The outsourcing of services in different sectors and areas of activity has given rise to the appearance of so-called multiservice firms, firms which, as their name indicates, provide various services falling under different areas of application of industry collective labor agreements.
However, many of them have chosen to regulate their relationships with employees under preferentially applicable company collective labor agreements, in accordance with the provisions of article 84.2 of the Workers’ Statute.
As a result, in certain production-related sectors—for example, in the hotel and catering industry, although there are many others—the salary conditions, working hours and conditions governing organization of the work, regulated in the collective labor agreements of the outsourced service provider, are very different from those established in the collective labor agreement applicable to the client company.
In light of the legal and labor dispute in this regard, on September 9, 2016, a bill was submitted to the Lower House of the Spanish Parliament, which is currently being processed, regarding the modification of article 42.1 of the Workers’ Statute with a view to ensuring equal working conditions at outsourced service providers.
In short, the bill aims to establish the obligation to guarantee workers at outsourced service providers, for the time they provide services attached to same, the same essential working and labor conditions as provided for in the collective labor agreement applicable to the client company or, as applicable, the conditions they would have if they were hired directly by the client company, provided that the subject matter of the outsourcing is the performance of work or services corresponding to the own activity of the client company.
It therefore seeks to provide a response to employees of outsourced service providers, including employees of multiservice firms, that is similar to that given to workers hired by temporary employment agencies to be loaned to user companies, who are recognized the right to enjoy the same conditions, as regards salary and working time, as those applicable to workers directly hired by the user company for the same position.
However, the proposed bill does not definitively resolve the legal and labor issue described above, and raises new questions and issues, including the following:
- The concept of own activity does not establish objective criteria or guidelines that help to clearly identify when it is present. In contrast, the proposed wording “re-imposes” a detailed analysis of each specific case and, most certainly, an exercise of interpretation by the courts. Moreover, a significant percentage of the services outsourced cannot be considered to be “own activity”, such as, for example, cleaning or security services.
- The obligation to apply essential conditions of the collective labor agreement of the client company automatically and almost unconditionally to the workers of the outsourced service provider may be in conflict with the fundamental principles of collective bargaining and freedom of enterprise. Furthermore, it would entail increased costs, which will affect the competitiveness of Spanish businesses, with the effects this may have on employment.
- A multitude of practical issues that are difficult to resolve will undoubtedly arise. For example, given that the obligation would also apply to companies whose workers provide services indiscriminately and simultaneously under different contracts for project work and services for different clients, which working conditions would apply? How could different working conditions be applied simultaneously on the same day and to the same worker?
We will shortly witness the passage through Parliament of this new initiative which, if successful, will undoubtedly give rise to a momentous change in the labor framework applicable to the outsourcing of activities.
Garrigues Labor and Employment Law Department
