The employment contract in Spain

13 septiembre 2016

  • España
  • Derecho Laboral

Legal representation of the employees

The employees have the right to participate in the Company through the representative bodies. There are two different representative bodies, which are the Personnel Delegates and the Works Council.

Personnel Delegates

The representation of the employees in a company or in a workplace which has less than 50 and more than 10 employees correspond to the Delegates. The employees shall elect through free, personnel, secret and direct suffrage the personnel delegates depending on the number of employees, 1 delegate if are 30 or less employees, and two personnel delegates if the company has more than 31, till 50 employees.

The personnel delegates will exercise together before the employer the representation of the employees, and the will have the same conditions established for the works council.

Works Council

The works council is the representative and collegiate body of the employees in the company or workplace, its function is to defend the interests of the employees, in every workplace where the census is more than 50 employees.

The company which has in the same community two or more workplaces or in the bordering communities and their census are less than 50 individually but more than 50 employees in the whole workplaces will have a works council for all of the centers. And if there are one with more than 50 employees and more with less, the first will have one works council and in the others will constitute other.

Information and consultation rights

The works council will have the right of being informed and consulted by the employer about those questions that can affect to the employees, and also about the situation of the company and the evolution of the employment in the same.

The works council has the right of being informed quarterly:

  • About the general evolution of the economic area of the company.
  • About the economic situation of the company.
  • About the forecast of the employer to celebrate new contracts.
  • About the statistics regarding the index of absenteeism and the causes, the accidents at work, occupational illnesses and its consequences.

The works council will also have the right of receive information, at least annually, related with the implementation in the company the right of equal treatment and opportunities among men and women.

The works council will have the right to obtain the following documents:

  • The balance, the P&L account, the memory and, other relevant documents.
  • The model of the contracts which are used in the company and the documents related with the dismissals.
  • The severe sanctions targeted.

The works council will have the right of being informed about the situation and structure of the employments in the company or work place, and about the evolution of the same.

The number of the members in the works council will be depending on the number of employees in the company, and will be:

  • From 50 to 100 employees, five.
  • From 101 to 250, nine.
  • From 251 to 500, thirteen
  • From 501 to 750, seventeen.
  • From 751 to 100, twenty-one.
  • More than 1000, two per each thousand, with the maximum of seventy-five.

The works council will choose between their members one president and a secretary, and the will elaborate their own procedural regulation, which cannot contravene the Law.

Substantial changes in working conditions

The business management may agree substantial modifications in the working conditions if there exists real economic, technique, organizational, or production reasons. They shall be consider related with the competitiveness productivity or technique organization or work in the company.

The modification in the next causes will be considered as substantial change in working conditions:

  • Working day.
  • Timetable and working time arrangements.
  • Scheduled working hours.
  • Compensation package and the amount of salary.
  • Functions, if exceed the limits from article 93 of the Works Statute.

The Substantial changes in the working conditions could affect to the recognized conditions to the employees in the work contract, agreements or collective agreements.

It is consider as collective character the modification that, in a period of 90 days, affect at least to:

  • Ten employees, on companies with fewer 100 employees.
  • The ten percent of the number of employees in the company in the companies which have more than one hundred and less than three hundred.
  • Thirteen employees, in the companies of more than three hundred employees,

The decision to change the working conditions individually shall be notified by the employer to the affected employee and his/her legal representatives no later than fifteen days before effective date.

If the Substantial change in working conditions has a collective character, this decision has to be preceded by a consultation period of no more than fifteen days.

The temporary employment agencies are the companies where their main function is to provide to another company (User Company), temporarily, employees contracted through it. The hiring of employees to release temporarily to another company may occur only through a temporary employment agency.

The contract may be temporally or undefined, and the maximum will be six months if the contract has been concluded for circumstances of the market, or accumulation of work. And if it is to cover a workplace temporarily, the maximum will be for three months.

Manpower supply contracts

Manpower supply contract is the contract which is celebrated between the temporary employment agencies and the User Company being his subject the assignment of an employee, and the employee through the assignment will be subject to the instruction and discipline of the User Company.

It will only be possible to execute a contract between a temporary employment agency and a User Company in the same circumstances and under the same conditions and requirements that the article 15 of the Employees Statute.

Additionally, it will only be possible to conclude a contract between a temporary employment agency and the User Company, in the same terms that in the contracts of apprenticeship contract and training for work according to the article 11 of the Employees Statute.

If after the available deadline the employee continues working in the User Company, the employee will be considered an employee of the User Company under an undefined term contract.

The working time will be the scheduled by the User Company. The clause that bans the possibility for the employee to be hired by the company after this kind of contract shall be void.

The companies may not conclude these contracts in the following cases:

  • To substitute employees in strike.
  • To carry on dangerous works.
  • Where in the previous twelve months the company has cancel the work places, which are looking to cover, under an unfair dismissal or by any other the causes of the article 20, 21 and 52 c, of the Employees Statute.
  • To assign employees to other temporary employment agencies.

The User Company is responsible of the protection in safety and hygiene matter in the work.

The User Company will respond collaterally of the wage guarantees and of Social Security contracted with the employee during the effect of the manpower supply contract.

If the contract is for a defined period, the employee after the contract will have the right of a compensation of 12 days per worked year.

General Aspects

Definition – Employment contract means the contract by which one individual (employee) assumes the obligation to execute a work or to provide a service to one or several persons (employer), under the dependence of those persons, in return for remuneration in any kind or form.

