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Act 14/1944 of 1 June regulating temporary work agencies.
(Boletin
Oficial del Estado, 2 June 1944, 131, pp. 17408-17412)
(1) Placing workers under contract with the object of hiring them out on a temporary basis to other enterprises in order to cope with the needs of the market has traditionally been prohibited by labour legislation and regarded as illegal trafficking in manpower, closely related to acting as an intermediary in the labour market for financial gain, since it was considered that both activities could harm workers' basic rights.
Nevertheless, since the end of the 1960s, the core countries of the European Union, which had, like Spain, ratified ILO Convention No. 96, have been regulating the activities of temporary work agencies because they understand that, when their business is conducted in a properly supervised manner, far from harming the workers they recruit, the agencies can channel a considerable volume of employment, requiring specialist skills and promptness of response, particularly in the service sector, which cannot be offered through the traditional mechanisms. Furthermore, for workers the agencies constitute an important means of access to jobs and of becoming familiar with working life. They also offer a chance to broaden occupational experience and training, while in some cases making it easier for particular social groups to combine work with other non-gainful occupations or family responsibilities.
(2) Our country has been holding aloof from this entire process, having prohibited in section 43 of the Labour Statute the recruitment and placing under contract of workers in order to second or hire them out on a temporary basis to an entrepreneur, howsoever this trafficking in manpower was described, and likewise the use of such workers without incorporating them into the staff of the enterprise in which they are working. However, we recognised other methods of decentralizing working activities and the classical business concept of contracts and subcontracts, to which section 42 of the same text refers.
Nevertheless, it must not be forgotten that the Spanish labour market should not and cannot operate without taking account of the rules of the game in the European Union: the logic of the functioning of a single European market as an area without internal borders in which the free circulation of goods, persons, services and capital is ensured will allow us really to converge with Europe only in so far as, among other things, our institutions can be harmonized.
In the conviction that the dangers which have been ascribed to temporary work agencies do not necessarily stem from their activities, but rather in every case from the clandestinity which permits the existence in the labour market of intermediaries, who can evade their obligations under labour law and social security law, it has now become necessary, taking into account the provisions on the hiring out of workers in section 2 of Act 10/1994 of 12 May on Emergency Measures to Promote Employment, to establish a legal system for temporary work agencies which guarantees by means of appropriate requirements, limitations and supervision the maintenance, in all circumstances, of the rights of labour and the protection of society.
Section 1. General principle. A Temporary work agency shall mean an enterprise whose activity consists in hiring out to a user enterprise on a temporary basis workers with whom it has concluded a contract. Only temporary work agencies duly authorized in the terms of this Act may conclude contracts with workers in order to hire them out on a temporary basis to another enterprise.
Section 2. Administrative authorization. (1) Physical or legal persons wishing to exercise the activity mentioned in the foregoing section must obtain prior administrative authorization and provide proof to the competent administrative body that they comply with the following requirements:
(2) Administrative authorization shall be granted by the Provincial Directorate of Labour and Social Security of the province in which the office of the enterprise is situated or by the equivalent body in the Autonomous Regions with competence to implement labour legislation.
If the temporary work agency has offices in a number of provinces, authorization shall be granted by the Directorate General of Employment or by the equivalent competent body of the Autonomous Region, if the area of activities of the enterprise is identical with that of the Region.
When the opening of new offices causes changes in the geographical area of activity, the labour authority with jurisdiction over the new area shall, in conformity with the provisions of the foregoing paragraph, grant a new administrative authorization and the former authorization shall no longer be valid.
(3) The authorization shall be valid for one year and shall be extended for two successive periods of one year, provided that application is made at least three months before the end of each of the aforesaid periods and that the agency has complied with its legal obligations.
An authorization of indefinite duration shall be granted after the temporary work agency has been exercising its activity for three years on the basis of the corresponding authorizations. It shall expire if the agency ceases activity for one complete year.
(4) A decision on an application for an authorization submitted in accordance with the provisions of this article shall be taken within the three months following its submission.
If this period elapses without an answer being received, it shall be taken to mean that the application has been refused, in the case of a first application for an authorization to operate a temporary work agency, and that the application has been granted in the case of applications for successive extensions of authorization.
Section 3. Financial guarantees. (1) Temporary work agencies shall provide a guarantee to the labour authority which grants the administrative authorization. It shall comprise:
(2) In order to obtain the first authorization, the amount of the guarantee specified in subsection (1) shall be 25 times the minimum interoccupational salary, computed annually. To obtain subsequent authorizations, the amount of the guarantee shall be equal to 10 per cent of the total wages bill in the immediately preceding financial year and it shall not in any case be less than the amount of the guarantee required for the first year of activity.
