LABOS Revista de Derecho del Trabajo y Protección Social

Incapacity, ineptitude and extinction of the employment contract. Chronicle of an announced reform

2024-12-20T12:22:59+01:00

Employment contracts in the event of the sale of the productive unit of insolvent companies

2024-12-20T12:22:57+01:00

This study focuses on one of the most controversial aspects of the latest reform in bankruptcy matters. Specifically, it analyses the issue of the sale of the productive unit in the different phases in which this can take place and the impact that this fact has on the workforce and the legal situation that arises after the aforementioned transfer. To this end, this paper begins by trying to clarify which judicial body has the authority to declare the succession of a company, and then goes into the scope and legal effects of the aforementioned resolution.

The controversial application of the sanctioning regime on the so-called organizational or commercial scab

2024-12-20T12:22:56+01:00

Although the work of the legislator and the application of sanctioning norms by the Public Administrations is constitutionally limited, in favor of the legal security of citizens (art. 9.3 CE), by the principles of legality and typicality (art. 25.1 CE), currently, it is possible to find different examples of cases in which the Administration sanctions (and the judges confirms) actions in order to subcontracting the tasks affected by the strike. Regardless of whether there is jurisprudence favorable to the recognition, for certain aspects or manifestations, of the so-called organizational or commercial scab, the truth is that these behaviors are not expressly contemplated in the literal wording of the sanctioning provision applicable to scab (art. 8.10 LISOS) generating, therefore, well-founded doubts about the legal admissibility of those sanctions.

Based on this approach, this work begins with the conceptual analysis of the different types of scabs and the sanctioning precepts that are applicable to them and, after a careful study of the main principles that delimit the sanctioning activity of Public Administration, ends with a critical review of the most significant judicial decisions.

The employers’ power of remote control in Italy

2024-12-20T12:22:54+01:00

In the Italian legal system, in contrast to what happened in Spanish labour law, since the seventies of last century, several provisions have been configured in the field of employer control, among which is the possibility of using remote control systems, without there being a similar provision in our legislation. This essay offers an approach to the legal configuration of remote company monitoring contained in the Italian Workers’ Statute, giving an account of both the original version and the scope of its reform under the Jobs Act.

Single-parent families and leave for birth and care of a child or minor. Timeliness of the pronouncements of the two chambers of the Supreme Court

2024-12-20T12:22:52+01:00

Study and comparative analysis of the legal arguments that the Labour Chamber and the Contentious Administrative Chamber of the Supreme Court have used to issue contrary rulings regarding leave for the birth or care of a minor child in the case of single-parent families. For the purposes of the possible accumulation in the parent of the permission of the other parent if it exists, as is the case in two-parent families.

Simple medical rest and its value as an indication of discrimination based on health condition or disease status

2024-12-20T12:22:50+01:00

The doctrinal analysis in question deals with Ruling 1057/2024 (Rº. 3487/2023), of April 16, of the Social Chamber of the Superior Court of Justice of the Valencian Community, which sheds light on the indications that can operate -or rather, that do not operate- in the reversal of the burden of proof in possible situations of discrimination linked to the condition of health or the situation of illness. The STSJ of the Valencian Community concludes that, in this specific case, the mere attendance and medical rest is not sufficient evidence to reverse the burden of proof, declaring the dismissal to be unfair and not null and void. The company provides facts that manage to disprove the harmful intention of the fundamental right to non-discrimination, linked to disagreements between the worker and the company at the time of providing the services.

The controversial aspects of stabilisation processes and their compensation consequences

2024-12-20T12:22:49+01:00

The collision of labour regulations with the constitutional precepts on access to public employment led to the appearance of the figure of the indefinite non fixed term contract in Public Administration and their instrumental entities; this figure, very widespread in the practice of these organizations, implied the continuity of temporary contracts almost perpetuated over time. After the first attempts to consolidate temporary employment, it was Law 20/2021 that developed selective processes that have been carried out with no less difficulties and with notorious doubts about the legality of its bases, mainly its scales. The consequences for compensation derived from these processes are the following legal controversies that will have to be resolved by the Courts in the near future.

The labour-administrative complaint regarding the investiture of permanent non-permanent and even permanent workers. A proposal to reconcile European demands with the Spanish constitutional framework on public employment

2024-12-20T12:22:48+01:00

For more than two decades, stemming from jurisprudential concerns to find a solution that guarantees the labor rights of affected individuals, “non-permanent indefinite employees” have become a widespread reality in Spanish public administrations. However, neither the consolidation of this solution nor the explicit support for such remedies that we can easily found in European Law have succeeded in making this construction uncritically accepted in Spain. Our legislative power has not explicitly endorsed this construction, which therefore lacks a normative regulation that could provide greater legal certainty in its application. Meanwhile, certain Public Law scholars have continued to point out contradictions between this solution and some fundamental constitutional principles governing access to public employment, principles centered around a particular interpretation of the ideas of equality, merit, and ability in the making and development of any public selection process. This paper analyses the structural elements of this jurisprudential and doctrinal debate, as well as the foreseeable evolution of the dispute between the different sides, taking advantage of the recent and significant judgment of February 22, 2024. This judgment is argued to represent a definitive endorsement by European Law of the positions that, as discussed at length, should not only settle the controversy surrounding the figure of non-permanent indefinite employees but may also help to compel a fundamental, structural transformation in the constitutional understanding of the principles underpinning our public employment model. In conclusion, this work presents reasons on the necessity of adopting (both in line with the European interpretation to which our legal system is subordinated, but also at ease, with a proper understanding of our constitutional framework) a much more flexible, diverse system of access, occasionally directly conditioned by factual circumstances, without greater constitutional concerns.

The transformation of selection systems as a key to reducing temporary employment in public employment

2024-12-20T12:22:46+01:00

The very significant levels of fixed-term appointments and contracts in the Spanish public employment system have become a structural problem which is proving almost impossible to solve. This paper examines the causes and solutions that have been put in place in order to reduce the amount of fixed-term public employees and advocates significant changes in the selection processes. We argue that the rigidity of the selection mechanisms for public employees is one of the main reasons for the current situation and we believe that, by introducing the necessary changes and making the access systems more flexible, significant improvements could be achieved in the general functioning of our administrations, which would also contribute to limiting the rates of temporary public employment and the abuse resulting from the use of successive fixed-term employment contracts or appointments.

Nores Torres, Luis Enrique. Configuración y reforma del proceso laboral. Una justicia laboral para el siglo XXI

2024-12-20T12:22:44+01:00