Dependency and otherness are essential elements of the contract.

Minimum age – The minimum age to enter into a labor contract is the age of sixteen. For the employees under the age of eighteen there exist special rules depending on the work type of works, the working hours and benefits surcharges.

Types of contracts

Verbal or written

Both types are valid but written contracts are recommended.

Time

The contract could be for a full-time workday or part-time workday. The workday duration will be agreed through the collective bargaining agreements; if not agreed through the collective bargaining agreements, the maximum will be 40 hours per week.

Term

The contract could be permanent (indefinite) or temporary (valid for a pre-determined time period). Unless indicated otherwise, a contract shall be presumed as permanent and for full-time workday.

Types:

  1. Permanent contract – The permanent contract is the one who is concluded with no limits in the provision of services. It must be announced in the Employment Service Office within ten days following its execution. The condition of permanent employee will be acquired, whatever modality of contract has been executed, by the employees who have not been registered in the Social Security once the trial period has expired.
  2. Temporary contract – The temporary contract is the contract executed to be valid for a fix term and can be a full-time or part-time workday contract. The temporary contract shall be made in writing, but it can be verbal in the case of casual contract due to production overload if the term of the same is less than four weeks and full-time workday.
  3. specific project or service contract – This type of contract is intended for the completion of works or services with autonomy inside the normal activity of the company and its duration , limited in time, is initially uncertain, but never for more than three years. The collective bargaining agreements are able to identify those works or task with own autonomy within the normal activity of the company that can be performed with contracts of this nature. The contract for a specific project or service can be done through full-time or part-time contracts. And the term will be the term of the realization of the work or service. The contract shall be made in writing and should specify with detail and clearly the type of hiring and identify sufficiently the work or service which constitute its object, the term, and also the work that is going to be developed.
  4. Temporary contract depending on production circumstances – This contract is concluded to attend to the circumstantial requirements of the market, amount of task/works or excess of orders, even if is it is the normal activity of the company. It can be executed for a first professional experience, first youth employment, for an unemployed person who is under thirty years with no professional experience or less than three months. It could be concluded for a full-time or part-time workday. In case of youth employment the minimum of the part-time workday has to be the 75% of the workday from a full-time employee. The maximum term of this type of contracts will be six months inside a period of twelve months. And in case of first youth employment the minimum will be three months. These contracts must be concluded by writing if the duration exceeds four weeks and always in the event of part-time contracts. The contract must specify the reasons which justify it, the duration and the work to be done. The temporary contract depending on production circumstances will be extinguished, following denounce by any of the Parties at the expiry of the agreed period.
  5. Provisional contracts – The aim of this contract is to substitute employees with a reserved right to their job, or to temporarily cover a work place during the selection process of a permanent candidate. The working time must be full-time. The term of this contract will be equal to the term of the absence of the employee with reserved right of his work place. And if the contract is caused by a selection process of a permanent candidate it has to be for the same time of that period, but never more than three months. The contract must be concluded in writing, specifying with precision and clearness the nature of the hiring, identifying the substitute employee and the cause of the substitution and, where appropriate, the work place whose coverage will be done after the selection process, and also specify the circumstance which determinates its duration, the term of the contract and the work to be performed. This contract will be extinguished, following denounce by any of the Parties, if any of the following circumstances occurs:
    • The return of the replaced employee;
    • Expiry of the legal period or expiry of the period conventionally established for the reintegration;
    • The extinction of the cause which brought the reserved right of the work place;
    • The fulfilment of the three month period for the selection process.
  6. Compensation in case of expiration of the temporary contracts – The compensation established in the Law, in case of expiration of the temporary contracts will be implemented gradually according to the following timetable:
    • Nine days of salary per worked year for the temporary contracts celebrated after the 1st of January of 2012;
    • Ten days of salary per worked year for the temporary contracts celebrated after the 1st of January of 2013;
    • Eleven days of salary per worked year for the temporary contracts celebrated after the 1st of January of 2014;
    • Twelve days of salary per worked year for the temporary contracts celebrated after the 1st of January of 2015.
  7. Apprenticeship and training contract – The aim of this contract is the professional qualification of the employees through a training and professional activity. This contract can be executed with employees over 16 years old and under 25, who do not yet have the required professional qualification for an internship contract. The previous age restriction shall not apply if the contract is executed with disabled people and those social groups that are at risk of exclusion. Once the duration of this type of contract has expired, the employee may not be hired under this modality of contract by the same or other company, unless if the inherent training of the new contract has the purpose to obtain a different professional qualification. The effective working time cannot be over 75%, during the first year, or the 85%, during the second and third year, of the maximum working day established in the collective bargaining agreement. The remuneration of the employee hired for the apprenticeship and training shall be established in proportion to the effective working time, set forth through the collective bargaining agreement.
  8. Internship contract – The internship contract shall be concluded with those who are in possession of a university degree or technical education degree in the next five years, or seven for a disabled employee, from the finishing date of the studies according to the following rules:
  • The workplace shall allow the obtaining of the professional practice suitable with the study or formation level completed.
  • The term of the contract cannot be less than six month and more than two years.
  • No employee could be hired in the same or different company for more time than two years under the same degree or professional certificate.
  • The remuneration of the employee shall be the remuneration which is agreed in the collective bargaining, which must not, however, be less than the 60% or the 75% during the first or the second year of the contract.

