Understanding Employment Contracts: Types and Key Elements
Indefinite Contracts
Regular: This is the standard type of indefinite contract. It is not mandatory to formalize it in writing, though it is minimally referenced in Art. 15.01 ET (Estatuto de los Trabajadores – Workers’ Statute). These contracts have a specific legal regime.
Contracts for the Promotion of Permanent Contracts: These contracts aim to incentivize employers to offer permanent positions. They are targeted at specific groups, including:
- Unemployed individuals with disabilities
- Young people aged 16 to 30
- Individuals over 45
These agreements must be in writing. A key feature is that if the employer dismisses the employee via objective dismissal, and the dismissal is declared unlawful, and the employer chooses termination, the compensation is 33 days’ wages per year of service, with a maximum of 24 months’ salary, instead of the usual 42 months.
Discontinuous Permanent Contracts: Before 2001, these were included within part-time contracts. Now, Art. 15.8 establishes them as a distinct category. Their duration is indefinite, but the work is not performed continuously, but rather intermittently. This type of work must not be repeated on fixed dates.
The key characteristic is that when the season ends, the *season* is finalized, not the contract. The employer is required to formally call the employee back for the next season (the “appeal”). This call can be for a specific date or progressive if there are multiple workers.
Part-Time Contracts
Part-time contracts are regulated by Art. 12 ET. A contract is considered part-time when the number of hours worked per day is less than the normal working hours of a comparable full-time worker. A comparable worker is an employee with the same professional category or performing the same job as the part-time worker. If such a worker doesn’t exist, the standard working day defined in the collective agreement applies, or, failing that, the legally established normal working hours (e.g., 9 hours per day or 40 hours per week).
This contract can be:
- Indefinite: This can include regular, promotion of permanent contracts, and discontinuous permanent contracts.
- Temporary: Some temporary contracts cannot be part-time (e.g., interim training contracts).
Part-time contracts *must* be made in writing. Salary is proportional to the hours worked. Part-time workers are entitled to 30 days of vacation, but the pay during vacation will be proportional to their working hours (e.g., half pay for half-day workers).
These workers cannot work overtime, but they *can* work “additional hours.” These are hours worked beyond the initially agreed-upon schedule, but the total number of additional hours plus regular hours cannot exceed the threshold for a full-time position.
Key Elements of an Employment Contract
Precontract: A promise of contract where two parties agree to enter into a contract at a later time. If the employer fails to honor the precontract, the worker can make a claim. It is common to include a clause establishing compensation if the precontract is not fulfilled.
Requirements for Hiring:
- Individuals must have full capacity to contract: adults and minors who have reached the age of emancipation or have the benefits of majority.
- Minimum hiring age: 16 years.
- Unemancipated individuals between 16 and 18 years old require the signature of a legal representative.
- If an individual between 16 and 18 lives independently and the legal representative fails to act, tacit consent is assumed, and the representative’s signature is not required.
Essential Elements of the Employment Contract:
- Consent: The contract is perfected with express or tacit consent. In the workplace, what the parties explicitly state is less important than the reality of the situation. If the requirements of Art. 1 ET are met, it will be considered a formal employment contract, even if the parties claim it is a civil or commercial contract.
- Subject of the Contract: It must be lawful, possible, and not against morality or decency.
- Cause of the Contract: The motivation of the parties. On one side, there is a need for labor, and on the other, a need for retribution.
Accidental Elements: These include the term or duration, and any specific conditions.