Given the economic difficulties, the part-time contract is an attractive option for employers, allowing them to save costs to meet needed staff and for workers to continue employment.
The part-time contract is an employment contract with an agreement to provide services during a certain number of hours a day, week, month, or year minus 77% of the working hours of full-time employment established in the applicable collective agreement or the maximum legal workweek (40 hours).
To continue, we will briefly analyze the distinctive features of this type of employment contact.
Formalization, duration and workday
An employment contract is a part-time contract where there exists an agreement to provide services during a certain number of hours a day, week, month, or year minus the number of working hours of a comparable worker employed full-time.
Two full-time workers are comparable in the same company and workplace when they have the same type of employment contract and perform the same or similar work. If a company does not have any comparable full-time worker, it is considered a full-time workday under the applicable collective agreement or, in its absence, the maximum legal workday.
The contracts can be indefinite or for a fixed period; in the latter case, a worker can choose any type of contract, except the training contract.
The following are part-time contracts:
- Indefinite term: When the contract provides fixed and periodic work within the normal volume of a company’s activities.
- Fixed-term: This contract is for a worker who contracts with a company for a reduction in his or her workday and salary by a minimum of 25% and a maximum of 50% (or 70% in cases where the reserved worker contracts with a company under an indefinite, full-time contract) and meets the requirements established in the Spanish General Social Security Act (the “Act”). This type of contract is also for use when, satisfying certain general conditions in the Act the worker has reached the age established in Article 161.1ª) and in the twentieth transitional provision of the Act. The execution of this part-time contract and its compensation will be compatible with the Spanish Social Security pension given to a worker in partial retirement, which terminates the labour relationship when total retirement occurs. To use this contract with workers who have not yet reached the age of retirement, a company should simultaneously enter into an employment contract with an unemployed worker or a worker who had a fixed-term contract with the company with the aim to replace the work hours left available by the partially retired worker. This employment contract, which is also for use to replace workers who have partially retired after reaching the age of retirement, is a relief contract.
The model chosen for the contract requires formalization of the contract in writing. The contract must include the number of contracted ordinary hours of work per day, week, month, or year and its distribution.
Failure to observe these requirements leads to the presumption that the contract is for full-time employment — unless there is proof to the contrary confirming the partial nature of services and the number and distribution of the contracted hours.
The Spanish Public Employment Service must receive notification within 10 days after the contract’s execution.
The workday of part-time employment may be continuous or in parts. When the part-time contract implements a workday less than the workday of full-time workers and the worker performs the work during the workday in partial increments of time, it is only possible to have one daily interruption to the workday unless otherwise provided in the sectoral collective agreement or other collective agreement.
Beginning after the enforcement of the Law 3/2012 of July 6, 2012, workers employed part-time may provide supplemental hours of work to their employers. The number of supplemental hours allowed is the legally established proportion to the agreed workday.
Calculation of the supplemental hours includes determining contribution and regulatory basis of benefits.
In any case, the sum of the ordinary, supplemental, and complementary hours cannot exceed the legal work limit of part-time work.
Converting a full-time work contract into a part-time work contract and vice versa must always be voluntary for the worker and cannot be imposed unilaterally or as a result of a substantial modification in working conditions. The employer cannot dismiss the worker or cause the worker to suffer any other type of punishment or harm for rejecting this conversion, which is subject to the measures that a company may adopt due to economic, technical, organizational, or production causes.
The bonuses of an indefinite part-time work contract apply to the groups of the Law 43/2006 of December 29, 2006, by a percentage equal to the workday agreed in the contract, increased by 30 percentage points but in no case exceed 100% of the planned amount.
Indefinite part-time contracts may terminate due to the causes legally established in Article 49 of the Spanish Workers’ Statute.
Fixed-term, part-time contracts may terminate as outlined in subparagraph (c) of Section 1 of Article 49 of the Spanish Workers’ Statute, as amended by Article 3.1 of the Law 12/2001 of July 9, 2001. At the end of the contract, except in the cases of temporary and training contracts, the worker is entitled to compensation equal to a proportion of the amount that would be paid for 10 days of salary for each year worked or as established in the specific applicable regulations.
- Complementary hours are those hours worked in addition to the agreed ordinary hours in the part-time contract. Carrying out complementary hours requires a specific agreement within the contract. Complementary hours may only be formalized in indefinite part-time contracts and cannot exceed 15% of the ordinary working hours of the contract.
- Sectoral collective agreements may fix distinct percentages of complementary hours, but in no case can complementary hours exceed 60% of the contracted ordinary working hours. In any case, the total ordinary and complementary hours cannot exceed the legal limit of the part-time contract.
- The worker may terminate the agreement for complementary work hours by giving 15 days’ notice one year after signing the contact.
Remuneration must be proportional to the number of hours worked per day, week, month, or year in relation to the ordinary workday of the activity in question.
In the case of partial retirement, remuneration must be compatible with that of the worker who retires with the pension that the Spanish Social Security System recognizes.
Social security contributions
The principle of assimilation governs the social protection that part-time employment contracts provide. Article 2 of the Royal Decree Law 15/1998 of November 27, 1998 outlines the rules on the principle of assimilation of the part-time worker to full-time work.
The base contribution to the Spanish Social Security System will comprise of the remuneration actually received in terms of hours worked including ordinary and supplemental hours.
This article is not considered as legal advice