Summary of some of the legal changes that have been approved or that will come into force coinciding with the new year 2022.
The Official Bulletin of 30/12/2021 publishes Real Decreto-Ley 32/2021 on urgent measures for labour reform. Key aspects:
a) Indefinite ultraactivity is recovered: the conditions established in a collective bargaining agreement will remain in force even after it ceases to have effect.
b) The prevalence of the company collective agreement in terms of wages is repealed: sectoral collective bargaining agreements will set minimum wages. The company collective agreement will not take precedence over the basic wage and wage supplements.
c) There will always be a sectoral collective agreement applicable, which may be that of the activity carried out in the main company, or another one if so determined by the sectoral collective bargaining agreement; thus, in the event that the contracted/ subcontracted company carries out essential activities for the development of the main company’s activity, the sectoral agreement of the activity carried out by the main company will be applicable to the contracted/subcontracted company’s employees.
The company collective agreement may only be applied by the contractor if it determines better wage conditions than the applicable sectoral agreement.
d) Employment contracts are presumed to be concluded for an indefinite period of time (art. 15.1 ET).
In the construction sector, ordinary contracts will also be indefinite. Once the project has been completed, the company must offer a relocation proposal to the employee, following -if necessary- a training process at the company’s expense. If the employee rejects the offer or when relocation is impossible because there is no suitable position, the contract is terminated, with a compensation of 7 % calculated on the salary concepts established in the collective agreement tables. Both the completion of the project and the dismissal are to be communicated to the employees’ legal representatives.
e) The types of contracts change:
e1) The contract for a specific work or service (“contrato de obra o servicio”) disappears. There will only be a single fixed-term employment contract, which may be concluded due to circumstances of production (a) or due to substitution of the employee with the right to keep the job (b) (Art. 15.1 ET).
(a) “Circumstances of production” shall be understood to mean
(a1) the occasional and unforeseeable increase and fluctuations which, even in the normal activity of the company, generate a temporary mismatch between the stable employment available and that which is required (provided that it does not correspond to the cases included in Article 16.1 of the ET). This type of contract may not last more than 6 months, which may be extended for up to 6 more months by a sectoral collective bargaining agreement; or
(a2) occasional, foreseeable situations and of small and defined duration. It may be used for a total of 90 days, never continuously.
The contract must specify the precise reason for the temporary contract, the specific circumstances that justify it and its connection with the foreseen duration.
On termination, the employee will be entitled to compensation equivalent to 12 days’ salary for each year of service, or the amount established in the specific regulation applicable.
Employees who in a period of 24 months have been employed for a period of more than 18 months, with or without interruption, for the same or a different job with the same company or holding, by means of 2 or more contracts due to circumstances of production, either directly or through their provision by temporary employment agencies, will acquire the status of permanent employees due to contract chaining. This will also happen in cases of company succession or subrogation.
Fixed-term contracts of less than 30 days will have an additional Social Security contribution to be paid by the employer at the end of the contract (with some exceptions such as contracts with workers included in the Special System for Agricultural Workers or in the Special System for Household Employees).
(b) “Substitution of the employee” may be used
(b1) to complete the reduced working hours of another employee, when such reduction is based on legally established causes or causes regulated in the collective bargaining agreement, or
(b2) for the temporary coverage of a job position during the selection or promotion process for its definitive coverage by means of a permanent contract. In this case, the duration of the contract may not exceed 3 months.
The name of the person being replaced and the reason for the replacement must be specified in the contract.
– Serious infringements associated with breaches of regulations on temporary contracts are envisaged, with penalties ranging from €1,000 to €10,000.
– These new kinds of temporary contract will enter into force on 30 March 2022.
e2) A new training contract is established, with 2 modalities (art.11 ET):
e21) Training contract in alternation with paid work as an employee.
– Addressed to vocational training, university studies or the catalogue of training specialities of the National Employment System, for people of any age, except in the case of the Catalogue of Professional Qualifications (up to 30 years of age).
– Maximum duration: 2 years.
– Working hours shall not exceed 65 % in the first year and 85 % in the second year, with no overtime, shift work or night work.
