‘Transparent and predictable’ working conditions and regulatory suffocation

Royal Decree 723/2026, of September 9, 2026 has finally transposed, after a “slight” delay of just over four years, Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019. The first thing that stands out, apart from the delay in transposition, which, judging by the content of the royal decree, does not appear to be due to a learned debate or to a meticulous preparation of the language of the law, is the reference, in both directive and decree, to “transparent conditions”. Working conditions are neither transparent nor opaque; they are what they are. Transparency may be required for the process of setting or communicating those conditions, but there are no conditions that are transparent in themselves. Just as there are no predictable conditions: predictability can have meaning in relation to the situations in which they will be applied, not to the conditions themselves. And this is not a matter of semantic refinement. Confusion in words is usually associated with confusion in ideas. And, as a consequence of the latter, under the banner of transparency a regulatory block is built that is on a par with a Kafkaesque nightmare.

The second point to highlight is overregulation. Europe has for some time been entangling itself in a spiral of hyper-regulation that seems to be unending. And in Spain we always correct and enlarge the entanglement. Flexible and participatory employment relations, with a leading role for collective bargaining and collective agreements, with employee representatives equipped with incisive information and consultation rights, and with shared spaces for improving productivity and working conditions, would be the best bet for economic and social progress. And a jumble of increasingly detailed and restrictive rules is a sure path to decline. There is no sense to this overregulation, particularly for small companies. The directive contains a very curious provision: article 1(5) allows Member States to determine “which persons are responsible for the execution of the obligations for employers laid down by this Directive”, and also provides that they “may also decide [the member states] that all or part of those obligations are to be assigned to a natural or legal person who is not party to the employment relationship”. What does that mean? The ones responsible for the obligations imposed on employers are the employers, and the involvement of a person outside the employment relationship can only cause perplexity. Can the member states decide that a person outside the employment relationship is responsible for (is assigned) the obligations set out in the directive? How many twists and turns can bureaucracy put in our path?

Turning now to the transposing decree, we must point out that the use of a regulatory, rather than a statutory, instrument to transpose the directive is inappropriate. Its content affects the statutory legislation in force in Spain, implements some of its provisions and further defines others, introduces new legislation that is not provided for in the law and may enter into conflict with some statutory mandates which it would therefore be necessary to qualify or amend. The abandonment, purely for political expediency, of the statutory route in favor of the regulatory route in the transposition of directives may end up giving birth to a new Workers’ Statute shaped by regulations, in clear breach of the constitutional mandate (article 35.2 of the Spanish Constitution: “The law shall regulate a workers’ statute”). Consider, for example, a new concept introduced by the directive, such as “reference hours and days”, or the provisions on the cancellation of a work assignment, not to mention “on-demand contracts”. These matters cannot be addressed through regulations (the concept of on-demand contracts is ignored and the provisions that the draft decree contained regarding the cancellation of assignments have been removed from the final text) and would have required a statutory reform which, since it has not taken place, leaves several of the directive’s provisions up in the air. Even so, the decree encroaches on the legislative domain. The repeal of Royal Decree 1659/1998, of July 24, 1998 implementing article 8.5 of the Workers’ Statute (ET), seeks to give the appearance that we are moving strictly within the regulatory domain, but this is not enough to dispel the well-founded belief that legislative reforms are in fact being carried out through regulations.

Above all, transposition by way of a bill of law should therefore be demanded, adapting the provisions of the Workers’ Statute and respecting the legislative procedure, ensuring its passage through parliament and the involvement of the relevant advisory bodies (urgency cannot be invoked as a ground for adopting the decree because the deadline for transposing the directive ended on August 1, 2022). Along with allowing, if relevant through the Economic and Social Council, a more committed participation by employee and employer representatives (who could even claim, under the terms of the directive (article 21.5), a leading role in its transposition).

