What can and cannot be done by a person as a service lessor?

The modality of hiring a person as service locator is common in the private and public sectors, although Law 31298 prohibits it in the case of the State. However, you should know that those who are hired by this modality do not fulfill the same functions as a regular worker who is on the payroll. Therefore, the employment lawyer Mariano Silva and the founding partner of the Ponce Llicán Abogados law firm, Alex Ponce, explain what a contractor can and cannot do

What is a service locator and how is this modality used?

The lawyer Silva tells us what a civil contract that is regulated in article 1764 of the Civil Code. This section says that “the landlord undertakes, without being subservient to the principal, to provide their services for a certain time or for a specific jobin exchange for a retribution”. That is, it is only expected result, no matter how you do it or how long it takesas long as it is delivered within the coordinated date.

All this includes that should not complete a working day, either certain hours a week, or comply with a schedule and even less have to register or have an attendance control. Furthermore, it is completely autonomous, Therefore, you should not receive training because it is a job that you already know and you must do it your way.

What rights and duties does a service lessor have?

Silva points out that the service lessor has only one right, which is to receive the agreed payment for their services. You do not have any other employment benefits because is not a company workerbut you are providing a service. At the same time, their only duty is to comply with the service within the established period, in both cases, without there being a subordinate role.

Why would the figure of service locator be used instead of a labor contract?

This figure is mainly used in specialized tasks in which only the result matters and, as Mariano Silva points out, it occurs through a negotiation between both parties because it is Independent Y autonomous. A clear example of this, pointed out by Alex Ponce, is the role of an accountant in a company. He basically has to present a monthly report of the company’s accounts, he has free choice of when he is going to do it and nobody gives him orders on how to do it.

Service locator: how is it used incorrectly and what are its consequences?

According to lawyer Ponce, an incorrect use of this figure would be that subordination does exist. For example, a person who is hired to clean a place, in the event that there is a predetermined schedule, or one is imposed, that is, having to clean an establishment during customer service, there it is understood that they have to be present during all office hours, which would take away their autonomy. Here is evidence of what in law is known as the “primacy of reality”.

This figure on the right indicates that priority is given to what It is seen in the facts, not in the papersTherefore, in the event that a landlord denounces that they have him under this modality irregularly and performs worker functions, the presumption of employment prevails. In the words of Alex Ponce, this refers to the fact that the company must demonstrate that the complainant is not a worker, not vice versa.

That is why a worker who is irregularly with a receipt for fees must gather all the evidence so that when he makes his complaint, the company has to refute each one of them and demonstrate that he is not a worker, in case the company cannot prove it. , this will be sanctioned.

Both lawyers agree on the same sanction to the company in case it is used irregularly. This must include the worker on the payroll, in addition to recognizing all the social benefits, which include bonuses, that the employee has not received during the entire time he has been irregularly. In addition, the National Superintendence of Labor Inspection (Sunafil) can impose a fine, but not seize company assets so that payment is made to the worker.