Labor Law Principles: Favorable Provision & Inalienable Rights
2. The Principle of More Favorable Provision
This principle applies when two or more rules are in force, requiring a selection between them based on which provision is more favorable to the employee. The most favorable rule is applied, while less favorable rules are deferred but not eliminated from the system.
To apply this criterion, a comparative analysis is necessary, using one of the following methods:
- Block Comparison: Legally recognized, preferring the block that is most beneficial.
- Selection of Most Favorable Provisions: Choosing the most favorable stipulations from each standard being compared.
- Partial Comparison: Comparing homogeneous groups of rules.
The principle of the most favorable provision is detailed in Article 3.3 of the Workers’ Statute (ET). It states that conflicts between two or more labor standards shall be resolved by applying the provision most favorable to the workers, appreciated as a whole and calculated on annual measurable concepts.
Despite this article, its wording can lead to ambiguity. Key considerations include:
- This criterion does not typically resolve conflicts between state standards, as hierarchy and temporality rules apply among them.
- Conflicts between state conventions and regulations are rare. Regulations usually apply only in the absence of an agreement (Additional Provision 7th ET), preventing direct conflict. Agreements also generally take precedence over laws unless the law specifies otherwise (Articles 3.1 and 85.1 ET).
Under this principle, the performer must compare competing standards, select the one most favorable to the worker when considered globally and calculated annually, while ensuring the legal minimums are met. Even less favorable provisions must be implemented where they offer better terms than other standards.
4. The Principle of Inalienability of Rights
This principle aims to prevent employees from waiving their rights to their detriment, often due to their weaker position relative to the employer.
The inalienability of rights is established in Article 3 of the Recast Text of the Social Security Law (TRSS) and Article 3.5 of the ET. These articles stipulate that workers cannot waive rights recognized by law, either before or after acquiring them. Rights deemed inalienable by collective bargaining are also protected.
Legal doctrine has generally denied the inalienable character of rights granted by treaties or individual grants.
It is important to distinguish between waiving rights and other lawful actions. While abandoning or failing to exercise a right cannot be prohibited, transactions and judicial settlements do not automatically constitute waivers. These agreements involve reciprocal concessions. However, Article 84.1 of the Law on Labor Procedure (LPL) requires judges to inform parties of their rights and obligations during reconciliation. If the agreed terms appear significantly detrimental to either party, the judge must order the continuation of the process. Furthermore, Article 254 of the LPL prohibits not only waivers but also transactions that compromise certain rights recognized in favorable rulings for workers.
The final settlement of accounts, even if seemingly certain, should not cover waivers of workers’ rights. Proof of such waivers would invalidate the agreement.