Labor Law Sources: Understanding the Hierarchy and Application
Item 3: Sources of Labor Law
Table of Sources of Labor Law
The sources of labor law can be drawn from the general clauses of the sources of the Legal System. These sources include:
- The Constitution: Contains many provisions related to these sources.
- The Civil Code: Preliminary set of system sources (Article 1).
- The Organic Law on the Judiciary (LOPJ).
After the Labor Contract Law, labor law provides a specific picture of the sources of labor law that is contained in the Workers’ Statute (Article 3). The task of the legislature is justified in employment that is in the collective agreement and also undertakes this work because the source box has some special complexity in labor law, in part because of new sources and ways of acting typical of the Labor Act, and also requires a specific task by the legislature.
Article 3 of the Workers’ Statute does two things:
- Makes a list of sources.
- Provides criteria to facilitate application or to resolve conflicts between sources.
This Article also contains some differences:
- It takes all sources (not about the EC or international standards).
- It speaks of autonomy as a source, which is debatable, perhaps so Article 3 is labeled “Sources of the employment relationship”.
- You can say it is vague, since it refers to the collective agreement as the source but does not specify which type of convention.
Types of Sources
There are three types of sources:
- State sources: Activity connected with State regulations.
- International sources: External activity connected with the State.
- Professional sources: Acting and are generated within industrial relations.
To these three types should be added the general principles of law and jurisprudence (though probably not the right source, but it complements the legal system).
A) State Sources
These are:
- The Constitution: It is the supreme law, the source of sources. Its mission is to establish the framework within which to move all public authorities and particularly the legislature.
- The Law: It sets up the model of regulation it deems appropriate, but always within the constitutional framework. It has an added function to establish the nature of the sources of lower rank. Material has an open field. There are several types of laws: Act, Law, Decree-Law, Regular Legislative Decree (Articles and recast text).
- Law of State and the Autonomous Regions.
- Regulation (Article 97 of the Constitution): It is a standard that acts as a supplement to the Law. Self-regulation should also be developed by the law. The functions of regulation vary from one sector to another on the agenda (in labor law, it depends on labor laws).
B) International Sources
These connect to external activities of the state and are classified into three international standards: unilateral or multilateral agreements, sources derived from international bodies (ILO), and International Standard Europea. The Community forms the Spanish system of sources if there is an act of recognition by the State (Article 96 of the Constitution gives way to the international standard). Article 93 of the Constitution gives entry to the European community that allows for in Treaties. International Standards are different from the point of view function. Some recognize rights, others are distinguished according to whether they are executives or dependent of an international standard for executives, etc.
C) Professional Sources
Here we can identify a font that was very important: customs and habits (standard created by social use). Today, in labor, custom has a very limited role because there are other types of standards that prevail over custom. It ranks last in the hierarchy of sources, except in cases of reception (where custom becomes law, to form a legal text) or express reference (if a rule refers to the custom).
To be worth the usual need an act of recognition by the state, which generally occurs in the Civil Code, in Article 3.1 of the Workers’ Statute and 3.4 thereof, which states what is the role played by the usual.
Another source of professional character is the collective agreement, which is the agreement between the representatives of workers and employers to regulate conditions of employment and work. It can take many forms: Given the response function developed within the scope (enterprise agreements and conventions business supra) or given the effectiveness.
The validity of the agreement as a source also requires recognition of the state that occurs at Article 37.1 of the Constitution (“The Act guarantees the right to collective labor bargaining between representatives of workers and employers as well as the binding force of Conventions”) and Articles 3 and 82 of the Workers’ Statute.
D) General Principles of Law
These are general ideas of social roots that have effects on the Legal System. The general principles of law compliance with two functions:
- Filling gaps in the Legal System.
- Making sense of the rules. Reporting a role.
The general principles of law are sometimes expressly covered by the rules (Article 9 of the Constitution), but other times are involved. In these cases, the general principles of law are brought to light by legal doctrine or through case law.
E) Jurisprudence
The Supreme Court settled doctrine. Today is also the doctrine of the Constitutional Court and the Court of Justice and the doctrine of the European Court of Human Rights. (The law is the doctrine of the body is at the top).
The Court meets in labor law two basic functions:
- Function sewage on the agenda: Eliminate those rules that are contrary to the Legal System. The Constitutional Court acts against all laws that go against the Constitution.
