Outsourcing (Outsourcing or Outsourcing)
It is the hiring of specialized third parties to provide services in certain stages or processes of the mining activity, one of the modalities is the mining contracts that are regulated by the Ministry of Energy and Mines (DS N ° 043-2001-EM)
outsourcing-in-the-mining-sectorOne of the reasons why this modality is chosen is due to a company strategy, so as not to affect the payroll and as a productive decentralization.
Generic and sparse regulation
Labor intermediation (Highlight)
It is the hiring of workers indirectly, that is, through the service of placement entities.
Also called administrative decentralization
Labor Intermediation that involves personnel working in the user's workplace only proceeds when there are cases of: Temporality (maximum 20% of the mining owner's payroll), Complementarity, and
Specialization.
They are governed by the Labor Administrative Authority (MTPE), Law No. 27626, which calls intermediation to what is interposition (the worker provides services to one entity but another belongs to)
Examples: Guard Services, Camp Cleaning, Replacements, Worker
User
Civil Contract
Assumptions in IL prohibited
To cover personnel who are exercising the right to strike.
To cover personnel in another intermediary entity.
To provide services that involve permanent execution of the main activity of the company.
Associate the IL with a fixed-term contract
Specialized Companies (Mining Contracts)
They are companies that carry out an autonomous and differentiated activity.
They must carry out their activities at their own risk, with their own financial and material resources and that the staff is under their subordination.
They must meet 04 variables:
Management capacity, having ownership and / or responsibility over equipment
Economic, Financial and Administrative Independence
Plurality of clients
Own technology
Specialized Companies (Mining Contracts)
When EEs are denatured:
The staff receives direct orders from the mining owner's supervisors.
The EEs are always at a loss, every year they change their RUC and therefore their company name.
They are billed per worker, but not for the work performed.
They do not have an asset related to the business
The configuration of a direct employment relationship between the user company and the workers
Common failures in outsourcing
Treat outsourcing as labor intermediation.
Employ outsourcing and do not divest yourself of the business.
Go to outsourcing to cover jobs.
Treat outsourcing staff like yours
Direct, supervise and even sanction the outsourcing staff.
Signs of outsourcing denaturalization
Who is your boss? ………..The Head of Mine Section of the incumbent company
Whose email is it? ……. Of the mining owner
Who gives you the personal protective equipment (overalls, boots, etc.)….. The mining owner's warehouse
Who interviewed you before entering?… The HR manager of the mining incumbent
Do you play fulbito? …………..Yes, we won with the mining incumbent's team, here is the photo
Signs of outsourcing denaturalization
Who do you ask for permission to be absent from your work shift? ………..The Mine Captain of the owner company
Who gave you your photocheck? …… The chief of staff of the mining owner
How is the company paid? …… By the number of workers or positions
Do you replace / do they replace you?…..I replace my partner from the other payroll when he is on vacation
Did you receive a Christmas basket? …………..Yes, from the mining owner
Current Labor Scope
The state has proposed to correct the irregularities of the services, outsourcing or mining contracts: Currently, there are numerous demands from workers in these modalities, demanding the granting of different rights (social benefits, incorporation in the user's payroll, etc.).
The Ministry of Labor is carrying out a strong inspection campaign and SUNAT continues with its inspections.
Companies are taking actions to have adequate outsourcing and service mechanisms, controlling them, supervising them, analyzing their origin.
There is no company that does not have mechanisms for outsourcing services, either through intermediation or outsourcing, but few are those that recognize their differences, adequately control their actions and avoid policies that may generate contingencies.
Goals and objectives
Understand the differences between main, temporary, complementary and specialized activities Do not incur labor ties.
Not incur in labor contingencies.
Scope of the EE
The EE provide services in the stages of exploration (determination of the dimensions and values of the Mining Unit), exploitation (extraction of minerals), development (exploitation support) and benefit (processes for the extraction or concentration of minerals).
There are other activities not included in the previous paragraph such as: cafeteria and commercial administration, sampling and quality control, diamond drilling, environment, transportation of personnel and ore, alimak chimneys, maintenance of conventional winch equipment, etc., in these cases They can be carried out by companies that are not registered as mining contractors, but that can provide services to the mining owner through outsourcing contracts.
There is joint and several liability, in case the EE does not comply with the payment of its labor obligations.
How is the labor regulation?
There is only one trend: greater state regulation at all levels, and the socialization and unionization of labor disputes.
There are more auditors.
Unitary Union and contractors: it is recognized by the MTPE
The Executive presented a bill to the CNT
Regulates the figure of outsourcing when there is displacement of personnel to the work center of the main company, under the principle of the Primacy of Reality. EE requirements:
Assumption of tasks under account and risk.
Assumption of responsibility for the results of activities and the exclusive subordination of workers to the EE.
Presence of a plurality of clients
EE's own teams
Capital investment
Some form of retribution
Parliament's position
The Congress of the Republic has prepared a bill that seeks to establish labor guarantees in the contracting and subcontracting of works and services
(outsourcing)
The main companies must:
Verify in advance the payment of the agreed consideration, that the EE is up to date in complying with its labor and social security obligations.
Require the EE to immediately comply with its obligations within 05 business days after any infringing conduct is known or verified or after receiving a complaint.
How to make human management more efficient with labor laws?
With planning and timely action, if possible to make human management more efficient with current labor laws.
Conclusions
The use of mining contracts and labor intermediation companies are multiplying events, for this reason it is necessary to have policies and practices that do not generate direct “labor” relationships.
There are certain labor lawsuits and accidents at work against the contractors and the mining owners, because they are based on a series of tests that link the mining owner with the plaintiff (photochecks, memos, work orders, documents with the mining owner's logo, emails electronic devices, etc.) that is to say, the staff of a contract was treated “as if it were” a mining company worker.
Conflict prevention actions must come from mining companies.
Conclusions
- There is a high level of subjectivity. In case it is verified that specialized companies are being used as labor intermediation, the personnel will go to the payroll of the mining owner and must pay their benefits and utilities retroactively from the date of their entry. From the specialized company, they must be paid the salaries and benefits the same as the worker of the mining owner (Salary Conditions) From the legal point of view we have to differentiate between the IL and US personnel From the management point of view human we have to match the staff
