10 answers to labor-related questions that can help us make decisions under the special agricultural regime.
1. What are the contribution-related advantages of the special agricultural system compared to the general system?
2. When is an employee considered a permanent seasonal worker?
Whether an employee is classified as a permanent-seasonal worker will depend on the applicable collective bargaining agreement.
For example, in the handling of fresh fruits and vegetables, workers who worked for the first time during the immediately preceding season and are called back at the start of the following season will be considered permanent seasonal workers.
And under the agricultural collective bargaining agreement, those who perform work specific to the company but who work on a cyclical and intermittent basis due to the seasonal nature of agricultural activity, and who can prove that they have worked for the company for at least 160 workdays.
3. If a permanent part-time employee is on temporary disability leave when called in, do I have to bring them back to work?
Until very recently, there were discrepancies among various Supreme Courts of Justice on this issue, but on July 14, 2016, the Supreme Court resolved all doubts by ruling that
Even if the employee were sick, this does not exempt the company from the obligation to report the employee’s absence; from that moment on, the company must assume the obligation to make Social Security contributions from that date and for the duration of the temporary disability period, or until the end of the season, although the employee’s actual return to work will occur upon receiving a medical clearance.
4. Are companies subject to the Special Agricultural Regime required to have a minimum number of permanent or permanent-seasonal employees?
As a general rule, companies subject to the Special Agricultural Regime must ensure that at least 73% of their workforce consists of permanent and/or permanent-seasonal employees.
You must be very careful about this; the Labor Inspectorate periodically conducts inspection campaigns to verify compliance with this requirement and is imposing penalties for noncompliance.
For this calculation, the Labor Inspectorate also takes into account workers provided by temporary staffing agencies.
5. My workforce currently consists of permanent seasonal employees and several employees on temporary contracts. Business is slowing down, and I’m going to have to let some employees go. I’d like to keep some of the temporary employees and terminate the contracts of others with permanent seasonal contracts. Would that be possible?
Under no circumstances may permanent seasonal workers be laid off unless temporary workers—including those hired through staffing agencies—have been laid off first.
All of this must be considered in light of the system for calling in workers based on professional specialties. One way to retain a worker with a temporary contract over other permanent-seasonal workers would be to assign that worker a professional specialty different from theirs, provided that we maintain the required quota of permanent workers on staff.
6. Is the Special Agricultural Scheme only for field staff, or can I also include office staff?
This special system applies to workers who, as auxiliary staff, perform services on agricultural holdings that are not strictly agricultural, forestry, or livestock-related, provided that they do not alternate these tasks with work of an industrial nature, for example: technicians, administrative staff, mechanics, drivers of vehicles and machinery, and any other professionals who perform their duties on the farm.
7. Are field staff required to keep a daily time-keeping log?
Yes, it is mandatory for all company employees.
The Labor Inspectorate is imposing penalties on companies that do not keep such records. Following the Labor Inspectorate’s interpretation of the National Court’s ruling—which determined in a case that companies are required to maintain a time record even if no overtime is worked—the agency has launched a campaign to verify that all companies, regardless of sector, are maintaining such records.
In agricultural companies, due to the technical difficulty of installing time-tracking systems on farms, field staff are being asked to submit the field log that supervisors keep for personnel monitoring; this log must include:
- the workers on the job site,
- start time, end time, and hours worked.
A monthly summary of these reports must be prepared for each employee, and a copy must be provided to them along with their pay stub.
The purpose of the inspection is to verify that the workday complies with legal limits and, if overtime is worked, that it is either paid or compensated with time off.
8. What should I do if I discover that an employee has impersonated someone else?
As soon as we become aware that an employee we have hired may have impersonated someone else in order to work:
If you are working, we must ask you to stop working immediately until the situation is clarified. If you are unable to verify your identity at that moment (by presenting the original copy of your identification document) or if we still have doubts, we will have to call the police so they can come and file a report based on our complaint.
If they are no longer working, we will go to the police station as soon as possible to file the appropriate report. Immediately afterward, we will cancel the registration with Social Security to prevent any improper benefits from being paid to the holder of the documents, as the government could hold us liable.
Always keep the documentation the employee provided to us for hiring, along with the complaint, so that you can provide proof in the event of an inspection.
To try to prevent these situations, it is important to verify the originals against the photocopies provided for hiring purposes; even though this means more work for field staff, it can help us avoid future problems.
9. What happens if, once the workday has begun, it has to be suspended due to inclement weather?
It will depend on whether the province where the activity takes place has a collective bargaining agreement or is governed by the arbitration award regulating the agricultural sector.
In the event that the Arbitration Award is enforced:
- Permanent employees make up 50% of the hours lost in the days that follow.
- Temporary workers are paid 50 percent of their wages if, after reporting to work, their shift is suspended either at the start of the shift or after two hours of work have elapsed.
- If the suspension occurs afterward, they will receive their full salary, and under no circumstances will they be required to make up the lost time.
- In the Collective Bargaining Agreement applicable to the Region of Murcia:
- The lost hours will be fully compensated and do not need to be made up.
- When the company has a facility where employees can take shelter from such inclement weather, employees must remain on company premises during the workday to perform any appropriate work.
10. Can I implement a performance- or productivity-based work system?
Yes, provided that the employee representatives are notified in advance; their participation and consent are essential.
The terms of compensation, as well as the conditions for their application, must be set forth in writing; although this is not mandatory unless requested by one of the parties, it is recommended.
Under no circumstances shall the amount to be received by the employee be less than what he or she would have received based on the hourly wage established in the collective bargaining agreement.
At Carrillo Asesores, we have in-depth knowledge of all aspects of the agricultural sector, thanks to our many years of experience. If you have any questions about the special agricultural tax regime, please leave us a comment or give me a call.
