In a company, an increase in activity or a temporary contract can make it necessary to hire additional workers. These workers may come from employment agencies, unsolicited applications or even temporary employment agencies.
A temporary employment agency is a company whose activity consists of making available for a user company, workers for a limited period and carried out in the framework of an employee placement contract.
An employer can be tempted to hire workers from foreign temporary employment agencies considering how quickly they can be available, but also because they are specialized workers that can be recruited in large numbers. It should also be added that the financial hiring conditions are attractive as the employer does not have to pay social security contributions.
Under these circumstances, Law 14/1994 (LETT) of 1 June 1994 regulating temporary employment agencies and Law 15/1999 of 29 November 1999 on the movement of workers in the framework of a transnational provision of services regulate the legal regime applicable to the provision of services contracts between Spanish user companies and temporary employment agencies of the European Union and subscribing States to the Agreement on the European Economic Area.
Companies that plan to hire workers from foreign temporary employment agencies must know a certain amount of elements in order for the contract signed with the temporary employment agency to be valid and avoid the risk of the relation being considered an illegal assignment of workers.
One of the questions arising almost immediately when considering an assignment of foreign workers is concerning the applicable law on working conditions as well as the wages because the hiring of foreign workers can be considered as a means for obtaining a low cost workforce.
However, this may not be simple because there are strict conditions governing the hiring of workers from foreign temporary employment agencies, in addition to the obligation to deal with a temporary employment agency that is legally established abroad.
Legal requirements for the employee placement agreement
The formal requirements for the employee placement agreement of workers from temporary employment agencies are the following:
- It is necessary to specify that the cases in which it is possible to make use of workers from temporary employment agencies are regulated. According to Article 6.2 of the LETT, it is possible to employ such workers only in the cases provided for in the hiring of fixed-term workers (Art. 15 LETT)
- According to Article 6.3 of the LETT, the employee placement agreement must be in writing
- Certain clauses cannot be integrated into the contract such as one that would forbid the hiring of the worker by the user company at the end of the employee placement agreement (Art. 7.3 LETT)
- Furthermore, it is forbidden to make use of workers from temporary employment agencies when it is a question of replacing striking workers or when in the previous 12 months, the user company would have removed a post and has been condemned for unfair dismissal or for the causes provided for in Articles 50, 51, 52 of the Workers’ Statute, or when it is a question of placing the workers in another company.
The other important question is how the working relationship between the worker and the user company will function.
The hiring of workers from foreign temporary employment agencies presents benefits in terms of social security contributions. Indeed, the temporary employment agency, not the user company, must pay these contributions. There is an exception when the worker is a victim of an accident at work or suffers from an industrial disease due to a lack of prevention in terms of hygiene and safety from the user company. In this case, the user company is severally liable with the temporary employment agency for the payment of the social security contributions.
Finally, one of the most important questions is the one concerning wages and working conditions of the temporary worker who has been placed.
Working conditions are established in the collective agreement applicable to the company based in Spain.
Workers from temporary employment agencies are subject to the same laws as workers directly employed by the user company in Spain: work time, right to strike and trade union freedom, child labour and risk prevention.
The hiring of a worker from a foreign temporary employment agency is not a pretext to disrespect the minimum wage. The compensation corresponding to the held position must be paid according to the applicable standard whether it is a law, regulation or collective agreement. The proportional part corresponding to the weakly rest, bonuses, as well as national holidays must also be paid.
The provision of workers from foreign temporary employment agencies is therefore heavily regulated and it is necessary for a user company established in Spain to contact an expert before making this type of hiring in order to prevent errors which can have grave consequences for the company.
This article is not considered as legal advice