In fact, the Spanish employment law expressly prohibits to hire employees with the aim to transfer them temporally to other companies, as this activity can only be done by the Temporary Employment Agencies (in Spanish, “Empresas de Trabajo Temporal”, ETT), which require a license to operate in Spain.
However, the Spanish legal system only allows decentralizing measures and considers subcontracting to be legal if the necessary requirements are met.
These requirements aim to ensure employees’ rights, because the Spanish law considers that subcontracting could lead to a violation of workers’ rights. That’s why the Spanish regulation establishes guarantees and precautions concerning salary matters, Social Security, health and safety of the employees affected by the subcontracting agreement.
The article 42 of the Spanish Workers Statute states that if the services provided by the subcontractor are part of the principal’s main activity, the principal must comply with certain requirements to ensure that the subcontractor complies with all its Social Security and employment obligations.
The Courts consider as “main activity” the operations and services of the company’s production cycle. Therefore, the services provided by the PSS would be considered as a part of the principal’s main activity. In fact, only complementary or auxiliary activities aren’t considered as “main activity” (e.g., security and surveillance, maintenance, cleaning services, etc.).
However, even if the subcontracted service isn’t considered as a part of the principal’s “main activity”, both companies (principal and subcontractor) would be liable if the subcontracting agreement is considered an illegal transfer of employees.
In fact, the arrangement between two companies could give rise to an illegal transfer of employees if the principal is acting as the real employer of the employees of the subcontractor.
In reference to the joint and several liability of the principal for the Social Security contributions while the subcontract is valid, it can be legally avoided if the principal requests and obtains a certificate from the Spanish Social Security, in order to ensure the subcontractor’s compliance with the Social Security payments.
The Spanish Tax also provides for a liability of the principal in relation to tax debts.
In particular, this article states that companies that subcontract the execution of works or services related to its main economic activity, have secondary liability (subsidiary) for tax obligations relating to taxes to be passed or amounts to be retained to workers, professionals and other entrepreneurs (for these works or services corresponding to the subcontracted works or services).
In contrast with the liability for wages, the liability for taxes is not strictly limited to the subcontracting of the “own activity” of the client.
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