Contenido

Conjunto de normas y principios teóricos que regulan las relaciones jurídicas entre empleadores y trabajadores y de ambos con el estado, originado por una prestación voluntaria, subordinada, retribuida de la actividad humana, para la producción de bienes y servicios.

Tradicionalmente la disciplina del derecho del trabajo se entiende formada por las siguientes partes:.

Modalities depending on the deadline

They are fixed-term employment contracts or specific work contracts. A fixed-term contract would be one that requires the services of a worker for a certain period, after which the contract is considered terminated. A specific work contract is one in which the services of a worker are requested for the execution of the work. Once the work is completed, the contract is considered terminated. The termination of the employment contract due to time or finished work does not imply liability for either party.

It is important to mention that a fixed-term contract that is constantly extended becomes considered an indefinite-term contract, because the principle of primacy of reality applies.

They are those contracts that do not stipulate a date or event that ends the employment contract. Certainly, they are the contracts that allow workers to achieve job stability over the time they provide their services.

Special work modalities

Self-employment or self-employment is one in which the worker himself directs and organizes his activity, bearing the economic risk, and which can take two basic forms:

Informal work in a dependency relationship, also called unregistered work, black work or work without a contract, is characterized by constituting an employment relationship that does not comply with legal formalities. This type of work has grown significantly in recent years. Currently, many large companies use a human resources system that combines the maintenance of a small formal "salaried" group employed directly by the company, with a large group of workers who work in outsourced companies, often in informal conditions, without labor protections.

One of the commonly accepted interpretations of the existence of informal activities refers to their development outside the current regulatory system. That is, these are tasks that are carried out without complying with the requirements established in the applicable regulations. Likewise, and in a more positive view, exclusion is associated with their lack of access to development policies and, in particular, to credit, training and markets. This approach to the informal sector emphasizes its illegality as a primary characteristic and tends to view it as a set of covert or underground activities in the economy.

The reality is, however, more nuanced. Neither the informal sector operates absolutely "in the black", nor does its opposite, the modern sector, do so with unrestricted adherence to legality. The so-called gray areas predominate, which, in research from the early 1990s (Tokman, 1992; Tokman and Klein, 1996), have been characterized as partial compliance with certain legal or procedural requirements, including absolute illegality, but also full legality. However, the prevailing panorama in informality is an intermediate area

among the latter: certain registration requirements are met, but taxes are not paid; Some of the labor regulations are observed, but not all.

This type of work should not be confused with the previous one, although many times in reality the borders are blurred. This type of work has very low productivity and is carried out on one's own account, outside of all legal formalities (window cleaners at traffic lights, informal garbage collectors, street vendors, etc.).

In this type of work, the worker, generally upon completing his or her university studies, maintains a work activity usually related to research. It is a figure derived from the study scholarship, through which the work done is remunerated, but the scholarship recipient remains outside the status of workers, and therefore lacks a large part of the social benefits. Sometimes it is intended to be used as a legal form of "hiring" young workers, which reduces the salary costs derived from registering with social security.

Constitution

Constitutions contemplate the guarantees and freedoms that individuals have, and the protection they enjoy against the State. In many countries, social rights that regulate minimum guarantees assured to workers and to their employers have begun to be incorporated into them. This is how labor principles and rights begin to appear in constitutional texts that acquire the maximum normative rank: the constitutional one. This trend is not universal; For example, there are no such provisions in the United States Constitution.[2]​ When there are, it is common for them to refer to topics such as the following:.

International treaties

International treaties constitute a direct source of regulation of labor rights, guaranteeing workers in the signatory countries minimum rights that the signatory States are obliged to respect. Depending on the different legal regimes, treaties may be directly applicable in domestic law or their incorporation into national legislation may be required.

In countries of regional or community integration, such as the European Union, integration treaties constitute direct sources and each member country of the community must adapt its legal system, thus operating in an integrated and equal system of protection for all workers in the region.

The main source of multilateral treaties is the International Labor Organization (ILO), which approves conventions and recommendations on all issues of individual and collective labor law.122.

Law to be defined

The laws are the main source of labor law, and the direct expression of the State's intervention in this matter. In States with a federal structure, all this matter may be the responsibility of the central government or the federated entities.

Many legal systems, especially in Latin America, began the trend of separating labor legislation from civil legislation, and developing specialized codes on the subject.[3]​.

In some systems there are special ordinary laws that govern labor matters, as an extension of the general regulations found in civil codes or labor codes.

There are also laws that, by their nature, are added to labor legislation on particular and specific topics.

