Should an inspector discover such a situation, he will forthwith change the status of the autonomo to employee obliging the employer to pay for the full amount of social security since the start of the relationship, plus a fine of €3005 for each fake self employed so employed. Not to overlook that a worker could well report the situation of his own accord in case of a dispute.
If one or more of the following applies, you could be classed as a fake autonomo:
- You are subjected to a fix time-table.
- You are not given the chance to use you own initiative but needs to stick to directions given by the “client”.
- You are given a fixed regular sum for your work
- You do not use your own materials or capital to accomplish the work, therefore any profit or loss is assumed by the “client”.
In a nutshell: if the autonomo is fully subjected to the organisational and disciplinary procedures of the “client” then he is not really self employed, but an undercover employee. Although financially appealing at first, it can end up being rather expensive.
However, in some cases, it may be feasible to consider working as a DEPENDENT AUTONOMO (Trabajador Autonomo Dependiente Economicamente), which means that one can legally work with one predominant “client” who pays 75% of his income as long as the following conditions are met:
- He should carry out his activity with his own assets and productive structure. While taking the inherent risks of his business activity.
- He organises his work according to his own criteria, though he can follow preferences or technical indications of his client. If his client has other employees there must be a clear distinction from them in the way he carries out his tasks.
- He is paid in relation to the results of his activity.
- There has to be a written commercial contract between the parties, to be registered as one of economically dependent autonomo in the employment offices ( Servicio Público de Empleo Estatal.)
The Dependent Autonomo acts as a “satellite company” that takes care of some side services or a particular part in the productive process in a self-managed way. Clearly this could not apply for a waiter.
To qualify the Dependent Autonomo:-
- Must not have commercial or industrial premises open to the public.
- Must not be part of a Limited company (SL) or Civil Company (SC)
- He must contribute to work accidents in his Autonomo Fee. (The minimum contribution of a TRADE is €278,60) Obligation and Rights of Dependent Autonomos
The most significant are:
- Registration as a Trade and the associated contribution is compulsory. If this situation rises some time after the relationship started, the autonomo needs to inform his client and the contract between the parties must be registered then with the authorities.
- The other obligations are common to normal autonomo: registration, filing of quarterly tax, etc
- The Dependent Autonomo has the right to be acknowledged a minimum of 18 days of holidays by contract, without damaging the relation between the parties.
- If the client breaches the contract or suddenly dismisses the worker without cause, the client must pay compensation. The terms of this can be specified in the contract.
- In case of a dispute about interpretation or if a particular point was not mentioned on the contract, the ruling legislation will apply.