In this forum we are going to make an approach to the problem that exists between two contractual modalities: the ordinary part-time contract and the discontinuous permanent contract.
The labor legislator includes in its art. 12.1 of the ET that “The employment contract will be understood to be concluded part-time when the provision of services has been agreed for a number of hours per day, week, month or year, less than the working day of a worker. comparable full-time.
For its part, the legal regime of the discontinuous fixed contract is included in art. 16 ET (modified by the first article, section four of Royal Decree-Law 32/2021, of December 28, on urgent measures for labor reform, the guarantee of stability in employment and the transformation of the labor market that brought together The regulation of discontinuous permanent work in its different modalities, effective as of March 31, 2022) includes two different assumptions:
Firstly, activities of a cyclical or repetitive nature, which corresponds to the traditional FD contract and which in turn includes both seasonal or seasonal activities (cyclical) and intermittent activities carried out throughout the year. time, although its execution is on certain, and even uncertain, dates.
Secondly, and as a novelty of RDL 32/202,1 activities of an ordinary nature but that may experience interruptions. In turn, their purpose may be the execution of contracts (commercial or administrative) or the execution of provision contracts by the ETTs in relation to the user companies (which had been excluded by judicial doctrine until the labor reform. of 2021.
In any case, the FD contract is a type of indefinite contract, but it does not have a duration predetermined by the legislator nor a cause of termination linked to its duration or execution time. It is linked, therefore, to a permanent activity but its execution is limited exclusively to periods of activity (which alternate with periods of inactivity).
The distinction between cases that require the execution of an indefinite part-time contract and those that require the execution of an FD is not at all easy in certain cases relating to cyclical or repetitive activities. Certainly, the part-time contract can be formalized for both continuous and discontinuous activities (therefore the FD contract can be agreed on a full-time or part-time basis, although in the latter case it may require the intervention of the conventional rule). However, the FD contract of a cyclical or repetitive nature requires that there truly be a periodic or habitual interruption in the development of the activity in question.
The biggest difference between one and the other lies in the cause of this work rhythm, that is, if it depends on the mere will of the company (part-time contract) or if it depends, on the contrary, on the cycles or periods in which the activity actually develops
productive. Only in the latter case does the pace of work correspond to the pace of activity.
A different issue is that, on numerous occasions, FD contracts are used in fraud of law, as in the case contemplated in the STSJ of Galicia (Social Chamber) 2644/2024 of June 4, 2024 that analyzes the hiring of a driver of bus by a passenger transport company through an FD contract whose purpose was limited to “school transport”, however the company assigned the driver to another type of transport (discretionary, labor…), whose activity was not limited to the school calendar, which necessarily entails its conversion into ordinary indefinite (art.
Termination of contract for the school transportation activity, with a duration of the activity that is limited to the school year. The contract was concluded in fraud of law since it was intended for another type of transport, whose activity is not limited to the school calendar, which entails its conversion into an ordinary permanent contract, since an indefinite part-time contract should have been made (art. 12 ET). Furthermore, from the scope of sanctioning law, the transgression of the regulations on contractual modalities through their use in fraud of law constitutes a serious infraction in labor matters (for each of the contracts concluded in fraud of law) that may be punished with a fine of €751 to €7,500.
We understand that the sanction that can be imposed for fraudulent use of the FD modality is sufficiently deterrent to its irregular use.
#parttime #permanent #contract #discontinuation #consequences #legal #fraud