A final link in labor legislation is found in regulations that belong to other disciplines, such as commercial law or civil law, which are applied in a subsidiary manner to cover issues not provided for in that one.

Regulations

Generally, the regulations for the execution of labor laws, dictated by the executive branch, within the limits permitted by the Constitution and the laws themselves, complement these laws in aspects of detail.

Employment contracts

It is an agreement by which one party (worker) undertakes to provide an activity or service and the other party (employer) undertakes to remunerate it through a salary.

The individual employment contract establishes the foundations of the worker-employer relationship. This contract is very special, typical of its kind, and contains four main elements:

Chapter II of the Federal Labor Law indicates the types of employment relationships that are considered in Mexico, which expressed in terms of individual contracting lead us to 6 types:

Collective labor agreements constitute collective agreements concluded between a union or group of unions and one or more employers, or a union or group of unions and one or more representative organizations of employers. Also, in the event that there is no union, it can be held by representatives of the interested workers, duly elected and authorized by the latter, in accordance with national legislation.

The collective bargaining contract is governed by article 386 of the Federal Labor Law, which literally says:

The law contract is governed by article 404 of the Federal Labor Law, which literally says:

The origin of the contract-law is found in the Weimar Constitution where it was initially included and its general rules were established; But it was the attempts of the International Labor Organization, since 1922, to standardize the working conditions of coal mines, in particular European ones but with extension to other regions of the planet, that allowed its legal orientation when the first international agreements were signed, twenty years before the emergence of the European social law that includes them today.

Internal work regulations

Internal regulations, called in some countries "workshop regulations", stipulate the working conditions in a particular company or organization. It entails obligations for the worker but also delimits them, avoiding the disciplinary arbitrariness of the employer. It is unilateral in nature, and the employer sets in it the disciplinary conditions, those related to hygiene and health and, sometimes, establishes general remuneration principles.

In some regulations, it is required that the internal work regulations be submitted for approval by a state administrative agency, to verify that they do not violate the rights of workers.

Los principios generales del Derecho del Trabajo son aquellas líneas directrices o postulados que inspiran el sentido de las normas laborales y configuran la vinculación de las relaciones de trabajo con arreglo a criterios distintos de los que pueden darse en otras ramas del Derecho.

Los principios generales del derecho laboral tienen, por lo general, dos funciones fundamentales:.

A continuación se señalan algunos principios básicos del derecho laboral:[4]​.

Protective principle

The protective principle is the most important principle of labor law. It is what differentiates it from civil law. It is based on inequality, so labor law tries to protect one of the parties to the employment contract to put it on an equal footing with the other, unlike the principle of legal equality of private law.

The protective principle contains three rules;

Principle of inalienability of rights

The worker is unable to voluntarily deprive himself of the rights and guarantees granted by labor legislation, even if it is for his own benefit. Whatever is renounced is vitiated by absolute nullity. The autonomy of the will has no scope for action for inalienable rights. This shows that the principle of autonomy of will of private law is severely limited in labor law.

Thus, a worker cannot give up his salary, or accept one that is less than the minimum established by law; If the maximum daily work day is 12 hours, a worker cannot ask his employer to let him work for 18 hours.

Naturally, we must know that in Labor Law, the principle of employment continuity is known as that principle that instructs the judge, when in doubt, to estimate the duration of the individual employment contract to the greatest extent possible according to the facts and demonstrated reality.

Principle of supremacy of reality

The autonomy of will is not important, but rather the demonstration of the reality that reigns over the relationship between worker and employer. Thus, both can contract one thing, but if the reality is different, it is the latter that has legal effect.

Principle of reasonableness

Both the worker and the employer must exercise their rights and obligations according to common sense logical reasoning, without engaging in conduct that abuses each other's rights.

Principle of good faith

The principle of good faith is a presumption: it is presumed that the relationships and conduct between workers and employers are carried out in good faith. On the contrary, he who invokes bad faith must prove it.

Individual employment contract

The individual employment contract is an agreement through which a natural person undertakes to provide services to another person (natural or legal), under the latter's command in exchange for remuneration. For this contract to exist, the presence of three elements is necessary:

Employer powers

The employer has the power to manage the company, command, disciplinary and sanctioning power, in addition to ius variandi.

Remuneration

The salary or remuneration is the payment that a worker receives periodically from his employer in exchange for the work "Work (law)") for which he was hired. The employee receives a salary in exchange for making his work available to the employer, regardless of whether or not he is assigned specific tasks. This is the main obligation of your contractual relationship. When payments are made on a daily basis, they are called daily wages.