If at the end of this contract the employee continues in the company, it is not possible to state a new probationary period. In this sense, the total duration of the internship contract must be computed to the effects of the seniority in the company.

  1. Distance work – Through this type of contract the provision of the professional activity is mainly executed in the residence of the employee or in a place freely chosen by the employee, alternatively to the on-site development in the working place of the company. The agreement shall be formalized in writing. The distance employees will have the same rights that the employees who work in the work place of the company.

Salary and wage

Salary shall include all l kind of considerations received by the employees in money or in kind.

The in-kind salary may not exceed 30 per cent of all of the considerations received by the employee.

The national minimum wage is established by the Government each year, and for 2015 it is € 9.080 per year (€ 648.60 per month). The employee has the right to receive two extraordinary payments, one in Christmas and the other at the time to be negotiated with the company. The minimum salary includes these two extra wages.

Working time

The maximum working hours are those agreed in the collective bargaining agreements, but in general, the maximum is 40 hours per week. Between the end of one working day and the beginning of the next working day must mediate twelve hours.

The time worked in excess over the 40 hours per week will be considered overtime. The amount of overtime may not exceed 80 hours per year. Overtime will be voluntary in general.

Night work

The Statute of Employees considers as night work the work realized between 10 pm and 6 am. The employer who resorts regularly to this kind of work has to inform to the labor authority.

Weekly rest, holiday

The employees have the right for a weekly rest period of one day and a half, this time has to be uninterrupted, and as a general rule it shall include the Saturday evening or Monday morning and the whole Sunday.

The bank holidays cannot exceed the number of fourteen days per year including local holidays.

The employee, with prior notice and justification, may be absent from the work, with the right of remuneration, under the reasons established in the Statute of Employees, for e.g.: marriage, birth of a child, change of domicile.

The annual period of paid holidays will be, at least, 30 calendar days.

Special labour relationships for senior management personnel

The employees who are empowered to represent the company and in connection with the general objectives of the same, with autonomy and full responsibility are considered as senior management personnel.

The special relationship of the senior management personnel is based on the mutual confidence of the Parties.

The contract shall be made in writing and shall contain as a minimum:

  • Identification of the Parties.
  • The purpose of the contract.
  • The agreed compensation, specifying, if it is the case, the amount in money or in in kind.
  • The term of the contract.

This contract may be entered into for a trial period, but for not more than nine months. If the trial period has expired with no abandonment, the contract will produce full effect.

The Parties are free to agree the term of the contract but if they do not agree a specific term it shall be deemed as an indefinite contract.

The employee cannot conclude other contracts with other companies, unless expressly authorization of the employer.

The non- competition clauses, which cannot be for more than two years, shall be valid only if they comply with the requirements set forth at the RD 1382/1985.

  • Termination by decision of the senior executive.
  • The contract shall cease by the will of the senior executive, with an advance notice of three months.
  • Termination by decision of the Company.

The senior executive can be ceased with the right to obtain the agreed indemnities, and in the lack of agreement with the amount set out in RD 1382/1985 (seven days of salary in cash per worked year, with the limit of six months’ salary.

The Company must serve a minimum advanced notice of three months. In case of non-compliance with the advance notification, the senior executive shall have the right for a compensation equivalent to the salaries that he will not obtain during that period.

In the event of disciplinary dismissal, (provided that it is qualified as unfair by Court), the indemnity amount will be the figure agreed through the contract, or if not agreed the equivalent to twenty days of salary per worked year, with the limit of twelve months salary.

The Foreign Investment Protection and Promotion Act of Iran of 2002 (FIPPA) does not give a precise definition of investment. However, according to article one of the law, it shall include any cash or non-cash flow of investment into the country and could encompass cash flows in foreign currency through the Iranian banking system or other legitimate means, machinery, spare parts, raw materials, CKD (knock-down-kit) and SKD (semi-knocked-down-kit) parts, intellectual property such as knowhow, patents and registered names, technical services, transferable share dividends and anything else if approved by the Council of Ministers. Foreign direct investments are allowed only in sectors in which private ownership is permitted. Build Operate Transfer (BOT) agreements and Civil Partnerships can be used in all areas, including upstream oil and gas industry, where foreign direct investment is prohibited due to a constitutional ban.

With the enactment of FIPPA, obtaining an investment license has become very straightforward. As a rule of thumb, there is a minimum amount of $ 300,000 to apply for a FIPPA license. The entire process of obtaining a license should take no longer than 45 days since the date of submission of documents to the Organization for Economic and Technical Assistance of Iran (hereinafter “OIETAI”), the main foreign investment authority in Iran. The application can be submitted directly by the foreign investor or their legal representative in Iran. The application form is downloadable online, must be completed in Persian or in English language and is reviewed by the OIETAI in coordination with the relevant Ministry. This stage may last up to 15 days. OETAI refers the application to the Foreign Investment Board which shall make the final decision regarding the admission of the foreign investment. The Foreign Investment Board is the highest-ranking authority and is the authority which finally issues the FIPPA license. The board includes six high-ranking official members of the government, the head of OETAI and some other prominent figures.

Should the Board reject the application, the decision can be appealed; in case the application is accepted, the license is signed by the Minister of Economic Affairs and Finance. The license is then communicated to the foreign investor by OETAI. The latter stage might take a maximum of 30 days, without considering the delay which may be caused by an appeal request.

