From 9 March 2018 the new regulation of information on the conditions of subrogation in contracts born as a result of contracting with Public Administration comes into force.
Law 9/2017, of November 8, on Contracts of the Public Sector, by which the European Directives of the Parliament and Council 2014/23/EU and 2014/24/EU, of February 26, 2014 are transposed into the Spanish legal system
Public procurement plays a key role, since it is one of the instruments based on the internal market that must be used to achieve smart, sustainable and inclusive growth, while guaranteeing a more rational use of public funds
The articles of this law have been structured in a preliminary title dedicated to collecting the general provisions in this matter and four successive books, related to the general configuration of the public procurement and the structural elements of the contracts (Book I), the preparation of the administrative contracts, the selection of the contractor and the award of these contracts, as well as the effects, compliance and termination of these contracts (Book II), the contracts of other entities of the public sector (Book III), and finally, the administrative organization for the management of the contracts (Book IV).
In the labor field, and in order to highlight some news, the possibility of imposing subrogation when the requirements established in Article 44 ET are not met is no longer granted to the specifications, or it is not imposed by a collective agreement or a collective bargaining agreement of general effectiveness. When the requirements for legal or conventional succession concur, the contracting body must provide the information on the conditions of the contracts of the workers subject to subrogation. For these purposes, the company that has been performing the service object of the contract must provide “the lists of the personnel subject to subrogation, indicating: the collective agreement of application and the details of category, type of contract, working day, date of seniority, expiration of the contract, gross annual salary of each worker, as well as all the agreements in force applicable to workers affected by the subrogation”.
In addition, “the particular administrative clauses document will always contemplate the obligation of the contractor to respond to the unpaid wages of the workers affected by subrogation, as well as of the social security contributions accrued, even if the contract is terminated and those are subrogated by the new contractor, without in any case said obligation corresponding to the latter. In this case, the Administration, once the non-payment of the aforementioned salaries has been proven, will proceed to withhold the amounts owed to the contractor to guarantee the payment of said salaries, and to the non-return of the definitive guarantee as long as they prove the payment thereof”.
The new Law on Public Sector Contracts also establishes the priority of application of the sector collective bargaining agreement over the company collective bargaining agreement in public tenders. Thus, the tender papers must include the obligation of the contractor to comply with the workers’ salary conditions in accordance with the applicable sector collective bargaining agreement.
On the other hand, the contracting bodies will reject the offers if they prove that they are abnormally low because they violate the regulations on subcontracting or they do not comply with the applicable environmental, social or labor obligations, national or international, including the breach of the sector collective bargaining agreements in force.
With regard to the execution of the contract, the contracting bodies may establish special conditions of a social nature to ensure the compliance with applicable sectorial and territorial collective bargaining agreements. The breach of the conditions established in the collective bargaining agreements in force for the workers during the execution can entail the termination of the contract.