There is no employment relationship between a musical foundation and the musicians of its orchestra because they only receive economic amounts as compensation for expenses, they must provide their own instruments, and they have the freedom to attend rehearsals or concerts.
Judgment delivered by the Supreme Court on 7 November 2017 [JUR\2017\288188]
The Supreme Court analyzes a case in which the Employment and Social Security Inspection Service issued a liquidation act of quotas to the defendant company –a private music foundation– for failing to request in due time and form the registration of its workers –musicians– in the Social Security register during the period from 2005 to 2010.
Thus, it is proven that the foundation of music has as its corporate purpose the continuity of a symphony orchestra, as well as promoting, disseminating and teaching symphonic music.
Likewise, most of the musicians are music teachers or play in different orchestras. The musical instruments are their property, except for the piano and the percussion due to their size.
On the other hand, before each concert, they perform seven or eight rehearsals, summoning themselves by e-mail and attending whoever can. If any musician, for whatever reason, cannot attend, the musician himself/ herself will look for someone to replace him in the case of being an absolutely essential instrument for the concert to be offered.
Regarding the remuneration paid to musicians for their services, they receive variable amounts depending on the concerts and previous rehearsals, in order to compensate them for travel expenses, parking or any other amount. These amounts range between EUR. 40 and EUR. 3,000 per year.
Thus, the Supreme Court reaches its conclusion taking into account the essential notes of the employment relationship: 1) personal commitment to develop the activity; 2) voluntariness; 3) dependence; 4) alienation; 5) retribution; and 6) absence of legal exclusion.
The Superior Court of Justice ruling declared the existence of an employment relationship between the foundation and the musicians despite the fact that the musicians receive variable amounts depending on the concerts and the prior rehearsals, in order to compensate them for the expenses of displacement, parking, etc.
The Supreme Court concludes that there is no employment relationship when a musical foundation compensates the musicians for a part of the expenses generated by their activity –without the existence of any salary–, since there is no remuneration for the services provided and they are free to go to rehearsals or concerts –not being sanctioned if they are absent–, organizing their own substitution when their instrument is considered essential –for the rehearsal or concert– and they provide their own instruments – supporting their maintenance.