Domestic workers: New labour regulations
On 8 September, Royal Decree-Law 16/2022, of 6 September, on improving the working conditions and social security of domestic workers, was published in the Official State Gazette (BOE)
The regulation aims to put this group on an equal footing with the rest of the employed workers in the areas of the system for terminating the employment relationship and unemployment benefits, among others
On 8 September, Royal Decree-Law 16/2022 of 6 September was published in the Official State Gazette (BOE) to improve the working conditions and social security of domestic workers.
The regulation aims to put this group on an equal footing with the rest of the employed workers in the areas of the system for terminating the employment relationship and unemployment benefits, among others.
Equality in occupational risk prevention
A level of health and safety protection for family workers equivalent to that of any other worker is guaranteed through the corresponding regulatory development.
Wage guarantee, employers’ contributions and FOGASA intervention
The regulations on FOGASA are amended, recognizing, on the one hand, the contribution obligation of domestic service employers and, on the other hand, providing compensation coverage for domestic service workers in cases of insolvency or bankruptcy of the employers.
Compensation shall be calculated at the rate of 12 days’ salary per year of service, pro rata per month for periods of less than one year, with a maximum limit of 6 monthly payments, and the daily salary, the basis for the calculation, may not exceed twice the minimum interprofessional wage, including the proportional part of the extra payments.
Unemployment and Social Security coverage
Domestic workers are no longer the only group of workers who lacked unemployment protection.
From 1 October 2022, contributions will be compulsory.
Unjustified differences in the working conditions of persons included in the special employment relationship under analysis in relation to other employees are eliminated.
Three new grounds for termination of the employment relationship (in addition to the general ones in Article 49.1 of the Workers’ Statute):
– A decrease in the income of the family unit or an increase in its expenses due to a supervening circumstance.
– Substantial modification of the needs of the family unit that justify the person working in the household being made redundant.
– The behavior of the worker that reasonably and proportionately justifies the employer’s loss of confidence.
During the period of notice for termination (seven days, or twenty days if the service has exceeded one year), the person providing full-time services shall be entitled, without loss of remuneration, to six hours’ leave per week in order to seek new employment.
If the requirements regarding the written form of the notice of termination or the provision of severance pay are not met, the employer is presumed to have opted for the application of the termination regime of dismissal.
Time limit for internal employees: for these employees, the termination decision may not be carried out with respect to the internal employee between seventeen hours and eight hours on the following day, unless the termination of the contract is motivated by a very serious breach of the duties of loyalty and trust.
Special consideration of the concept of withdrawal
The abolition of this institution was necessary, since it constituted an unjustified difference in treatment to the detriment of female workers which, moreover, had the effect of greater lack of protection, a lack of protection in cases of discrimination and an increase in the precariousness and vulnerability of this group. As indicated above, from now on dismissal can only take place for just cause in view of the particularities of the employment relationship in the home.
Social Security registration requirements
Applications for registration made in respect of workers included in the Special System must include, in addition to the data established in general, the code of the account of the financial institution into which the payment of the contribution is to be paid by direct debit and the data corresponding to the type of employment contract and the minimum content of the same, consisting of the number of monthly and weekly working hours, the amount of the agreed salary, both per hour worked and monthly, including the proportional part of the overtime payments, as well as, where applicable, the amount of the agreed monthly salary in kind and whether or not there is an agreement on hours of presence and/or overnight hours, together with the agreed hourly pay.
This reference shall take effect from 1 January 2023.
As mentioned above, it is compulsory to pay unemployment and FOGASA contributions from 1 October. So that these contributions do not represent a financial overburden for employers, they will be entitled to an 80% bonus on employer contributions for unemployment and FOGASA in this Special System.
On the other hand, the 20% reduction in the employer’s contribution to the contribution for common contingencies corresponding to this Special System is maintained.
These two aspects will come into force on 1 October 2022.
As an alternative to this reduction, employers who register a domestic worker under the General Scheme will be entitled, for the duration of their registration under this scheme, to a 45% or 30% rebate on the employer’s contribution to the Social Security contribution for common contingencies corresponding to the Special System, when they meet certain asset and/or income requirements, which will be determined by regulation. The SEPE is responsible for determining entitlement to the contribution rebates.
The above is effective from 1 April 2023.
Employer assumption of contribution obligations
(less than 60 hours of service per month)
It is stipulated that employers will assume the contribution obligations for workers who provide their services for less than 60 hours/month per employer.
In this way, the legislator avoids the possibility of the workers themselves being the ones to directly request their affiliation, registrations, cancellations and variations of data when they so agree with the employers.
The above is effective from 1 January 2023. During that month, employers must notify the Social Security General Treasury of the data necessary for the calculation and payment of Social Security contributions, and in particular the bank details required for the payment of contributions, as well as the managing body or, where applicable, the Social Security collaborating body they choose for the purpose of covering occupational contingencies, provided that all these data have not been notified previously.
It also proclaims the maintenance of benefits for hiring carers in large families: the allowances that were being applied on 1 April 2023 will remain in force until the date on which the carers who are entitled to them in the General Scheme cease to be employed. These allowances are incompatible with the new reductions in the Royal Decree-Law.
For further information, please consult Labour counselling.