In some countries there is the figure of the bonus or extraordinary payment. The bonus is an extra income received by the worker, in addition to their usual remuneration. Some regulations stipulate mandatory disbursement for a single date, while others do so on two or more dates distributed throughout the year.

work day

The working day is the maximum number of hours that an employer can require of a worker. For example, 8 hours a day and 45 hours a week. It is important to distinguish between the working day and the schedule. The working day, as stated above, is the number of hours that the worker must work per day.

Commonly, overtime must be paid additionally and with a higher monetary value than the usual day. Furthermore, each legal system imposes a limit on the duration of the day, establishes exceptions to the general rule and establishes the consequences in the event of exceeding the limits. So if workers continue to be exploited by employers, a true labor reform is needed in the world.

Vacations and holidays

Vacations correspond to a certain amount of time that the worker can be absent from work, without ceasing to receive remuneration, for a cumulative number of hours worked. For example, in Costa Rican law, the worker can enjoy two weeks of vacation for every 50 weeks of work.

Holidays are days that by law must be granted as free to the worker. The employer has the power to require the worker to work them, but must reward him monetarily under a different regime.

Job security

Things related to occupational health are of public interest. Occupational health aims to ensure the physical and mental safety of the worker, as well as protect them against risks.

Employers have the following obligations:

Legislation generally provides that a worker who suffers an accident has the right to:

Collective bargaining

Collective bargaining is that which is carried out between the workers of a company or sector, normally (although not always) gathered through a union or group of unions and the company or representatives of companies in the sector. The purpose of the negotiation is to reach an agreement regarding the working conditions applicable to the generality of workers in the area in which the negotiation is limited (contract or collective labor agreement).

Sometimes, as a measure of pressure for negotiation and to enforce agreements when they consider that they have not been fulfilled, workers can go on strike.

Collective bargaining is a particular manifestation of social dialogue, and is considered a basic fundamental right that is part of freedom of association. Worldwide it is guaranteed in Conventions 98 and 154 of the ILO.

Union organizations

A union is an association made up of workers in defense and promotion of their social, economic and professional interests related to their work activity or with respect to the production center (factory, workshop, company) or the employer with which they are contractually related.

Unions generally negotiate on behalf of their members (collective bargaining) wages and working conditions (days, breaks, vacations, licenses, professional training, etc.), giving rise to the collective bargaining agreement.

Contenido

Conjunto de normas y principios teóricos que regulan las relaciones jurídicas entre empleadores y trabajadores y de ambos con el estado, originado por una prestación voluntaria, subordinada, retribuida de la actividad humana, para la producción de bienes y servicios.

Tradicionalmente la disciplina del derecho del trabajo se entiende formada por las siguientes partes:.

Modalities depending on the deadline

They are fixed-term employment contracts or specific work contracts. A fixed-term contract would be one that requires the services of a worker for a certain period, after which the contract is considered terminated. A specific work contract is one in which the services of a worker are requested for the execution of the work. Once the work is completed, the contract is considered terminated. The termination of the employment contract due to time or finished work does not imply liability for either party.

It is important to mention that a fixed-term contract that is constantly extended becomes considered an indefinite-term contract, because the principle of primacy of reality applies.

They are those contracts that do not stipulate a date or event that ends the employment contract. Certainly, they are the contracts that allow workers to achieve job stability over the time they provide their services.

Special work modalities

Self-employment or self-employment is one in which the worker himself directs and organizes his activity, bearing the economic risk, and which can take two basic forms:

Informal work in a dependency relationship, also called unregistered work, black work or work without a contract, is characterized by constituting an employment relationship that does not comply with legal formalities. This type of work has grown significantly in recent years. Currently, many large companies use a human resources system that combines the maintenance of a small formal "salaried" group employed directly by the company, with a large group of workers who work in outsourced companies, often in informal conditions, without labor protections.

One of the commonly accepted interpretations of the existence of informal activities refers to their development outside the current regulatory system. That is, these are tasks that are carried out without complying with the requirements established in the applicable regulations. Likewise, and in a more positive view, exclusion is associated with their lack of access to development policies and, in particular, to credit, training and markets. This approach to the informal sector emphasizes its illegality as a primary characteristic and tends to view it as a set of covert or underground activities in the economy.

The reality is, however, more nuanced. Neither the informal sector operates absolutely "in the black", nor does its opposite, the modern sector, do so with unrestricted adherence to legality. The so-called gray areas predominate, which, in research from the early 1990s (Tokman, 1992; Tokman and Klein, 1996), have been characterized as partial compliance with certain legal or procedural requirements, including absolute illegality, but also full legality. However, the prevailing panorama in informality is an intermediate area

among the latter: certain registration requirements are met, but taxes are not paid; Some of the labor regulations are observed, but not all.

