The contracting of services by outsourcing has allowed companies to carry out their business objectives. This form of decentralization of production entails various benefits for the contracting entity, for example, access to specific services and knowledge, cost reduction, and outsourcing of responsibilities for the externalized activity. However, despite the preceding, from the perspective of Labor Law, outsourcing services may involve certain risks for the contracting company, depending on how this type of agreement is carried out.
The main risk associated with the contracting of outsourcing services is that the supplier of the contracting entity does not demonstrate capital adequacy. In this case, the outsourcing company will become an "intermediary" and, in the face of such qualification, both the beneficiary entity of the service and the provider company would be jointly and severally liable for the various consequences that may arise from the employment relationship. Among these are aspects of a remunerative nature (overtime, minimum wage, work on holidays or breaks), social security breaches, and work risks.
Concerning the figure of "intermediary", article 3 of the Labor Code establishes that it is "any person who hires the services of another or others to carry out some work for the benefit of an employer." Hence, it differs from the contractor or employer since they carry out their tasks through a contract and carry them out with their own capital. Likewise, said norm establishes the joint and several liability between the contracting company and the intermediary by decreeing that the management of the former shall jointly and severally bind the latter for the legal effects derived from this Code, its Regulations, and the provisions of social security.
Regarding "own capital", the Second Chamber of the Supreme Court of Justice has established that it must be conceived as "the existence of a sufficient and autonomous business organization" (resolutions 954-2010 and 857-2012).
Therefore, if the entity providing the service has its capital, acts at its own risk, and is capable of demonstrating that it has economic and financial stability, it is not legally considered an intermediary. However, suppose the company that provides the service does not carry out its commercial services in this way. In that case, it will be considered as an intermediary, and the previously described legal consequences will be assumed.
Based on the above, the company that chooses to outsource the services must necessarily take into account the importance of this decision and create strict control (through policies, checklists, supplier records, periodic information requirements, etc.) in the choice of the supplier entity, to verify the financial, organizational and reputational reports of the possible companies that it hires.
These requirements must be required at the time of contracting and throughout the business relationship between the service provider company and the contracting entity. The periodic request for documentation to the service provider company not only serves to verify that it operates with its capital and has economic stability that allows them to be legally classified as contractors. In addition, the preceding also constitutes proof that the contracting company must present in a judicial matter if joint and several liabilities are attributed to the actions of the service provider company.
Finally, the probability that there is a joint and several liability of the contracting company increases when the work carried out by the supplier's collaborators is carried out under the instructions and subordination of representatives of the contracting company, so that it can be argued that there is an employment relationship of the workers of the supplier company with the contracting company.
In this sense, during the execution of the outsourcing service contract, it is essential to remember that it is a strictly commercial relationship between the contractor company and the service provider company; consequently, the former should refrain from exercising its powers of direction and sanction on the personnel of the company providing the service.
Thus, any inconvenience that the company has with the service provided by contracting the outsourcing service should be communicated directly to the service provider company so that the latter can adequately exercise the actions it deems pertinent to its personnel.
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