Seguridad Social (in English: Social Security System)

Transcription

1 Start-up docs 30 Categorisation within La Seguridad Social (in English: Social Security System) Barcelona Activa SAU SPM,

2 Table of contents 01 Introduction Social Security Scheme in Sociedades Mercantiles Capitalistas (in English: Capitalist Corporations) Régimen Seguridad Social in Sociedades Laborales (in English: Workforce-Owned Companies) Régimen Seguridad Social in Sociedades Cooperativas (in English: Co-Operatives) Appendices: Tables 1 and 2 More information 2 / 10

3 01. Introduction Article 34 of the Ley 50/1998, de 30 de diciembre sobre Medidas Fiscales, Administrativas y de Orden social (in English: Law 50/1998, dated 30 th December, on Fiscal, Administrative, and Social Order Measures) regulates an area that has generated controversy- the categorisation of workers and administrators in Sociedades mercantiles capitalistas and Sociedades Laborales within the Seguridad Social system. Despite the existence of this legal reference, its interpretation is not entirely clear. It is therefore highly recommended to firstly consult with the Tesorería de la Seguridad Social (in English: Social Security Fund), as soon as a copy of the estatutos de la sociedad (in English: company by-laws) has been drafted, and before elevating them to escritura pública (in English: public deed). 3 / 10

4 02. Régimen Seguridad Social (in English: Social Security Scheme) in Sociedades Mercantiles Capitalistas (in English: Capitalist Corporations) 1 According to article 24 of the Ley 50/98 they will fall under: - Régimen General de la Seguridad Social (in English: General Social Security Scheme) This scheme will apply to hired employees who work for a third party and to working members who provide a service in return for remuneration when the following circumstances occur: When they do not form part of the administrative arm of the company When they are administrators who do not engage in company leadership and tasks. In other words, they exclusively lend consultancy and advisory services. In both cases the law demands that they do not exercise effective control over the company. - Régimen General Asimilado (in English: General Assimilated Scheme) 2 Directors and administrators will fall under the Régimen General as assimilated, hired workers. This is provided that they do not exercise effective control 3 over the company, even if they receive remuneration for carrying out leadership and tasks or as paid employees in the company. They will not receive protection in the event of becoming unemployed nor will they have access to the Fondo de Garantía Salarial (in English: Wage Guarantee Fund) - Régimen Especial de Trabajadores Autónomos (in English: Special Scheme for Self- Employed Workers) Those who engage in leadership and tasks, and who act as directors or 1 Sociedades mercantiles capitalistas whose corporate goal is the execution of business or professional activities. Companies who are responsible for simply managing members assets are excluded from the Sistema de Seguridad Social (LGSS dipsp.27ª2) and are therefore not discussed in this section. 2 Excluded from protection in the event of unemployment and do not have access to the Fondo de Garantía Salarial (acronym in Spanish: FOGASA) 3 LGSSdisp.27ª.1: Disposición adicional vigésima séptima (in English: LGSSdisp.27th.1: Twenty-seventh additional provision). Application form for the Régimen Especial de la Seguridad Social de los trabajadores por cuenta propia o autónomos (in English: Special Scheme for Self-Employed Workers): ( 4 / 10

5 administrators, or who provide other services to the company, in exchange for remuneration and in regular, personal and direct fashion, provided that they exercise effective (direct or indirect) control over the company, will fall under this scheme. At the same time, the above-mentioned article establishes two separate interpretations of effective control: - Presumption iure et de iure 4 A member is said to exercise effective control over the company when the shares or stock held by them are equal, or superior, to 50% of company capital. - Presumption iuris tantum 5 A worker is said to exercise effective control over the company, when one of the following circumstances occurs: 01. When at least half of the capital held by the company to whom they lend their services is distributed among members with whom they live, and to whom they are related through marriage or blood connections, kinship, or adoption up until the second level blood relationship. 02. When the amount of capital that they hold is equal to, or greater than, 33% of total capital 03. When the amount of capital that they hold is equal to, or greater than, 25% of total capital, if they engage in tasks of leadership and in the company. In situations where none of the above-mentioned circumstances occur, article 34 indicates, in relation to this area, that the Administración (in English: Administration) may demonstrate, by any means they deem appropriate, that the worker exercises effective control over the company. To help easily locate the categorisation of a member/administrator, please refer to table 1, which we have drawn up. It is attached to this document in order that the reader can use it as a guide to study the Seguridad Social categorisations. 4 Non-negotiable 5 Negotiable 5 / 10

