One aspect that has always generated some confusion among companies was determining the characteristics of labor intermediation and outsourcing of services, which today, with the recent provision that limits the latter (Supreme Decree No. 001-2022-TR), deserves determine the differences between both figures in order not to incur penalties.
The labor lawyer Julio Villalobos Huerta sheds light on the subject and formulates the question: what is labor mediation? According to the Ministry of Labor and Employment (MTPE), it specifies, it is the assignment or assignment of labor by an intermediary entity (service company constituted exclusively for that purpose or worker cooperative) to a company called “user”, in the that there is a labor relationship between the intermediary entity and the assigned personnel.
However, the associate of the Labor Area of the Miranda & Amado Law Firm recalls that the new regulations on outsourcing established that it is only possible to outsource specialized activities or works that are related to the main activity of the company that receives the service, but it cannot be executed the core of the business.
These services, in accordance with Law No. 29245, which regulates outsourcing services, must be executed in an integral manner, at the expense and risk of the outsourcing company, with its own workers and assets, he affirms.
Meanwhile, he explains, in the case of brokerage, what happens is a deployment of personnel at the request of the user company, so that the workers deployed by the brokerage company carry out complementary, highly specialized or temporary activities.
“Supreme Decree No. 001-20220-TR should not generate additional confusion to those that existed before its publication or entry into force between these figures. Through outsourcing, a comprehensive service is contracted, linked to the main activity, but with strict business autonomy. Through intermediation, what is relevant is the highlighting or provision of workers, so that they carry out a complementary (accessory), temporary or highly specialized activity”, he details.
Although, for Villalobos, it is always necessary to verify some conditions in order to determine whether or not what is outsourced is the core of the business, the expert maintains that, for example, a company that makes soft drinks, in principle, could not outsource its production or its manufacture because it is the core of the business, but the transport of the product or its packaging.
In the same way, he refers, a finance company could be prevented from outsourcing the offer or sale of banking or financial products, but it could do so to manufacture credit cards.
With these examples, a soft drink manufacturer that needs surveillance personnel would hire an intermediary company because they are complementary services; and the same could be done by the financial company, when it needs cleaning personnel for its offices.
The intermediation includes temporary activities (occasionality and substitution), complementary (surveillance, cleaning) or highly specialized; meanwhile, in outsourcing the activity is necessary and is linked to the main one, but it does not constitute the core of the business, emphasizes Julio Villalobos.
Regarding joint and several liability, in the intermediation, the user companies will be jointly and severally liable for the payment of the labor rights owed to the outstanding workers (for the time they were in this condition) in the event that the bond is insufficient. In outsourcing, he details, the main company is jointly and severally liable for the payment of labor rights and benefits and for the social security obligations accrued for the time in which the worker was posted and up to one year after the end of the posting.
Julio Villalobos argued that companies must take into account various considerations in the areas of outsourcing and labor intermediation.
For example, that it is not possible to outsource complementary or accessory activities; and that complementary services that are not related to the line of business of the main company must be provided through intermediation companies.
At the same time, he points out that it is important to verify compliance with the labor obligations of outsourcing and intermediation companies.
He also states that brokerage firms are constituted as legal entities or cooperatives with the sole purpose of providing this service.
1,058 and 241,638 soles are the minimum and maximum limits of fines for breaching the Outsourcing Law.
Source: The Peruvian