(3) When the authorization of indefinite duration is granted, the agency shall update annually the financial guarantee in accordance with the provisions set out in subsection (2).
(4) If the opening of new offices makes it necessary to obtain a new authorization, in conformity with the provisions of section 2, the title to the previously constituted guarantee shall be transferred to the labour authority with jurisdiction in the new area of activity.
(5) The guarantee shall be used, in the manner prescribed by regulation, to cover liabilities for compensation, wages and social security contributions.
(6) The guarantee shall be returned when the temporary work agency ceases activity and has no outstanding liabilities in respect of compensation, wages and social security contributions; proof that such is the position must be produced to the labour authority which granted the administrative authorization.
Section 4. Register. (1) The labour authority which, in conformity with section 2 of this Act, granted the administrative authorization, shall keep a Register of Temporary Work Agencies in which are recorded the authorized agencies together with information about the identity of the enterprise, the names of the directors or members of the managerial boards in the case of enterprises with the legal status of companies, the address, the occupational and geographical areas of activity, the number of the administrative authorization and its period of validity. The register shall also record suspension of activity, as confirmed by the labour authority in conformity with the provisions of this Act, and cessation of activity as a temporary work agency.
The necessary links between registers of temporary work agencies in the various territorial jurisdictions shall be determined by regulation.
(2) Temporary work agencies shall identify themselves as such, giving the number of the administrative authorization and the name of the authority granting it, in publicity material and offers of employment.
Section 5. Duty to provide information to the labour authority. (1) The temporary work agency shall send the labour authority which granted the administrative authorization a list of the hiring-out contracts it has concluded, in the form established by regulation.
(2) The temporary work agency shall also keep the aforesaid labour authority informed about changes of ownership, the opening of new offices and cessation of activity.
Section 6. Cases in which such contracts may be used. (1) A hiring-out contract is a contract concluded between the temporary work agency and the user enterprise for the purpose of supplying the worker to perform services in the enterprise, under its direction.
(2) Hiring-out contracts may be concluded in order to meet the temporary needs of the user enterprise in the following cases:
(3) The hiring-out contract shall be concluded in writing in the terms established by regulation.
Section 7. Duration. (1) The maximum duration of a hiring-out contract shall be six months in the cases mentioned under paragraph (b) in the foregoing section and three months in the case mentioned under paragraph (d). In the remaining cases, it shall last as long as the reason which prompted it still subsists.
(2) If at the end of a hiring-out contract the worker continues working in the user enterprise, he shall be regarded as being bound to it by a contract of indefinite duration.
(3) A clause in the hiring-out contract prohibiting the recruitment of the worker by the user enterprise at the end of the hiring-out contract shall be null and void.
Section 8. Exclusions. Enterprises cannot conclude hiring-out contracts in the following cases:
Section 9. Information to workers' representatives in the enterprise. The user enterprise shall inform the workers' representatives of every hiring-out contract and of the reason for it within ten days of concluding such a contract.
Section 10. Form and duration. (1) The work contract between the temporary work agency and the worker for the performance of services in user enterprises may be of indefinite duration, or fixed term, covering the same period as the hiring-out contract. Contracts shall be concluded in writing in the terms established by regulation and shall be registered in the Employment Office within ten days of their conclusion.
(2) Temporary work agencies may not conclude apprenticeship contracts with workers placed under contract to be hired out to user enterprises.
Section 11. Rights of workers. (1) Without prejudice to the provisions of the Labour Statute, when the contract is concluded for a fixed term the worker shall be entitled to:
(2) When the contract is of indefinite duration, the general rules shall apply.
Section 12. Duties of the agency. (1) The temporary work agency shall be responsible for the wages and social security contributions of the workers placed under contract to be hired out to a user enterprise.
(2) Temporary work agencies shall be obliged to allocate annually 1 per cent of the wages bill to training workers placed under contract to be hired out to user enterprises, without prejudice to the legal obligation to contribute to occupational training.
Workers placed under contract to be hired out to other enterprises shall receive from the temporary work agency sufficient and appropriate training for the jobs they are to perform, taking into account their qualifications and occupational experience and with particular attention to the hazards to which they may be exposed.
