When the company chains extensions of working hours without justifying the temporary need and with hardly any continuity solution, a full-time contract is being concealed, considered fraudulent for hiding permanent or structural work. 

An appeal for cassation is resolved for the unification of doctrine against the ruling dated November 9, 2023, issued by the Social Chamber of the TSJ of Galicia (petition appeal no. 2828/2023), compared to the ruling dated April 18, 2023 of the Social Court no. 3 of Ourense (orders 12/2023).

The worker, Elisa, had been providing services as a laborer for a company since 2018. After several temporary contracts, she became permanent part-time in January 2022. Between July 2020 and December 2022, she chained nine extensions of working hours, without a solution of continuity, working full time. The company justified the extensions by “covering circumstantial absences”, without specifying the real needs or who it was replacing. 

On November 14, 2022, the company verbally informed her that from December 15, 2022, the worker would return to her part-time work of 13.83 hours per week. Elisa filed a lawsuit for substantial modification of working conditions. 

The Social Court of Ourense declared the measure null and void, considering the existence of fraud of law (art. 6.4 of the Civil Code), the extensions that concealed a structural need for full-time employment. The reduction in working hours affected more than 30 people, of which 23 filed a lawsuit, as the procedure of the art. 41 ET(substantial modifications for economic, technical, organizational or production reasons).

The company appealed, alleging that it was not a substantial modification of the working conditions, but rather a a contractual novation agreed upon by the parties with the consent of the works council. TSJ of Galicia confirmed the annulment, pointing out that the collective agreement did not cover these extensions through annexes, and that the contracts of art. ET 15 (contract for specific work or service, eventual due to production circumstances and interim). Furthermore, the unilateral reduction violated art.12.4. e) of the ET, which requires the consent of the worker.

The company filed an appeal for the unification of doctrine, alleging contradiction with the ruling of the TSJ of Navarra 271/2020, of November 26 (appeal 234/2020), which had endorsed temporary extensions by agreement.

The question to be resolved: Is the temporary novation of an indefinite part-time employment contract to a full-time contract legally possible, and can a part-time contract be considered fraudulent when, in practice, full-time services are provided?

The Supreme Court unifies doctrine, reiterating that “The continuous extensions of full-time hours, supposedly temporary, of an indefinite part-time contract, carried out without a solution of continuity and without justifying the specific temporary need, reveal the permanent or structural need for full-time work and constitute fraud.”

According to STS 271/2024,  of February 13 (recourse 1480/2021), “if a worker signs a part-time employment contract, but in reality provides full-time services, it will be a fraudulent contract that will not prevent the legal regime of the full-time contract from being applied.”

In this case, the nine consecutive extensions, seven of them without a break in continuity and the other two with minimum intervals, together with the total absence of concrete justification and the almost permanent succession of extensions, demonstrate that the work was structural and continuous, and not merely temporary.

For all this, he concludes that,the part-time contract was fraudulent, as it covered up the real full-time relationship.

The Supreme Court dismisses the company's appeal and fully confirms the ruling of the TSJ of Galicia. The company must keep the worker full-time; pay the outstanding salaries and pay the costs (€1,500) and lose the judicial deposit.