A FIPPA license lists the amount of foreign investment, name of foreign and Iranian partners, type and area of investment, means for transference of capital contributions and the requirements regarding the investment project. The license is issued for a specific period during which at least part of the investment must be transferred to Iran. Foreign investors can file a request for an extension prior to the expiry of the deadline set by the Board of Investment, mentioning justified reasons for such a request. This request will be reviewed by the Board of Investment. If no investment is made during before the given deadline, absent justifiable excuses, the license will be revoked.

In general, merely commercial or trading activities do not qualify for FIPPA license unless they are accompanied by production. Investment in services may qualify for a FIPPA license subject to the decision of the Board.

Expats require a work permit, or employment license, in Iran for any type of employment. The organ in charge is the “Department General for Employment of Foreign Nationals”, a division of the Ministry of Cooperative, Labor and Social Welfare. The requirements are set in articles 120-129 of Iran Labor Law. In general, a work permit will be issued to a foreign worker only if there are no Iranians having the same level of education or expertise. This sets the bar very high. Foreigners cannot apply for a work permit on their own, unless they establish an enterprise in Iran. Employers need to submit their request and documents as are listed and announced by the Department General for Employment of Foreign Nationals for verification. This list normally requires identification documents of applicant including resume and expertise documents, letter of request from the employer attached with company official documents (registration notice, latest changes, chart and etc.). Prior to this stage, employers cannot enter into an employment contract with foreigners. Then, the documents are sent to the Technical Board for Employment of Foreign Nationals which is very strict regarding issuance of work permits.

FIPPA (“Foreign Investment Promotion and Protection Act”) allows foreign investors, directors and experts and their immediate family members to acquire visa, residence permit and work permit. This was introduced in art. 35 of the executive directive to FIPPA. Yet, there are incentives for employment of Iranian nationals.

Work permits are, in any case, valid for one year. Renewal requires an application by the employer. The application, which must be written and should explain the need for renewal of the permit, must be handed by the employer at least one month before the work permit expiry date. Upon the end of the one-year validity of work permits, employers can refrain from renewing the contract. However, termination of work contract requires confirmation by the Ministry of Employment, which will result in termination of work permit. Working without a permit or employing an unlicensed employee are punishable by law.

According to the executive directive to FIPPA, the Ministry of Foreign Affairs has an obligation to ask Iranian embassies to issue a single or a multiple-entry visa clearance (with a validly of three years) and a three-month residence permit upon receiving a request from the Organization for Investment Economic and Technical Assistance of Iran (OIETAI), which is also in charge of issuing a FIPPA license for foreign investors. People who enter in Iran using this type of visa can obtain a three year residence permit and will get a work permit, which is valid for one year but is renewable once the FIPPA license of the investor is issued.

Employment insurance of foreigners is similar to the one for Iranian and can be obtained from the Organization of National Welfare (Ta’min Ejtemae’i) at similar rates. According to article 5 of Iran Social Welfare Law, when foreigners are insured in their own country, the employer might be exempted from their Iranian insurance if the foreign insurance covers work accidents, pregnancy, damages relating to wages, disability, retirement and death.

As mentioned above, in order to subject foreigners to Iranian taxation, they have to obtain work and residency permits from the Labor and Social Welfare Organization of Iran. In this light the long term multiple visa is also granted to foreigners to facilitate their entry and exit from the country. If foreigners without the necessary permits start working in Iran, even though through occasional trips to Iran, they will be subject to payment of fine and income tax as determined by the Tax and Organization and Labor and Social Welfare Organization of Iran. Iranian Law does not quantify the minimum number of days of presence in Iran to be considered as a working immigrant. Normally it is the duty of the Immigration Police to verify if a foreigner is working in Iran.

As far as taxation of foreigners’ income is concerned, the salary paid to foreign employees is taxable with the same rates of Iranian salaries. According to Art. 131 of Iran law on direct tax, income tax payable in Iran is between 15% and 35%, depending on income brackets.

Annual Taxable Income Rates Of the excess over
Up to IRR 30,000,000 15%
Up to IRR 100,000,000 20% IRR 30,000,000
Up to IRR 250,000,000 25% IRR 100,000,000
Up to IRR 1,000,000,000 30% IRR 250,000,000
Over IRR 1,000,000,000 35% IRR 1,000,000,000

Furthermore, Iran signed the Treaty on Avoidance of Gaining Double Taxation with many countries around the world, including Italy, France, Germany, Austria, Spain, China, Turkey and recently Cyprus. Under the rules of this Treaty, the amount of tax that has been paid by one applicant shall not be fully taxable again by the other country, but the percentage of difference between the tax rates of two countries shall be calculated on the whole income of the applicant.

The tax rate for foreign companies is also the same provided for Iran companies. Either the company is 100% owned by foreigners and is registered in Iran, or the company is a representative or a branch office of a foreign company, the same rules of tax are applicable. Some tax exemptions are provided for branch offices of foreign companies that only conduct research, feasibility study and marketing, without gaining incomes. Tax rate for companies in Iran is 25% of the annual profit.

Jose Luis Herrero

Áreas de práctica

  • Agencia
  • Inmigración
  • Propiedad Intelectual
  • Derecho Laboral
  • Delitos financieros
Contáctanos Jose

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    Iran – Obtaining a Foreign Investment License

    18 julio 2016

    • Irán
    • Derecho Societario
    • Derecho Laboral

    Legal representation of the employees

    The employees have the right to participate in the Company through the representative bodies. There are two different representative bodies, which are the Personnel Delegates and the Works Council.

