Labour Code norms
Individual workers’ rights and guarantees
Collective workers’ rights and guarantees
Collective labour agreement
Economic and social conditions.
RULING Nº 338/2010
22 of September of 2010
It is not the Constitutional Court’s place to question choices that the legislature makes when it adopts legislative measures designed to foster employment and business, but rather solely to issue declarations or findings of unconstitutionality in relation to those measures which, when submitted to it for examination, cannot be justified in the light of conflicting constitutional norms.
When considered individually, the workers’ rights and guarantees that are protected by the Constitution must be reconciled with other constitutionally relevant rights and interests, and workers’ individual rights cannot be taken in isolation from their collective rights, including the right to collective contracts. One must base oneself on the principle that in overall terms, the latter right is exercised for the benefit of the workers concerned.
A group of Members of the Assembly of the Republic asked the Court to declare a set of norms that amended certain provisions of the Labour Code unconstitutional with generally binding force. The petitioners were of the opinion that the amendments resulted in a worsening by legislative means of the conditions imposed on workers, which would in turn lead to a serious retrograde step in the Labour Law in social terms. The norms in question were as follows:
1. The norm that permits a collective labour regulatory instrument to waive the labour law – the Court emphasised that this permission is mitigated by the fact that the law cannot be waived by a mere Ministerial Order on working conditions, and that it does not apply to matters which are deemed to be at the core of the labour law, with regard to which collective regulatory instruments can only waive the law if the change is in the worker’s favour. These matters are: a) Rights involving personality, equality, and non-discrimination; b) The protection of parenthood; c) Work by minors; d) Workers whose capacity to work is diminished by disability or chronic illness; e) Worker-students; f) The employer’s duty to inform; g) Limits on the duration of normal daily and weekly working hours; h) The minimum duration of rest periods, including the minimum duration of the annual holiday period; i) The maximum duration of work by night workers; j) The form in which remuneration is provided and the guarantees applicable thereto; l) The Chapter on the prevention and reparation of work-related accidents and occupational illnesses, and the legislation that regulates it; m) The transmission of a company or establishment; and n) The rights of workers’ elected representatives.
2. The admissibility of fixed-term labour contracts in cases in which an employer launches a new business with an uncertain duration, or a company or an establishment belonging to a company with less than 750 workers starts operating. The Court felt that this restriction on the right to job security is justified by other rights or interests to which the Constitution affords its protection, such as the support for free private economic initiative that will contribute to fulfilment of the right to work.
3. The possibility of ‘service commissions’ involving workers from outside the company in question and which can be terminated by simple prior notification – the issue here was the fact that the end of a service commission automatically implies the termination of the labour contract itself, whereas under the previous regime, that contract continued to exist unless the parties agreed otherwise.
The Court recalled its own jurisprudence, in which it had held that the provision of labour under a ‘commission’ regime corresponds to the autonomisation of the status of senior managers, which is extended to include their personal secretarial staff. The latter posts and others like them evidently possess a nature that implies the existence of personal trust, and they are therefore exercised on a precarious basis. In some cases they have been seen as involving not a labour contract, but rather the type of contract applicable to a power of attorney or the provision of services under the regime applicable to the liberal professions, or another type of contract that is different from the labour contract. The principle of job security is thus not valid here, inasmuch as this situation does not fall within the scope of application of the respective norm.
4. The organisation of working time – the petitioners questioned a number of norms that permit individual adaptability, group adaptability, the ‘hour bank’ system, and concentrated working hours. The Court held that the issue is one of a redistribution of working times, which means that it entails legitimate ways of restricting fundamental rights, which the Court considered to be justified. What is more, the law requires that the fact that a worker is responsible for underage children (parenthood) must mean that he/she is dispensed from working under an adaptability regime. It seemed evident to the Court that the same should apply to reasons involving a worker’s health or physical or psychological integrity, given that these are fundamental rights which are directly binding on private entities and cannot be undermined by a collective labour agreement.
5. The norm that allows the investigative phase of disciplinary proceedings to be optional. The Court felt that this would increase the risks of an incorrect disciplinary decision, which would then imply a subsequent resort to the courts. Given that the consequences which disciplinary proceedings can impose as the result of a worker’s behaviour unquestionably possess a sanctionary nature, the rights to a hearing and a defence, in their role as a rule that is inherent in the legal order of a state based on the rule of law, require the fulfilment of certain procedural demands. As such, the Court found that the solution adopted in the law was unconstitutional.
6. The norm that allows an employer to oppose the reinstatement of a worker when the former is a microenterprise, or the latter is a director or senior manager, and there are facts and circumstances which mean that the worker’s return would seriously prejudice and disturb the company’s operation. The Court held that this is a restriction which is justified in the name of other constitutionally relevant assets or interests. It is not the employer that decides whether the preconditions for the application of this norm are met; this must be objectively judged by a court, which, if it deems that they are fulfilled, must replace reinstatement with compensation that can amount to double the sum to which the worker would be entitled under normal conditions. What is more, this solution is not applicable in cases in which the unlawfulness of the dismissal is based on political, ideological, ethnic, or religious reasons.
7. Choice of applicable collective agreement – the petitioners contested a norm that allows workers who are not members of any trade union to choose which collective regulatory instruments are to be applied to them, including collective agreements that were negotiated by trade unions to which they thus do not belong. The petitioners argued that such a norm enables people who do not belong to a trade union to take advantage of the latter’s work, thereby promoting the choice not to belong to trade unions and the consequent weakening of the latter and of their bargaining position when they negotiate collective agreements.
The Court held that not only is the norm legitimated by the principle of equality with regard to the general conditions governing work, but that obliging people to join a given trade union would also violate the Constitution. In addition, the Labour Code contains a mechanism designed to ensure that trade unions can safeguard themselves against the possibility that workers who do not belong to a given union can benefit from a collective agreement entered into by that union: collective agreements can themselves stipulate that workers who want to benefit from choosing to be governed by them must pay a certain amount to the trade unions involved, as a contribution towards the costs of the negotiations.
8. Continued effect and lapse of collective agreements – here, the object of the request was a norm that allows a collective agreement to remain in force once it has been denounced, for the time that it takes to negotiate its successor, including conciliation, mediation and voluntary arbitration processes, or for a minimum of 18 months, and, in the event that the negotiations do culminate in a new agreement, for the old one to remain in effect until the new one comes into force.
The petitioners argued that this regime, which does not oblige employers to negotiate new agreements, damages the freedom to form, belong to and operate trade unions.
The Court considered that while it is true that only certain aspects of the status of workers with regard to the labour relationship continue to be valid in such situations, the aspects that do remain (remuneration, category, length of service, and social benefits) constitute the essential core of the status of workers.
The Court thus declared with generally binding force that the norm which permitted an employer to opt not to include an investigative phase in disciplinary proceedings was unconstitutional, and that the other norms before it are not unconstitutional.
The Ruling is the object of 7 dissenting opinions which, however, did not constitute a majority because each of them only targeted parts of the universe of issues.
See Rulings nos. 107/88 (31-05-1988), 581/95 (31-10-1995), 659/97 (4-11-1997), and 306/2003 (25-06-2003).