Employer Authority and Employee Protections in Labor Law

Limits on the Employer's Power of Direction

The employer's power of direction is not absolute and is subject to various limitations:

• Derived from the Constitution: Fundamental rights such as dignity, privacy, and non-discrimination.
• Derived from Managerial Activity: Hierarchies and business orders.
• Derived from the Workers' Statute (TRLET): Specifically, the Jus Variandi.

Understanding Jus Variandi

The Jus Variandi is the employer's ability to unilaterally modify conditions agreed upon in the employment contract. This power is subject to specific conditions:

• Applicable to contracts longer than one year.
• The changes must not constitute a substantial modification of working conditions.
• Changes must be justified by technical, economic, organizational, or production reasons.

Formalities for Applying Jus Variandi

Individual Modifications:

• Notice must be provided to affected workers and their union representatives.
• Notification must occur at least 30 days before the change takes effect.

Collective Modifications:

• A consultation period of more than 15 days must be convened with union representatives.
• Efforts must be made to reach an agreement with the majority of union representatives.
• After consultations, the decision must be communicated, regardless of whether an agreement was reached.
• The changes take effect at least 30 days after notification.

Workers' Rights Regarding Contract Modifications

When faced with contract modifications, workers have specific rights:

• Contract Termination: Workers can terminate their contract with compensation of 20 days' salary per year worked, up to a maximum of 9 monthly payments.
• Compensation for Dignity Impairment: If the amendment affects the worker's training or impairs their dignity, they may be entitled to compensation of 45 days' salary per year, up to a maximum of 42 monthly payments.
• Challenging the Amendment: If the employee disagrees with the amendment and wishes to remain in the workplace, they can file a complaint for the labor authority to decide on the unacceptability or validity of the change.

Privacy and Dignity of Workers

According to Article 18 of the Constitution, the right to honor, personal and family privacy, and reputation is guaranteed. This establishes the basis for determining what the employer cannot do regarding these fundamental rights.

Equal Treatment and Prohibition of Discrimination

The principles of equal treatment and non-discrimination are fundamental and should inspire the employer's actions. These principles dictate that individuals in the same conditions should be treated equally, preventing arbitrary discrimination based on:

• Birth
• Race
• Sex
• Religion
• Opinion
• Any other personal or social condition or circumstance.

As stated in the Constitution, all citizens are equal before the law, and no discrimination can prevail on these grounds.

Presumption of Lawful Business Orders

The jurisprudence of the Supreme Court establishes the principle that workers must comply with received orders. Unless proven otherwise, these orders are presumed lawful. If a worker disagrees, they can challenge their validity.

However, this obligation is not absolute and does not apply in the following cases:

• Orders that involve harassment of a worker or an imminent and disproportionate risk to their person.
• Orders that are illegal.
• Orders that violate health and safety at work regulations.