Publications

The BOE (Official State Gazette) of May 31 has published the V Agreement for Employment and Collective Bargaining (V AENC), the result of negotiations between the employers’ organizations CEOE and CEPYME and the labor unions CC.OO. and UGT.

Below we analyze the principal new features of this agreement whose purpose is to promote collective bargaining:

1. Recruitment

Collective bargaining agreements must accept and implement the following topics for collective bargaining:

• Trial period
    
  
  The duration of the trial period must be included.  
  

• Temporary contract
    
  
  Collective bargaining agreements must determine (i) the duration of the substitution contract to temporarily fill a job during the selection or promotion process, subject to a limit of three months, (ii) plans and criteria for reduction of temporary employment and (iii) measures to facilitate effective access to the initiatives included in the system of occupational training for employment.  
  
  Sectoral collective bargaining agreements must extend, where applicable, up to a maximum of one year, the temporary contract subscribed due to production circumstances arising from an occasional unforeseeable increase of or fluctuations in activity.  
  

• Permanent seasonal contract (Fixed discontinuous)

Collective bargaining agreements or, otherwise, company-level agreements must establish the formal objective criteria by which the call must be governed, bearing in mind, in any event, it must be subscribed in writing or by other means duly providing evidence of notification.

In addition, sectoral collective bargaining agreements must establish (i) in cases in which the permanent seasonal contract is justified by the award of a service by the signature of a contract or subcontract, the maximum period of inactivity between contracts and subcontracts, (ii) a sectoral job pool, (iii) the signature of a part-time contract when the peculiar features of the activity of the sector justify it, (iv) an annual census of permanent seasonal employees and (v) where applicable, minimum period of annual call and amount for end of call, when this coincides with the conclusion of the activity and no new call occurs without interruption.

Finally, sectoral collective bargaining agreements or, otherwise, company-level agreements must establish the procedure for drawing up requests for voluntary conversion into an ordinary permanent contract.

• Part-time contract
    
  
  Collective bargaining agreements must accept and implement the following topics for collective bargaining: (i) extend, where applicable, the number of interruptions in the workday, in the case of a split-shift workday, (ii) procedure for drawing up requests for voluntary conversion from full-time to part-time work and vice versa or to increase work time, (iii) measures to facilitate effective access to ongoing occupational training, (iv) maximum percentage of additional hours, not exceeding 60% of the ordinary hours hired nor less than 30%, (v) prior notice period for additional hours to be worked and (vi) maximum percentage of voluntarily accepted additional hours, not exceeding 30% of the ordinary hours hired.

• Recruitment of young people and persons undergoing retraining

Collective bargaining agreements must establish (i) the criteria and procedures aimed at obtaining a balanced presence of men and women and (ii) commitments to conversion of training contracts into permanent contracts.

Collective bargaining agreements must include (i) the remuneration for the time actually worked under the training contract combined with work, (ii) the remuneration, if any, under the so called contract to obtain work experience, otherwise it will be that of the occupational group and level of remuneration for the duties performed, in accordance with the actual time worked, (iii) the duration of the trial period under work experience contracts and (iv) the percentage of on-site work under training contracts.

National or regional sectoral agreements and, in the absence thereof, sectoral agreements of more limited scope, must include (i) the maximum and/or minimum term, within the legal limits, of work experience contracts and (ii) the jobs, activities, occupational levels or groups that may be carried out by means of a training contract.

2. Partial and flexible retirement

Collective bargaining agreements may grant entitlement to partial retirement with a relief contract and will promote, where appropriate, the mechanisms to implement it in each of the sectors and enterprises, according to their own circumstances and characteristics.

3. Occupational training and qualifications

The agreement considers it fundamental to contribute, by means of collective bargaining, to boosting training throughout one’s working life as a strategic element to improve the employability of workers and the competitiveness of companies, inter alia, by criteria or measures aimed at: (i) ensuring equal access of workers to training, (ii) strengthening training aimed at facilitating the digital and ecological transition of employers and workers, (iii) promoting dual training in companies, (iv) fostering co-responsibility of employers and workers in training processes and (v) boosting sectoral and intersectoral bipartite instruments in defining and developing training.

4. Wage increases

The agreement addresses the criteria for determining wage increases for the years 2023 to 2025. To be specific, wages negotiated in the coming years must be increased according to the following guidelines:

• Wage increase for 2023: 4%. 
    
  
  At the end of 2023, if the year-on-year CPI (Consumer Price Index) of December 2023 is greater than 4%, a maximum additional increase of 1% will be applied, with effect on January 1, 2024. 

• Salary increase for 2024: 3% will be applied to the result of the increase in the previous paragraph. 
    
  
  At the end of 2024, if the year-on-year CPI of December 2024 is greater than 3%, a maximum additional increase of 1% will be applied, with effect on January 1, 2025. 

• Salary increase for 2025: 3% will be applied to the result of the increase in the previous paragraph. 
    
  
  At the end of 2025, if the year-on-year CPI of December 2025 is greater than 3%, a maximum additional increase of 1% will be applied, with effect on January 1, 2026.

The negotiating parties must take into account the specific circumstances surrounding them to establish wage conditions, so that the application of the above guidelines may be adapted in each sector or enterprise with very unequal situations in terms of growth, results or impact of the increase of the minimum wage, having job creation and maintenance of employment as an objective.

5. Temporary inability to work arising from common contingencies 

The agreement urges collective bargaining to (i) establish joint procedures and areas of analysis of temporary incapacity due to common contingencies, which includes the study of causes, the impact and duration of processes and (ii) to establish courses of action to reduce the number of processes and their duration, and the monitoring and evaluation of such actions.

