Many are the entrepreneurs who have heard about the reform of the legislation on contracting and subcontracting in the construction sector, but there are also many entrepreneurs who, despite having heard something about this reform, do not know how or when it may affect them the same in the activity of your company.
We will then begin by seeing which companies will have to adjust to the new legislation. To do this, we will have to analyze whether the execution of the work that we are going to carry out with our company through subcontracting is among the following works:
- Excavation, earthworksConstructionAssembly and disassembly of prefabricated elementsConditioning or installationsTransformation, Rehabilitation, DismantlingDemolitionMaintenance, conservationPainting and cleaning work Sanitation
Any company that carries out work mentioned in the previous list will have the obligation to comply with the new regulations. But what exactly does the new regulation say regarding the obligations of employers?
1. Indefinite hiring.
The norm establishes the obligation of all employers, to have in their workforce a number of workers that is not less than 10% of the total workforce (during the first 18 months of the law) that is not less than 20% of the total workforce (during the nineteenth to thirty-sixth months) or 30% (from the thirty-seventh inclusive).
2. Subcontracting regime.
New guidelines are established to carry out subcontracting based on the following points:
- The promoter may contract directly with all the contractors it deems appropriate, whether they are natural persons (self-employed) or legal persons (companies). The contractor may contract with subcontractors (self-employed or companies) the execution of the works that it has contracted with the promoter. First and second subcontractors may also subcontract with a third party (self-employed person or company) the execution of the works that they have contracted except in the event that the only contribution of this third subcontractor consists of the contribution of labor (including manual tools and A self-employed worker may not subcontract the work entrusted to him or to other self-employed persons or to other companies. However, in the cases in which the self-employed worker has employees employed by third parties,For the purposes of this law, it will be considered as one more contractor or subcontractor.Additional extraordinary level: When due to causes of specialization of work, technical complications of production, fortuitous circumstances or of major cause, in the opinion of the facultative direction the subcontracting to a fourth subcontractor. However, as it is an exceptional measure, in order to extend subcontracting, it is necessary for the facultative management to record its prior approval and the motivating causes in the Subcontracting Book (we will see what it is about later).In the opinion of the facultative management, the subcontracting may be extended to a fourth subcontractor. However, as it is an exceptional measure, in order to extend subcontracting, it is necessary for the facultative management to record its prior approval and the motivating causes in the Subcontracting Book (we will see what it is about later).In the opinion of the facultative management, the subcontracting may be extended to a fourth subcontractor. However, as it is an exceptional measure, in order to extend subcontracting, it is necessary for the facultative management to record its prior approval and the motivating causes in the Subcontracting Book (we will see what it is about later).
In addition, it will be necessary to make this fact known to the health and safety coordinator and the workers' representatives, if any. Likewise, he must inform the Labor Authority of the indicated exceptional subcontracting through a report indicating the circumstances and a copy of the entry made in the Subcontracting book.
3. Registry of accredited companies.
Within the scope of each Autonomous Community, the competent labor authorities will create a Registry of Accredited Companies (hereinafter RAE). The registration of companies in the RAE will have national validity. The content, the form, the effects of the registration in the RAE and the coordination of the different registries dependent on the labor authorities, have not yet been determined and the norm simply indicates that they must be established by regulation.
4. Duty of vigilance and responsibilities derived from its breach.
The standard offers great importance to health surveillance (we must remember that in the statement of reasons for the standard, the accident rate is named as one of the main sources to control). For this reason, it means that each of the members of the contracting chain must control the compliance of their subcontractors or self-employed workers with whom they contract. It must be taken into account that if a link in the contracting chain does not comply with the regulations, the contractor who subcontracted it will be jointly and severally liable.
5. Documentation
to. Subcontracting Book: All the construction works that are included in the list that I indicated at the beginning of the article that must comply with these regulations, must necessarily have a Subcontracting Book that must remain at all times on the work.
In it, each and every one of the subcontracting carried out in a certain work with subcontractors and self-employed companies, their level of subcontracting and client company, the object of their contract, the identification should be reflected in chronological order from the beginning of the work. of the person who exercises the powers of organization and management of each subcontractor and, where appropriate, of the legal representatives of the workers (if any), the respective delivery dates of the part of the health and safety plan that affects each subcontractor and self-employed company, as well as the instructions drawn up by the health and safety coordinator to mark the dynamics and development of the established coordination procedure,and the annotations made by the facultative direction in the event that there is an exceptional level of contracting in the work of those that we commented previously.
The promoter, the facultative management, the health and safety coordinator, the participating companies and self-employed workers, the prevention technicians, the prevention delegates, the labor authority and the workers' representatives, if any, will have access to the book.. The rule establishes that the conditions of the Subcontracting Book will be determined by regulation.
b. Documentation that proves the ownership of the machinery that each company uses.
As has been stated in some points, the regulation is not "complete" in the sense that Regulations must be published that determine some aspects that the regulation leaves open.
To correctly apply this new reform of contracting and subcontracting, I consider it necessary and fundamental to mark some points of interest that you should consider:
Control the indefinite hiring of the company.
Leave a record in writing at all times that we are part of the subcontracting chain and what functions we do.
Give all possible importance to health surveillance and the prevention of occupational hazards and offer adequate training to all workers.
Keep in mind that this regulation is complementary to all the regulations that are currently in force (Workers' Statute, Labor Risk Prevention Law) and that therefore the same obligations continue to exist as to date with the addition of this text.
The penalties that can be imposed based on the new regulations range from 40 euros for the lightest penalty (not having the documentation proving possession of the machinery used) to 819,780 euros in certain special cases set forth in the law.
