Contracts for outsourcing are denatured when they warned of the lack of autonomy in financial, technical, and functional of the tercerista, in application of the Principle of Primacy of Reality.
As determined by the Supreme Court of Justice by the judgment corresponding to the Cassation N° 2201-2021 Freedom, issued by your Fourth Hall of Constitutional Law and Social Transient. The judgment declared unfounded the appeal filed in the regular process for the recovery of wages and other. With this decision, the highest court sets a ground for the denaturation of the contracts of outsourcing.
Foundation
In accordance with the position of the labor Jorge Toyama Miyagusuku in "The Individual Right to the Work in Peru" (Lima, 2015, pp. 188), the hall of supreme warns that the outsourcing, according to the national doctrine, is defined as the process of outsourcing or displacement of functions or activities, to independent companies, which were previously made by the same company or which are delegated to a third party from the start.
The court also reviews the judgement of the Cassation Labour N° 275-2012 Freedom, in which it is mentioned that the outsourcing does not constitute labor intermediation, according to the Article 4 of Supreme Decree N° 003-2002-TR. This article clarifies that it does not consider labor mediation, contracts management, contracts of work, the processes of outsourcing external and services rendered by contractors or subcontractors assume the tasks at your own risk, are equipped with own resources and whose workers are under their subordination.
In this context, the Fourth Hall of Constitutional Law and Social Transient verifies that the Law N° 29245 defines outsourcing as the recruitment of companies to perform specialized activities, provided that these companies take the services at your own risk, provide them with their own resources, and accountable for the outcomes of their activities. The article 3 of the act lists the contracts that constitute outsourcing of services, contracts management, work and the processes of outsourcing external.
The Constitutional Court, in the File N° 02111-2012-PA/TC, defined labor outsourcing as an answer to the needs of efficiency and competitiveness in the context of globalization and decentralization of production.
Features
The Fourth Hall of Constitutional Law and Social Transient points out that the contractors engaged in the outsourcing must meet four main characteristics: (i) performing functions or activities that are not circumscribed to the main activity of the parent company; (ii) to undertake the tasks at your own risk; (iii) to have own resources; and (iv) to have their workers under their own subordination. Among the secondary features include the plurality of customers, the equipment itself and the form of consideration which shows that this is not a simple provision of personnel.
Case data
In the Cassation N° 2201-2021 The Freedom, a worker demanded the reinstatement of compensation. The specialized court of Labour declared founded, in part, demand, recognizing an employment relationship for an indefinite period with the defendant company. The room competent labour confirmed this decision on appeal. The company filed an appeal, alleging infringement of rules of Law N° 29245. The Fourth Hall of Constitutional Law and Social Transient of the Supreme Court declared unfounded the appeal, stating that the contract of outsourcing the worker is desnaturalizó, so that the contract should be for an indefinite period.
Lima, September 13, 2024
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