Draft bill aims to improve employment rights of domestic workers
The Spanish government plans to pass a law regulating the terms and conditions of employment of domestic workers, in order to improve their employment situation. Moreover, the government is aiming to bring domestic workers’ social security contributions progressively in line with those of workers contributing to the General Social Security System. Nonetheless, certain differences will remain, notably in terms of unemployment benefits.
On 31 August 2007, some 268,569 domestic workers contributed to the Special Social Security System for Domestic Employees which, according to the government’s proposal, will be discontinued. Work in Spain’s domestic services sector is mainly done by women, who represent 94% of employees in the sector. In recent years, the sector has increasingly become the main form of integration into the labour market for immigrants, with 60% of migrant workers, mainly women, working in the sector. The government plans to incorporate this group of workers into the General Social Security System by 2017. The draft bill, which is currently under consultation by the social partners, may become applicable on 1 January 2008.
Content of new regulation
The proposed decree introduces improved terms and conditions of employment for workers in the domestic services sector, covering contractual and pay issues, working time and social security contributions.
According to the draft decree sent to the trade unions, the standard contract of employment will be open-ended, while temporary contracts on an annual basis will no longer be permitted without justification. Hence, any existing type of employment contract may be used for domestic workers; however, if the contract provides for temporary employment only, a reason must be given.
At present, the standard employment contract for domestic workers is a temporary annual contract, which does not require a justification and is tacitly extended every year. Furthermore, in the absence of an agreement between the employer and the worker, the courts currently interpret the contract as a one-year temporary employment contract, whereas the Ministry of Labour and Social Affairs (Ministerio de Trabajo y Asuntos Sociales, MTAS) proposes that in the absence of an agreement the contract should be assumed to be an open-ended employment contract.
To clarify this situation, the proposed decree states that, except for fixed-term full-time employment contracts and temporary contracts lasting less than four weeks, the contract must be in writing, and the employers must notify the Public Employment Service (Servicio Público de Empleo Estatal, INEM) of the employment conditions stipulated in the contract. Temporary contracts may no longer be terminated without justification according to the reasons laid down in the workers’ statute.
Up to now, in cases of unfair dismissal, the Special Social Security System for Domestic Employees provides for 12 months’ severance pay. The current proposal of the government does not specify whether the severance pay applicable under the General Social Security System will be granted: this corresponds to 45 or 33 days’ pay per year of service and a maximum of 42 or 24 months’ pay for ordinary employment contracts and employment promotion contracts, respectively.
Until now, the national minimum wage was established as the basic wage for domestic workers, but pay could be reduced by up to 45% in exchange for payments in kind, such as accommodation or meals. The reform maintains the statutory minimum wage for domestic workers, which the government determines every year; the draft bill, however, proposes to eliminate the possibility of reducing pay in exchange for payments in kind.
Under the current legislation, working hours have been established exclusively by the employers. The reform envisages that working time schedules must be agreed between the two parties of the employment contract. The rest period between working days has been increased from eight to 10 hours for workers living in the employer’s home and from 10 to 12 hours for workers living outside of the employer’s premises. Provisions for annual leave remain the same, at 30 calendar days a year, of which 15 must be taken continuously.
Social security contributions
According to the draft bill, domestic workers and employers will pay higher social security contributions, as their contributions will progressively be brought in line with those of the General Social Security System; this will happen over a 10-year period. In addition, they will pay contributions covering occupational accidents and illnesses. Payment of sickness benefits will be brought forward, and in cases of occupational accidents the benefits will be received from the first day of sick leave.
Although this aspect remains to be determined, everything indicates that the possibility of domestic workers contributing to and receiving unemployment benefits will be left to future legislative initiatives.
Emma Cervino, CIREM Foundation