Labor Law: Understanding Employment Contracts and Regulations
Historical Labor Law: Employment Contracts
1. What is the “Social Question”?
The “social question” refers to the status and living conditions of the weakest in society during the industrial period.
2. What is the “Scientific Interventionism” of the Nineteenth Century?
It signifies the transition from state regulatory interventionism to abstaining from information about the living and working conditions of the working classes.
3. What are the Objectives of the First Laws Protecting Women and Children?
These were the first policy interventions undertaken by the state to ensure minimum employment conditions for weaker sections of society, namely women and children.
4. What is the Law Benot?
The Law Benot was the first rule concerning working conditions in factories, workshops, and mines.
5. How was Work Considered in the Labor Law of 1938?
Work was considered a social duty, inexcusably subject to the increased development of the national economy.
6. The Charter of the Spanish in 1945
This charter establishes the duty of the Spanish to engage in some socially useful activity.
7. The Industrial Relations Act 1976
This is the labor policy that precedes the Workers’ Statute.
8. The Spanish Constitution of 1978 and the Right to Work
The Spanish Constitution of 1978 establishes the right to work as both a right and a duty of citizens.
9. Key Features of Work Performance Under the Workers’ Statute of 1980
The Workers’ Statute of 1980 characterizes the performance of work as a voluntary, paid, dependent, and dealer service.
Sources of Labor Law
Block I
Case 1
Standard or covenant to apply during the summer of 2009: “Whenever the duration of the continuous working day exceeds six hours, a rest period of not less than fifteen minutes shall be required during the same period.” (Article 34.4 ET).
Principle of application: The principle of hierarchy.
Reasoning: Article 34.4 ET establishes a rest period of fifteen minutes when the workday exceeds six hours. There are no exceptions or possibilities of compensating rest periods with shorter ones or averaging them, as is the case with the length of time (Article 34.1 ET). The collective agreement provides a break in summer of only ten minutes and in winter a break of twenty minutes. Winter has improved the minimum established by law, but summer has not. Therefore, it violates a statutory rule that is always superior. Collective bargaining, with specific exceptions to all necessary rights, can improve conditions for workers under a law but cannot worsen them, with one exception, in the case of mandatory texts for collective bargaining. This follows from Article 3.3 ET, which refers to agreed labor standards, such as collective agreements and covenants, which are required to meet the minimum duty required in any case. In this case, the minimum guarantee for the employee is to have a rest period of 15 minutes per day, which can be enhanced (by increasing the rest period) through collective bargaining but not worsened (reduced below 15 minutes). If collective bargaining violates a statutory rule, the rule should be applied directly under the principle of hierarchy (section 9.3 of the Spanish Constitution). Keep in mind that in the hierarchy of sources established by Article 3.1 ET, state standards are above collective agreements.
Case 2
Standard or covenant to apply: The provincial collective agreement applicable to the company for 2008 provides an annual workday of 1805 hours of actual work.
Enforcement Principle: The principle to apply is the principle of normative order or the principle of modernity, whereby the later rule, of the same rank, takes precedence over the former.
Reasoning: This is a principle of application of the law; it is not work-specific and is contained in Article 2, paragraph 2, of the Civil Code (“Laws are repealed only by other later ones…”). Furthermore, regarding collective agreements, it is expressly provided for in Article 86.4 ET (“The convention is going to repeal an earlier one in its entirety unless expressly stated that aspects are kept”). In our case, the provincial collective agreement of 2007 is the same range as the provincial collective agreement of 2008, provided that the course of fact indicates that the Convention of 2008 makes specific mention of retaining some of the convention 2007. Furthermore, the content of the agreement of 2008 is clearly incompatible with the substance of the Convention of 2007 and, therefore, would be repealed under Article 2.2 of the Civil Code (“The repeal does not go beyond that expressly provided and always extends to everything in the new law on the same subject, is inconsistent with the above”). Moreover, there is no provision to order the new collective bargaining agreement that improves the conditions of the above. Normally it does, but sometimes it does not improve or even worsen the conditions of the previous agreement, provided they are above the minimum requirements of state standards, and here it is because 40 hours a week (Article 34.1 ET), taking into account vacations and holidays, give us a higher annual figure than the 1805 hours per year indicated by the collective agreement of 2008.
Case 3
Standard or covenant to apply: The collective agreement of the autonomous region, applicable to the company, provides a monthly salary for the Administrative Assistant category of €600 per month for full-time and part-time by a fee proportional to the length of the day.
