Articles 26 to 29 of the Haitian Labor Code make it possible to define more precisely what subcontracting means under Haitian law. Article 26 provides a strict definition. A subcontractor or intermediary is a person to whom a task is assigned by a principal contractor and who has that task performed by one or more persons, using the resources provided by the principal contractor and under that contractor’s direction and control.
Two elements are therefore indispensable:
- the workers use the resources of the principal company;
- the principal company retains the direction and control of the work.
Without these two elements, there is no subcontracting within the meaning of the Labor Code.
Case law confirms this definition. In the judgment of March 22, 1967, the Court held that a team leader who distributes the work, provides the equipment, supervises performance and proposes the hiring or dismissal of workers is not an independent contractor. He acts as a subcontractor or intermediary on behalf of the principal company. Judgment of March 22, 1967, Société Anonyme Usine à Manteque de Port-au-Prince v. Sauveur LOUIS et consorts
The same reasoning appears in the judgment of August 2, 1983. In that case, the HASCO company argued that a certain Emmanuel was acting on his own behalf. The Court rejected that argument because he used HASCO’s resources, including fields, fodder and means of transportation, and because he worked under the company’s control. He was therefore an intermediary within the meaning of Article 26. Judgment of August 2, 1983, Alexandre BRUTUS v. Haytian American Sugar Company S.A.
Article 27 adds an important rule. When the subcontractor hires a worker on behalf of an employer, that employer becomes responsible for the management of the intermediary as soon as it has authorized such management or accepted the completed work. This responsibility therefore arises very early. It is enough that the company accepts that the intermediary recruit or direct workers on its behalf. The law does not require a written contract between the company and the intermediary.
The 1965 case law follows the same approach. In the case of Judgment of January 11, 1965, Philippe KHAWLY v. Charles ROMULUS, the Court held that the employer who had allowed a subcontractor to act on its behalf was responsible for the management of that subcontractor because it had accepted the work performed.
The judgment of July 3, 1968 further clarifies the concept. A factory argued that a worker had been hired by an independent subcontractor. The Court nevertheless held the factory liable because a letter in the record showed that it knew of and accepted this method of recruiting workers. Judgment of July 3, 1968, Usine à Glace Nationale S.A. v. Joël JEAN-PIERRE
The principle established by Article 1566 of the Haitian Civil Code usefully complements Articles 26 and 27 of the Labor Code. This article provides that a contractor is liable for the acts of the persons it employs. Even though this provision belongs to civil law rather than labor law, it points in the same direction: a person who has work carried out through others remains legally connected to that activity. Article 1566 therefore reinforces the idea that the principal company cannot completely detach itself from the persons working on its behalf when it retains control over the work or directly benefits from its execution.
Article 28 sets an important limit. A duly established company that performs work for third parties with its own resources is not considered an intermediary. It is considered a true employer. This provision clearly distinguishes subcontracting from a service contract. A cleaning, security, transport or engineering company that operates with its own staff, equipment and organization is not an intermediary. Conversely, if such a company merely provides workers who use the client company’s resources and follow its instructions, it may be classified as subcontracting within the meaning of Articles 26 and 27.
Finally, Article 29 provides for another situation. When a worker needs an assistant or helper to perform his work, he must obtain the written authorization of his employer. If such authorization is granted, the principal employer also becomes the employer of that assistant or helper.
Thus, the Haitian Labor Code distinguishes among three situations:
- the true service provider, who acts with its own resources;
- the subcontractor or intermediary, who acts with the resources and under the control of the principal company;
- the assistant or helper hired by a worker with the employer’s authorization.
This distinction is essential in order to classify correctly labor relationships within companies, NGOs, foundations and international organizations operating in Haiti.