6 03. Régimen Seguridad Social in Sociedades Cooperativas (in English: Co-Operatives) 6 According to article 34 of the Ley 50/98 they will fall under: - Régimen General de la Seguridad Social Generally, and in the exception of the cases b. i c., working members of sociedades laborales will fall under this scheme, regardless of how much capital they hold, and even if they form part of the administrative arm of the company. - Régimen General Asimilado (in English: General Assimilated Scheme) This will be applied to those working members who meet any of the following conditions: b. When, in their role as administrators, they engage in leadership and tasks in the company, in exchange for remuneration, regardless of whether or not they are simultaneously connected to the company through an ordinary or special working relationship When, in their roles as company administrators, they engage in leadership and tasks in the company and, simultaneously, they are connected to the company through a special working relationship with senior. - Régimen Especial de Trabajadores Autónomos Working members who hold capital- including that held by their spouse or relatives through blood, kinship or adoption up until the 2 nd level blood relationship and with whom they live- equal to, or greater than, 50% of total capital, will fall under this scheme, unless they can demonstrate that exercising effective control over the company requires the help of persons who are not family members. To help easily consult the categorisation of a member/administrator, please refer to table 2, which we have drawn up. It is attached to this document in order that the reader can use it as a guide to study the Seguridad Social categorisations. 6 The associated workers co-operative is a legal entity which brings together a group of people with the same socio-economic interests or needs, with the objective of providing a service and/or offering a product. They are regulated by the Ley 18/2002, de 5 de julio, de cooperativas. -DOGC núm. 3679, de 17/07/2002, corrección de errores DOGC núm. 3882, de 13/05/2003 (in English: Law 18/2002, dated 5th July, of co-operatives. DOGC Lumber 3679, dated 17.07/2002, correction of errors DOGC Lumber 3882, dated 13/05/2003). 6 / 10

7 04. Régimen Seguridad Social in Sociedades Laborales (in English: Workforce-Owned Companies) 7 Working members of associated work co-operatives will enjoy the benefits of Seguridad Social, and the co-operative will be able to choose (all members must contribute into the same scheme) between the following options: - As hired, assimilated workers. These co-operatives will fall under the Régimen General or under one of the Regímenes Especiales de la Seguridad Social (in English: Special Social Security Schemes), if it proceeds, and in accordance with its activity. - As self-employed workers in the corresponding Régimen Especial. Co-operatives must reflect the option chosen in the Estatutos and they will only be able to modify this option in the circumstances and conditions established by the Government. 7 Companies regulated by the Ley 4/1997, de 24 de marzo (in English: Law 4/1997, dated 24th March) 7 / 10

8 05. Appendices: Tables 1 and 2 Members and Workers in Sociedades Mercantiles Capitalistas DO NOT provide services to the company as part of an employment relationship, in return for remuneration MEMBER EXCLUDED FROM SOCIAL SECURITY (Regardless of the amount of capital held by the member) >= 50 % Capital is distributed among members with whom they live and to whom they are related through a marital or blood relationship, up until the second level blood relationship. (Regardless of the amount of capital held by the member) ( If the Capital held by from 0%< from 25%=< Holds the member falls within these parameters) to < 25% to < 33% >= 33% DO NOT carry PROVIDE services to the company as part of an employment relationship or acting in the role of Administrator, in return for remuneration <50 % Capital is distributed among members with whom they live and to whom they are related through a marital or blood relationship, up until the second level blood relationship. Hold the Position of Director or Administrator DO NOT HOLD the Position of Director or Administrator out the inherent tasks of leadership and CARRIES OUT the inherent tasks of leadership and DO NOT carry out the inherent tasks of leadership and CARRY OUT the inherent tasks of Régimen General R.General Excl. unemployment and FOGASA Régimen General R.General Excl. unemployment and FOGASA or exceptional Senior Management Régimen General Régimen General leadership and cases when maximum company representation is not reached 8 / 10

9 Members and Workers in Sociedades Laborales MEMBER EXCLUDED FROM SOCIAL SECURITY DO NOT provide services to the company as part of an employment relationship, in return for remuneration (Regardless of the amount of capital held by the member. However, the total amount of capital held by non-working members must not exceed 50%:) >= 50 % Capital is distributed among members with whom they live and to whom they are related through a marital or blood relationship, up until the second level blood relationship. (Regardless of the amount of capital held by the member) DO NOT RECEIVE REMUNERATION for PROVIDE services to the company as part of an employment relationship in return for remuneration, whether they are working members or non-member workers <50 % Capital is distributed among members with whom they live and to whom they are related through a marital or blood Working Member (No one worker may hold > 1/3 Capital) NON-MEMBER carrying out the inherent tasks of leadership and, even if they are an administrator (General Assumption) RECEIVE REMUNERATION for the inherent tasks of leadership and, or, acting as administrator, without receiving remuneration for these tasks, they carry them out and maintain an employment relationship with senior. DO NOT receive remuneration for carrying Régimen General R.General. R.General Excl. unemployment and FOGASA relationship, worker (there out the inherent tasks of leadership and Régimen General up until the are limits on the second level blood relationship. number of hours that indefinite workers can work) RECEIVE REMUNERATION for carrying out the inherent tasks of leadership and Régimen General (Exceptional case for Senior Management) 9 / 10

10 06. More information - Ley 50/1998, de 30 de diciembre sobre Medidas fiscales, administrativas y de Orden Social - Website providing information about Seguridad Social Compiled by the Team at Barcelonanetactiva using the following information sources: - Ley 50/1998, de 30 de diciembre sobre Medidas fiscales, administrativas y de Orden Social Barcelona Activa SAU SPM, Last Update: 31/01/2012 Barcelona Activa SAU SPM will ensure that this information and the data contained in the reports are accurate and faithful. These reports are published to provide general information. Barcelona Activa SAU SPM will not accept under any circumstance any responsibility for losses, damages or theft, or for any other business decisions based on data or pieces of information that can be extracted from this report. 10 / 10