Illegal Assignment of Workers

By means of this new post, we would like to provide readers with a brief overview of the situation in Spain with regard the Illegal Assignment of Workers, including the requirements to be fulfilled in order to comply with the Law, the potential consequences in case of non-fulfilment and a reference to recent Law cases.

I. Illegal Assignment of Workers. Legal Approach

When looking into the Law, reference has to be made to article 43 of the Statute of Workers (“Estatuto de los Trabajadores”) . In particular, article 43.2 provides the definition of “illegal assignment of workers” by using the following wording:

An illegal assignment of employees as contemplated in this article shall be deemed to occur in any of the following events: the subject-matter of a service contract between undertakings is circumscribed to a mere making available of employees by an assigner undertaking to an assignee undertaking; or the assigner undertaking lacks any activity or its own stable organisational structure, or lacks the means to carry out its activity,or does not exercise the functions inherent to its status of employer.»

In accordance with the above concept of illegal assignment of workers, and in view of recent law cases (“jurisprudencia”), when a company offers its services to a third party (involving a supply of temporary workers), some legal requirements must be observed. The recent legal doctrine structures the requirements according three main points of view:

a) Subjective criteria:

The assigner company must have a real structure, with a variety of customers, its own production tools (computers, specific machines) and, overall, a complete organization.

The assignee company must have an economic activity completely different than that of the assigner.

b) Objective criteria:

The Service Contract must state clearly the service performed by the assigner company, the specialization of the company in this area, the duties to be performed and tools to be implemented to control, measure and analyze the performance of the service, among others.

c) Real Criteria:

The assigner company must be the one controlling the workers’ performance, taking care of the Human Resources management and, in general, taking control of the services, being the assignee company only a contact to be reported to analyze if the services contracted are being properly rendered.

Real criteria is the most important, because third parties (i. e. Labour Inspection, Labour Court in case of worker’s lawsuits) use it as a main criteria of observation (through visits to work centre or interviews with workers).

II. Practices to be followed to comply with Spanish Law

According to the previous criteria, every single situation must be considered and analyzed separately, on a case by case basis. Said the above, however, the following suggestions may be considered as a general starting guide to avoid the illegal assignment of workers:

• Assigner company (Assigner hereinafter) must be the one responsible for paying the salaries, fulfilling official and legal third parties requirements (Social Security, Taxes) and controlling the performance of the workers.
• Assigner’s workers (Workers hereinafter) must use Assigner’s company tools (software, hardware, machines) to perform the services.
• The first contact of the worker during the service must be a project manager/coordinator or a similar figure of the Assigner, who will analyze the services, solve doubts, etc.. The said project manager shall be appointed as the contact person to whom the Assignee will direct any and all queries, questions or comments regarding the services to be performed by the Assigner. Assignee should not address workers of the Assigner directly.
• Workers are not to be offered the same benefits that those enjoyed by the employees of the assignee company (e.g. meal vouchers, company stores, etc.).
• Workers of the Assigner should not use Assignee’s e.mail accounts but keep using Assigner’s e.mail domain and signature (if any).
• Workers should not attend the same occupational training sessions as those offered to the personnel of the Assignee.
• Workers should not perform services falling beyond the scope of the Service Contract agreed by both parties (Assigner and Assignee).

III.- Reference to Recent Law Cases

Finally, we would like to mention some examples of how the above regulation and criteria is being applied by Labour Authorities and Courts of Justice in Spain. In this sense, attention must be drawn to the following cases (among others) in which the Court considered that an Illegal Assignment of Workers had taken place:

• STS 4/05/2011: Main arguments used by the Court to consider the existence of an Illegal assignment of workers made reference to the fact that Assigner’s workers used Assignees resources (instead of those of Assigner);
• STSJ Catalunya 01/11/2009 & 11/05/2011: In these two cases, it was proved that the Assignee gave instructions directly to Assigner’s Workers. This circumstance was enough to consider that an Illegal Assignment of Workers was taking place.

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[1] Real Decreto Legislativo 1/1995, de 24 de marzo, por el que se aprueba el texto refundido de la Ley del Estatuto de los Trabajadores.

[2] As mentioned above, every single case shall be considered individually. Suggestions included in this report may not be advisable for all cases.