Any clause in the temporary work contract obliging the worker to pay to the temporary work agency any sum in respect of selection costs, training or receiving a contract shall be null and void.
Section 13. Collective negotiations. In the absence of bodies legally representing the workers, the most representative trade union organizations shall be legally empowered to negotiate collective agreements involving temporary work agencies, it being accepted that the workers are validly represented on the negotiating committee when such organizations form part of it.
Section 14. Application of general labour rules. The provisions of the present chapter, with the exception of section 13, shall not apply to workers placed under contract by the temporary work agency to perform services exclusively under its direction and supervision.
Section 15. Direction and supervision of working activities. (1) When workers perform tasks within the user enterprise, the power to direct and supervise working activities shall, in accordance with this rule, be exercised by that enterprise while they are performing services within its confines.
(2) In these cases and without prejudice to the exercise by the temporary work agency of disciplinary power under section 58 of the Labour Statute, when a user enterprise considers that a worker has not fulfilled a contractual obligation it shall bring the matter to the attention of the temporary work agency so that the latter may take the appropriate disciplinary measures.
Section 16. Duties of the user enterprise. (1) The user enterprise shall inform the worker, prior to his commencing work, of the hazards related to his job and the protective and safety measures to be taken against them.
(2) The user enterprise shall be responsible for occupational safety and hygiene and for the increases in social security contributions mentioned in section 93 of Decree 2065/1974 of 30 May, to approve the consolidated text of the General Social Security Act, as amended, in the event of an accident at work or an occupational illness occurring in its workplace during the validity of the hiring-out contract and attributable to a lack of safety or health measures.
3. The user enterprise shall be responsible in a secondary capacity for contractual obligations in respect of wages and social security contributions vis-B-vis the worker during the term of the hiring-out contract. It shall be jointly responsible if this contract has not been drawn up in conformity with the provisions of sections 6 and 8 of this Act.
The information which the temporary agency shall provide to the user enterprise shall be established by regulation.
Section 17. Rights of workers in user enterprises. (1) Workers hired out shall be entitled to submit complaints about their working conditions through the workers' representatives in the user enterprise.
(2) They shall also be entitled to use the transport and collective facilities of the user enterprise during the period of duration of the hiring-out contract.
Section 18. Responsibility for offences. Without prejudice to the provisions of Act 8/1988 of 7 April on Offences and Penalties in the Social Order, which shall in any case apply in the absence of provisions in this Act, temporary work agencies and user enterprises shall be responsible for acts and omissions contrary to these rules in respect of the obligations established for each of them respectively.
Section 19. Offences of temporary work agencies. (1) Minor offences:
(2) Serious offences:
3. Very serious offences:
Section 20. Offences of user enterprises. (1) Minor offences:
(2) Serious offences:
(3) Very serious offences:
Section 21. Penalties. (1) The offences classified by type and specified in this chapter shall be punishable in accordance with the provisions of Act 8/1988 of 7 April on Offences and Penalties in the Social Order.
(2) Without prejudice to the provisions of section 38 of Act 8/1988 of 7 April, the repetition by a temporary agency of an offence classified as very serious may give rise to a suspension of activities for one year.
When enforcement proceedings result in an order for suspension of activities, the Minister of Labour and Social Security or the equivalent authority in the Autonomous Regions responsible for implementation of labour legislation shall be competent to act.
When the period of suspension is over, the temporary work agency shall make a fresh application for administrative authorization to enable it to exercise its activities.
In the absence of specific provisions in this Act, labour and social security legislation shall apply to the relationship between the temporary work agency and the worker and between the worker and the user enterprise; and civil and commercial legislation shall apply to the relationship between the temporary work agency and the user enterprise.
Bodies with jurisdiction over social matters shall hear disputes between enterprises and workers concerning hiring-out contracts.
(1) Cooperatives duly constituted and registered in accordance with their specific legislation may obtain administrative authorization to operate as temporary work agencies under the terms of this Act.
For this purpose, cooperatives engaged in work in association with other workers may place under contract as many workers as they require to hire out to user enterprises in conformity with the provisions of sections 6, 8 and 10 of this Act even if the number of those receiving wages under contracts of indefinite duration exceeds 10 per cent of their total membership.
(2) The relationship between the cooperative acting as a temporary work agency and its worker members or associate workers whose activity consists in the performance of services in user enterprises, as well as the corresponding social security obligations, shall be regulated by the provisions in the legislation applicable to this type of association.
The Government is authorized to propose whatever provisions are necessary for the application and implementation of this Act.
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