Art. 130 of Law 9/2017: you win the contract and inherit the workforce
Nextica Law & Tax orders the employment side of a public service contract: staff transfer imposed by the tender documents under art. 130 of Law 9/2017, reading the employment information the contracting authority must provide before the tender —applicable collective agreement, job grades, length of service, working hours and individual arrangements—, special social performance conditions, and an honest calculation of what the inherited staff really cost, before signing up to a price.
The tender documents say how many people transfer. They almost never say what they really cost, and that gap is paid for throughout performance.
What's included
1. Reading the employment information the tender must provide before bidding
applicable collective agreement, job grades, length of service, working hours and individual arrangements of the staff to be taken on.
2. Cross-checking that information against reality, because the tender list usually says how many people and almost never what they cost.
3. Calculating the real inherited labour cost and building it into the price before bidding, not afterwards.
4. Implementing the transfer
notifications, registrations, recognition of length of service and handover of records with the outgoing contractor.
6. Hiring the additional staff who join the transferred workforce, under the same agreement and without creating two regimes in the same service.
7. Preparing for exit
what happens to the workforce when the contract ends and someone else wins it.
INHERITING THE WORKFORCE MEANS INHERITING ITS COST
Staff transfer in a public service contract does not arise from general employment law: it arises from the tender documents or the collective agreement, and its scope is exactly what they say.
The tender says how many people transfer and rarely what they really cost. Budgeting from the list rather than the real cost turns the contract's margin into a gap paid for throughout performance.
art. 130 Law 9/2017Confusing this transfer with a business transfer
the tender-based one has the scope the tender or the agreement gives it, and applying the wrong rule when costing or when informing staff is expensive in both directions.
art. 44 Workers' StatutePaying below collective-agreement wages where the tender imposes them as a special performance condition is not only an employment dispute: it is a breach of contract with its own penalty and possible termination.
Law 9/2017CURRENT CONTRACTUAL MODALITIES IN 2026
| Mode | When to use | Key requirements and risks |
|---|---|---|
| Ordinary indefinite | The standard modality since the 2021 reform. Preferable in case of doubt. | It can be full-time or part-time. For part-time work, specific hour recording and limitation of supplementary hours. |
| Fixed-discontinuous | Seasonal or cyclical activity, or work that is not provided continuously but is predictable. | Replaces the work and service contract for non-permanent but recurring activities. Incorrect design → can become ordinary indefinite. |
| Temporary replacement (art. 15.1.c ET) | Replace an employee with the right to job reservation (sick leave, maternity, leave of absence) or cover vacancy during the selection process. | The replaced worker or the reason for the vacancy must be identified. 3-month limit for vacancy coverage. |
| Alternating training (art. 11.2 ET) | Unqualified people for the position, under 30 years old. Bonuses in social security contributions. | Duration: 3 months to 2 years. Maximum workload: 65% in the first year, 85% in the second. Minimum compensation of 60%/75% of the minimum wage or the agreement. |
| Senior Management Contract (RD 1382/1985) | Senior management personnel who exercises powers inherent to the ownership of the company with full autonomy. | It is governed by RD 1382/1985 and not by the ET. Compensation in case of withdrawal: minimum 7 days/year unless otherwise agreed. No mandatory maximum legal probation period. |
Ordinary indefinite
Fixed-discontinuous
Temporary replacement (art. 15.1.c ET)
Alternating training (art. 11.2 ET)
Senior Management Contract (RD 1382/1985)
Frequently asked questions
Is the art. 130 transfer the same as the art. 44 Workers' Statute transfer?
No, and confusing them is expensive. The art. 44 transfer arises from the transfer of an autonomous productive unit and applies by law even if nobody mentions it. The art. 130 transfer under Law 9/2017 arises from the tender documents or from the sectoral collective agreement that imposes it, and its scope is exactly what those documents say: which people, on what terms and from when. So the first thing to check in a tender with staff transfer is where the obligation comes from, because everything else depends on that.
Can I change the terms of the staff I take on?
Not those that come from the applicable collective agreement, for as long as it remains applicable. And there is a further layer: the tender documents may impose payment of sectoral collective-agreement wages as a special performance condition, so paying below that is not only an employment dispute but a breach of contract with its own penalty and even grounds for termination. The practical conclusion is that the contract's margin has to be found in how the service is organised, not in the cost per person.
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