This type of work should not be confused with the previous one, although many times in reality the borders are blurred. This type of work has very low productivity and is carried out on one's own account, outside of all legal formalities (window cleaners at traffic lights, informal garbage collectors, street vendors, etc.).

In this type of work, the worker, generally upon completing his or her university studies, maintains a work activity usually related to research. It is a figure derived from the study scholarship, through which the work done is remunerated, but the scholarship recipient remains outside the status of workers, and therefore lacks a large part of the social benefits. Sometimes it is intended to be used as a legal form of "hiring" young workers, which reduces the salary costs derived from registering with social security.

Constitution

Constitutions contemplate the guarantees and freedoms that individuals have, and the protection they enjoy against the State. In many countries, social rights that regulate minimum guarantees assured to workers and to their employers have begun to be incorporated into them. This is how labor principles and rights begin to appear in constitutional texts that acquire the maximum normative rank: the constitutional one. This trend is not universal; For example, there are no such provisions in the United States Constitution.[2]​ When there are, it is common for them to refer to topics such as the following:.

International treaties

International treaties constitute a direct source of regulation of labor rights, guaranteeing workers in the signatory countries minimum rights that the signatory States are obliged to respect. Depending on the different legal regimes, treaties may be directly applicable in domestic law or their incorporation into national legislation may be required.

In countries of regional or community integration, such as the European Union, integration treaties constitute direct sources and each member country of the community must adapt its legal system, thus operating in an integrated and equal system of protection for all workers in the region.

The main source of multilateral treaties is the International Labor Organization (ILO), which approves conventions and recommendations on all issues of individual and collective labor law.122.

Law to be defined

The laws are the main source of labor law, and the direct expression of the State's intervention in this matter. In States with a federal structure, all this matter may be the responsibility of the central government or the federated entities.

Many legal systems, especially in Latin America, began the trend of separating labor legislation from civil legislation, and developing specialized codes on the subject.[3]​.

In some systems there are special ordinary laws that govern labor matters, as an extension of the general regulations found in civil codes or labor codes.

There are also laws that, by their nature, are added to labor legislation on particular and specific topics.

A final link in labor legislation is found in regulations that belong to other disciplines, such as commercial law or civil law, which are applied in a subsidiary manner to cover issues not provided for in that one.

Regulations

Generally, the regulations for the execution of labor laws, dictated by the executive branch, within the limits permitted by the Constitution and the laws themselves, complement these laws in aspects of detail.

Employment contracts

It is an agreement by which one party (worker) undertakes to provide an activity or service and the other party (employer) undertakes to remunerate it through a salary.

The individual employment contract establishes the foundations of the worker-employer relationship. This contract is very special, typical of its kind, and contains four main elements:

Chapter II of the Federal Labor Law indicates the types of employment relationships that are considered in Mexico, which expressed in terms of individual contracting lead us to 6 types:

Collective labor agreements constitute collective agreements concluded between a union or group of unions and one or more employers, or a union or group of unions and one or more representative organizations of employers. Also, in the event that there is no union, it can be held by representatives of the interested workers, duly elected and authorized by the latter, in accordance with national legislation.

The collective bargaining contract is governed by article 386 of the Federal Labor Law, which literally says:

The law contract is governed by article 404 of the Federal Labor Law, which literally says:

The origin of the contract-law is found in the Weimar Constitution where it was initially included and its general rules were established; But it was the attempts of the International Labor Organization, since 1922, to standardize the working conditions of coal mines, in particular European ones but with extension to other regions of the planet, that allowed its legal orientation when the first international agreements were signed, twenty years before the emergence of the European social law that includes them today.

Internal work regulations

Internal regulations, called in some countries "workshop regulations", stipulate the working conditions in a particular company or organization. It entails obligations for the worker but also delimits them, avoiding the disciplinary arbitrariness of the employer. It is unilateral in nature, and the employer sets in it the disciplinary conditions, those related to hygiene and health and, sometimes, establishes general remuneration principles.

In some regulations, it is required that the internal work regulations be submitted for approval by a state administrative agency, to verify that they do not violate the rights of workers.

Los principios generales del Derecho del Trabajo son aquellas líneas directrices o postulados que inspiran el sentido de las normas laborales y configuran la vinculación de las relaciones de trabajo con arreglo a criterios distintos de los que pueden darse en otras ramas del Derecho.

Los principios generales del derecho laboral tienen, por lo general, dos funciones fundamentales:.