- Role of complement to the Legal System: Clarifies or interprets the meaning of the rules.
It asks whether the law is binding: The constitutional law binding on judges and courts. More difficulties posed by the ordinary law of the Supreme Court that have some connection, but not absolute.
One can speak of a certain hierarchy among the various channels of law:
- Constitutional Court: The prevailing constitutional matter.
- EU Court: The prevailing as regards Community matters.
II. The Constitution as a Source of Labor Law
The supreme law (Articles 9 and 53 of the Constitution). At the core fonts system is embedded in the Constitution to the State and the Autonomous Regions (149.7).
“It is the sole responsibility of state labor laws.”
- Legislation: Law and Regulation.
- Education: Work covered by labor law.
- Implementation: Implementation of the standard administrative, organizational ability to adopt rules that aims to create an administrative body regulating the activity.
The regions may influence labor through the material of the Autonomous Regions employment. They may also adopt rules on Social Security, through the field of competition have comercio. The Autonomous Regions are competent to legislate for their officials. The regions are competent to regulate trabajo. The Constitution has scheduled the legislation so that it fits the purposes of labor law. Clause 35.2 of the Constitution where she is responsible to the legislature to create a law of the Statute of the worker. What matters is its content. Finally, the Workers’ Statute included regulating the participation of employees of the company and collective bargaining. The Railway Workers is an ordinary law and could not include a fundamental right.
The Constitution and Labor Law
The first version of the status of employees is 1980, came under Statute reforms. The Merged Statute is from 1985, which is the current text. Article 28.1 recognizes the right to freedom of association, the right resulted in a freedom of association which involved a constitutional challenge, which ended with the adoption of the Organic Law. This Organic Law replaces the freedom of 1977, that Act 77 only regulate the association of empresarios. Article 28.2 recognizes the right to strike and makes a call to legislators, so there is a referral from the Organic Law of the strike, this law was not saved by being a difficult subject to control, was not necessary.
Decree-Law of 1977 makes the role of law in huelga. Many wondered whether this decree-law recognizes the right to strike broadly, this decree-law was challenged as unconstitutional and ruled that some articles of the Constitutional Court Decree-law were invalid. The regulation of the strike is in this decree-law and the Constitutional Court. The 37.1 Collective Bargaining law need not be by Organic Law. The Workers’ Statute contains collective bargaining. 37.2 Right to take action in case of collective, is not regulated but the decree-law 77 governing the strike. Article 129 of the Constitution says that the powers should promote the participation of trabajadores. Article 24 of the Constitution recognizes the right to effective judicial protection and prompted the legislation of the labor process, art. MEASUREMENT PRINCIPLE 25 of the Constitution upholds the rule of law in order to punish violations and sanciones. Article 40 of the Constitution “safety and health of workers,” “law of prevention of occupational hazards” and finally full employment law 2003. The constitution is the rule regulating labor matters. In labor material constitution adopts a position somewhere. This will ensure social equality and individual. The Constitution speaks of labor and the parts that are specific to the job. Article 38 of the Constitution provides for freedom of the 128 of the Constitution publishes business initiative.
III. Law and Regulation in Labor
1. Labor law should directly regulate labor relations, must self restraint to make room for the collective agreement, labor law has 4 features: general to the set of relationships, often usually a basic law regulating the conditions minimum that can be improved by another source of regulation, is generally about the autonomy, the law provides law required absolute or relative (you can substitute for more regulation).
2. Source acts as a source of law prevails over sources and the collective agreement in Article 3 paragraph 2 and 3 of the Workers’ Statute and in Article 81.1 of the collective agreement.
3. Labor law a bill is usually negotiated between representatives of workers and employers to develop this process is called social dialogue and send it to Congress for approval. Currently we have a government advisory body called economic and social council of the kingdom of Spain and a competition law 1991. It has mandatory non-binding opinion on draft laws or legislative decrees, labor and economic partner of unions (UGT and CCOO) and the Association of Employers (COE) are present in that consejo. Labor law is a rule that was adopted by the government. Sometimes they approve decree-laws in promoting employment when there is an economic crisis.
IV. International Labor Standards
Bilateral and multilateral-only appears on immigration, international rules-rules of Community law: it is the most important community social law.
