This week, the Economy Commission of the Congress approved an opinion that seeks to annul Supreme Decree 001-2022-TR, published in March and where it is prohibited for Business apply labor outsourcing in “activities belonging to the core of the business (main activities)”. But what exactly does this mean?
“Any reform should not affect the essence of outsourcing, which is to look for someone more specialized for certain activities. By prohibiting the main activity as susceptible to outsourcing, this would end up impacting companies to such an extent that economic activities could be paralyzed. It is not about restricting a process that is generated naturally in the business sector, but about correcting the control mechanisms that meant that the old rule – the modified one – has not been controlled or supervised properly”, comments Herman Patow, Managing Partner and Founder of ASESORI.
Although said opinion must still be supported in plenary session, it is important for every business to know in detail what this contracting modality consists of and what differentiates it from, for example, a service location. For this, ASESORI has prepared the following information:
What is labor outsourcing?
It is a form of business organization by which a company called “main” commissions or delegates the development of one or more activities to one or more companies called “outsourcers”. This, with the purpose that the latter carry out the service or work with their own staff and under their exclusive direction.
However, with the entry into force of Supreme Decree 001-2022-TR, companies can no longer outsource main activities or activities that correspond to the core of the business, being only authorized to do so with activities not considered main.
“Core of the business”
The “core of the business” is identified as everything that: (1) is part of the corporate purpose of the company; (2) identifies the company to its end customers; (3) it is a differentiating element of the company within the market in which it carries out its activities; (4) it is the company’s activity that generates added value for its customers; and (5) it is the activity that usually generates the highest income for the company.
Therefore, to determine what the “core business” is in a company and to be able to define it, it is advisable to review the company’s corporate purpose in the registry entry. and those activities with which it identifies mainly in the market.
Characteristic
In order to carry out the figure of labor outsourcing, the outsourcing company must (1) have a plurality of clients; (2) have their own team; (3) have capital investment; (4) be paid for the service provided. These are crucial characteristics so that business autonomy between the main company and the outsourcer can be proven later.
This is due to the fact that there are cases in which the main companies create “outsourcing” companies (which in reality are not, because they are linked) in order to reduce the workload of their payrolls and transfer the weight of their obligations to a ghost company.
Difference with the location of services
By the location of services it is understood that a person, whether natural or legal, undertakes, without being subordinated, to provide their services to another person for a certain time or for a specific job, in exchange for remuneration. Its difference compared to labor outsourcing lies in the fact that the latter can only exist between companies, while a service location can occur between companies, as well as between companies and natural persons.
The key element that distinguishes them, without prejudice to the previous characteristic, is the continuous displacement of the outsourcing company’s personnel to the headquarters or operations center of the main company (something that is not generated in a service location). In addition, there is the element of joint and several liability for the payment of social benefits of the personnel of the outsourcing company, which is in charge of the main company, and has a duration of up to 1 year after having completed the execution of such services. .
“Generally, labor outsourcing is used more in companies that have greater financial support and greater traceability in the market (it is usually very common, for example, in companies in the mining, hydrocarbon and energy sectors because, due to the nature of their activities, they need a higher degree of specialization to meet the quality standards that the provision of their services or products demand). The figure of the location of services is much friendlier and less risky, for example, for an entrepreneur. This, if we evaluate it in terms of labor costs and responsibilities. However, the choice of one or another figure must depend on the real nature of the relationship that arises, that is, on whether or not we are faced with a case of outsourcing as described above”concludes the executive of ASESORI.
