Lesson 10: Labour Law, Sources and Application of the Labour Norms
| Autor | Pilar Núñez-Cortés Contreras |
| Cargo del Autor | Profesora Titular de Área. Universidad Loyola Andalucía |
| Páginas | 51-68 |
Page 51
The Labour Law is the legal systems of the personal, voluntary, dependent, work as an employed person and remunerated labour relations. There are many ways of exchanging human effort for a financial reward but only one of them concerns Labour Law. It is that in which the following are the main criteria, the freedom and remuneration of an individual who works under the direction and in the employ of another, are present. These features are specifically stated in the legal texts such as Article 1.1 of the Workers' Statute (Estatuto de los Trabajadores), which states its application to "employees who provide voluntarily paid services under the direction and within the scope of an organisation of another natural or legal person referred to as the employer"
An item previous to those main features is the characterisation of this type of work as "personal". Only a human being can be bound to an employment contract, and only a specific person to each employment contract. Paid work, bar a few exceptions, is not capable of amendment to the worker himself who, on his own initiative, cannot be substituted to perform his work duties.
The Labour Law is applied to the workers who voluntarily perform their remunerated work as an employed person and within the organizational and management scope of another person, natural or legal, which is the employer. They are workers as employed people those whose benefits from work are not acquired even at first but pass directly to another person (the employer), who benefits at the moment they are produced. For the purposes of the ET, are employers all the people, natural or legal, or property communities that receive the provision of services of the so called workers, as well as the people hired to be assigned to user companies by temporary work companies legally constituted. The Spanish labour legislation applies to the work of Spanish workers hired in Spain for Spanish companies abroad, subject to the rules of public order applicable in the workplace. These workers will have at least the economic rights they are entitled when working in Spanish territory. For the purpose of the Workers' Statute is considered as workplace the
Page 52
production unit with specific organization, which is discharged as such, at the labour authority.
Legally expressed in art. 1.3 ET, it provides a list of excluded activities and jobs n order to refine the concept of worker and, thereby, resolves any doubts concerning the application scope of the labour law which we detail below.
The service relationship of public servants, which is governed by the Statute of the Civil Service, and the staff at the service of the State, Local Corporations and Autonomous Public Entities, when, under a law, such relation is regulated by administrative or statutory rules.
The personal provisions are mandatory.
The activity that is limited, purely and simply, to the mere performance of the office of director or member of the governing bodies in companies that take the legal form of a society when its activity the company only entails the performance of duties inherent in that office.
The work activities carried out by friendship, benevolence and good neighbourliness.
Family work, unless the worker status is proved of those that carried it out. Will be considered as family members, for this purpose, as long as they are living with the employer, spouse, children, parents and other relatives by consanguinity or affinity up to the second degree and, where appropriate, by adoption.
The activity of the persons involved in commercial transactions on behalf of one or more employers, provided that they remain personally liable to answer for the success of the operation assuming the risk and responsibility thereof.
In general, all work carried out in developing different relationship that the pne defined in paragraph 1 of Article 1 ET.
For this purpose shall be considered excluded from the workplace the activity of the people providing transportation service under administrative authorizations that they own, carried by the corresponding price, with commercial public service vehicles whose property or
Page 53
direct power of disposition that they bear, even when these services are performed continuously for the same charger or marketer.
Previously we referred to the determining notes of the labour law in our legal system that serve for its configuration and help to identify the meaning of the Labour Law.
-
Personal work
The work involved in labour law is of personal nature without it being possible to be replaced by someone else: novation cannot take place except in some exceptions allowed by jurisprudence. The Labour Law does not regulate services that are responsibility of legal persons or those in which the holder is replaceable. The immediate effect of personal work is that it implies that the provision and the owner are inseparable.
-
Voluntary work
The work object of labour law has to be compulsorily provided voluntarily mainly by applying the principle of freedom, which prevails in the recognized internationally and domestic labour system. Specifically, voluntary work brings the exchange between the provision and consent to do it; therefore it is an essential element to the characterization of the ordered activity of the Labour Law. We have to point out that it's inherent to the legal form in which the employment contract is provided, which requires that the reciprocal provisions appear voluntarily assumed and without vices.
-
Work as an employed person
In general the definition of work as an employed person refers to attribute to a third party the benefits from work. In this sense the doctrine has set two different positions: the one that argues that work as an employed person involves working without taking risks of the job, that is, it's subject to the risk of the provision and the doctrinal stance that explains that work as an employed person means not to appropriate the benefits from work. It seems that the first position is the closest to the recent jurisprudence that qualifies as working relationships, even dubious, depending on who takes the risk. We cannot forget that the legal basis to work as an employed person has varied a lot over time.
Page 54
In the modern systems it's a contractual title because the profit or the advantage resulting from work is acquired by a different person (natural or legal) than the one that provides it, through an agreement between the worker and the person receiving the profit, which is accompanied by payment or an economic compensation for the provision.
-
Work under the direction of another
The worker who provides his services under an employment contract to an employer, whichever the form is, is the party liable to the activity covered by the contract and attaches to the employer or employer representatives his organisation and control. Work under the direction of another is considered by both the doctrine and jurisprudence as an essential feature of the labour relations. The immediate effect of working under the direction of another is the submission of the labour relation to the powers of organization and discipline of the employer. The employers manage and order the labour relations to give instructions to organize the productive activity in the business field. Work under the direction of another is also understood in relation to the right of the employer to verify the compliance of the organizational measures, as well as the ability to exercise disciplinary power when the breach of duties occurs.
Work under the direction of another includes various aspects such as the economic dependency, disciplinary dependency, organizational dependency and the management dependency. Configured work under the direction of another as subject to the powers of the employer, without having to attend in each case the exercise of all the faculties concreted in the management power, which is recognized by the labour system.
-
Paid work
Since the person who performs the work gives his consent freely that his effort may benefit directly someone else, it is understood that in return for that effort he shall receive an economic return. However, this note does not explain the singularity of that work, because it is also recognisable in the activity of contracts other than an employment contract. It does, on the other hand, leave out of Labour Law unpaid work, neighbourly or friendly, where the gratification is intangible.
Page 55
The sources in our Spanish-legal system are: the law, the custom and the general principles of application (Art.1.1 Civil Code.). However, in the labour law the matter is different, because there are, as well, the so-called specific sources regulated by Article 3 of the Statute of Worker, this is: "The rights and obligations concerning the...
Para continuar leyendo
Solicita tu prueba