Spanish Labor Law: Illegal Transfer & Contracts

Illegal Labor Transfer: Key Legal Aspects

Our legal system strictly prohibits the hiring of temporary workers with the intent to transfer them to another company, unless this process is carried out through duly licensed temporary employment agencies. This practice involves an interposition in recruitment, where an employer uses services, and another entity appears as the sole employer of these workers.

Defining Illegal Assignment

In general terms, jurisprudence understands that an illegal assignment occurs when the supposed contracting company (the "assignor") appears to lack its own structure, assets, real estate, or business organization, thereby concealing a mere provision of manpower.

However, an illegal assignment can also occur even if the assigning company does possess a separate and distinct production structure. This happens when the company is limited solely to transferring workers to another entity without directly organizing or managing their work. In such cases, both entities are jointly liable for the obligations owed to workers and the Social Security (SS).

Worker Rights and Employer Liability

Temporary workers involved in an illegal assignment are entitled to acquire permanent employee status with either the transferring company or the transferee. The latter is often chosen, as it typically holds the real authority. These workers will have the same rights and obligations as employees serving in the same or equivalent job, and their seniority will be reckoned from the beginning of the illegal assignment.

Both entities involved in an illegal transfer commit a serious labor infraction. This may even lead to criminal liability if deception or abuse occurs, or if workers' rights are prejudiced.

The Employment Contract: Fundamentals

Article 1.1 of the Workers' Statute (ET) defines the employment contract as an agreement by which a person (the employee) voluntarily agrees to personally provide paid services within the organizational and directional scope of another (the employer).

Functions of the Employment Contract

• Establishing Function

  The ET presumes the existence of an employment contract for all individuals providing a service within the organizational and directional scope of another, in exchange for remuneration. This means that when a person provides subordinate, paid work, it is presumed that this employment relationship originated from an employment contract and falls within the scope of application of the ET.

• Regulatory Function

  This function is very limited because working conditions are normally determined by imperative state or conventional standards. With this function, the contract is usually limited to defining specific terms and improving other elements of the working conditions.

Essential Elements of the Contract

• Consent

  This involves the concurrence of offer and acceptance regarding the object and cause of the contract. The contract is fully consensual, based on the concurrence of wills. Consent must be given freely and voluntarily by those with the capacity to contract. It may be vitiated by mistake, violence, intimidation, or fraud.

• Purpose

  This must be possible and not contrary to law or morality.

• Cause

  It is identified with its typical social function: the exchange between work and remuneration under a subordinate and alienating regime.