UNIT 5

The Application of the

Labour Normative
Labour Law I

Course 2022/23
Bachelor in Business Administration
Prof. Carlos Teruel Fernández

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Unit 5. The application of the labour normative.

UNIT 5: THE APPLICATION OF THE LABOUR NORMATIVE

5.1. THE APPLICATION OF THE LABOUR NORMATIVE:

5.2. THE JURISPRUDENCE (CASE LAW).

5.3. THE SCIENTIFIC DOCTRINE.

5.4.- THE CRITERION FOR THE APPLICATION OF LABOUR LAW.

5.4.1. The general legal principles.

5.4.2. The principles of application of Labor Law.

5.4.2.1. Pro-Worker Principle.

5.4.2.2. Principle of most favorable norm.

5.4.2.3. Principle of most beneficial condition.

5.4.2.4. Principle of inalienability of rights.

5.5.- BODIES OF APPLICATION OF THE LABOUR NORM.

5.5.1. The social order of the jurisdiction.

5.5.2. The bodies of labour administration.

5.5.2.1. State bodies.

5.5.2.2. Autonomic bodies.

5.5.3. The Labour Inspectorate.

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Unit 5. The application of the labour normative.

UNIT 5: THE APPLICATION OF THE LABOUR NORMATIVE

5.1. THE APPLICATION OF THE LABOUR NORMATIVE:

The application of the labour normative is governed, essentially, by the rules of the
application of the Law in general. This does not prevent the existence of peculiarities, according to
the singularity of the labour legal system.

On the one hand, we find shaping principles that inform this sector of the legal system and
inspire labour legislation. On the other hand, the hierarchy of labour standards is structured in a
particular way, and there are strictly legal-labour sources, such as collective agreements.

5.2. THE JURISPRUDENCE (CASE LAW).

According to article 1.6 of the Civil Code, "Case law shall complement the legal system by
means of the doctrine repeatedly upheld by the Supreme Court in its interpretation and application
of statutes, customs and general legal principles."

Without prejudice to the strictly jurisdictional function of judges and courts of justice, it has to
be recognized that jurisprudential doctrine assumes a homogenizing function of judicial decisions,
fixing, in some way, the official meaning of the norm.

Judges interpret the laws, integrate the normative voids, apply the general legal principles
and specify the meaning of the rules.

The Supreme Court has repeatedly declared that only its sentences can lead to the
formation of true jurisprudence because only its doctrine can be alleged to support an appeal of
cassation based on infringement of the jurisprudence. The Chamber IV, the Labour Chamber of the
Supreme Court, establishes the "legal doctrine", through its reiterated decisions. It does not prevent
that other judicial organs (like the High Courts of Justice) can also create doctrine specifying the
sense in which the lower judges have to interpret the rules.

For its part, the Constitutional Court is the supreme interpreter of the Spanish Constitution
(Article 1.1 of the Organic Law of the Constitutional Court) and therefore its decisions also have

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Unit 5. The application of the labour normative.

normative effects, since the sentences handed down in unconstitutionality proceedings have
general effectiveness. So, these sentences bind to all the powers of the State.

The sentences of the Constitutional Court which are provided in “amparo proceedings” lack
that effectiveness, but indicate the opinion of the Court on a certain matter. This opinion is very
important since, according to our Organic Law of the Judiciary Power (in Spanish “Ley Orgánica del
Poder Judicial” – LOPJ) in its article 5.1, all judges and courts "will interpret and apply the laws and
regulations according to the constitutional precepts and principles, according to the interpretation
resulting from the resolutions issued by the Constitutional Court in all types of proceedings ".

Finally, we must highlight the importance of the decisions of international and supranational
courts and organizations for the purposes of application and interpretation of Labour Law.

5.3. THE SCIENTIFIC DOCTRINE.

The scientific elaborations of jurists are not a source of law in the proper sense.

However, they may be the origin of legal reforms and can guide the work of judges, officials
and, ultimately, those whose mission is the interpretation and application of the rule.

5.4.- THE CRITERION FOR THE APPLICATION OF LABOUR LAW.

The Articles 3 and 4 of the Civil Code contain a series of rules on the application of legal
norms, rules that affect the entire legal system and in which grammatical ("rules shall be construed
according to the proper meaning of their wording"), systematic ("in connection with the context"),
historical ("with their historical and legislative background"), socio-cultural (“with the social reality of
the time in which they are to be applied") and teleological ("mainly attending to their spirit and
purpose") interpretations are given (this is the Article 3.1).

The Article 4.1 of the Civil Code provides for recourse to analogy when the norms "fail to
contemplate a specific case, but do regulate another similar one in which the same ratio is
perceived". However, the Article 4.2 states that “Criminal statutes, exceptional statutes and statutes
of temporary nature shall not be applied in cases other than as expressly provided therein”. So, in
these cases the analogy is prohibited.

