanche of lawsuits, but that its effects will be rather staggered.
“What experience tells us is that in most cases legislative or jurisprudential changes are questioned at the time of challenging the dismissal, and not before,” he says. And all this for a simple reason: the very precariousness of the labor market pushes workers not to report the illegality of their contracts until they are fired.