– The salary will be adapted to the collective bargaining agreement, may not fall below 60 % in the first year and 75 % in the second year, and will never be less than the minimum wage in proportion to the working day.
– A suitably trained tutor will be in charge of monitoring the individual training plan and the correct fulfilment of the object of the contract.
e22) Training contract for obtaining professional practice appropriate to the corresponding level of studies.
– Maximum duration: 3 years -5 years in the case of people with disability-.
– The salary will be the one established in the collective bargaining agreement for the job, except for specific regulation.
– There will be tutorial follow-up.
* In both modalities, Social Security will cover the protectable contingencies and benefits, including unemployment and FOGASA coverage, and the conclusion of training contracts with disabled workers will entail the right to a 50 % rebate of the employer’s Social Security contribution corresponding to common contingencies during the term of the contract.
e3) The seasonal permanent contract shall be concluded for the execution of seasonal work or work linked to seasonal productive activities, or for the execution of work which is not seasonal but which, being intermittent in nature, has certain periods of execution, determined or indeterminate.
– A collective bargaining agreement or, failing that, a company agreement shall establish the objective and formal criteria by which the call shall be regulated. In any case, it must be in writing or by any other means that allows proof of notification, with precise indications of the conditions for his/her incorporation and sufficient advance notice. Employees may take appropriate action in the event of non-compliance in relation to the call-up, and the period for doing so shall begin from the time of non-compliance or from the time when they become aware of it.
– Activities carried out under commercial or administrative contracts may be carried out by means of a seasonal permanent contract.
– A seasonal permanent contract may be concluded between a temporary employment agency and a person hired to be seconded, under the terms provided for in article 10.3 of Law 14/1994 (regulating temporary employment agencies).
– It must be formalised in writing and must reflect the essential elements of the employment activity. Among others, the duration of the period of activity, the working day and its timetable distribution, although the latter may appear as an estimate, without prejudice to its specification at the time of the call.
– The company must provide the workers’ legal representatives, sufficiently in advance, at the beginning of each calendar year, with a calendar with the annual or, where appropriate, half-yearly call-up forecasts, as well as the data on the actual call of permanent seasonal workers once they have taken place.
e4) Transitional regime:
– Training contracts (T.D. 1 and 2): internship as well as training and apprenticeship contracts based on the provisions of regulation in force before the entry into force of the R.D.-L., will be applicable until their maximum duration, in the terms set out in its regulation. The same shall apply to their Social Security contribution.
– Fixed-term contracts entered into before 31 December 2021 (D.T. 3): they will be applicable up to their maximum duration under the terms set out in the Workers’ Statute in force until 31/12/2021.
– Fixed-term contracts entered into from 31 December 2021 to 30 March 2022 (T.D. 4): such contracts shall be governed by the legal or contractual regulations in force on the date on which they are entered into and their duration may not exceed six months.
– Limitation on the chaining of contracts (D.T. 5): the new restriction on the chaining of contracts applies from 31/12/2021. For contracts signed prior to this date, for the purposes of calculating the number of contracts, period and term, only the contract in force on 31/12/2021 will be taken into consideration.
f) The E.R.T.E. system in force changes (modification of Art. 47 ET).
– Several elements created as a result of the E.R.T.E. COVID-19 are incorporated:
- the possibility of taking workers in and out od ERTE depending on the business’ activity; and
- the possibility of getting reduced Social Security contributions and financing if employer carries out training activities for workers in ERTE
(a) E.R.T.E. for economic, technical, organisational or production reasons (ETOP)
– Reductions on Social Security contributions will be 20%, subject to the completion of training activities.
– The consultation period is reduced to 7 days for companies with fewer than 50 employees, subject to the constitution of a representative committee.
– Information for employees’ representatives during the application of the E.R.T.E. is reinforced.
– The prohibitions on overtime and outsourcing of the current E.R.T.E. COVID are incorporated.
(b) E.R.T.E. due to force majeure (“impediment” and “limitation”)
– Reduction on Social Security contributions will be 90 %, but linked to the maintenance of employment like in the current E.R.T.E. COVID
– Impediment or limitation to normalised activity determined by decisions of the governmental authority are added as a cause.
