Employment Contract: Concept, Features, Functions, and Types

Posted on Aug 3, 2024 in Law & Jurisprudence

Concept, Distinctive Features, and Functions of Employment Contract

Functions of Employment Contract

  • Constituting a labor relationship
  • Regulating the working conditions between the employer and the employee

Main Characteristics of the Employment Contract

  • Services rendered voluntarily by the worker in exchange for compensation
  • Work must be performed personally by the employee
  • The worker provides his services on account of the employer
  • Submitted to the disciplinary power and under the power of direction of the employer
  • The worker provides his services in exchange for a wage

Activities Excluded from Labor Law. Special Labor Relations

Considerating the following situations as excluded from the scope of the this law:

  • Obligatory personal services, for example, services not voluntarily rendered
  • Activities that are purely limited to the mere performance of the functions of a director or member of the management bodies
  • The services rendered for free such as working for friendship
  • The self-employed commercial agents

On the other hand, there are other situations that are not considered to be a labor relationship but they meet all the requirement as the others.

  • Civil servants
  • The activity of those individuals providing transportation services for example taxi drivers

Self-Employed Workers

Are individual entrepreneurs who are engaging in business or professional activities on his own. Despite self-employed workers are not employees, there is one type of them named “economically dependent self-employed worker”, they depend economically because they receive from that client at least 75% of their income from work performed and from economic or professional activities.

The different special labor relations mentioned by the WS are:

  1. That of senior executive staff different from directors or members of the management bodies of a company
  2. That of domestic staff
  3. That of convicts in penitentiary institutions
  4. That of professional sports players
  5. That of individuals intervening in commercial transactions (sales representatives) on account of one or more business owners without assuming the risks inherent thereto
  6. That of handicapped workers providing their services at special employment centers
  7. That of port stevedores who provides his services for public dock-work companies
  8. That of minors in juvenile detention centers
  9. That of health professionals in residency programs
  10. That of lawyers who render their services in law offices

Parties to Employment Contract: Employee and Employer. Employee’s Capacity to Contract

The Employer

Is the natural person or legal entity that receives the services provided by the worker.

What is an ETT?

Temporaty employment agency, whose main activity is the temporary assignment of workers. In that respect, the ETT and the user employer are two contracting parties to an agreement named ‘provision contract’.

Employee’s Capacity to Contract

An employment contract is valid when:

  1. It is consented by both parties.
  2. There is a licit, possible and a determined or determinable object.
  3. There is a licit and existing cause of the contract.

In order to conclude a contract the valid consent of the contracting parties is needed. On the other hand, a free consent is not given when a person is submitted to any of the vices of consent (mistake, violence, intimidation and fraud).

There are some particularities we have to bear in mind:

  • The employment of persons under sixteen years of age is prohibited (in exceptional cases they can work by labor authorities)
  • The employee must have full capacity to act
  • Minors of 16 and 17 may not do any activities or positions that could become unhealthy or dangerous
  • Regarding the working time conditions for instance they can work more than 9 hours

EU Workers

Are not submitted to specific requisites for the validity of the contract in order to perform their services in Spain, so they are directly assimilated to Spanish workers.

Non-EU Workers

They need to obtain a work and residence permit in order to render their services legally in Spain. Without it they can have authorization to work in Spain.

Rights and Duties of Employees

1. Rights of Individual Ownership that May Be Individually Exercised

  • Right to employment and free choice of occupation and trade
  • Free association
  • Right to actual employment

2. Rights of Individual Ownership that May Be Collectively Exercised

  • The right to strike
  • Right to adopt collective conflict measures
  • Right to assembly
  • Rights to information, consultation and participation

3. Rights of Collective Ownership that May Be Collectively Exercised

  • Right to collective labor bargaining

Form of Contract Types

  • Work experience contract
  • Apprenticeship contract
  • Part-time contract
  • Fixed-discontinuous contract
  • Hand-over contract
  • Contract for project work or services
  • Relief (or replacement) contract
  • Distance work contract
  • Contracts of workers hired in Spain at the service of Spanish enterprises abroad
  • Contracts for a specific term in excess of four weeks. Whenever a legal provision so demands.

On the other hand, there are some information requisites, the worker must fulfill:

  • The essential elements of the contract and the main conditions for the execution of the services
  • Notified to the Public Employment Service
  • Basic copy of all contracts to be concluded in writing

Types of Employment Contract

1. Permanent Contracts: Ordinary Permanent Contracts and Permanent Contracts to Promote Employment

The employment contract may be agreed for an indefinite term or temporary period of time.

  • Indefinite-term contracts → agreed without any objective reason
  • Fixed-term contracts → agreed based on a legal cause

2. Temporary Contracts: Structural and Training Contracts

Only agreed in accordance with specific legal causes most of them embodied in the WS.

Structural Contracts

  • Fixed periodic contracts related to seasonal work where the start and end daters are known
  • Fixed-discontinuous contracts related to seasonal work where the start and end dates are not known

Training Contracts

We can distinguish 2 types:

  • Work experience contract (‘practical training contract’) → E.C with the purpose of allowing specific workers who have finished certain learning programs to obtain the professional experience proper to the level of education undertaken. May not be less than 6 months or more than 2 years within the limits of the CBA that may determine the duration of the contract.
  • Apprenticeship contract: Without the occupational qualification recognized by the vocational training system/education system required for a work experience contract for the position for which the contract is made. Combine paid work with training actv aimed at obtaining a professional training degree. Min 1 year, max 3 years,

Part-Time Contracts

Is an E.C where a number of hours of work has been agreed with the worker per day, week, month or year which is – than the working hours of a comparable full-time worker. Employees cannot work overtime

Hand-Over Contracts

Related to the partial retirement of an employee who may combine his retirement pension with a part-time contract.

Fixed-Discontinuous Contracts (Two Types)

Fixed periodic contract: For an indefinite term formalized to perform fixed and periodic tasks within the ordinary volume of the company’s act. The object is related to diff tasks to be performed on certain dates during a specific period of the year, on a cyclical basis. The start and end of each season are precise dates and known by the parties, so the employees don’t need to be called to work by the employer.

Fixed-discontinuous contract: Indefinite-term agreement formalized to perform jobs having an intermittent nature that do not repeat on certain dates within the ordinary volume of the aquí!