A continuación se señalan algunos principios básicos del derecho laboral:[4]​.

Protective principle

The protective principle is the most important principle of labor law. It is what differentiates it from civil law. It is based on inequality, so labor law tries to protect one of the parties to the employment contract to put it on an equal footing with the other, unlike the principle of legal equality of private law.

The protective principle contains three rules;

Principle of inalienability of rights

The worker is unable to voluntarily deprive himself of the rights and guarantees granted by labor legislation, even if it is for his own benefit. Whatever is renounced is vitiated by absolute nullity. The autonomy of the will has no scope for action for inalienable rights. This shows that the principle of autonomy of will of private law is severely limited in labor law.

Thus, a worker cannot give up his salary, or accept one that is less than the minimum established by law; If the maximum daily work day is 12 hours, a worker cannot ask his employer to let him work for 18 hours.

Naturally, we must know that in Labor Law, the principle of employment continuity is known as that principle that instructs the judge, when in doubt, to estimate the duration of the individual employment contract to the greatest extent possible according to the facts and demonstrated reality.

Principle of supremacy of reality

The autonomy of will is not important, but rather the demonstration of the reality that reigns over the relationship between worker and employer. Thus, both can contract one thing, but if the reality is different, it is the latter that has legal effect.

Principle of reasonableness

Both the worker and the employer must exercise their rights and obligations according to common sense logical reasoning, without engaging in conduct that abuses each other's rights.

Principle of good faith

The principle of good faith is a presumption: it is presumed that the relationships and conduct between workers and employers are carried out in good faith. On the contrary, he who invokes bad faith must prove it.

Individual employment contract

The individual employment contract is an agreement through which a natural person undertakes to provide services to another person (natural or legal), under the latter's command in exchange for remuneration. For this contract to exist, the presence of three elements is necessary:

Employer powers

The employer has the power to manage the company, command, disciplinary and sanctioning power, in addition to ius variandi.

Remuneration

The salary or remuneration is the payment that a worker receives periodically from his employer in exchange for the work "Work (law)") for which he was hired. The employee receives a salary in exchange for making his work available to the employer, regardless of whether or not he is assigned specific tasks. This is the main obligation of your contractual relationship. When payments are made on a daily basis, they are called daily wages.

In some countries there is the figure of the bonus or extraordinary payment. The bonus is an extra income received by the worker, in addition to their usual remuneration. Some regulations stipulate mandatory disbursement for a single date, while others do so on two or more dates distributed throughout the year.

work day

The working day is the maximum number of hours that an employer can require of a worker. For example, 8 hours a day and 45 hours a week. It is important to distinguish between the working day and the schedule. The working day, as stated above, is the number of hours that the worker must work per day.

Commonly, overtime must be paid additionally and with a higher monetary value than the usual day. Furthermore, each legal system imposes a limit on the duration of the day, establishes exceptions to the general rule and establishes the consequences in the event of exceeding the limits. So if workers continue to be exploited by employers, a true labor reform is needed in the world.

Vacations and holidays

Vacations correspond to a certain amount of time that the worker can be absent from work, without ceasing to receive remuneration, for a cumulative number of hours worked. For example, in Costa Rican law, the worker can enjoy two weeks of vacation for every 50 weeks of work.

Holidays are days that by law must be granted as free to the worker. The employer has the power to require the worker to work them, but must reward him monetarily under a different regime.

Job security

Things related to occupational health are of public interest. Occupational health aims to ensure the physical and mental safety of the worker, as well as protect them against risks.

Employers have the following obligations:

Legislation generally provides that a worker who suffers an accident has the right to:

Collective bargaining

Collective bargaining is that which is carried out between the workers of a company or sector, normally (although not always) gathered through a union or group of unions and the company or representatives of companies in the sector. The purpose of the negotiation is to reach an agreement regarding the working conditions applicable to the generality of workers in the area in which the negotiation is limited (contract or collective labor agreement).

Sometimes, as a measure of pressure for negotiation and to enforce agreements when they consider that they have not been fulfilled, workers can go on strike.

Collective bargaining is a particular manifestation of social dialogue, and is considered a basic fundamental right that is part of freedom of association. Worldwide it is guaranteed in Conventions 98 and 154 of the ILO.

Union organizations

A union is an association made up of workers in defense and promotion of their social, economic and professional interests related to their work activity or with respect to the production center (factory, workshop, company) or the employer with which they are contractually related.

Unions generally negotiate on behalf of their members (collective bargaining) wages and working conditions (days, breaks, vacations, licenses, professional training, etc.), giving rise to the collective bargaining agreement.