    Personnel Delegates

    The representation of the employees in a company or in a workplace which has less than 50 and more than 10 employees correspond to the Delegates. The employees shall elect through free, personnel, secret and direct suffrage the personnel delegates depending on the number of employees, 1 delegate if are 30 or less employees, and two personnel delegates if the company has more than 31, till 50 employees.

    The personnel delegates will exercise together before the employer the representation of the employees, and the will have the same conditions established for the works council.

    Works Council

    The works council is the representative and collegiate body of the employees in the company or workplace, its function is to defend the interests of the employees, in every workplace where the census is more than 50 employees.

    The company which has in the same community two or more workplaces or in the bordering communities and their census are less than 50 individually but more than 50 employees in the whole workplaces will have a works council for all of the centers. And if there are one with more than 50 employees and more with less, the first will have one works council and in the others will constitute other.

    Information and consultation rights

    The works council will have the right of being informed and consulted by the employer about those questions that can affect to the employees, and also about the situation of the company and the evolution of the employment in the same.

    The works council has the right of being informed quarterly:

    • About the general evolution of the economic area of the company.
    • About the economic situation of the company.
    • About the forecast of the employer to celebrate new contracts.
    • About the statistics regarding the index of absenteeism and the causes, the accidents at work, occupational illnesses and its consequences.

    The works council will also have the right of receive information, at least annually, related with the implementation in the company the right of equal treatment and opportunities among men and women.

    The works council will have the right to obtain the following documents:

    • The balance, the P&L account, the memory and, other relevant documents.
    • The model of the contracts which are used in the company and the documents related with the dismissals.
    • The severe sanctions targeted.

    The works council will have the right of being informed about the situation and structure of the employments in the company or work place, and about the evolution of the same.

    The number of the members in the works council will be depending on the number of employees in the company, and will be:

    • From 50 to 100 employees, five.
    • From 101 to 250, nine.
    • From 251 to 500, thirteen
    • From 501 to 750, seventeen.
    • From 751 to 100, twenty-one.
    • More than 1000, two per each thousand, with the maximum of seventy-five.

    The works council will choose between their members one president and a secretary, and the will elaborate their own procedural regulation, which cannot contravene the Law.

    Substantial changes in working conditions

    The business management may agree substantial modifications in the working conditions if there exists real economic, technique, organizational, or production reasons. They shall be consider related with the competitiveness productivity or technique organization or work in the company.

    The modification in the next causes will be considered as substantial change in working conditions:

    • Working day.
    • Timetable and working time arrangements.
    • Scheduled working hours.
    • Compensation package and the amount of salary.
    • Functions, if exceed the limits from article 93 of the Works Statute.

    The Substantial changes in the working conditions could affect to the recognized conditions to the employees in the work contract, agreements or collective agreements.

    It is consider as collective character the modification that, in a period of 90 days, affect at least to:

    • Ten employees, on companies with fewer 100 employees.
    • The ten percent of the number of employees in the company in the companies which have more than one hundred and less than three hundred.
    • Thirteen employees, in the companies of more than three hundred employees,

    The decision to change the working conditions individually shall be notified by the employer to the affected employee and his/her legal representatives no later than fifteen days before effective date.

    If the Substantial change in working conditions has a collective character, this decision has to be preceded by a consultation period of no more than fifteen days.

    The temporary employment agencies are the companies where their main function is to provide to another company (User Company), temporarily, employees contracted through it. The hiring of employees to release temporarily to another company may occur only through a temporary employment agency.

    The contract may be temporally or undefined, and the maximum will be six months if the contract has been concluded for circumstances of the market, or accumulation of work. And if it is to cover a workplace temporarily, the maximum will be for three months.

    Manpower supply contracts

    Manpower supply contract is the contract which is celebrated between the temporary employment agencies and the User Company being his subject the assignment of an employee, and the employee through the assignment will be subject to the instruction and discipline of the User Company.

    It will only be possible to execute a contract between a temporary employment agency and a User Company in the same circumstances and under the same conditions and requirements that the article 15 of the Employees Statute.

    Additionally, it will only be possible to conclude a contract between a temporary employment agency and the User Company, in the same terms that in the contracts of apprenticeship contract and training for work according to the article 11 of the Employees Statute.

    If after the available deadline the employee continues working in the User Company, the employee will be considered an employee of the User Company under an undefined term contract.

    The working time will be the scheduled by the User Company. The clause that bans the possibility for the employee to be hired by the company after this kind of contract shall be void.

    The companies may not conclude these contracts in the following cases:

    • To substitute employees in strike.
    • To carry on dangerous works.
    • Where in the previous twelve months the company has cancel the work places, which are looking to cover, under an unfair dismissal or by any other the causes of the article 20, 21 and 52 c, of the Employees Statute.
    • To assign employees to other temporary employment agencies.

    The User Company is responsible of the protection in safety and hygiene matter in the work.

    The User Company will respond collaterally of the wage guarantees and of Social Security contracted with the employee during the effect of the manpower supply contract.

    If the contract is for a defined period, the employee after the contract will have the right of a compensation of 12 days per worked year.

