By Dr. Marco Cabrera professional advice
is common to arrive in my mail inquiries about the possibility of "hide" a employment by the worker becomes monotributistas, thus avoiding labor costs contained in the contributions by the employer.
In my opinion, and my clients well know, what at first sight seems to savings in labor costs, becomes an extremely expensive problem to the first difficulty is present in the employer - employee relationship, and who have suffered, know that the "issue" is much worse at the time of effective dismissal or upon the occurrence of an accident.
Why say this? Because at the breaking of the employment relationship, most likely the unhappy employee may use a labor lawyer who will not hesitate, in most cases, to consider that this ratio is more than a disguised employment relationship, initiating appropriate actions via complaint with the Ministry of Labour and concluding such differences, with judgments generally adverse to the employer.
Therefore, even if the worker bill issue, the employer is exempted from the performance and employee contributions for the duration of the ill-named "location service."
addition, and even doubted whether the "consideration of such savings, if the worker dismissal intimacy before the adjustment of employment, the employer shall complete not only the payment of these dues and contributions, but must also pay the fines provided for by law, in case the relationship is characterized as "labor." All this without considering that the dismissal is made effective, because if so, the employer will also be required such amounts as the law defines as indemnification of cessation of employment for reasons not justified.
And last but not least, the Ministry of Labor does not regulate covert work situations, so that if an employer makes the worker bill would rectify the situation to avoid the problem facing a "potential threat" and achieve a settlement approved, no I could do, since this Ministry requires a form signed by the parties with the date of the worker's income and other data such as pay, status, if subject to agreement, etc., demand that can not be completed for the simple reason that the "Monotributistas worker" is not registered in the books business.
All this is of their own labor standards that determine the fact of service presumes the existence of an employment contract.
is important to note that the subordinate employee works for and on behalf of another person who assumes business risk. This means that the worker is outside the "luck of the business" or type of business of the company.
In general, one way to analyze whether a relationship can be classified as labor, is by studying so-called "dependency notes." It is said that employment relationship exists when a worker is subordinate legal, technical and economically to a person or entity, to whom he owes such subordination. Detail about these concepts:
a) There is a legal unit when a person, whether natural or juridical, has the power to impose conditions and sanctions on the work of others.
b) There is a technical unit where a person or entity, determines how and when you will develop the work of others (ie, establishing the who, what, how, where and when).
c) Finally, there is economic dependence, where a person or entity, has the power to compensate, at its discretion, the work of others and this last paid regardless of business risk or business line of business (this is true even if within the salary is similar concepts include commissions or participation in profits).
To end this article, I describe some events that presume the existence of employment relationship:
- As discussed earlier, the very fact of providing services presumes the existence of "employment contract" (Art. 23, Law of Contract Working).
- Let there be a different person from the worker to assume the risks inherent in the shift of business, presumes the existence of an employment relationship.
- Personal work supplied to an individual or legal within their own premises, in a stable and repetitive, presumed contract.
- The fact that a person occupies the same position in a company which will be elected to a subordinate worker, it may be presumed subordination and therefore employment, regardless of the name of his office, job or position.
- The worker is subject to a work schedule, it may be presumed lack of independence.
- The payment of services (eg. Honoraria, per day, commissions, task, etc) is not a condition to prove the nonexistence of an employment contract.
-For case (Judgement Against Company Fernández Collective Coastal Creole) Self-enrollment is not a determining factor in establishing the nature of the relationship, because this type of registration can be a source of voluntary affiliations and employers because they often require registration as a condition for the granting of tasks.
- The correlation in the number of bills or property "only customer," presumes a relationship laboral.En do so, the qualification that an employer give to a service provided by a worker, it is irrelevant to its legal treatment , so that even having a contract of lease of services, or existing by the employee turnover, these situations do not exclude the possibility of considering the existence of "employment" or "work in dependent
In my opinion, and my clients well know, what at first sight seems to savings in labor costs, becomes an extremely expensive problem to the first difficulty is present in the employer - employee relationship, and who have suffered, know that the "issue" is much worse at the time of effective dismissal or upon the occurrence of an accident.
Why say this? Because at the breaking of the employment relationship, most likely the unhappy employee may use a labor lawyer who will not hesitate, in most cases, to consider that this ratio is more than a disguised employment relationship, initiating appropriate actions via complaint with the Ministry of Labour and concluding such differences, with judgments generally adverse to the employer.
Therefore, even if the worker bill issue, the employer is exempted from the performance and employee contributions for the duration of the ill-named "location service."
addition, and even doubted whether the "consideration of such savings, if the worker dismissal intimacy before the adjustment of employment, the employer shall complete not only the payment of these dues and contributions, but must also pay the fines provided for by law, in case the relationship is characterized as "labor." All this without considering that the dismissal is made effective, because if so, the employer will also be required such amounts as the law defines as indemnification of cessation of employment for reasons not justified.
And last but not least, the Ministry of Labor does not regulate covert work situations, so that if an employer makes the worker bill would rectify the situation to avoid the problem facing a "potential threat" and achieve a settlement approved, no I could do, since this Ministry requires a form signed by the parties with the date of the worker's income and other data such as pay, status, if subject to agreement, etc., demand that can not be completed for the simple reason that the "Monotributistas worker" is not registered in the books business.
All this is of their own labor standards that determine the fact of service presumes the existence of an employment contract.
is important to note that the subordinate employee works for and on behalf of another person who assumes business risk. This means that the worker is outside the "luck of the business" or type of business of the company.
In general, one way to analyze whether a relationship can be classified as labor, is by studying so-called "dependency notes." It is said that employment relationship exists when a worker is subordinate legal, technical and economically to a person or entity, to whom he owes such subordination. Detail about these concepts:
a) There is a legal unit when a person, whether natural or juridical, has the power to impose conditions and sanctions on the work of others.
b) There is a technical unit where a person or entity, determines how and when you will develop the work of others (ie, establishing the who, what, how, where and when).
c) Finally, there is economic dependence, where a person or entity, has the power to compensate, at its discretion, the work of others and this last paid regardless of business risk or business line of business (this is true even if within the salary is similar concepts include commissions or participation in profits).
To end this article, I describe some events that presume the existence of employment relationship:
- As discussed earlier, the very fact of providing services presumes the existence of "employment contract" (Art. 23, Law of Contract Working).
- Let there be a different person from the worker to assume the risks inherent in the shift of business, presumes the existence of an employment relationship.
- Personal work supplied to an individual or legal within their own premises, in a stable and repetitive, presumed contract.
- The fact that a person occupies the same position in a company which will be elected to a subordinate worker, it may be presumed subordination and therefore employment, regardless of the name of his office, job or position.
- The worker is subject to a work schedule, it may be presumed lack of independence.
- The payment of services (eg. Honoraria, per day, commissions, task, etc) is not a condition to prove the nonexistence of an employment contract.
-For case (Judgement Against Company Fernández Collective Coastal Creole) Self-enrollment is not a determining factor in establishing the nature of the relationship, because this type of registration can be a source of voluntary affiliations and employers because they often require registration as a condition for the granting of tasks.
- The correlation in the number of bills or property "only customer," presumes a relationship laboral.En do so, the qualification that an employer give to a service provided by a worker, it is irrelevant to its legal treatment , so that even having a contract of lease of services, or existing by the employee turnover, these situations do not exclude the possibility of considering the existence of "employment" or "work in dependent
at which more profitable for the employer to workers and employers are registered to consult with a lawyer when in this situation
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