Dependent Self-Employed Status Applies Even When The Agreement Between The Parties Is Not In Writing Or Has Yet To Be Adapted To The New Regulations

17 September 2009

In a recent ruling dated October 29, 2008, the Castilla y Leon Superior Court in Valladolid cleared up important doubts regarding dependent self-employed workers (known by the Spanish acronym as TRADEs).

The case under consideration dealt with a delivery man from the company SEUR who proved that the legal requirements needed to be considered a TRADE had been met in accordance with Art. 11 of Law 20/2007 of July 11th (Self- Employed Worker Statute). He had begun rendering services prior to the Law’s entry into force and there was no existing written contract between the parties.

First and foremost, the ruling clearly establishes the Courts and Tribunals competence to hear claims filed after October 12, 2007 (date on which Law 20/2007 went into force) regarding contracts between TRADEs and their clients. They further determined that the Labour Courts are competent even when the contract between the TRADE and the client has not yet been adapted to the new rules if they are currently in a transition period or the adaptation period had not yet finished.

The decision likewise clarifies that the sole requirement which determines the existence of a TRADE is fulfilment of the conditions of Art. 11 of Law 20/2007. Article 12 of said law establishes formal mandatory requirements but does not specify a contract form as a requirement for validity of same. That is, even if the contract with the TRADE is not in writing, it has not been adapted to include the content established by the rule, or has not been recorded with the authorities, the TRADE legal status still applies. The lack of written form simply establishes an iuris tantum presumption that the worker is an ordinary self-employed individual, and therefore allows for the submission of evidence to the contrary proving that the worker is a TRADE. This is congruent with the Law’s objective of guaranteeing status in that it aims to avoid that the client, or the two parties by mutual accord, can avoid application of the TRADE status by simply failing to fulfil the written form and recording requirements.

The ruling further concludes that the failure of the TRADE to fulfil their obligation of communicating their TRADE status to the client does not preclude the application said status.
 

 

For more information, please contact Ana Gómez: agomez@mmmm.es