Business dynamics have changed at a great pace, adapting to the needs of the different economic sectors and social actors that develop their activities in the country.
Although every day new tools, structures and inter-institutional strategies emerge that transform the dynamics of work such as production, marketing and consumption of goods and/or services, two important figures continue to be maintained: outsourcing and labor intermediation, which have in common the need to find favorable environments for the supply and quality of employment through sufficiently versatile labor management to ensure the preservation and strengthening of the business fabric.
According to the International Labor Organization and the Colombian Substantive Labor Code, labor outsourcing is a form of outsourcing that is considered a principle of competitiveness and an effective strategy in the fight against informal labor in the country.
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What is labor outsourcing?
Labor outsourcing corresponds to the hiring of third parties for the production of goods or the provision of services, so that are the events in which a company needs to outsource a process and therefore hires a third party or supplier to supply that need.
In Colombia, the Council of State in ruling on Decree 583 of 2016, now repealed, indicated that labor outsourcing is understood as the processes that a beneficiary develops to obtain goods or services from a supplier, provided that they comply with the labor regulations in force.
Are there differences between labor outsourcing and labor intermediation?
Labor intermediation, unlike the previous term, refers to the hiring of labor. hiring of labor through a third party for through a third party for specific and mostly temporary activities, and to job placement activities. However, the legal discussion surrounding labor intermediation has mainly focused on the "supply of personnel", i.e. in relation to the sending of workers on assignment.
Great confusion between the terms labor outsourcing and labor intermediation.
At the time, there was confusion between the concepts of labor outsourcing and labor intermediation, due to Decree 583 of 2016 (now repealed) which assimilated the two figures into a single term that had not been used in Colombian legislation: "Labor outsourcing", understood as "the processes that a beneficiary develops to obtain goods and services from a supplier, as long as they comply with the labor regulations in force".
In 2017, the Council of State, in a ruling, annulled the definition and scope of Decree 583 of 2016, making a distinction of what should be understood in Colombian law by labor intermediation and labor outsourcing. In this way, it is clarified that labor outsourcing applies to the approach of goods and/or services as a final result of a contracting and labor intermediation refers to the sending of workers on mission to the service of third parties to temporarily collaborate with an activity.
Whoever requires the supply of goods and/or services hires a specialized third party to satisfy his need, which performs its activity with autonomy and independence, a situation also established in the Labor Code, Article 34 of which states Substantive Labor Code, in its article 34, which not only establishes the aforementioned, but also establishes the followingThis situation is also established in Article 34 of the Substantive Labor Code, which not only establishes the above, but also presents the figure of solidarity as a guarantee of workers' rights.
While the figure of labor intermediation, in its variable of supply of personnel, must be understood as the sending of workers on mission to temporarily collaborate in the development of the activities of a company. This activity may only be developed by temporary service companies and is developed in articles 71 and following of Law 50 of 1990 and Decree 4369 of 2006, today incorporated in the single regulatory decree number 1072 of 2015.
Learn from the experts: Interview with Andrea Ortega on labor outsourcing and social security.
What is an independent contractor?
The independent contractor is the figure that primarily develops labor outsourcing.
The execution of the activities of the independent contractor is mainly covered by Article 34 of the Substantive Labor Code and corresponds to the natural or legal persons that execute an activity or produce goods or provide a service for the benefit of third parties, for a determined price, with their own means, assuming the risks and with full autonomy and independence, which is the main characteristic of these contracts, which does not mean that there is no certain control in the execution of the contracted activity and therefore there will undoubtedly be a coordination between contractor and contractor to carry out the contracted object to a successful conclusion.
A contractor seeks an independent contractor to meet specific needs, and even a reduction of expenses or administrative processes. This will allow him to focus on the core of his business, on the activities of its object, so that third parties will be in charge of those other activities, which although they go hand in hand with the day to day activity, they do not correspond to the core or main activity of the business.
However, as a risk inherent to this figure, i.e. the legitimate use of the same, is that the beneficiary of the service, i.e. the contractor, will be jointly and severally liable for the labor obligations of the contractor, unless the work is outside the ordinary course of its business, which is why, in relation to this risk, the recommendation is to take out insurance policies to cover salaries, social benefits and indemnities, and to carry out audits of the contractor's labor obligations. and the performance of periodic audits to verify audits to verify that the contractor complies with its labor obligations.
Contracting with temporary service companies
The contracting of temporary service companies is the way to develop labor intermediation legitimately, in the variable of personnel supply.
These are companies that are legally authorized to send workers on mission to the service of another company, i.e. to meet a temporary need for labor.
It is important that the hiring is made with a company legally authorized by the Ministry of Labor for the supply of personnel and that the request is covered by one of the grounds established in Article 6 of Decree 4369 of 2006 for this type of hiring.
Established grounds
- In the case of occasional, accidental or transitory work, that is, activities of short duration (not exceeding one month).
- When required to replace personnel on vacation, on leave, on disability.
- To meet increases in production, transportation, harvesting periods and the provision of services, for a term of six months, which may be extended for up to six more months.
Main risks involved in contracting workers on assignment
Labor outsourcing is absolutely valid and legal, as long as it is used in an appropriate manner and does not disguise labor intermediation. To this extent, it is fully valid for a natural or legal person to provide a service to another in accordance with its needs. This is not an illegal practice, nor is it a system that tends to disregard the rights of workers. On the contrary, outsourcing generates important sources of formal employment and stimulates the economy.
Now, the problem lies in the events in which an irregular use of the figure of intermediation is made and therefore the supply of personnel is contracted with a third party not authorized to do so, a labor intermediation is concealed through a commercial contract or the hiring of temporary service companies is not supported by one of the legal grounds already mentioned or the time limits provided therein are exceeded. In these events it is likely that before administrative investigations it is determined that irregular intermediation was incurred and therefore fines are ordered that can amount up to 5,000 SMMLV or even the closing of the temporary services company and that, before judicial claims, it is determined that the worker of a third party is really a direct worker of the company beneficiary of the service, entitled, therefore, not only to the credits that for any reason is owed by the one who initially acted as his employer, but to all the benefits that this contemplates for its direct workers, and possible moratorium penalties.
For this reason, it is of utmost importance to comply with the grounds and time limits established by law for this type of hiring, in addition to verifying that the company is an EST legally authorized by the Ministry of Labor to supply personnel.
Conclusions
a. Outsourcing is a figure in constant use and tends to increase due to the developing economy in which we find ourselves. They are mechanisms that respond to the needs of business specialization and allow the contractor to focus on the core of its business and deliver those other activities to specialized people.
b. Labor intermediation should not be confused with outsourcing of goods and services.
c. Labor outsourcing allows to make processes more flexible in the face of changes in the market conditions in which the contracting company finds itself.
d. Labor outsourcing allows for the optimization of the quality of services, since they have companies specialized in certain processes.
e. In relation to labor intermediation, understood as the response to a need to hire labor through a third party, the only ones authorized by law to temporarily intermediate labor in permanent missionary tasks are temporary service companies (TSC), and this hiring must correspond to one of the 3 legal grounds.
f. They are strategies that reduce costs, administrative burdens and allow to face more competitive environments.