Reflections
1st. It was not born to intervene in labor relations but for economic purposes. Recognizing all the factors of production freedom of movement had to recognize freedom of movement for workers and labor market deal the European community gradually grew a sense of social and employment problems of workers. It took place the approval of the charter of fundamental social rights of workers in the European community in 1989. This letter was the starting point for the adoption of many European standards of work. In 1992 there is a reform of the Maastricht treaty which involves the emergence of the European Union adopting a social policy protocol.
2nd. The European community has jurisdiction over all labor issues. Subjects for which will not intervene: Remuneration, Minimum Wage, Rights of association and enterprise workers, strike and lockout.
The competence of the European Union is shared with the state. The European Union created the structure for national legislation, the European community only intervenes in the affairs of subsidiarity.
The horizontal subsidiarity is that before intervening must consult the social partners (unions employers).
If they are concerned, the European community does not intervene if a deal does not come here. The European Community intervention will be proportionate in the state.
3rd. The European community can develop a varied activity and may adopt rules that include:
- Directives: It has no direct effect unless it is directed to the states to approve a rule such as the directive says.
- Regulation: A direct effect rule published in the bulletin of the community.
RG 2001 on jurisdiction RG 2008 on applicable law.
In labor, the European Union is European harmonization directives:
- Equality of men and women.
- Health and safety at work.
- Mode in the working time.
Community legislation has higher rank than the Spanish law. National law should be interpreted according to standard UN comunitaria. The covenants relating to employment were important to labor legislation in the transition.
European Social Charter of the Council of Europe
The ILO was created in the 19th century, first belonged to the society of nations and then step to the UN. The ILO has an obligation to ensure the dignity of workers. Participating in the ILO are governments, most representative trade unions, and representatives of employers.
The ILO is the source of standards: Conventions = + efficiency + effectiveness due-=- recommendation – required.
Innovative Features Conventions: improving working conditions in the national interpretive helps interpret Coverage gaps: especially in the regulation of vacation.
The ILO conventions are higher than the international standard.
V. Sources of Business System
It is customary in the local professional. Collective Bargaining Agreement: is a very important rule.
Reflections
1st. It has a component of collective autonomy is an expression of private autonomy: Power of Self-organization of the groups. 1st normative power is a power dispersed, not attributed to any subject. 2nd is a bilateral power-sharing and 3rd is a temporary power for a given period and must be renewed.
2nd. Nature of agreement: a contract between two parties claim normative force “body and soul of contract law” the legislature must ensure comercio. The binding status of workers in title III, paragraph 3 obliges by Article 82 overall effectiveness that all trade unions and business associations must be representative and important. Businesses collective unions or associations composed of extra businesses are statutory, are valid for final court ruling, has the nature of contract law is declared effective limitada. The available for the collective agreement. The most favorable MEASUREMENT PRINCIPLE still outweighs the agreement for the worker can be a way to transpose international standards.
VI. Determination and Application of Rules
The system is more complex sources in labor law cases pursuant Three:
- Concurrence of several rules about the same event: the principle of – hierarchy, to offer the most senior-supletoriedad: applies a standard default of another. “Complementarity: it develops a rule that says a” law and regulation, “supplementarity: trade law and collective. There are rules that supplement to the other rules provided for the benefit of the worker.
Sometimes it is known that standard you choose. According to the 3.3 status of workers must take the standard more favorable.
- Succession rules over time: Article 2.3 civil code “laws have no retroactive effect unless otherwise specified”.
Article 9 “prohibits retroactivity of punitive provisions”.
Generally have effect in the future for the relevant labor standards.
- Applicable law from the standpoint of territorial.
Middle Grade Retroactivity: The labor standard will be applied to existing and new contracts.
Exceptions: The special rules governing certain rules governing working lifetime of the contract, even though it appears a new standard. “Training contract”. Collective agreements replaced completely with earlier, but the new one is worse.
c) The nationality of the company, the worker’s nationality is the headquarters of the company. Spain has to abide by international treaties and conventions. Today, the Community legislation, notably the 1980 Rome Convention on the obligations of the contract. The Rome Convention was replaced by a Regulation of 17 June 2008.
Criteria: Applies the national law the parties have agreed. In the absence of agreement, establishing the law where you pay the servicio. If no room service delivery, the law applies where the company has its headquarters.
First clarification: Our system includes a specific rule in Article 1.4 Status of workers.
Second clarification: The European Community itself has adopted a special rule for cases of travel for work. Basic conditions apply where this work.