6. Health and safety at work

• Promote protocols and guidelines to be adopted at companies to enhance awareness and create a culture of prevention.

• Establish specific measures so that employers, with the participation of Worker´s Representatives or, where relevant, of the workers, develop a comprehensive plan focused on promoting a culture of prevention and reducing accidents at work.

• Include the gender perspective in prevention management in companies.

• Take disability into account in prevention management.

• Promote the development of means and procedures for adaptation of jobs.

• Foster attention to ageing and its implications in performing work, implementing the provisions of the Autonomous Framework Agreement on active ageing and an inter-generational approach.

• Progress in the assessment of risks of remote working.

• Progress in prevention management of psychosocial risks, promoting programs for prevention of work-related stress.

• Draw up and monitor protocols for management of psychosocial disputes relating to violence and/or harassment at work, including cyberbullying, mobbing and violence using digital media.

• Develop training on occupational risk prevention.

• Include training and information programs regarding risks of using new work technologies and preventive measures to be adopted to combat them, in addition to good practice criteria in relation to digitalization.

• Include simple, effective, and efficient means and measures for coordination of employers’ activities, in which workers’ representatives participate.

• Boost the development of monitoring of collective health.

• Draw up protocols and guidelines to improve the handling of the return to work of employees after lengthy sick leave periods. Address addictions and develop plans for their prevention and intervention. Establish instruments, in the framework of prevention of occupational risks, to identify and address such risks.

• Prioritize prevention in relation to factors that give rise to certain risks as opposed to the mere establishment of compensatory payments for toxicity, hardship, danger and harm to health.

7. Internal flexibility instruments 

• Nonapplication of employment conditions

When collective bargaining agreements contain clauses for nonapplication of employment conditions established by collective bargaining agreement, for the purpose of ensuring maintenance of employment and as an internal flexibility instrument to avoid both temporary and definitive layoffs, the following aspects must be borne in mind, in addition to the need for the nonapplication agreement to be notified to the joint committee of the collective bargaining agreement:

• Documentation. The documentation to be supplied by the employer shall be that necessary so that the workers’ representatives can have reliable knowledge of the reasons alleged for the nonapplication.

• Duration of the nonapplication. Given the exceptional nature of this measure, the duration could be adjusted in view of the circumstances giving rise to the nonapplication, which may not exceed the term of the collective agreement applied and may not in any event be prolonged beyond the time that a new collective agreement is applicable at that company.

• Content of the nonapplication agreement. The nonapplication of the collective agreement cannot in any case cause a regulatory vacuum in relation to the employment conditions the nonapplication of which is agreed. Therefore, the nonapplication agreement must specify the regulation replacing the content of the collective agreement that is not applied.

• The nonapplication agreement may not involve a breach of the obligations established in the collective agreement relating to the elimination of pay discrimination based on gender or that provided for, where relevant, in the equality plan applicable at the company.

• ERTE (temporary employment regulation procedure) and RED mechanism
    
  
  Collective bargaining agreements should (i) strengthen ERTEs as an internal flexibility measure, (ii) draw up the objectives and criteria for the implementation of ERTEs, (iii) give priority to the adoption of measures to reduce working hours as opposed to suspension of contracts, (iv) ensure transparency in transmitting information, ensuring that appropriate, sufficient and adequate information is supplied to the Workers’ Representatives, (v) arrange proposals of training content to be provided in the event of activation of the RED Mechanism or ERTE and (vi) create measures to support training and retraining of workers undergoing an ERTE.

8. Remote working

The agreement seeks to implement by collective bargaining the elements which Remote Working Law 10/2021, of July 9, 2021, refers to such bargaining. 

Thus, it provides that collective bargaining agreements must accept and implement the aspects listed in Chapter X of the agreement, which include: the identification of jobs and functions capable of being performed remotely; conditions for access to and performance of remote working; maximum duration of remote working; minimum on-site workday; the terms of exercise of reversibility; mechanisms and criteria for compensation or payment by the employer of expenses relating to equipment, tools and means involved in the performance of work; mechanisms and criteria for changing from on-site working to remote working or vice versa; provision and maintenance by the employer of means, equipment and tools necessary for teleworking, etc.

In designing these mechanisms one must avoid the perpetuation of gender roles and stereotypes and take into account the promotion of co-responsibility between women and men. 

9. Digital disconnection

Digital disconnection is recognized as a right not to answer digital devices outside working hours. However, a worker’s voluntary connection will not render the employer liable.

The agreement establishes that if any kind of call or communication is made outside working hours, employees will not be obliged to answer, nor may superiors demand replies, unless exceptional justified reasons of force majeure exist, which may pose a serious risk to persons or potential detriment to the business and which requires the adoption of immediate urgent measures.

In addition, the agreement points out certain good practices, such as programming automatic replies during periods of absence, indicating the dates on which one will not be available and specifying the email or contact data of persons to whom tasks have been assigned during one’s absence, or using delayed delivery so that communications are made within the recipient’s working hours.

10. Diversity. LGTBI

Collective bargaining agreements must: (i) promote heterogeneous workforces, (ii) create inclusive and safe work environments, (iii) foster integration and nondiscrimination of the LGTBI community in workplaces through specific measures and (iv) ensure that protocols on harassment and violence at work provide for protection of LGTBI persons in the workplace.

Finally, the agreement also provides that collective bargaining agreements address issues relating to equality between women and men, the establishment of measures that contribute to the creation of a fair system for the development of working conditions of persons with disabilities, the promotion of prevention of sexual and gender-based violence, and regarding the technological, digital and ecological transition.

The V AENC will be in force from 2023 to 2025.