There is fraud in the subcontract if the company maintains “most of the work management”

The Supreme unifies doctrine and sees illegal assignment of workers when the principal retains control over the organization of the activity

The subcontracting of workers will be fraudulent when the main company retains “at all times most of the organization and management of the contracted activity”. This is determined by the Supreme Court in a recent ruling that unifies doctrine in relation to the always complex matter of the illegal assignment of workers.

In the case analyzed, the high court examines the appeal filed by three workers against the contracting company and the subcontractor (or contractor) that employed them, which had been required services for the management of various warehouses. According to the resolution, although both organizations had a different entity, it “was irrelevant, since the contractor only provided the labor force to perform the agreed service.” That is to say, “the real management and business management” was carried out from the main one “from the moment it was the one that actually organized the service in its own facilities”.

What clues did the Supreme consider in reaching such a conclusion? The resolution highlights that the main company had given a joint training course for its workforce and for outsourced employees, and that it was she who set the organizational aspects daily for the workers of both companies; also the one that performed the presence control. Likewise, the fact that everyone used access codes and passwords provided by the contractor, in addition to the same uniforms, is also noted. Finally, the judgment also understands that “the essential means to carry out the agreed functions” were the property of the main company, “which rented them to the contractor and thus invoiced their use.”

Thus, the Supreme tomb the previous decision of the Superior Court of Justice (TSJ) of Catalonia, which had not appreciated the illegal transfer of workers. According to the contested judgment, it was a lawful outsourcing since the subcontractor not only contributed labor, but also “added value” as its experience and organization in the activity carried out, and the coordination and management of the work. And this despite the fact that he did not put any physical element, or machinery, or tools.

Jurisprudence

Determining the existence or not of an illegal assignment of workers is a task that requires a detailed study of the circumstances of each case. In any case, the Supreme Court has been offering guidelines to interpret article 43 of the Workers’ Statute, which regulates this issue.

As stated in the ruling, outsourcing is a practice allowed by labor law. To appreciate that this has been carried out in a legal way, the existence of a real employer (the ETT) is not enough, since there will be unlawful transfer of workers when the contribution is limited to “supplying labor without contributing personal and material elements that make up your business structure. ” Or put another way, fraud will be appreciated when formally appear as an entrepreneur someone who does not really have that position because there is another who “appropriates the fruits of work, directs this and gives it back”, but whose place is occupied by a ” fictional headline “.