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Unit 5. The application of the labour normative.

5.4.1. The general legal principles.

They are inspiring principles of the entire legal system, and are included among the sources
of law, subordinated to the law and custom (Article 1.4 of the Civil Code: "They will apply in the
absence of law or custom").

The most significant general legal principles for Labour Law are expressly included in the
Constitution: Freedom, justice and equality, as superior values of the legal system, are also basic
principles of Labour Law.

The general legal principles can be used, and so it must be, by the interpreter of the rule to
the extent that they have been recognized by legislation or jurisprudence, but have no direct
application.

5.4.2. The principles of application of Labor Law.

In addition to these general legal principles and the technical rules of interpretation, there are
criterion or principles that inspire legal-labour norms, all of which are aimed at worker protection.

5.4.2.1. Pro-Worker Principle.

The labour legislation arises to protect workers, establishing limitations to the freedom of
hiring and to the autonomy of the parties' will, since there is a situation of inequality, in which
workers are in a lower situation, in terms of power, with respect to employers. This has traditionally
resulted in the establishment of legal guarantees aimed specifically at protecting the worker. Among
these protective measures, the pro-worker principle it is especially important, and its main
consequences are the principles of most favorable norm and most beneficial condition.

The pro-worker principle means, essentially, that where there are several possible
interpretations of a norm of Labour Law, the interpretation that provides the greatest benefit to the
worker will apply.

It is a principle that, in labour matters, functions as a criterion for the interpretation of rules,
not contracts, and is not expressly included in labour legislation.

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Unit 5. The application of the labour normative.

5.4.2.2. Principle of most favorable norm.

The most favorable norm principle is based on the existence of two or more norms in force,
whose preferential application is discussed. It is not, as in the previous case, to interpret an
ambiguous norm in the most beneficial way for the worker, but to select among several rules the
norm, whatever its rank, which contains more favorable provisions for the worker.

The principle of most favorable norm, therefore, means that a labour norm will prevail over
another norm with which it is in conflict, be it of inferior, equal or even higher rank, always if it
contains more favorable prescriptions than it.

There are three possible comparison criterion:

a) The global comparison between norms, giving preference, in block, to which, as a whole, it is
more favorable.

b) The specific comparison between concrete working conditions regulated in collision norms.

c) The partial comparison between homogeneous groups of subjects of one norm and the other
norms.

Our Law is inclined towards the first of these criterion. The Workers' Statute addresses this
problem in Article 3.3, and does so by stating the following: "Conflicts arising between the precepts
of two or more labour standards, whether imposed by the State or agreed on, are bound to respect,
in any case, the minimums required by law, and shall be resolved through the application of the
most favourable terms for the workers as a group, and, in yearly computations, considering
quantifiable factors".

5.4.2.3. Principle of most beneficial condition.

This principle refers to the maintenance of the rights acquired by the worker even if,
subsequently, there is approval of a rule that, in general, establishes less favorable conditions than
those enjoyed individually. It is, therefore, about comparing between the working conditions from
which the worker benefits and those that would derive from the application of a later regulation that
did not contemplate these benefits.

The main problem posed by this principle is to know whether, under it, the rights acquired by
the individual employment contract of the worker and by the employer's concession unilaterally, or
also those acquired by virtue of a previous rule (a collective agreement, for example).

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Unit 5. The application of the labour normative.

This principle, according to jurisprudential doctrine, will be applied exclusively to the strict
benefits agreed or granted individually, without it being extended to similar ones, and without the
benefit being unilaterally suppressed by the employer.

The principle of most beneficial condition may be subject to the absorption technique,
according to which the improvements of normative (legal, regulatory, collectively agreed, etc.) are
not added to the most beneficial conditions enjoyed individually, but rather they are being absorbed
by those rules of a general nature.

5.4.2.4. Principle of inalienability of rights.

With this principle, legislation wants to avoid the resignations made by the worker to his own
detriment, presumably forced to do so by the preeminent position occupied by the employer. Thus,
the Article 3.5 of the Workers' Statute establishes that "Workers may not validly avail of the rights
acknowledged to them by mandatory legal provisions before or after their acquisition thereof.
Neither may they validly avail in these conditions of the rights acknowledged as indispensable by
collective bargaining agreement".

5.5.- BODIES OF APPLICATION OF THE LABOUR NORM.

The function of applying Labour Law is assigned, in a specialized way, to public bodies
whose function is to declare the applicable law to each specific case.

There are two categories of bodies: judicial bodies and administrative bodies.

