He labor legal system No defines or regulates the concept of business group for employment purposes. There is no specific rule that regulates it. From a legal point of view, we must turn to jurisprudence to understand and know: what scope and what consequences the declaration of a group of companies has for labor purposes.
According to the Supreme Court, it is not enough that two or more companies belong to the same group to understand without further ado a joint liability regarding their Laboral obligations, the presence of certain jurisprudential elements.
Additional elements of joint liability of companies
The additional elements to determine the existence of joint and several liability of the group companies are:
- Unitary operation: It implies that the companies do not act independently or autonomously, but rather that their operation is marked by the main company. For example, (i) that the companies operate as a unit in the same work center, (ii) that there is no distinction of functions carried out by each company, (iii) that the bonus is calculated taking into account all the companies, or (iv) that the same means of communication are used for all companies in the group.
- Template confusion: We find it when a person provides services interchangeably for two or more corporate entities of the group. There really is only one employment relationship, although they are formally registered in a company, but they provide services for all the entities of the group.
- Asset confusion and cash unity: The different companies find their assets communicated, with financial movements between companies without them responding to real and justified services.
- External appearance of business unit: It consists of joint action in the market that produces a unitary external appearance that leads to confusion among those who contract in good faith.
- Abusive use of the unitary address: It manifests itself when the parent or main company sets guidelines for all the companies in the group, establishing the criteria and parameters to follow.
The existence of one or all of the signs is not necessary to consider that we are facing a group of companies for employment purposes, it will have to be assessed case by case.
Consequences for the worker
If there is the group of companies for employment purposes, the fundamental consequence is that all companies respond in solidarity regarding the obligations contracted with the worker; For example,
- (i) to calculate the number of workers to be taken into account for collective dismissal, all companies in the group should be taken into account or,
- (ii) to deal with non-payment of payroll by any company in the group.
Difference between commercial group of companies and labor group of companies
It is important to differentiate between a group of companies commercial effects and labor effects. The first group is defined in the Commercial Code, while the second group is created by jurisprudence.
We will find ourselves before a group of commercial companies when a “company holds or may hold, directly or indirectly, control of another or others.” This control referred to in the definition contemplated in article 42 of the Commercial Code It will be presumed to exist when a company classified as dominant is related to another company called dependent in any of these situations:
- Holds a majority of voting rights.
- Have the power to appoint or dismiss the majority of the members of the administrative body.
- May have, by virtue of agreements concluded with third parties, the majority of voting rights.
- Has appointed with his votes the majority of the members of the administrative body
It should be noted that these requirements demanded by commercial legislation will not be considered sufficient when declaring a group of commercial companies as a group of labor companies and consequently deploying all its effects on relationships of this nature. That is, we can find ourselves within a group of commercial companies that are a group of companies for employment purposes. As always, nothing is black or white. We will have to be on the case and the specific problem.
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