Determining whether a physical space where one or more employees provide services is a work center is crucial because this qualification gives rise to several specific formal obligations, which do not exist if it is not and it is just a mere place of work.
The Workers’ Statute (WS) defined the concept of work center more than 40 years ago as “the productive unit with a specific organization, which is registered as such with the labor authority” (article 1.5).
Since then, the ways of providing services and organizing work in companies have progressively mutated with, for example, the emergence of information technologies and digitalization, which have allowed the spread of remote work (with particular force after the COVID-19 pandemic), or with the use of shared workspaces or coworking. These developments raise several questions, such as: is any physical location where one or more employees provide services a work center? Does a company have a work center in a coworking space?
The answer to these questions is not as simple as “yes” or “no”: it is necessary to analyze whether, considering the judicial doctrine, the requirements set forth in article 1.5 of the WS are met to determine what is and when we find ourselves in the presence of a work center. In summary, and although each specific case must be analyzed, a work center exists whenever there is a service unit with its own distinct configuration, which has a team integrated into an independent hierarchical structure and the work is organized autonomously. Specifically, according to judicial doctrine, may be considered work center when:
- There is a productive unit endowed with a specific organization, requiring in this regard, for example, that the productive unit has a personnel organization chart including a person acting as head. In this regard, the Supreme Court, in its ruling of January 11, 2017, explains that the “productive unit with specific organization” is an indeterminate legal concept that “alludes to the performance in such place of part of the productive activity of the company either from a functional point of view or from a geographical point of view”.
- There is an operating unit with its own distinct individuality, equipped with the material and personal means necessary to manufacture a product or component, or to provide one or more services, and a specific organization (judgment of the High Court of Justice of the Basque Country of October 27, 2011). Furthermore, this operating unit must be clearly differentiated from a geographical or localization point of view (Supreme Court judgment of July 14, 2011).
Therefore, going back to the previous questions, not every physical location where one or more employees provide services, nor every space rented in a coworking site will necessarily be a work center if the above requirements are not met.
Whether or not a physical space is a work center is a relevant issue, since there are several formal obligations associated with this (regarding the communication of its opening, social security or occupational risk prevention, for example) that do not occur in a mere place of work. It also defines the existence of a potential electoral unit: article 67 of the WS links the electoral unit to the work center, not being possible to promote elections for the exercise of the right of representation in those places where a company, despite having employees, does not have said center.
So, how do employees working remotely exercise their representation rights? Law 10/2021, of July 9, on remote work, establishes, in its article 19, that those who provide remote work services will exercise their representation rights in the work center assigned in the remote work agreement, with the same content and scope as the rest of employees who work on-site in such center.
As we have seen, not every place where one or more employees work is considered a work center, and the analysis of the concurrence of the legal and jurisprudential requirements is essential to determine the rights and obligations of companies and employees.
Rafael Pozueta Rebolledo
