Yesterday, 12 March 2019, Royal Decree-Law 8/2019 of 8 March on urgent measures for social protection and the fight against job insecurity in the workplace was published in the Official State Gazette ("BOE").

Prior to developing the notable labour changes introduced through this rule, it should be noted that it has been approved in an exceptional political situation, as the Parliament is dissolved because of the recent call for general elections. Consequently, the set of legislative measures introduced must be validated by the Permanent Deputation of the Congress within a maximum period of 30 working days from the publication of the rule, as referred to in article 57, paragraph 1, letter a), of the Rules of Procedure of the Chamber.

Having said this, given the importance of the amendments to the Core Labour Standards of our legal, labour and social security systems, a brief and succinct analysis of the main amendments is given below. Next, we proceed to detail their highlights:

A.- Social Protection Measures

I.- Unemployment benefit for persons over 52 years of age:

One of the main novelties of RDL 8/2019 is the modification of the revised text of the General Social Security Law approved by Royal Legislative Decree 8/2015 of 30 October ("LGSS"), with new wording to paragraph 4 of article 274 of the rule to reduce the age of access to unemployment benefit from fifty-five to fifty-two years of age.

As regards the requirement of a lack of income exceeding 75% of the Minimum Interprofessional Wage, the second paragraph of Article 275(2) is deleted, so that the calculation rate is specified exclusively in the income of the applicant or beneficiary, instead of the family unit in which it is integrated.

In addition, the amendment to Article 277(3) increases the maximum duration of the allowance, so that beneficiaries may continue to receive it if they cannot find work until they reach ordinary retirement age.

Finally, the new wording of article 280 increases the amount of contributions to be made by the retirement contingency managing body during the receipt of the unemployment subsidy for workers over fifty-two years of age, from 100% to 125% of the minimum limit of the contribution base in force at any given time, and eliminates the percentages applicable to the amount of the subsidy when it comes from part-time work.

II.- Family Social Security benefits:

The amounts of the family Social Security benefits in their non-contributory modality are modified, as well as the amount of the income limit for access to them, which will be as follows:

a.- The amount of the economic allowance in annual calculation established in article 353, section 1 of the LGSS for dependent child or minor is increased to 341 euros, without prejudice to the fact that it may reach the amount of 588 euros in annual calculation depending on the income and members of the household;

b.- The income limit for entitlement to the financial allowance for a dependent child is set at 12,313.00 euros per year and for large families at 18,532.00 euros, increased by 3,002 euros for each dependent child from the fourth onwards, including the fourth.

III.- Minimum pension amounts resulting from a situation of total permanent incapacity:

During 2019, the minimum amounts of pensions derived from a situation of total permanent incapacity of the Social Security system in its contributory modality, (55 or 75% of the regulatory base from the age of 55), derived from a common illness for below 60 are fixed between 6,930 euros and 6,991 euros depending on the concurrence of a dependent spouse, or not.

B.- Measures to promote permanent employment

I.- Conversion of temporary contracts of agricultural workers into indefinite or permanent-discontinuous:

A specific system of bonuses is established for companies employing workers covered by the special system for agricultural employees established in the general social security system, which convert the temporary contracts entered into with these workers into permanent contracts before 1 January 2020, regardless of the date on which they are entered into - including permanent-discontinuous contracts - during the two years following the transformation of the contract.

In order to apply these incentives, the company must keep the contracted worker in employment for at least three years from the date of transformation of the contract.

II.- Bonus for hiring long-term unemployed people:

Another of the main new features of RDL 8/2019 benefits employers who employ indefinitely unemployed persons registered at the employment office for at least twelve of the eighteen months prior to hiring, introducing the right from the date the contract is signed to a monthly reduction in the employer's Social Security contribution or, where appropriate, for its daily equivalent per worker hired of 108.33 euros/month (1.300 euros/year) - if the contract refers to women, the bonus will be increased to 125 euros/month (1,500 euros/year) - for three years. If the contract is concluded part-time, the bonuses will be enjoyed in proportion to the working day agreed in the contract.

In return for the application of this incentive, the company is required to maintain the employee hired for at least three years from the date of commencement of the employment relationship, as well as the level of employment in the company achieved with the contract for at least two years from its conclusion. 

III.- Measures to support the extension of the activity period of workers with permanent discontinuous contracts in the sectors of tourism and commerce and the hotel and catering trade linked to tourist activity.

As of December 31st, 2019, a bonus is included for companies -excluding those belonging to the public sector-, engaged in activities included in the tourism, commerce and hospitality sectors that generate productive activity in the months of February, March and November of each year and that initiate or maintain the employment of workers with permanent discontinuous contracts during said period.

The bonus, exclusively for these months, will consist of 50% of the company social security contributions for common contingencies, as well as for the concepts of joint collection.

C.- Measures to fight against job insecurity in the workplace

I.- Record of working day:

There is no doubt that we are dealing with the main novelty introduced by RDL 8/2019, which affects the modification of Workers’ Statute article 34.

