The year 2021, which was particularly intense in every respect, culminated in one of the most widely publicized reforms: the labor reform approved by the Council of Ministers through Royal Decree-Law 32/2021, dated December 28, on urgent measures for labor reform, the guarantee of job stability, and the transformation of the labor market ( “RD-Law 32/2021”), which took effect on December 31, with a three-month grace period for certain provisions to allow companies to adapt to the new regulations; this grace period ended on March 31, 2022.
The impact of the new labor framework is not uniform across all sectors, due to their differing characteristics. In particular, the cultural sector had to wait until one week before the expiration of the aforementioned adaptation period for the government to approve the specific regulations that would allow for a consistent and proper implementation of the labor reform.
For that reason, on March 22, the following was approved: the Royal Decree-Law 5/2022, dated March 22, which adapts the special employment regime for individuals engaged in artistic activities, as well as the technical and auxiliary activities necessary for their performance, and improves working conditions in the sector (“RD-Law 5/2022”), which has been in effect since March 31.
Although in a tentative, fragmented, and incomplete manner—yet absolutely necessary—some of the recommendations set forth in the Report of the Subcommittee on the Drafting of the Artists’ Statute, which was presented to the Congress of Deputies in 2018, have been incorporated.
OBJECTIVES AND NEW PROVISIONS OF THE LABOR REFORM
The promotion of permanent employment and the limitation of temporary and precarious work stand as hallmarks of this reform. However, an indiscriminate crackdown on temporary work could weaken certain sectors in which intermittent and seasonal work are inherent to the nature of the activity itself, as is the case in the cultural industry.
Let's consider an audiovisual production, a concert or theater tour, or even a theater's own seasonal program—all of which are seasonal in nature, with temporality as their common denominator.
With that said, it will be easier to understand the full scope of the impact that Royal Decree-Law 32/2021 has on the hiring of personnel in the arts and culture sector and why it has been necessary to supplement it with Royal Decree-Law 5/2022:
- Regarding Royal Decree-Law 32/2021:
- The type of contract for a specific project or service is eliminated.
- Employment contracts are presumed to be indefinite, and the grounds for fixed-term employment are limited to the following:
- Due to production circumstances: occasional and unforeseeable increases; fluctuations that create a temporary mismatch between available permanent employment and the demand for it; or occasional, foreseeable situations of short duration.
- Due to the replacement of an employee.
- The training contract and the permanent intermittent contract remain in effect, with certain modifications and temporary limitations compared to the previous regulations.
- Regarding Royal Decree 5/2022:
It implements some of the recommendations contained in the aforementioned Report of the Subcommittee on the Drafting of the Artists' Statute through the following amendments:
- The special nature of the employment relationships of artists in public performances, as established in Article 2.1.e) of the Workers’ Statute, extends to technical and support staff who are part of the company’s permanent workforce, and they are also included in the current social security contribution groups for artistic personnel.
This specialty is subject to specific regulations, which, in this case, are set forth inRoyal Decree 1435/1985, dated August 1, which regulates the special employment relationship of artists in public performances (“RD 1435/1985”) and which, by virtue of the legal principle of specialty, takes precedence over the general provision contained in the Workers’ Statute, the application of which is considered supplementary.
Without prejudice to the limitations set forth in the Workers’ Statute, Royal Decree 5/2022 thus establishes an ad hoc fixed-term contract for the cultural sector. However, it is worth noting that Royal Decree 1435/1985 has always provided for—and continues to do so under the new wording that Royal Decree 5/2022 has given to its Article 5—the possibility of entering into fixed-term employment contracts“to meet the company’s temporary needs; such contracts may be for one or more performances, for a specific period, for a season, or for the duration that a production remains on the bill,” with the recent amendment adding“or for the duration of the various phases of production.”
This regulatory framework, supplemented by collective bargaining, has established fixed-term employment in this sector through legislation, collective agreements, and case law.
However, it is important to highlight a few issues of particular practical relevance:
- The contracts governed herein are, in any case, subject to the general rules on the chaining of contracts set forth in Article 15 of the Workers’ Statute.
- The provisions of Royal Decree 1435/1985 regarding compensation, working hours, breaks, and vacation time, the employment of minors, and other matters are expressly excluded from application to technical and support staff.
- The definition of “performance” is expanded to include related professional activities that are not limited to performances or presentations on stage, in order to include technical and support staff.
- It adapts to new technologies for the distribution and dissemination of content, expanding the forms of exploitation covered by its scope of application: theater, film, radio broadcasting, television, the Internet (including“streaming”), sports facilities, public squares, circuses, festivals, tablaos, nightclubs, and, in general, any venue intended for public performances or artistic or exhibition-type events.
- The severance pay provided for upon termination of a fixed-term contract with artistic, technical, and support staff is increased, bringing it in line with that provided for workers under the general labor regime. It is increased from seven days to twelve days per year worked, without prejudice to the establishment of a higher amount under a collective bargaining agreement.
- With regard to Social Security, employment contracts with artists, technicians, and support staff are exempt from the additional contribution required under the General Social Security Law. Furthermore, for artists enrolled in the Special Social Security System for Self-Employed Workers (RETA), the contribution is to be reduced when their annual income is less than €3,000.
III. General Note on Temporary Contracts Under Royal Decree-Law 32/2021 and Royal Decree-Law 5/2022:
Fixed-term employment contracts must clearly and precisely state the grounds justifying the temporary nature of the work to be performed. Under no circumstances may such contracts be entered into for the purpose of replacing a permanent-intermittent contract or for the performance of the company’s structural functions or activities.
Failure to comply with this requirement would result in the contract being considered an indefinite-term contract from the moment it is entered into.
TEMPORARY IMPLEMENTATION OF THE NEW LABOR REGIME
Regarding Royal Decree-Law 32/2021:
Given the three-month moratorium that ended on March 31, 2021, the new legal framework applies to contracts signed on or after that date.
However, the reform includes, among others, the following transitional rules:
- With regard to employment contracts for specific projects or services entered into before December 31, 2021, they may remain in the same form in which they were originally entered into, but only for the maximum term originally specified;
- During the vacatio legis—that is, between December 31, 2021, and March 31, 2022—fixed-term contracts may be entered into in accordance with the legislation in effect prior to the current reform, although their maximum duration is six months.
- With regard to labor law violations committed prior to the effective date, penalties will be imposed in accordance with the liability regime in effect prior to the effective date.
Regarding Royal Decree-Law 5/2022:
- It took full effect on March 31, 2022.
- It establishes a transitional provision applicable to contracts in effect as of the effective date of this Royal Decree-Law 5/2022, which will be governed by the regulations in effect at the time the contracts were entered into.
- Within twelve months, the government must approve a new regulation on special employment relationships to replace the current Royal Decree 1435 of 1985.
- Will the long-awaited Artists' Statute be here to stay?
By Sara Isabel Tortosa