Apart from these two types of bodies, there are others such as mixed commissions of
collective agreements, conciliation, mediation and arbitration bodies, etc.

In addition to internal bodies, there are others of a supranational nature, exemplified by the
Court of Justice of the European Union.

5.5.1. The social order of the jurisdiction.

The labour jurisdiction is a set of bodies instituted by the State for the knowledge and
resolution of labour conflicts.

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Such bodies independently exercise the jurisdictional power (Article 12.1 of the Organic Law
of the Judiciary Power), configuring themselves as specialized bodies of the jurisdiction.

The Spanish labour jurisdiction is integrated by:

- Social Courts.
- Social Chambers of the High Courts of Justice of the Autonomous Communities (“Tribunales
Superiores de Justicia”).
- Social Chamber of the National High Court (“Audiencia Nacional”).
- Social Chamber of the Supreme Court (“Tribunal Supremo”).

5.5.2. The bodies of labour administration.

The labour administration is the set of bodies, and their corresponding activities, instituted to
ensure the development of work rendered in utility and under the direction of others, in accordance
with the guidelines of the legislation and labour policy of the public authorities.

5.5.2.1. State bodies.

This is the specialized Labour Administration, embodied in the Ministry of Labour, whose
general features are:

- Be composed of a set of bodies with their own competences and with legal personality distinct
from that of the general administration of the State.

-They are central bodies (ministers and sub-secretaries or secretariats), endowed with national
competence, and peripheral bodies (areas and dependencies of government delegations), endowed
with competence in their respective fields. We have to add a series of institutional bodies (“Fondo
de Garantía Salarial” – FOGASA – Salary Guarantee Fund; “Instituto Nacional de la Seguridad
Social” – INSS – National Institute of Social Security; “Instituto Nacional de Seguridad e Higiene en
el Trabajo” – INSHT – National Institute of Workplace Safety and Hygiene; ...) to which the
management of certain services is entrusted.

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Unit 5. The application of the labour normative.

5.5.2.2. Autonomic bodies.

The monopoly of the State in labour matters finished when the Spanish Constitution
recognizes to the Autonomous Communities the "enforcement" of the labour legislation (Art. 149.1.7
S.C.).

The administrative bodies of the Autonomous Communities, therefore, perform functions

transferred from the Ministry, and some that have been assuming, particularly in matters of Social
Security.

5.5.3. The Labour Inspectorate.

The Labour Inspectorate is an institution created by the public power in order to guarantee
the compliance with labour regulations. It has a primordial role when it comes to giving effectiveness
to the labour order.

Currently, it is regulated by the Law 23/2015, of July 21, on Labour and Social Security
Inspectorate System.

The Inspectorate constitutes a system, a set of legal principles, norms, bodies, officials and
material means ordered to an end: the compliance of labour norms.

Its functions are as follows (Article 12 of the Law 23/2015):

- Vigilance of compliance with legal and agreed standards.

- Technical assistance to employers and workers.

- Arbitration, conciliation and conflict mediation.

The performance of the Labour Inspectorate is exercised on companies, centers and

workplaces, whether private or public, and takes place ex officio or prior complaint (whose action is
public and the complainant must be identified).

The action of the Inspectorate can take place through three procedures:

- Visit of the Inspectorate to the work center or place of work, which will be recorded in its
visitors’ book.

- The requirement that the subject being inspected to appear before the Inspectorate.

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Unit 5. The application of the labour normative.

- The verification during the processing of an administrative file.

As a result of this activity, the Labour Inspectorate can adopt different measures:

- Formulate a mere warning to the subject inspected, when in the case there is no damage to
the workers.

- Require the subject inspected to comply, within a certain time, duties that are not observed.

- Extending infringement and/or liquidation minutes.

- Require the public administrations that have breached labour safety and health regulations
regarding their public services.

- Promote procedures in matters of Social Security.

- Shut down immediately the works with a serious and imminent risk.

- Denounce the non-compliance in matters of employment, training and social promotion

subsidies.

- Propose to the superiority (the hierarchical superior organ) the formulation of ex officio
lawsuits before the social jurisdiction.

The Labour Inspectorate has a particular way of exercising its function of enforcing the
labour legislation: the initiation or instruction of administrative procedures of sanction and of demand
of Social Security contributions. Such procedures have their most significant documentary part in
the Inspection Records, which can be warning (rectifiable requirements from which no damages are
derived), infraction (which can also be with estimation of economic damage to the worker, in
addition to legal infraction) , obstruction and liquidation (they determine the debit to the Social
Security), and that Records have legal presumption of certainty.

Complementary bibliography

Montoya Melgar, A. Derecho del Trabajo. 36ª Edición. Tecnos, last edition.

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