When can this type of contract be signed?
According to the regulations, this type of contract may be entered into when, within the normal volume of activity at the company, it is necessary to carry out fixed and periodic jobs which are not repeated on certain dates. That is, a fixed-discontinuous contract is called for when a need arises for intermittent or cyclical work, at separate time intervals, but reiterated in time and somewhat similar or homogenous in nature (Supreme Court Ruling or “STS” of 24 February 2016, Appeal 2493/2014).
On the contrary, if the discontinuous jobs repeat on certain dates, according to what is set forth in Articles 12.3 and 16.1 of the WS, it would not be a fixed-continuous contract but an indefinite, part-time contract.
What differences are there with respect to specific-term contracts and indefinite, full-time contracts?
In order to differentiate this type of contract from temporary contracts, the cyclical or exceptional nature of the work must be considered in such a way that, if the work is exceptional, sporadic, unforeseeable and/or occasional, it would be a fixed-term contract; if, on the other hand, the work is cyclical, intermittent, repeated over time and/or foreseeable, then the contract would be of a fixed-discontinuous nature and, as such, the work could not be covered with a temporary contract.
To differentiate it from a full-time contract, it must be taken into account that, in contrast to the fixed-discontinuous contract, the former is entered into to provide services throughout the entire year.
Temporary cessation and call to work
Despite the fact that it is an indefinite contract, it must be considered that the effective activity will depend on the beginning and end of the period, so that the end of the activity will imply the cessation/interruption in time (not the suspension or the termination of the contract) of the worker until the activity is resumed again, which will take place when the call to work is made by the business owner. This call to work is an obligation of the business owner and a worker’s right. In terms of the order and how such call to work should be carried out, what is set forth in the applicable collective bargaining agreement must be followed. Nevertheless, in order to guarantee an effective call to work and that it be understood to have taken place, it is advisable for such call to be in writing. During the period of inactivity, the fixed-discontinuous worker may receive unemployment benefits, which will end when the worker resumes his/her activity.
If there is to call to work made by the business owner, then it would be a dismissal. The expiration term of 20 working days to challenge it will start when the worker becomes aware of the lack of a call to work by the business owner. On the contrary, if once the call to work is made correctly, the worker, without due justification, does not return to work, the labour relationship will also be terminated.
Calculation of seniority
Finally, in terms of the matter of how seniority should be calculated for this type of worker, that is, if only the periods effectively worked must be considered or, on the contrary, the total period from the beginning of the rendering of services, the Supreme Court, in its ruling 28/2018 of 18 January (Rec. 2853/2015) established that, for the purposes of accruing the salary complement for seniority and giving rise to other rights (e.g. promotion), only the time rendering services shall count, where this does not cause inequality with respect to the other workers.
For futher information: Monika Bertram