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, with which declared unfounded the appeal within a regular process for the recovery of wages and other.
In this way, the highest judicial instance requires a causal denaturation of contracts for outsourcing.
Foundation
In line with the legal position of the labor Jorge Toyama Miyagusuku in The individual's right to work in the Peru, Lima, 2015, pp. 188 the room supreme warns that the outsourcing is defined in the national doctrine (postures of experts on the topic) as the whole process of outsourcing or moving towards business autonomous or independent functions or activities of a part of the production cycle, the administrative process, area, or activity that was previously developed by the same company, or that from the beginning of its operations was delegated to a third party.
In turn, the supreme court treats the decision regarding the outsourcing Hall of Constitutional Law and Social Standing of the Supreme Court of Justice in the judgement of relapse in response to the court's Work N° 275-2012 Freedom.
It refers to outsourcing as the figure that: “[...] has been indirectly regulated by article 4 of Supreme Decree N° 003-2002-TR, to establish some considerations for the application of the Laws N° 27626 and N° 27696; [...] when determining that it is not labour intermediation contracts management, in accordance with article 193° of the General corporation Law; contracts of work, the processes of outsourcing external contracts which have for their object a third party that is in charge of an integral part of the production process of a company and the services provided by companies such contractor or subcontractors, provided that assume the contracted work for his account and risk, which have their own financial resources, technical or materials, and whose workers are under their own subordination. They can be elements contributing to the identification of such activities, the plurality of customers, the equipment itself and the form of consideration of the work or service that show that this is not a simple provision of personal [...]”.
In this context, the Fourth Hall of Constitutional Law and Social Transient of the Supreme Court verifies that the Law N° 29245 ends by defining the outsourcing.
In accordance with article 2 of this law, it is understood by outsourcing the recruitment of companies to develop specialized activities or works, provided that those take the services provided by your own account and risk; provide them with their own financial resources, technical, or material; they are responsible for the results of their activities and their workers are under their own subordination.
Therefore, the article 3 of this law indicates that constitute outsourcing services, among others, the contracts management in accordance with the General corporation Law, contracts of work, the processes of outsourcing external contracts which have for their object a third party that is in charge of an integral part of the production process.
In line with this, the hall of supreme also notes that the Constitutional Court (TC), in the File N° 02111-2012-PA/TC, defines labor outsourcing as the legal institution that arises as a response to the needs that companies face in the current context of globalization and particularly the phenomenon of productive decentralisation as a mechanism to generate greater efficiency and competitiveness in the market. In this way, it is understood that in some cases it is more efficient for a company to move to a phase of the productive cycle to other companies or individuals, instead of carrying out her directly and with their own means or resources, accurate.
Thus understood, the supreme court noted that the outsourcing or outsourcing is a management tool that makes it easy for companies or institutions to focus their efforts in their distinctive activities. That is to say, in those that make up its core business, avoiding the waste of resources and work on those activities that are required for the product or service you are offering does not distinguish them in a special way, accurate.
Thus, in line with the purpose of article 2 of the Law N° 29245, the hall of supreme identifies that in every relationship of outsourcing there are always two parties to the contract. On the one hand, the company outsourcing or contractor, which must be registered in the National Registry of Companies Tercerizadoras in charge of the Administrative Authority of the Work, and the main company involved, that is the one that hires the completion of the work or service.
Features
For the reasons stated above, the hall of supreme appears that the contractors that have the purpose of social devote to the work of outsourcing must meet four main characteristics: (i) activities of a part of the production cycle; always and when they're not circumscribed to the main activity of the company (parent company); (ii) to undertake the tasks contracted by his risk and expense; (iii) to have their own financial resources, and technical materials; and (iv) to have their workers under their own subordination. And as a secondary characteristics having: a plurality of clients; equipment; and the form of consideration of the work or service should not show a simple provision of personnel.
Lima, September 13, 2024
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ESP