Employment Contracts: Key Elements and Legal Aspects
Theme 5: The Contract of Work (I)
Definition
A contract of work is an agreement under which a person undertakes to provide their services as an employee within the organization and direction of another person or entity, known as the employer, in exchange for a fee.
1. Tasks of the Contract of Work
- Constitutive Function: Creates a working relationship with recognition of effects. Even if the employment contract is void, because if it proves invalid, the worker could require, for the work they had already performed, appropriate remuneration equivalent to a valid contract.
- Regulatory Function or Working Conditions: It is limited by mandatory state standards and conventional agreements. It is only allowed to determine the object and the improvement of those conditions set.
2. Characteristics of the Contract of Work
- Typical and Nominated: Must be distinguished from other contracts in which there is also a personal activity of one of the subjects.
- Consensual: Perfected by the mere consent of the parties, while standards and individual autonomy are not their only source of regulation, the parties do not provide even its full scope.
- Synallagmatic, Onerous, and Commutative: Involves a reciprocal exchange of benefits.
3. Elements of a Contract of Work
- Subject of the contract.
- Consent: Evidenced by the concurrence of the offer and acceptance on the thing and the cause that must constitute the contract. This is the common will or intention of the subjects, matching both in the conclusion of the agreement and specifically in the terms agreed upon with the content. It should be given freely and voluntarily, without any defect. It may be flawed:
- By mistake: On the nature of the business, on property or services to be performed, the person, or on the conditions of employment that would have given reason to celebrate.
- By violence: Employment of an irresistible force.
- By fraud: Insidious words or machinations.
- By intimidation: Rational and well-founded fear of suffering an imminent and grave evil.
- Scope of the employment contract, which must be possible, determined, and not contrary to law or morality.
- Cause of the employment contract:
- Typical social function.
- Exchange between work and remuneration under the principle of alienability.
4. Form and Proof of Employment Contract
- May be in writing or oral.
- Presumption of employment.
- Freedom of form exists, without exception.
- Required in writing when:
- Expressly required by law.
- For practice and training, part-time contracts, fixed discontinuous and relay contracts, home-work contracts, contracts for the performance of a work or service, as well as workers hired in Spain to serve Spanish companies abroad, and fixed-term contracts lasting more than four weeks.
- Required by either party even during the course of employment.
- Requirements for writing: No specific form is required, except for model contracts annexed to some rules governing types of contracts (e.g., part-time contracts).
Effects of Non-Compliance
- Presumption of an employment contract for an indefinite time and full-time, with evidence attesting to its temporary nature or part-time status of services.
- Administrative – grave violation of labor relations.
Obligations
- Information in writing to the employee when the employment relationship is more than four weeks.
- The employer shall provide the legal representation of workers with a basic copy of all contracts to be concluded in writing, except for contracts of employment relationships, especially senior management.
- Communicate to the workers’ legal representation the content of the contracts entered into or renewals, although there is no obligation to celebrate them in writing.
5. Validity and Revocation of Contract
- The declaration of an employment contract as null implies the lack of production of the legal effects of the agreement.
- While the employee may be required for the work they had already performed, appropriate remuneration equivalent to a valid contract.
- There is the possibility of partial invalidity, with the remainder remaining valid. In the event that the worker had assigned special conditions or payments of charges laid under the invalid part of the employment contract, the competent court shall declare *ex officio* a ruling on whether to keep or delete all or part of those conditions or remuneration.
6. The Trial Period
The trial period is the initial contract period of work, established with the goal of the worker and employer proving or testing in practice whether or not this relationship responds exactly to their expectations, whether or not it meets their respective interests, although it is true that this is a bilaterally attenuated agreement.
It must be formalized in writing and is void when the worker has already performed the same functions previously in the company under any type of contract.
Rights and Obligations
Employer and employee are respectively required to perform the experiments that are the subject of the test. Workers have the rights and obligations relating to the job held as if they were part of the regular staff, except those arising from the decision of the employment relationship that may be produced at the request of either party during its course.
Duration
Its duration will be fixed by collective agreement or, failing that:
- No more than six months for qualified technicians.
- No more than two months for other workers.
- In companies with fewer than 25 workers, no more than three months for workers who are not qualified technicians.
Interruption
The trial period can be interrupted due to maternity, adoption, or foster care affecting the employee during the trial period, and only if there is an agreement between both parties to respect this break.
Completion
After the trial period, if no withdrawal has occurred, the employment contract will produce full effect, computing the time of the services provided in the worker’s seniority in the company.