The Contentious Chamber of the Superior Court of Justice of Balearics has forced the owner of a hostess club in Formentera to register the women of his club in Social Security. The ruling, issued in October 2018, dismisses the employer's appeal against eight resolutions of the General Treasury of the Social Security of May 2015 that officially discharged eight women from the establishment in the general regime. The sentence focuses on the work of the hostess who they claimed they performed in the establishment during a visit by the Labor Inspectorate and the Civil Guard. Does not address if these women they were practicing prostitution in the premises, an activity that is alegal in Spain.
During the inspection that took place in the premises in April 2015, the women affirmed that they performed "the tasks proper to the hostess" and that they received from the company a variable remuneration that depended on the accompanying services provided and calculated according to the number of customers' drinks that they accompanied. At no time are the possible sexual services provided mentioned. The ruling indicates that the question appealed, centered on the activity of the alternate, must be limited to determining if there is an employment relationship between the employer and the employees according to the way in which this activity is practiced.
"On this subject there is no doubt about the alienation of the provision of services, since the beneficiary of this activity is the company that runs the establishment and it is this that puts the material means and organizes the activity. This is a consumer promotion activity carried out on behalf of others, paid on commission and, therefore, labor, "says the ruling. The room concludes that the relationship between the employer and the women was labor since only objective evidence "such as contracts that reflect the relationship that is said to be mercantile, duly documented and registered, with its corresponding tax reflex, could lead to reconsideration of the presumption of labor character ".
The magistrates quote jurisprudence of the Supreme Court and also allude to a ruling of the Superior Court of Justice of Castilla y León that ruled that the activity of "alternate" understood as the promotion of consumption in the hospitality establishment by way of accompanying a client so that it consumes, can constitute a labor relationship if the typical notes and characterizing the same "as in this case considers the room given. The court has sentenced the club's employer to pay the 2,000 euros of the costs of the process.
Alternate and prostitution
"The Baleares ruling is in line with that issued by the Supreme Court in 2016 to unify doctrine, which came to say that when there was sex there was no employment relationship," says Altamira Gonzalo, vice president of the Themis Women Lawyers Association. The opinion of the Supreme Court distinguished between the activity of hostess and the exercise of prostitution. He considered that in the first there is an employment relationship because it involves attracting and entertaining customers by encouraging consumption in a local and obtaining a commission for it. However, the ruling pointed out that in the exercise of prostitution, an amount is directly received from clients, so the relationship is not labor-related, even though it can be exercised in a local. The problem for Gonzalo is that alternation and prostitution are intimately linked and give shelter to the first "is often to give legal coverage to prostitution."
For Cristina Garaizabal, co-founder of the collective in defense of the rights of prostitutes Hetaira, the sentence is a step forward when it comes to recognizing labor rights for women who are working in clubs. "It is a very hypocritical way to recognize their rights, leaving them in the alternate but without recognizing sex work, which due to its specificities would require a job recognition," he says. Regrets that you have never entered fully into the matter, but recognizes the "good intention" of the judiciary separating alternate and prostitution and guaranteeing labor rights "although there are many that can not be enforced legislatively because they are not collected."
From the point of view of legal technique, for Gonzalo the sentence corresponds to the principles of labor law. "The hotel business is perfectly legal, promoting the consumption of drinks is an activity and therefore, if that legal activity is done under the orders of an employer, there is a presumption that there is an employment relationship," he says. In any case, for the vice president of Themis, it is necessary to address the current "vacillating" situation regarding sanctions for the purchase of sex.