Can a rule from the last century adequately respond to new collaboration trends among professionals?

11 Jun 2018

On April 6, 2018, the Spanish Council of Ministers approved the strategic action plans to be implemented by the Labor Inspection Authority up to 2020, and of particular interest among them is the two-fold fight against fraud: the pursuit of sham legal relationships (such as false self-employed workers) and of unjustified temporary employment contracts.

Historically, employment law has justified its own existence due to the need to regulate interdependent relationships between two agents, known as the employer and employee, who may potentially have conflicting interests, with such relationships involving a series of characteristics defined in a prominent position in the main piece of labor legislation: article 1.1 of the Workers’ Statute.

This article provides that the Workers’ Statute shall apply to those who voluntarily provide remunerated services on behalf of another and within the scope of organization and management of another individual or legal entity, known as the employer.

In contrast, and immediately following such article, article 1.2 of the Workers’ Statute establishes that any individual or legal entity, or joint property entity, that receives the services provided by persons deemed to be employees and by persons hired to be assigned to user companies by legally-incorporated temporary employment agencies, shall hold the status of employer.

This legal definition has remain unchanged since the entry into force of the 1980 Workers’ Statute, which in turn drew from a similar definition in older sources, such as the 1944 Employment Contracts Law or the 1976 Labor Relations Law. Accordingly, it is worth considering whether the current legislation and, therefore, the supervisory role to be assumed by the Labor Inspection Authority as the body tasked with implementing steps for compliance with individual and collective labor legislation, is truly able to (adequately) respond to the new trends emerging in the ever-changing job market, such as, for example, specific project work based around a basic premise: the independence of the agents involved.

Project work undoubtedly offers many advantages, such as greater freedom and flexibility in the provision of the services, autonomy in professional development, the possibility of achieving a work-life balance, free choice of workplace, optimization of the experience and capacity of experienced professionals, increased level of income, etc.

However, this type of business collaboration once again calls into question whether the current legislation offers suitable solutions to be able to regulate the job market while guaranteeing legal certainty is preserved, since these types of project are, by definition, of limited duration in time and their very existence is justified by the interaction of professionals interested in collaborating on a regular but independent basis.

Does it therefore make sense for the Labor Inspection Authority to attempt to control, as stated in the strategic plan to 2020, among others, this type of typically 21st-century collaboration on the basis of legislation that was passed closer to the 19th century?

It seems reasonable to generate a debate, as previously done in 2007 with the creation of the concept of economically dependent self-employed workers, in order to exclude from the scope of application of the Workers’ Statute, as is currently the case with haulage contractors for example, professionals who work on specific and set projects if they meet certain characteristics that could be supervised beforehand by the Labor Inspection Authority.

Naturally this is a proposal that would have to be agreed among the main social agents, but it would allow the requisite legal certainty to be offered to a trend that is helping to generate employment, from a standpoint of strict compliance with the law at all times.

José Miguel Aniés

Departamento Laboral de Garrigues

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