Trade Union Law – regime governing absences from work due to trade union activities
Trade union activities;
Absences from work;
Suspension of labour contract.
RULING No. 648/13
8 of October of 2013
The legal regime governing the protection of workers’ elected representatives comprises a normative complex that fulfils the constitutional mandate which requires that such persons be protected against foreseeable reprisals by employers, in such a way as to avoid any discrimination designed to dissuade people from performing elected functions in trade unions. In particular the regime ensures that workers who are elected to collective representative bodies are able to miss work by giving them a credit in the form of hours they can use for union purposes without loss of pay. However, the Court found no unconstitutionality in a norm which says that a worker’s labour contract should be suspended if his/her absences due to his/her union activities exceed, or can be expected to exceed, one month. The norm does not affect the protection regime, because it does not constitute an inadmissible limitation on the right to legitimately exercise trade union functions.
The question before the Court in this case was whether the Labour Code Regulations precept which says that the regime under which a labour contract is suspended ‘due to a fact regarding the worker’ is applicable when absences due to the exercise of trade union activities last for more than a month, violates the right of workers’ elected representatives to adequate legal protection against all forms of restraint on the legitimate performance of their functions – a right that is enshrined in the Constitution.
The Court said that there is both a subjective and an objective dimension to the protection which the Constitution affords to workers’ elected representatives. The subjective dimension is derived from the freedom to form, operate and belong to trade unions, which can pertain to both individuals and groups. Workers are both individually and collectively recognised to possess the right to freely form trade unions and engage in ensuing trade union activities. This dimension in turn gives rise to an objective dimension, which consists of a constitutional command to the ordinary legislator to concretely implement adequate ways of protecting trade union leaders and delegates from foreseeable reprisals by employers. The idea is to avoid any and all discrimination designed to dissuade people from performing elected functions in trade unions.
In its jurisprudence the Court had already said that the Constitution only requires the legislator to create rules for the protection of workers who perform leadership roles in trade unions which ensure that they are not prevented from performing, or restricted in the performance of, those functions. In order to gauge the constitutional conformity of the norm before it, the Court thus had to analyse what measures the legislator had adopted in order to fulfil the constitutional mandate to ensure adequate protection for workers’ elected representatives.
The pertinent provisions of the relevant legal regime show that the legislator has sought to provide this protection in two different ways: by establishing a credit in the form of a number of hours that workers’ representatives can make use of in the performance of their union duties; and by laying down that when workers who are elected to collective representation bodies exceed the number of hours in that credit, for that purpose, those extra absences are classed as ‘justified failures to attend the workplace’ and count as effective time worked, except for remuneratory purposes. In the case of trade union delegates, as opposed to trade union leaders, such additional absences are only justified when they are required in order to engage in acts that are necessary for the exercise of the delegate’s functions and cannot be put off to a later date.
In the light of this analysis, the Court considered that the concrete measures adopted by the legislator satisfactorily fulfil the constitutional mandate to adequately protect workers’ elected representatives.
It is true that the norm before the Court means that the worker loses the right to be paid if his/her absences exceed the hour credit. However, this consequence, which is linked to the worker’s decision not to work for his/her employer for a period that is, or can be expected to be, longer than one month, is not of a kind that would promote any discrimination intended to convince people not to perform elected functions in trade unions.
Rulings nos. 1172/96 (20-11-1996); and 29/13 (15-01-2013).