– It will require a mandatory report from Labour Authorities. The labour authority must issue a decision within five days, with positive silence.
– The reduction in working hours shall be between 10 and 70 %.
g) RED mechanism for employment flexibility and stabilisation is created (new Art. 47 bis ET).
– It will require prior administrative authorisation.
– 2 modalities (new art. 47 bis ET):
(a) Cyclical: in the event of a temporary or cyclical fall in demand due to macroeconomic causes, employers may suspend part of their employees’ work contracts for a maximum period of one year instead of dismissing them. During this suspensión period, incentives will be provided for the training of affected employees.
Tj¡here will be reductions on Social Security contributions, decreasing over time.
(b) Sectoral, for companies and sectors in transition that require permanent changes. It must be requested by trade unions and employers’ organisations. In this case, in order to avoid dismissals, the company can activate this mechanism for a maximum period of 6 months, extendable for a further 6 months, and facilitate the transfer of its employees to another employer through their requalification, to which end it will submit a requalification plan.
The company will be entitled to a reduction on Social Security contributions for 6 months.
In July 2021 new EU e-commerce regulation finally entered into force. 2022 is the first year in which this regulation will have been in force for the whole tax year.
Until that date, businesses engaging in distance or online sales of goods or services to final consumers located in another EU Member State different from their own above a certain threshold (€35,000 or €100,000, depending on the Member State) had to register and pay VAT in the Member State of the purchaser.
Now, when the distance/online sale of goods or services to final consumers established in other EU countries exceeds only €10,000 between all these countries, VAT must be declared and paid to the Treasury of the final consumer’s country.
In order to simplify the management of the tax, a “one-stop shop” system has been introduced whereby this VAT is declared – at the rate in force in each one of the consumer’s country – and paid quarterly to the Spanish Treasury, by means of the submission of specific tax forms (form 369).
To sign up from this simpler Management system, once online sales to end consumers in EU countries other than Spain exceed €10,000, a census declaration (form 035) must be filed.
Given the relative technical complexity of the matter, we advise you to contact us as soon as you realise that you are going to exceed the aforementioned sales threshold.
Together with the new regulation of the municipal capital gains tax, the government approved the so-called “cadastral reference value“.
This is a new valuation that is attributed to properties and will serve as the taxable base for Transfer Tax and Stamp Duty (ITP and AJD) and Inheritance and Donation Tax (ISD), replacing the market values that were being established by the ATIB (in the Balearic Islands). Also, for acquisitions from 2022 onwards, it will serve as the taxable base for Wealth Tax (IP). As before, this new “reference value” will only be applied when it is higher than the value in the deed.
It is determined by the D. G. of Cadastre as a result of the analysis of the prices of all property sales and purchases made before a notary public, based on the data of each property as recorded in the Cadastre. In theory, it may not exceed market value, for which the D.G. of Cadastre will use “reduction factors“. As befor, such administrative valuations may be challenged within the process of an ITPAJD or ISD settlement.
The “cadastral reference value” is available at the Cadastre’s Electronic Headquarters, which can be accessed through digital signature.
By means of R.D.-L. 21/2021 and pending the forthcoming new Housing Law, the Government has extended the suspension of evictions and repossessions of main residences until 28 February 2022 for economically and socially vulnerable households, as well as housing rental contracts that can benefit from the extraordinary extension of six months under the same terms and conditions of the contract in force.
A new allowance of between 40 and 100 euros per child (specifically 100 euros per month for each child between 0 and 3 years of age; 70 euros between 3 and 6 years of age; and 40 euros between 6 and 18 years of age) has been approved for beneficiaries of the minimum living income with dependent children and
– families of 2 parents and 1 child earning less than €27,000 a year, or 2 or more children earning less than €32,100 a year, or
– single-parent families with one child earning less than €25,700 a year or 2 or more children earning less than €30,800 a year.
How to apply is still under undecided.
– In 2022 the legal interest on money and the interest on tax arrears remain at 3% and 3.75%, respectively.
– As for the Indicador Público de Renta de Efectos Múltiples (IPREM) for 2022, it has been increased by 2.5 %. These are the new figures: