Human Resource and Contract Modalities in Honduras
In a good part of the Honduran mercantile companies that generate employment, as well as in some belonging to the government, exists a common denominator at the moment of hiring human resource. This lies in the fact that hiring under the contract modality for provision of professional services (with the purpose of avoiding the employment benefit payment), even when the nature of the jobs to be performed are permanent.
Consequently, we are going to discuss the differences between individual labor contract and contract for provision of professional services.
Every employer should be aware that in Honduras, as well as in most of the region’s jurisdictions, the labor relationships are based on “THE FACTS”. Why in facts? Because independently of the name that is chosen for the contracts denomination, the facts given in the relationship will always be considered as a premise. That is that if an assistant is hired under the modality of provision of professional services, with the purpose of avoiding to pay the law indemnities, when the relationship ends, it is almost a fact that the hired person as an assistant will have the right of recognition of labor seniority and the social benefits payment, if the termination of the relationship is without just cause for the employer, precisely because the nature of the labor for which was hired is permanent inside the company or Government institution. That’s why the only way the employer or patron is not obligated to the labor indemnities payment, would be because the hiring took place in a specific period of time to do a specific labor, whose time has precisely a start and ending point. Otherwise, far from being in front a contract of provision of professional services, we would be before a labor relation for indefinite period, even when in the contract has been stipulated a due date and that is hired for the provision of determined professional services.
If in the relationship are fulfilled three essential elements such as: 1) Personal activity of the employee, that is to say the one done by itself; 2) The continued subordination or dependence of the employee regarding the patron that empowers the employer to demand compliance with orders, at any time regarding the mode, time and quantity of work, and imposed regulations, which should be maintained for the total amount of time of the contract; and 3) A salary as retribution of the service; we are found before a work relationship and not of provision of professional services, independently of the name or denomination that is given to the contract document.
If the employee achieves to prove the existent of these three essential elements, previously mentioned, he/she will have the right to recognition of labor benefits and acquired rights that are granted by the Labour Code in force in the Republic of Honduras.
To conclude, every employer or patron should be advised by an expert lawyer in labor matters, in order to provide the best modality to hire human resource in its company or institution if it is a governmental office, since otherwise it would be taking unnecessary risks that eventually may cause significant disbursements of money paying labor indemnities that could be avoided with an excellent legal advice.
Ricardo Duarte Jiménez
Partner
García & Bodán
Honduras