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In the majority of EU countries temporary workers are not penalized as regards compensation for contract termination

In the majority of EU countries temporary workers are not penalized as regards compensation for contract termination

The editorial of the latest issue of the digital journal IUSLabor calls for an urgent reform of Spanish legislation in this field, while the compared dossier notes that Spain is an exception as it places temporary workers at a disadvantage compared to those on permanent contracts, regarding compensation for employment contract termination.

12.05.2017

Issue 1/2017 of IUSLabor, the electronic journal of Pompeu Fabra University dedicated to the analysis of labour law and social security, directed by Manel Luque (Law Department at UPF) and Anna Ginés (Law Department, ESADE-Ramon Llull University) has recently been published.

This issue gives special importance to the analysis of the impact of the important judgment of the EU Court of Justice on the case of Ana de Diego Porras, in its litigation with the Spanish Ministry of Defence (09.2016).

The judgment concluded that the Spanish regulation that does not recognize any compensation when an interim contract ends is contrary to Community law. A ruling that dogmatically and legally is considered applicable to all cases of temporary contracts and not just in interim contracts.

To this end, the editorial of the journal, written by the renowned professor at the University of Seville, Jesús Cruz Villalón, concludes not only by advocating for the urgent reform of the regulations in Spain, but also by stating that a solution must be provided to the main distortion of our labour market: its high turnover as a result of the excessive rate of temporality.

For professor Cruz Villalón, there is a need to establish a regime of intense separation of treatment between justified and abusive temporary recruitment, with broad acceptance of the former and rotund penalization of the latter. In parallel, he continues, there is a need to redirect Spain’s economic model towards a pattern of growth based on innovation and productivity, which would foster more stable jobs and discourage job insecurity.

A comparative analysis of international contracting

In addition, the Comparative Labour Law Dossier is devoted to analysing the regulation of temporary contracts in 17 countries: in Europe (Belgium, France, Germany, Greece, Italy, Portugal and Spain), in Latin America (Argentina, Brazil, Chile, Costa Rica, Mexico, Peru, Dominican Republic and Uruguay), and in North American (USA and Canada). From this study of almost 150 pages, three conclusions can be highlighted:

First, all of the above countries allow temporary contracts, although there is greater flexibility in the USA, Italy and Chile, while Spain, Belgium and Greece are the countries with the most restrictive regulations with regard to the cases for which temporary recruitment is permitted, above France, Germany or Portugal.

Secondly, with regard to the maximum allowable duration of temporary contracts, it is interesting to note the generous regulation implemented for certain cases in Germany (no time limit on contracts for objective reasons) and in Canada (a limit of nine years in certain cases).

Finally, most countries provide for compensation at the end of the contract, but the effects of the EUCJ are of minor importance in the Community states analysed: contrary to what happens in Spain, there are no differences in compensation between temporary and permanent contracts (Belgium, Germany, Greece and Italy) or better compensation is provided for temporary than for fixed-term contracts (France and Portugal).

Doctrinal articles on the entrepreneurial and contractual scope

In the chapter of doctrinal articles, the one concerning the “On demand economy” (Ruben Agote, Cuatrecasas) should be highlighted, in which the most important aspects of its employment dimension (employment contract, freelance, etc.) are analysed. Another study focuses on the new and as yet not dealt with aspect of the figure of software as an employer/company; and two articles, by Ignacio Beltrán de Heredia (UOC) and Marta Call (UPF), respectively, deal with the crucial issue of company succession.

In addition to other collaborations, IUSLabor continues committed to giving voice in each issue to the forthcoming centenary of the ILO (2019), and again with rigorous studies by distinguished members of this international body.

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