The Law of the Work: A Comprehensive Guide

Posted on Sep 21, 2024 in Law & Jurisprudence

The Law of the Work

Evolution of Labor Law

Early Stages:

  • Unions emerged in the late nineteenth century.
  • The first Social Security system in Spain appeared between 1919 and 1931.
  • Germany passed its first labor law, the Labour Code.

Key Legislation in Spain:

  • The Workers’ Statute Law (8/1980 of March 10).
  • The revised text of the Workers’ Statute Law (Royal Decree 1/1995 of March 24).

Divisions of Law

Law comprises rules and principles established by the state to regulate conflicting interests in society and ensure minimum living standards. It is divided into two main branches:

Public Law:

  • Regulates the activities of the state and public organizations.
  • Governs the relationship between the state and individuals.
  • Branches: Public International Law, Constitutional Law, Administrative Law, Criminal Law, Procedural Law, Financial Law, Community Law (EU).

Private Law:

  • Regulates relationships between individuals.
  • Branches: Private International Law, Civil Law (relationships between people), Commercial Law (relationships in business).

Labor law occupies an intermediate position between public and private law. Examples include freedom of association and social security (public law), and collective agreements and employment contracts (private law).

Public Authorities

The government is responsible for creating, applying, and enforcing legal rules.

  • Legislature: Drafts and passes laws (Congress of Deputies and Senate).
  • Executive: Enforces the law (Government and Ministers).
  • Judiciary: Courts of Justice resolve legal disputes and claims arising from breaches or misinterpretations of the law (impartial and apolitical).

Sources of Law

  1. The Law: Written legal rules published in official gazettes (BOE, BOCCAA, BOP).
  2. Custom: Unwritten legal rules arising from consistent societal conduct over time. Applies only in the absence of law and must not contradict morality or public order.
  3. General Principles of Law: Rules reflecting societal convictions and beliefs, present in laws and customs. Inspire the creation of laws (ethics, logic, justice).
  4. Judicial Precedent: Criteria established by the Supreme Court in its judgments when interpreting laws, customs, and general principles of law.
Laws

Basic laws adopted, amended, or revoked by Parliament:

  • Spanish Constitution: The supreme law that all other laws must respect (December 6, 1978).
    • Structure: Preliminary Title + 10 Titles + 4 Additional Provisions + 9 Transitional Provisions + 1 Delegated Provision + 1 Final Provision.
    • Content Affecting Labor:
      • Fundamental rights: non-discrimination, strike, assembly, freedom of association and union membership.
      • Rights and freedoms of citizens, including workers’ rights: free choice of profession or trade, promotion through the law, collective bargaining, participation in the company, adequate wages, and measures for conflict resolution.
      • Guidelines for economic and social policy: maintaining a public Social Security system, implementing policies aimed at full employment, ensuring safety and hygiene at work, guaranteeing adequate rest, and promoting training and retraining.
  • Organic Laws: Develop fundamental rights and civil liberties, approve Statutes of Autonomy, the electoral system, and education laws. Require an absolute majority in the Congress of Deputies for amendment.
  • Ordinary Laws: Regulate matters not covered by organic laws (e.g., advertising, noise, mortgages). Require a simple majority in the Congress of Deputies for amendment.
Regulations with the Force of Law (Created by the Government)
  • Royal Decree: Articulated and consolidated text.
  • Royal Decree-Law: Used in extraordinary and emergency situations. Valid for a maximum of 30 days, subject to parliamentary approval.
Regulations (Implementing Laws and Governing Minor Issues)
  • Royal Decree Regulations: Approved by the Cabinet or the Government in full.
  • Ministerial Orders: Approved by a minister.
  • Orders of Government Commissions: Address matters involving several ministries.
  • Resolutions: Rules issued by directorates (departments within a ministry).

Definition of Labor Law

Labor law regulates individual and collective relationships arising from work performed personally, voluntarily, and for remuneration by an employee under the direction of an employer.

  • Personal: Carried out by the hired individual, not delegated to another.
  • Voluntary: Not forced or compulsory. The employee is free to terminate the employment relationship.
  • For Remuneration: Any work activity must be paid. The employee receives a salary.
  • Dependence: The employee is subject to the discipline and direction of the employer (how, when, and where work is performed).

