Questions and answers on indefinite contracting in the Law on Science, Technology and Innovation

• Article 23bis of the reform of the Law of Science, already in force because it was approved in advance by Royal Decree-Law 8/2022, of 5 April, validated in the Congress of Deputies without any vote against, authorizes the indefinite employment of research personnel (scientific, technical and management)in public sector entities, both when they have their own funds and external funds, be they public or private and of national or foreign origin.
• Additional Provision 10, which was included in the parliamentary processing of the bill, modulates Royal Decree-Law 32/2021, of 28 December (on labour reform), so that in the case of competitive European funds the recruitment of research personnel in public entities is carried out through contracts for indefinite time, being able to resort to the one regulated in article 23bis, without being able to sign, in that case, contracts of fixed duration.
• This Additional Provision 10 extends the scope of application of article 23 bis of the law reform, which will allow more research personnel to work under better working conditions.

What are the advantages of open-ended procurement in the public science, technology and innovation sector compared to the previous temporary procurement model?

Indefinite contracting that regulates the art. 23a of the law has numerous advantages over temporary hiring:

• More stability: it allows the job to be maintained if new external financing is obtained through an addendum to the initial contract, avoiding having to submit to new selective processes.
• More labor rights: compensation of 20 days per year worked instead of 12 of the temporary and better conditions for seniority, application for mortgages, etc.
• Avoid possible fraud in fixed-term employment contracts, through the improper linking of these employment contracts, since Additional Provision 23rd of the Science Act of 2011, which has been repealed by this bill, enabled the linking of fixed-term contracts, was frequently disapplied in the judicial sphere, since it reduced guarantees for the workers hired in the SECTI in relation to the remaining workers protected by the Workers’ Statute (a rule that did not provide for such linking and that is the minimum that seeks the worker’s employment rights).
• Greater agility: it is not subject to the limitations of public job offer, salary mass or replacement rate, and does not require prior authorization if it is carried out from competitive funds such as Europeans.

Will labor conflict be generated due to possible difficulties for the completion of the contract when no other funds are available to maintain the contracted person?

This contract can be concluded since it is subject to Article 52 e) of the Workers’ Statute (ET) which allows non-profit entities to consider as an objective cause of termination of the contract the inadequacy of the corresponding appropriation of funds. Therefore, centers that do not have new financing to support the contracted people will be able to finalize the contracts without further impediment.

It is recalled that research centers such as the CSIC are already carrying out all their hiring of personnel with research funds with this indefinite hiring model, and have obtained the approval of the State Attorney of a model contract type that includes this clause of termination of the contract.

What is the increase in compensation costs associated with changing the model from temporary to indefinite hiring?

The increase in compensation from 12 to 20 days means an increase in the cost of labour of only 2.1% per year, the equivalent of 8 more days of compensation per year. It should be noted that in the previous model of work and service contracts, compensation of 12 days was already paid. However, this increase in cost would be considerably reduced since indefinite contracts are taxed with 1.25% less business share to Social Security compared to the temporary contract for work and service.

If we take into account that a standard contract for a European project for a researcher is at a cost of 40,000 euros gross per year and a duration of three years, the increase in compensation would entail an additional cost of compensation of around 2,600 € per person (876 euros more per year), without taking into account the savings in the employers' costs of Social Security.

Could this change of model affect the training and consolidation of young researchers who are in a period of high mobility and temporary stays?

Research staff who are in training (predoctoral) and early stages of consolidation (postdoctoral) are not affected by this reform because they can continue to be hired with European funds through the temporary contracts stipulated by the Law of Science and which have a temporary duration: up to 4 years for the predoctoral contract aimed at the presentation of the doctoral thesis (article 21) and between 3 and 6 years for the postdoctoral contract of access to the system (article 22). Therefore, the use of this recruitment model does not harm young researchers who work in temporary periods in research centers as part of their training and consolidation stage.

How can compensation be paid when the person is still hired with new funding?

Compensation is an eligible expense of European and national projects if it occurs at the end of this and provisions can also be made imputing this expense to the indirect costs (up to 25%) covered by European and national projects.

Is the implementation of competitive European research funds at risk with this change in the procurement model?

Under no circumstances can the execution of European funds be jeopardised. On the contrary, the Science Law facilitates the hiring of researchers from external funds of any kind, including European funds. The objective of Article 23a of the LCTI is to expedite the contracting, disassociating it from the need for authorization and other procedures, when the research group or center has external funds, including European funds.

Will this method of contracting generate “pockets of false indefinite” with possible increase in labor conflict?

It is a erroneous argument since an indefinite contract is not a fixed contract, but its duration does not appear previously determined. Research personnel with an indefinite contract are not considered as permanent staff in any case, so they are subject to dismissal for objective reasons regulated in article 52 e) of the ET, in addition to the other legally foreseen causes of termination of the employment relationship.

Will greater labor conflict be generated if some centers have to deal with numerous layoffs of employees with European funds with the consequent processes of employment regulation (ERE) files?

It should be clarified that employment regulation files are an administrative procedure whereby a company in crisis seeks to obtain administrative authorization to suspend or dismiss 10% of the workforce in 90 days for companies of between 100 and 300 workers or for 30 or more in companies of more than 300. This procedure obliges the entity to open a consultation period in writing addressed to the legal representatives of the workers.

It is considered that the possible employment regulation files due to the completion in 3 months of more than 10% of the staff or of 30 people hired by European projects, would occur very rarely, only when project finalizations are concentrated. In any case, these hypothetical EREs would be approved by the administrative authority as they would be fully justified by the termination of the financing of European funds. It is recalled that indefinite contracts may include a clause linking their continuity to the financing of a specific research line or project, under Article 52(e) of the ET.

Likewise, it should be noted that the Employment Regulation Files were also applicable in the field of fixed-term contracts, including construction and service contracts, since Article 51 of the ET makes no distinction in terms of the duration of the contracts subject to ERE, generally speaking of “termination of employment contracts”, whatever their nature, when the objective causes for their termination occur and the thresholds established in Article 51 are met. Hence, the change to the indefinite modality as a general recruitment formula does not alter the applicability or otherwise of the ERES, which will remain identical to when research staff were hired on a temporary basis.