If you are self-employed or an SME and provide services through contracts or subcontracts for another company, be aware that, if there is no company agreement (which is most common), you must apply the sector agreement and, if there is none either, you must apply the one for the sector related to the activity carried out in the contract or subcontract, so that the workers have a sector agreement that regulates their labor relations.
As we have already informed you, the Labor Reform approved by Royal Decree-Law 32/2021, of December 28, also introduces changes in the regulation of subcontracting of works and services, established in art. 42 of the Workers' Statute (ET).
The Explanatory Memorandum of the reform states that it seeks "...a modernization of the contracting and subcontracting of business activities"; and that it is intended that the outsourcing of services, through subcontracting, is not usedas a mechanism to reduce the labor standards of the people who work for the subcontracting companies; since this negatively affects the qualitative competition between companies and also contributes to the increase in job insecurity.
The possible limitation on the outsourcing of services was one of the main demands of the unions during the negotiation, but in the end the previous regulations have been largely maintained.
New: a sector agreement will always apply to contracts and subcontracts.
has become the norm: the applicable collective agreement for contractors and subcontractors will be the one corresponding to the activity carried out in the contract or subcontract, regardless of the corporate purpose or legal form of the contractor or subcontractor, unless there is another applicable sectoral agreement.
In any case, it is also noted that when the contracting or subcontracting company has its own agreement, this will be applied in the terms resulting from article 84 ET, which is the article that provides for the link to the Sector Agreement in salary matters.
In other words, it is guaranteed that there is always an applicable sectoral agreement for the contracting or subcontracting company, either the one that corresponds to said company by collective bargaining, in accordance with the rules of the ET, or the one that corresponds to the activity carried out in the main company.
And if the subcontracting company has its own agreement, the same will apply, but with the pay guarantee of the sectoral agreement, if it is higher than that of the company.
This regulatory change is primarily limited to so-called multi-service or outsourcing companies that are subcontracted to carry out activities typical of the main companies. From now on, if such a company performs activities, for example, for a chemical company, it must apply the collective bargaining agreement for that sector to its employees, unless that company has its own agreement with conditions regarding wages, working hours, etc., that are more favorable than those of the aforementioned sectoral agreement. Or, even, unless there is another sectoral agreement applicable to those tasks.
It is important to note that the initial idea put forward by the unions and the government itself was that multi-service companies should apply the collective bargaining agreement of the main company – normally, if we are dealing with a large company, its agreement is superior to that of the sector. – Ultimately, the agreement establishes the sectoral agreement as the reference for these purposes.
Finally, the possibility is preserved that the subcontracted workers may raise questions with the representatives of the workers of the main company regarding the conditions of carrying out their work activity at the main company's workplace.
Youcan contact this professional office for any questions or clarifications you may have.
Warmregards,
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A Àmbit Assessor, SL has 40 years dedicated to the tax, comptable and labor consultancy of the Pime.
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