    General Aspects

    Definition – Employment contract means the contract by which one individual (employee) assumes the obligation to execute a work or to provide a service to one or several persons (employer), under the dependence of those persons, in return for remuneration in any kind or form.

    Dependency and otherness are essential elements of the contract.

    Minimum age – The minimum age to enter into a labor contract is the age of sixteen. For the employees under the age of eighteen there exist special rules depending on the work type of works, the working hours and benefits surcharges.

    Types of contracts

    Verbal or written

    Both types are valid but written contracts are recommended.

    Time

    The contract could be for a full-time workday or part-time workday. The workday duration will be agreed through the collective bargaining agreements; if not agreed through the collective bargaining agreements, the maximum will be 40 hours per week.

    Term

    The contract could be permanent (indefinite) or temporary (valid for a pre-determined time period). Unless indicated otherwise, a contract shall be presumed as permanent and for full-time workday.

    Types:

    1. Permanent contract – The permanent contract is the one who is concluded with no limits in the provision of services. It must be announced in the Employment Service Office within ten days following its execution. The condition of permanent employee will be acquired, whatever modality of contract has been executed, by the employees who have not been registered in the Social Security once the trial period has expired.
    2. Temporary contract – The temporary contract is the contract executed to be valid for a fix term and can be a full-time or part-time workday contract. The temporary contract shall be made in writing, but it can be verbal in the case of casual contract due to production overload if the term of the same is less than four weeks and full-time workday.
    3. specific project or service contract – This type of contract is intended for the completion of works or services with autonomy inside the normal activity of the company and its duration , limited in time, is initially uncertain, but never for more than three years. The collective bargaining agreements are able to identify those works or task with own autonomy within the normal activity of the company that can be performed with contracts of this nature. The contract for a specific project or service can be done through full-time or part-time contracts. And the term will be the term of the realization of the work or service. The contract shall be made in writing and should specify with detail and clearly the type of hiring and identify sufficiently the work or service which constitute its object, the term, and also the work that is going to be developed.
    4. Temporary contract depending on production circumstances – This contract is concluded to attend to the circumstantial requirements of the market, amount of task/works or excess of orders, even if is it is the normal activity of the company. It can be executed for a first professional experience, first youth employment, for an unemployed person who is under thirty years with no professional experience or less than three months. It could be concluded for a full-time or part-time workday. In case of youth employment the minimum of the part-time workday has to be the 75% of the workday from a full-time employee. The maximum term of this type of contracts will be six months inside a period of twelve months. And in case of first youth employment the minimum will be three months. These contracts must be concluded by writing if the duration exceeds four weeks and always in the event of part-time contracts. The contract must specify the reasons which justify it, the duration and the work to be done. The temporary contract depending on production circumstances will be extinguished, following denounce by any of the Parties at the expiry of the agreed period.
    5. Provisional contracts – The aim of this contract is to substitute employees with a reserved right to their job, or to temporarily cover a work place during the selection process of a permanent candidate. The working time must be full-time. The term of this contract will be equal to the term of the absence of the employee with reserved right of his work place. And if the contract is caused by a selection process of a permanent candidate it has to be for the same time of that period, but never more than three months. The contract must be concluded in writing, specifying with precision and clearness the nature of the hiring, identifying the substitute employee and the cause of the substitution and, where appropriate, the work place whose coverage will be done after the selection process, and also specify the circumstance which determinates its duration, the term of the contract and the work to be performed. This contract will be extinguished, following denounce by any of the Parties, if any of the following circumstances occurs:
      • The return of the replaced employee;
      • Expiry of the legal period or expiry of the period conventionally established for the reintegration;
      • The extinction of the cause which brought the reserved right of the work place;
      • The fulfilment of the three month period for the selection process.
    6. Compensation in case of expiration of the temporary contracts – The compensation established in the Law, in case of expiration of the temporary contracts will be implemented gradually according to the following timetable:
      • Nine days of salary per worked year for the temporary contracts celebrated after the 1st of January of 2012;
      • Ten days of salary per worked year for the temporary contracts celebrated after the 1st of January of 2013;
      • Eleven days of salary per worked year for the temporary contracts celebrated after the 1st of January of 2014;
      • Twelve days of salary per worked year for the temporary contracts celebrated after the 1st of January of 2015.
    7. Apprenticeship and training contract – The aim of this contract is the professional qualification of the employees through a training and professional activity. This contract can be executed with employees over 16 years old and under 25, who do not yet have the required professional qualification for an internship contract. The previous age restriction shall not apply if the contract is executed with disabled people and those social groups that are at risk of exclusion. Once the duration of this type of contract has expired, the employee may not be hired under this modality of contract by the same or other company, unless if the inherent training of the new contract has the purpose to obtain a different professional qualification. The effective working time cannot be over 75%, during the first year, or the 85%, during the second and third year, of the maximum working day established in the collective bargaining agreement. The remuneration of the employee hired for the apprenticeship and training shall be established in proportion to the effective working time, set forth through the collective bargaining agreement.
    8. Internship contract – The internship contract shall be concluded with those who are in possession of a university degree or technical education degree in the next five years, or seven for a disabled employee, from the finishing date of the studies according to the following rules:
    • The workplace shall allow the obtaining of the professional practice suitable with the study or formation level completed.
    • The term of the contract cannot be less than six month and more than two years.
    • No employee could be hired in the same or different company for more time than two years under the same degree or professional certificate.
    • The remuneration of the employee shall be the remuneration which is agreed in the collective bargaining, which must not, however, be less than the 60% or the 75% during the first or the second year of the contract.