Leaving aside this “full amendment”, certain particularly problematic aspects of its provisions need to be highlighted. The first is the amplitude of the provision in article 3, which requires so much information that the employment contract runs the risk of becoming one of those instruction manuals for household appliances or cars that nobody reads. It is true that on important matters (salaries, working hours, probationary period, training, contract termination procedure and collaboration with the social security system) reference needs to be made to the statutory or regulatory provisions or to the collective agreement, so companies should prepare standard clauses to make that reference. But even so, the information requirement is overwhelming. Matters are included that are not contemplated in the directive (paragraphs l and m of article 3.2, on equality plans and measures for LGBTI individuals) and it make little sense to include them in these information obligations (they simply reveal the ideological obsession of the regulatory rule-maker, who, however, completely forgot about all matters related to occupational risk prevention). And others are regulated that ignore the existence of statutory legislation on the matter, with which they may collide. Thus, in relation to uneven distribution of working hours, the notice period for work assignments and their cancellation (article 3.2.g.5º.ii), and the identification of reference hours and days (same provision, paragraph i) may clash with the provisions in article 34.2 of the ET, so its reform would be necessary (which cannot be done through regulations). The same occurs with periods of activity and inactivity in permanent contracts for intermittent work (paragraph iii), in respect of which the requirements of the decree cannot be considered to be simply further definition through regulations.

Moreover, concepts and requirements are introduced that have no statutory basis, such as the identification of a “job” (which is not contemplated in the directive) to be performed by the employee (when hiring for projects is on the increase, in which the concept of job becomes blurred; article 3.2.e) or the requirement to identify daily, weekly and annual working hours (article 3.2.g), although in this case the issue may be resolved by referring to the collective agreement (apart from the fact that the decree ignores the directive’s distinction between when the work pattern is predictable and when it is not: article 4, paragraphs l and m).

In relation to pay, while paragraph 1 of article 3.2.f) reflects the provisions of the directive (article 4.2.k), paragraph 2 lacks any support in its language and any basis in employment legislation. This is a clear case of overregulation, which neither transposes any mandate of the directive nor can claim to implement statutory provisions. The method of calculating variable pay items and the criteria determining their receipt will be found in the applicable collective agreements or arrangements or in the pay policies established at the company, and the statutory negotiation and information rights will come into play in these respects, but there is no specific information obligation, either in the European or in the domestic legislation, in relation to communicating working conditions to the employee. Referring to the provisions in the collective agreement may work here to get around the obstacle.

The existence of algorithmic systems (article 3.2.k), which the directive does not require to be disclosed, would have required a legislative reform, since information that is legally restricted to employee representative bodies (article 64.4.d) of the ET) is extended to employees, without the directive providing any basis for this.

Lastly, some of the decree’s provisions make no sense. They reflect matters in the directive that do not take into account the particular features of each national legal system. In relation to the procedures and notice periods for terminating contracts (article 3.2.f), for example, which is regulated by statute in the Workers’ Statute, and therefore the advisable course here is simply to refer to the provisions in the Workers’ Statute. Or in relation to the modification of working conditions, which has precise statutory provisions in article 41 of the Workers’ Statute, with which the information requirement in paragraph q) of article 3.2 may collide, as well as the provisions of articles 5 and 7.3. Although no provision is made for a simple reference to the statutory or collective-agreement provisions on this point, the advisable course is simply to inform of the possible modification of working conditions under the statutory legislation in force and, where the modification is substantial, under the provisions of article 41 of the ET.

And one final note: the decree refers, in relation to the applicable collective agreement, to the “extended validity in effect” (paragraph o) of article 3.2). What does that mean? Is it referring to the extended validity of the collective agreement, in which case the term “in effect” is not appropriate? Or is it trying to say that during the extended validity period the collective agreement remains in effect? In that case, it is ignoring the established case law on the matter and, despite its ambiguity, the Workers’ Statute’s own provisions, in which case the overregulation would be evident.

And the icing on the cake. While the directive seeks for the required information to be provided within a week or a month, depending on the different items of information to be provided (article 5), starting on the first working day, the decree requires the information to be provided before the start of the employment relationship (article 7.1). Let it not be said that requirements for Spanish companies were not toughened and increased.