Choosing the right contract from the start
Since the labour reform of late 2021, approved by Real Decreto-ley 32/2021, the permanent contract (contrato indefinido) is the general rule. Temporary contracts are only allowed in two cases: for production reasons, meaning specific increases in work of limited duration, and to replace another employee. If a temporary contract is used without a genuine reason, or contracts are chained beyond what is allowed, the law treats the contract as permanent.
For seasonal work, so common in the Axarquía in hospitality, tourism or farming, the usual option is the contrato fijo-discontinuo (permanent seasonal contract). The employee is called back each season in the order and manner set by the collective agreement or the contract, and the relationship with the business continues from one season to the next.
There are also training contracts, to combine work and training or to let someone gain professional experience after their studies. They have their own requirements, which should be checked before signing.
The collective agreement matters more than it seems
Knowing which collective agreement (convenio colectivo), meaning the agreement between employers and trade unions that regulates a sector, applies to your business is as important as choosing the contract. The collective agreement sets the pay for each job category, working hours, allowances, holidays, the maximum probation period and misconduct and disciplinary rules. Applying the wrong one can create pay differences that the employee can claim later.
The collective agreement usually depends on the company’s main activity and its location. In the province of Málaga there are provincial collective agreements for many sectors. I help you identify yours and read it carefully.
The clauses that protect your business
- Probation period: it must be agreed in writing and respect the limits in article 14 of the Estatuto de los Trabajadores (Workers’ Statute) and the collective agreement.
- Non-compete after the contract ends: article 21 of the Workers’ Statute allows it within time limits, only if you have a genuine industrial or commercial interest and pay the employee adequate financial compensation. Without compensation, it is not valid.
- Minimum stay: if you pay for specialist professional training for the employee, you can agree that they stay with the business for a period, up to the legal maximum of two years.
- Confidentiality and use of devices: clear rules on company information and on the use of work email, mobile phone or computer, as provided for in Ley Orgánica 3/2018, de Protección de Datos Personales y garantía de los derechos digitales (the Spanish Data Protection and Digital Rights Act).
Day-to-day matters too
Hiring does not end with the signature. There are ongoing obligations you should keep up to date:
- Registering the employee with Social Security before they start and notifying the contract to the public employment service.
- The daily record of working hours, with start and finish times, which must be kept and made available to the staff and to the Inspección de Trabajo (Labour Inspectorate).
- Payslips, with the items set by the collective agreement and in a form the employee can understand.
- Health and safety at work, which applies from the first employee.
Your employees are an essential part of your business. Having a lawyer who deals quickly with anything relating to them gives you peace of mind. If a dispute has already arisen, see the page on disputes with employees. And if you want me to handle all this on an ongoing basis, I can include it in the comprehensive legal advice service.