    If at the end of this contract the employee continues in the company, it is not possible to state a new probationary period. In this sense, the total duration of the internship contract must be computed to the effects of the seniority in the company.

    1. Distance work – Through this type of contract the provision of the professional activity is mainly executed in the residence of the employee or in a place freely chosen by the employee, alternatively to the on-site development in the working place of the company. The agreement shall be formalized in writing. The distance employees will have the same rights that the employees who work in the work place of the company.

    Salary and wage

    Salary shall include all l kind of considerations received by the employees in money or in kind.

    The in-kind salary may not exceed 30 per cent of all of the considerations received by the employee.

    The national minimum wage is established by the Government each year, and for 2015 it is € 9.080 per year (€ 648.60 per month). The employee has the right to receive two extraordinary payments, one in Christmas and the other at the time to be negotiated with the company. The minimum salary includes these two extra wages.

    Working time

    The maximum working hours are those agreed in the collective bargaining agreements, but in general, the maximum is 40 hours per week. Between the end of one working day and the beginning of the next working day must mediate twelve hours.

    The time worked in excess over the 40 hours per week will be considered overtime. The amount of overtime may not exceed 80 hours per year. Overtime will be voluntary in general.

    Night work

    The Statute of Employees considers as night work the work realized between 10 pm and 6 am. The employer who resorts regularly to this kind of work has to inform to the labor authority.

    Weekly rest, holiday

    The employees have the right for a weekly rest period of one day and a half, this time has to be uninterrupted, and as a general rule it shall include the Saturday evening or Monday morning and the whole Sunday.

    The bank holidays cannot exceed the number of fourteen days per year including local holidays.

    The employee, with prior notice and justification, may be absent from the work, with the right of remuneration, under the reasons established in the Statute of Employees, for e.g.: marriage, birth of a child, change of domicile.

    The annual period of paid holidays will be, at least, 30 calendar days.

    Special labour relationships for senior management personnel

    The employees who are empowered to represent the company and in connection with the general objectives of the same, with autonomy and full responsibility are considered as senior management personnel.

    The special relationship of the senior management personnel is based on the mutual confidence of the Parties.

    The contract shall be made in writing and shall contain as a minimum:

    • Identification of the Parties.
    • The purpose of the contract.
    • The agreed compensation, specifying, if it is the case, the amount in money or in in kind.
    • The term of the contract.

    This contract may be entered into for a trial period, but for not more than nine months. If the trial period has expired with no abandonment, the contract will produce full effect.

    The Parties are free to agree the term of the contract but if they do not agree a specific term it shall be deemed as an indefinite contract.

    The employee cannot conclude other contracts with other companies, unless expressly authorization of the employer.

    The non- competition clauses, which cannot be for more than two years, shall be valid only if they comply with the requirements set forth at the RD 1382/1985.

    • Termination by decision of the senior executive.
    • The contract shall cease by the will of the senior executive, with an advance notice of three months.
    • Termination by decision of the Company.

    The senior executive can be ceased with the right to obtain the agreed indemnities, and in the lack of agreement with the amount set out in RD 1382/1985 (seven days of salary in cash per worked year, with the limit of six months’ salary.

    The Company must serve a minimum advanced notice of three months. In case of non-compliance with the advance notification, the senior executive shall have the right for a compensation equivalent to the salaries that he will not obtain during that period.

    In the event of disciplinary dismissal, (provided that it is qualified as unfair by Court), the indemnity amount will be the figure agreed through the contract, or if not agreed the equivalent to twenty days of salary per worked year, with the limit of twelve months salary.

    The Foreign Investment Protection and Promotion Act of Iran of 2002 (FIPPA) does not give a precise definition of investment. However, according to article one of the law, it shall include any cash or non-cash flow of investment into the country and could encompass cash flows in foreign currency through the Iranian banking system or other legitimate means, machinery, spare parts, raw materials, CKD (knock-down-kit) and SKD (semi-knocked-down-kit) parts, intellectual property such as knowhow, patents and registered names, technical services, transferable share dividends and anything else if approved by the Council of Ministers. Foreign direct investments are allowed only in sectors in which private ownership is permitted. Build Operate Transfer (BOT) agreements and Civil Partnerships can be used in all areas, including upstream oil and gas industry, where foreign direct investment is prohibited due to a constitutional ban.

    With the enactment of FIPPA, obtaining an investment license has become very straightforward. As a rule of thumb, there is a minimum amount of $ 300,000 to apply for a FIPPA license. The entire process of obtaining a license should take no longer than 45 days since the date of submission of documents to the Organization for Economic and Technical Assistance of Iran (hereinafter “OIETAI”), the main foreign investment authority in Iran. The application can be submitted directly by the foreign investor or their legal representative in Iran. The application form is downloadable online, must be completed in Persian or in English language and is reviewed by the OIETAI in coordination with the relevant Ministry. This stage may last up to 15 days. OETAI refers the application to the Foreign Investment Board which shall make the final decision regarding the admission of the foreign investment. The Foreign Investment Board is the highest-ranking authority and is the authority which finally issues the FIPPA license. The board includes six high-ranking official members of the government, the head of OETAI and some other prominent figures.