Hierarchy of Rules in Labor Law

  1. Regulations of the EU or EU Law:
    • Spain joined the EEC in 1986 and is subject to the EU’s five institutions: Parliament, Council, Commission, Court of Justice, and Court of Auditors.
    • EU standards include:
      • Regulations: General rules, binding in their entirety, and directly applicable in all member states. Published in the Official Journal of the European Union (OJEU) and take effect after 20 days.
      • Directives: Binding on all member states to achieve a specific result within a specified period. Each state chooses the means to achieve the result, either through existing domestic legislation or by adopting new laws.
      • Decisions: Regulate a specific event or condition for one or more member states.
      • Recommendations and opinions: Non-binding guidance. States are only required to inform the ILO Director of their compliance.
    • The Charter of Fundamental Rights of the EU (2000) is a key reference, providing for EU employment rights such as free movement, fair compensation, improvement of working conditions, social protection, collective bargaining, vocational training, equal treatment between men and women, health and safety at work, and protection of minors, the elderly, and the disabled.
  2. Spanish Constitution.
  3. International Treaties and Legal Standards of the ILO:
    • International treaties and conventions are agreements between states or between a state and an international organization. Each state must ratify the treaty through its executive branch (the government). Treaties cannot contradict the Constitution.
    • Legal standards of the ILO include:
      • ILO Conventions: Treaties requiring parliamentary approval for the government to accept them on behalf of the state. Published in the BOE.
      • Recommendations: Non-binding rules. States are required to inform the ILO Director of their compliance.
      • Resolutions: Express ILO criteria on specific matters and may lead to future conventions.
  4. Laws Issued by the Courts:
    • Organic Laws (e.g., Organic Law on Freedom of Association).
    • Ordinary Laws (e.g., Organic Law on Social Security).
  5. Regulations with the Force of Law (Issued by the Government):
    • Royal Decrees.
    • Royal Decree-Laws (articulated and consolidated texts).
  6. Regulations:
    • Royal Decree Regulations.
    • Ministerial Orders.
    • Orders of Government Commissions.
  7. Collective Bargaining Agreements: Written agreements on working conditions (hours, pensions, salary) negotiated between worker representatives and employers. Usually improve upon the conditions set by the Workers’ Statute but can be further improved by individual contracts.
  8. Employment Contract: Expresses the will of both parties (employee and employer) to reach an agreement that meets or improves upon the conditions of the collective agreement for the profession.
  9. Local Customs: Apply at the local level in the absence of older standards.

Principles for the Application of Labor Standards

  • Principle of Hierarchy of Norms: Lower-ranking labor standards are subject to higher-ranking standards.
  • Principle of Minimum Standards: Higher-ranking standards set minimum standards that lower-ranking standards cannot fall below.
  • Principle of the Most Favorable Standard: In case of conflict between two standards, the one that is more favorable to the worker applies, even if it is of a lower rank. This principle recognizes the worker as the weaker party in the employment relationship.
  • Principle of the Most Beneficial Condition: Benefits that one or more workers have obtained through their contracts must be respected, even after the adoption of a rule applicable to all workers that might eliminate those benefits.
  • Principle of”In Dubio Pro Operari”: In case of doubt in the interpretation of a rule, the interpretation that favors the worker will be applied.
  • Principle of Inalienability of Rights: Workers cannot waive their labor rights recognized by law, convention, or regulation.

Labor Administration

Competent public organizations for labor matters fall under the Ministry of Labor and Immigration (formerly the Ministry of Labor and Social Affairs) and the Departments of Employment of the Autonomous Communities (CCAAs).

Sources of Action

  • The Labor and Social Security Inspectorate (ITSS):
    • Ensures compliance with labor and social security standards.
    • Develops mechanisms to enforce labor law.
    • Can act on its own initiative (inspectors), by order of superiors, or based on complaints from anyone aware of a violation.
    • Labor and Social Security inspectors and deputy inspectors are responsible for conducting inspections.
    • Inspections can take place in any workspace. Inspectors and deputy inspectors have the authority of public officials and must identify themselves as such.
    • Inspections may occur without prior notice. Inspectors can request information from managers and workers, take samples, and record images.
    • Inspectors can also examine records and complaint books and may suspend work activity if safety and hygiene requirements are not met.
    • Following an inspection, the ITSS can:
      • Issue warnings and require corrective actions.
      • Initiate disciplinary procedures.
      • Order the registration of workers.
      • Request collaboration with other agencies (e.g., for surcharges on Social Security payments).
      • Advise employers and workers.
      • Intervene in disputes.
  • Administrative Functions of the CCAAs:
    • The state has exclusive jurisdiction over labor legislation and Social Security.
    • The CCAAs have delegated, transferred, or extended powers from the state, as outlined in their Statutes of Autonomy.
    • They are responsible for:
      • Prevention of accidents and occupational safety and health.
      • Declaration of toxic, arduous, and dangerous jobs.
      • Collective agreements.
      • Control of employer associations.
      • Strikes and lockouts.
      • Mediation, arbitration, and conciliation (SCI – Individual Conciliation Service).
      • Instructions and resolutions.
      • Redundancy procedures (EREs).
      • Authorization of contractual transfers.
      • Collective records.
      • Subsidies and grants.
      • Occupational training.
      • Imposition of sanctions.
  • Labor Courts:
    • Monitor compliance with labor law and resolve conflicts.
    • Hierarchy:
      • Social Courts: First instance courts for labor cases. Provincial level.
      • Social Chambers of the High Courts of Justice of the CCAAs: Resolve disputes involving businesses and workers that exceed the provincial level or those unresolved in the Social Courts.
      • Social Chamber of the National Court: State level, based in Madrid. Resolves conflicts exceeding the scope of the CCAAs or unresolved in the High Courts of Justice.
      • Social Chamber of the Supreme Court: State level, based in Madrid. Reviews and corrects judgments of other courts and unifies criteria for interpretation (appeals).
      • Court of Justice of the EU (CJEU): Deals with EU law. Its judgments depend on European regulations, directives, and other legal sources.
    • Direct appeals to the Constitutional Court are possible for violations of workers’ fundamental rights enshrined in the Constitution (e.g., habeas corpus) or if a law contradicts the Constitution.