Legal Effects of Collective Contract and Working Conditions Amendments
Effects of Collective Contract Amendment
The effects of the collective contract modification will be the same as the individual character of a contract, even in the case where there is agreement was reached with representatives of the legal staff. The unique characteristic about the effects of substantial changes collectively are as follows:
1. Claims Against Company Decisions
Against the decisions of companies, claims can be made through the special procedure of collective dispute without prejudice to individual action planned. The intervention of collective conflict stalls the processing of individual actions to his decision (art. 41.4 138.3 ET. LPL). It also fits to raise collective conflict although there would have been challenged by the affected individual workers.
In the case of an agreement, it does not seem that the legal representatives of workers who have been part of an eventual agreement in the consultation stage may raise a collective dispute, based on the doctrine that no one can go against their own acts. However, nothing impedes it posed no representations other signatories of the agreement.
The deadline to lodge a collective dispute procedure will be the expiration of twenty days, counting from the notification of the decision to the legal representatives of workers. Although when this duty of notification is not complied with, it is considered impossible that the entrepreneur can allege expiration. (STS UD 21 February 1997, Ara./1571).
Sentences in the procedure of collective conflict are appealable, this being the only way to obtain some interpretive legal doctrine in this matter.
2. Contesting Agreements Reached During Consultation
Agreements achieved in the period of consultation between the company and representatives of staff or, if applicable, the arbitration award may be contested in court by substituting the procedure of collective agreements (art. 85.1 and 91 ET) regulated in arts. 161 and 164 LOPJ.
3. Special Procedure for Judicial Amendment of Business Decisions
As for the special procedure of judicial amendment of former business decisions, Art. LOPJ 138 is only appropriate when the reactions of a tract of them and not when it is broken out by making a condition of validity of which no doubt. The only special features worth highlighting are that when the changes have the agreement of employee representatives, reached in the consultation period, the latter will also be sued along with the company (art. 138.2 LPL). The foundation objection may also be the fraudulent nature of the amendment (when to delude the modified procedure collectively, the company made substantial changes to working conditions for successive periods of ninety days in a lower number of legally set thresholds for schedules and functional changes without further attend reasons that justify such action: art. Let 41.3).
Effects of Legislation Amendment Conventional
In the changed conditions set out in the collective agreement will apply statutory rules of art. 41 ET referring to the communication of business decision as amended by affected workers and their representatives and the possibilities of the complainant itself.
Only as a peculiarity, the agreement axioms-like arbitration awards can substitute-parallel, was directly challenged by the same procedures and for the same reasons that collective agreements (art. 160 et seq. LPL) in which should be added as a result of legality, because of the lack of supporting the agreement.
There are plenty of courts declaring the doctrine of business decision null amendment breach of legally established procedure.
Administrative Sanctions
One of the most amazing errata refers to precisely the definition of grave breaches of the entrepreneur in terms of substantial changes to working conditions.
In fact, art. LISOS 7.6 establish that the amendment constitutes a serious violation of the conditions imposed unilaterally by substantial work that establishes the entrepreneur as art. 41 law highlighted.
Thus, not only speaks of changing conditions into account substantial work on substantial modification of working conditions as stipulated art. 41 ET, but also and above qualifies as serious infringement in accordance with the act that establishes the law (tax … .. modification by entrepreneur establishes according to art. 41 Law).
Obviously, secondly, it must translate this legal gibberish and properly concluded that the administrative sanctions to be as serious violation is of a hand, substantial changes in working conditions, and of another, any substantial changes made in contravention way the provisions of some art. 41 ET (in procedural issue or cause).
Legal Nature of Art. 41 ET
1. On the Original Contract Conditions
There is no doubt of the imperative nature of minimal art. 41 ET, under the collective bargaining and individual contracts, hinder the establishment of a legal system of the modification of working conditions less favorable than those established therein, regarding the contractual origin of conditions.
When enacting the law has sought a legal obligation in the face of collective bargaining, has done so expressly. Such has happened in this aspect, exceptionally, under the substantial change that affects the functions when they exceed the limits stipulated for mobility art. 39 ET. Indeed, in view of the art. 39.5 ET changing roles of the different agreed not included in the cases provided in this Article shall require the agreement of the parties or, if there is, the subjection to the rules provided for in modification of working conditions or established in this collective agreement, it is possible to conclude that art. 41 ET nature has limited the effect of enacting a collective negotiation concerning the functions of modification of working conditions.
Obviously, the regime of procedural decisions complainant has a business imperative amendment absolute, thus preventing any conventional or modified contract. Out of danger, of course, the compensation scheme provided by law, because its essential character minimum, acknowledge his improving conventional contract.
2. Regarding the Modification of Conditions of Origin
More complex is the regulatory status of the legal nature of art. 41.2. You mean substantial changes to conditions set out in statutory collective agreements having distinguished himself a number of topics:
a) Concerning the procedure, it seems possible that a collective agreement is to modify the conditions for unilateral decision entrepreneur, but you should ask to what extent could be attributed to the joint committee the authority to assess the agreement of the existence cause to justify the modification, as happens with the wage pick, though by legal mandate (art. 82.3 and 85.2 ET). Thus, regarding the procedure, art. 41.2 ET device would arguably face to collective bargaining.
b) As for the effects of modification respect to affected workers, it appears that CC can not change the regime or even extinct, given the imperative that all procedures have; for anything but to improve the system of compensation art. ET 41 would have the character of peremptory norm min.
Non-Substantial Modification of Working Conditions
Non-substantial modification of working conditions. The entrepreneur who is recognized by law has steering power, focusing, among other things, a change not substantially from working conditions. This power variation is not anything other than a power of specification of the generic provision necessarily work.
The power steering business is regulated by laws, and DC’s own CTE individual contracts. So that they could assert themselves modifications that have not been standardized or contractualized belongs to the field of power management.
Naturally, as indicated by the jurisprudence, it can not be understood as an arbitrary power and embraces all things but is subject to certain limitations and must be used with the utmost respect for worker rights and human dignity and without prejudice for him, or adequate compensation when exercising such powers incident inevitable and cannot exceed the legal standards and inspiring principles of labor law imposes. The basis of this power of direction is the arts. 5c and 2 and 1.20 ET.
In general, the limits of jus variandi coincide with the border between the accessory and a modification of working conditions, being, of course out of business all the modifications that are discriminatory or affect the training employer or employer personal dignity (art. 50.1.a) ET).
Jurisprudence maintains that the need to exclude a substantial nature arrives when so provided in a CC (especially in times of issue).