    Should the Board reject the application, the decision can be appealed; in case the application is accepted, the license is signed by the Minister of Economic Affairs and Finance. The license is then communicated to the foreign investor by OETAI. The latter stage might take a maximum of 30 days, without considering the delay which may be caused by an appeal request.

    A FIPPA license lists the amount of foreign investment, name of foreign and Iranian partners, type and area of investment, means for transference of capital contributions and the requirements regarding the investment project. The license is issued for a specific period during which at least part of the investment must be transferred to Iran. Foreign investors can file a request for an extension prior to the expiry of the deadline set by the Board of Investment, mentioning justified reasons for such a request. This request will be reviewed by the Board of Investment. If no investment is made during before the given deadline, absent justifiable excuses, the license will be revoked.

    In general, merely commercial or trading activities do not qualify for FIPPA license unless they are accompanied by production. Investment in services may qualify for a FIPPA license subject to the decision of the Board.

    Expats require a work permit, or employment license, in Iran for any type of employment. The organ in charge is the “Department General for Employment of Foreign Nationals”, a division of the Ministry of Cooperative, Labor and Social Welfare. The requirements are set in articles 120-129 of Iran Labor Law. In general, a work permit will be issued to a foreign worker only if there are no Iranians having the same level of education or expertise. This sets the bar very high. Foreigners cannot apply for a work permit on their own, unless they establish an enterprise in Iran. Employers need to submit their request and documents as are listed and announced by the Department General for Employment of Foreign Nationals for verification. This list normally requires identification documents of applicant including resume and expertise documents, letter of request from the employer attached with company official documents (registration notice, latest changes, chart and etc.). Prior to this stage, employers cannot enter into an employment contract with foreigners. Then, the documents are sent to the Technical Board for Employment of Foreign Nationals which is very strict regarding issuance of work permits.

    FIPPA (“Foreign Investment Promotion and Protection Act”) allows foreign investors, directors and experts and their immediate family members to acquire visa, residence permit and work permit. This was introduced in art. 35 of the executive directive to FIPPA. Yet, there are incentives for employment of Iranian nationals.

    Work permits are, in any case, valid for one year. Renewal requires an application by the employer. The application, which must be written and should explain the need for renewal of the permit, must be handed by the employer at least one month before the work permit expiry date. Upon the end of the one-year validity of work permits, employers can refrain from renewing the contract. However, termination of work contract requires confirmation by the Ministry of Employment, which will result in termination of work permit. Working without a permit or employing an unlicensed employee are punishable by law.

    According to the executive directive to FIPPA, the Ministry of Foreign Affairs has an obligation to ask Iranian embassies to issue a single or a multiple-entry visa clearance (with a validly of three years) and a three-month residence permit upon receiving a request from the Organization for Investment Economic and Technical Assistance of Iran (OIETAI), which is also in charge of issuing a FIPPA license for foreign investors. People who enter in Iran using this type of visa can obtain a three year residence permit and will get a work permit, which is valid for one year but is renewable once the FIPPA license of the investor is issued.

    Employment insurance of foreigners is similar to the one for Iranian and can be obtained from the Organization of National Welfare (Ta’min Ejtemae’i) at similar rates. According to article 5 of Iran Social Welfare Law, when foreigners are insured in their own country, the employer might be exempted from their Iranian insurance if the foreign insurance covers work accidents, pregnancy, damages relating to wages, disability, retirement and death.

    As mentioned above, in order to subject foreigners to Iranian taxation, they have to obtain work and residency permits from the Labor and Social Welfare Organization of Iran. In this light the long term multiple visa is also granted to foreigners to facilitate their entry and exit from the country. If foreigners without the necessary permits start working in Iran, even though through occasional trips to Iran, they will be subject to payment of fine and income tax as determined by the Tax and Organization and Labor and Social Welfare Organization of Iran. Iranian Law does not quantify the minimum number of days of presence in Iran to be considered as a working immigrant. Normally it is the duty of the Immigration Police to verify if a foreigner is working in Iran.

    As far as taxation of foreigners’ income is concerned, the salary paid to foreign employees is taxable with the same rates of Iranian salaries. According to Art. 131 of Iran law on direct tax, income tax payable in Iran is between 15% and 35%, depending on income brackets.

    Annual Taxable Income Rates Of the excess over
    Up to IRR 30,000,000 15%
    Up to IRR 100,000,000 20% IRR 30,000,000
    Up to IRR 250,000,000 25% IRR 100,000,000
    Up to IRR 1,000,000,000 30% IRR 250,000,000
    Over IRR 1,000,000,000 35% IRR 1,000,000,000

    Furthermore, Iran signed the Treaty on Avoidance of Gaining Double Taxation with many countries around the world, including Italy, France, Germany, Austria, Spain, China, Turkey and recently Cyprus. Under the rules of this Treaty, the amount of tax that has been paid by one applicant shall not be fully taxable again by the other country, but the percentage of difference between the tax rates of two countries shall be calculated on the whole income of the applicant.

    The tax rate for foreign companies is also the same provided for Iran companies. Either the company is 100% owned by foreigners and is registered in Iran, or the company is a representative or a branch office of a foreign company, the same rules of tax are applicable. Some tax exemptions are provided for branch offices of foreign companies that only conduct research, feasibility study and marketing, without gaining incomes. Tax rate for companies in Iran is 25% of the annual profit.

    Encyeh Sadr

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