On the one hand, section 7 of the aforementioned precept is modified, extending its content and establishing the possibility for the Government to establish - in addition to the already foreseen extensions on limitations on working hours and rest periods - specialities in the obligations of registering working hours for those sectors, jobs and professional categories that, due to their peculiarities, so require. This is proposed by the Ministry of Labour, Migration and Social Security and always after consultation with the most representative trade unions and employers' organizations.

It therefore adds to the Government's pre-existing powers in the area of working time or the organization of working time, the consequent powers regarding the recording of working time.

On the other hand, article 34 of the workers´statute is extended by means of a new section 9, which establishes the business obligation to guarantee the daily record of the working day in which the articulation and minimum requirements of the same are regulated.

In this regard, the obligation is established that such records include both the beginning and the end of the working day, and this information must be recorded individually about each worker.

The establishment of the hourly register, both in terms of its organisation and its documentation, corresponds either to collective bargaining, or to a company agreement, or failing that, by decision of the employer after consultation with the legal representation of the workers.

Regarding the obligation to keep the data collected by the working day register, the new section establishes that it must be kept for at least four years, and during this period it remains at the disposal of the workers, their legal representatives, and the Labour and Social Security Inspectorate itself.

Finally, it should be noted that the entry into force of this obligation is postponed to a period of two months from publication in the Official State Gazette, i.e. 12th May 2019.

In short, without prejudice to the submission of more specific comments in relation to the content and scope when it comes to the effective implementation of the aforementioned obligation by companies, it will be necessary to consider specific and specific circumstances depending on each specific case, depending on the sector, collective agreement of reference and activity of the company as well as its own casuistry and idiosyncrasy in relation to the organization of work in it.

II.- Labour infringements

Linked to the obligation referred to in the preceding paragraph, Article 7(5) of the consolidated text of the Law on Social Order Infringements and Sanctions, approved by Royal Legislative Decree 5/2000 of 4 August ('LISOS'), is amended. The register of working hours is included within the exemplary list which, as a serious infringement, offers the precept of the LISOS on the transgression of the regulations on working time.

This will imply that a sanction proposal could be derived with cause both in the non-establishment of the working day registry, as well as in a breach referred to the conservation of the registry data, or to the participation of the legal representatives of the workers in their confection. Let us remember that the sanction derived from a serious infraction in labour relations and employment could be sanctioned with a fine of between 626 and 6,250 euros.

D.- Additional, transitional, repeal and final provisions

Among the additional provisions of RDL 8/2019, it is worth highlighting the one relating -first- to the constitution before 30 June 2019 of a group of experts to carry out the preparatory work and studies for the drafting of a new Workers' Statute.

With regard to transitory provisions, related provisions are established for the National Youth Guarantee System, the paternity benefit and the contribution charged to the quotas for the cessation of activity in the situation of temporary incapacity of self-employed workers on the date of entry into force of the RD-Law of 28 December, for the revaluation of public pensions and other urgent measures in social, labour and employment matters.

The only derogatory provision affects (i) the 28th additional provision of Law 18/2014, of 15 October, approving urgent measures for growth, effectiveness and efficiency -extension of the maximum age of access to the National Youth Guarantee System-, (ii) the single transitory provision of RD-Law 26/2018 of 28 December, approving emergency measures on artistic and cinematographic creation, (iii) as well as any regulations that oppose the new RD-Law 8/2019.

Likewise, specific measures are adopted to (i) extend the scope of social protection related to the birth and care of minors of workers in the maritime-fishing sector, as well as (ii) in the matter of contributions to the special system for agricultural employees established in the general social security system, and (iii) periods of inactivity of artists in public shows.

Through the second final provision, and based on the new wording of section 3 of article 237 of the LGSS, the contributions made during the first two years of the period in which the working day for child care is reduced -according to the provisions of the first paragraph of article 37.6 of the ET-, will also be increased up to 100% of the amount that, in the absence of said reduction in the working day, would have corresponded to it. In the case of a reduction of working hours caused by the second and third paragraphs of the article 37.6 of the workers’ statute, such increase shall only reach the first year.

Likewise, this final provision introduces a second novelty in the matter of special agreements for non-professional carers, as well as in what concerns the Special Regime for Coal Mining.

Additionally, and among the final ones, the first one related to the National Youth Guarantee System should be highlighted, the third one on the modification of the financing regime of the Spanish Radio and Television Corporation, and the sixth one related to the entry into force referred to in the following section.

E.- Entry into force of new regulations

The RD-Law will enter into force on the day following its publication, i.e. today, 13th March 2019.

However, the reforms regarding Social Security family benefits; social protection in the maritime sector; conversion of eventual contracts of agricultural workers into indefinite or permanent-discontinuous, and bonuses for hiring long-term unemployed, will enter into force on April 1st, 2019, being the first day of the month following its publication.

For your information, you can download in PDF the full text of the Resolution.

For more information, please contact:

Alfredo Aspra

alfredo.aspra@AndersenTaxLegal.es

José Antonio Sanfulgencio

jose.sanfulgencio@AndersenTaxLegal.es