Enforcement Principle: The principle of application is the inalienability of rights by the worker.
Reasoning: Article 3.5 ET prohibits workers from resigning the rights recognized in the laws or collective agreements. When referring to the collective agreement, it stipulates that neither may rights validly recognized as unavailable by collective bargaining be resigned. In this regard, it should be noted that case law has provided that all rights under the collective agreement are exhausted, except where the Convention itself specifically says otherwise. In the employment contract, there is a waiver because the worker, for a day of 50%, is not going to receive 50% of the expected wage for full-time. They could not agree, without giving up their rights, to a salary less than €300 a month for 50% of the ordinary workday.
Case 4
Standard or covenant to apply: Lucia joined firm X in April 2006, and her contract stated that overtime would be paid to her with a surcharge of 80% of the price of regular time.
Application principle: The principle of implementation would be the most beneficial condition.
Reasoning: In 2006, the worker made a pact in her employment contract for remuneration for overtime (80% price increase over the usual time), which exceeded that provided in the collective agreement (50% increase). The fact that the new collective agreement established a salary increase of 25% from the ordinary, worse regulation prior agreement does not justify that what was agreed upon in the contract may get worse, although the regulatory context has changed.
Case 5
Standard or covenant to apply: The employee’s employment contract stipulates that Peter’s vacation period will be thirty calendar days per year.
Enforcement Principle: The principle to apply would be the principle of minimum standard, which is not mentioned explicitly in the ET. Some sentences for such cases invoke the principle of most beneficial condition, although I personally disagree because this principle plays in cases of policy changes, and here there is no such premise.
Reasoning: This is the typical course of competition law, collective agreement, and employment contract in the field of labor relations. The law acts as a minimum that can be enhanced by collective bargaining, as provided in Article 3.3 ET (“labor standards agreed… to be respected in any case the minimum necessary right…”). This, in turn, acts as a minimum for individual contracts. So that rules of higher rank in the system of sources of Article 3 ET (i.e., legal or regulatory standards) work for the worker guaranteed minimum for which you are in range. Hence it is called the principle of minimum standard. The legal basis would be Article 3.1.c) ET, which states, referring to the contract, “but in no case can be established to the detriment of the worker less favorable terms or contrary to the laws and collective agreements…”.
Block II
The law is absolutely necessary in that it cannot be improved or worsened, either by collective bargaining or by contract.
Necessary law establishes rules that enable better or more favorable conditions for workers, both through collective bargaining and by the employment contract, and that means the vast majority quantitatively.
The right device for collective bargaining refers to those rules that can be improved or worsened for the worker but only through collective bargaining.
Case 1
“The duration of the normal working week is forty hours of actual work average annual figure” (Article 34.1 ET):
Article 34.1 ET is a rule of relative necessity because it establishes the working day for a maximum amount which can be lowered for the worker (allows for fewer hours a day) but not increased. It is very normal for collective agreements to agree to lower the 40-hour weekly average.
Case 2
“Between the end of the day and the beginning of the next, at least twelve hours” (section 34.3 ET):
Article 34.3 ET is also a rule of law necessary to agree on because individually and collectively empowered breaks between journeys exceeding 12 hours, but not less (“…. at least twelve hours”).
Case 3
“The number of ordinary hours of actual work shall not exceed nine per day unless a collective agreement or, failing an agreement between the company and representatives of workers, establishes another distribution of daily working time, respecting any case the rest between working days” (Article 34.3 ET).
In this case, it is a rule of device for collective bargaining because, through a collective bargaining agreement or an agreement between the employer and employee representatives, who also is a product of collective bargaining, both can agree on a time less than nine hours daily as superior to that number. That is, in this case, the worker has no ceilings were, as contemplated in the law, may be worsened by collective bargaining, although not by the individual contract. Therefore we describe the provision as a right to collective bargaining device.
Case 4
“All taxes and Social Security will be met by the worker himself is null any agreement contrary” (Article 26.4 ET). This is the most obvious case of an absolute rule of law needed to be contained in the current wording ET. Obviously, for the worker, it would be more beneficial if the employer also pays the worker’s share to Social Security or tax deduction. Well, Article 26.4 ET prohibits such a pact from being carried out either at the level of collective or individual employment contracts, qualifying as void any agreement to the contrary.