Labour Mobility PDF

Labour mobility: Functional mobility – It is the ability of the employer to assign different tasks or functions to an employee, regardless of the functions for which he/she was initially hired. (Art 39 WS) - Depending on your profession or specialization you will be asigned to a professiona...

Labour mobility: Functional mobility – It is the ability of the employer to assign different tasks or functions to an employee, regardless of the functions for which he/she was initially hired. (Art 39 WS) - Depending on your profession or specialization you will be asigned to a professional group. All the workers under this professional group they may have different tasks/roles/responsabilities according to the one they belong. - This tasked that you have been hired for can change during the labour relationship meaning that when you get a job and you are given certain tasks or roles they are not forever, they can change. They are called accidental changes when they do not afect the esential elements for the contract. - The decision of changing the task is unilateral, meaning the employer will be the one deciding that they are going to chance you task which can be temporary or permanent. This can also be an individual agreement between the worker and the employer (individual) or employer and work representatives (collective). 1. Horizontal (ordinary): within the same professional group. The company does not have to give a reason/justification for this change, it is within the workers professional group. Uniletaral decision of the employer to change the task known as ius variandi (power employer) This changes usually do not have many limits the only general limit is respect the workers dignity May never be contrary to good contractual faith 2. Vertical (extraordinary): change of workers task to another professional group. Ascendant (superior task) Descendant (inferior task) Only posible due to technical or organizational reasons and for a certain time For these changes to be made it must be comunicated to the workers repesentative Its subject to certain limits. There can be more limits if they are agreed by the parties. But always respecting the workers dignity. Limits of functional mobility – 1. Heteronomous limits: Generic limits - ▪ Professional group: determine the legal system of the labour relationship and stablish the content of work performed by the worker. We delimit the performance of the worker, the retribution, timing of the work performance and any legal circumstances. ▪ Professional rigths: has to be carried out according to the academic/professional qualification of the worker and always respecting the workers dignity. ▪ Preservation of the job: it may happen that you may have a supervining ineptitude that means that when they change you you may have a lack of adaptation to this new job, not being able to cary out that job. In this cases the worker doesn’t have skills or not prepared and therefore due to functional mobility and lack of adaptation/skills/incapacity can’t be a cause of objective dismissal. Specific limits – ▪ Based on business reasons: only can be for technical or organisational reasons that have to be justified and communicated to the companies representative. ▪ The duration: Temporary, not permanent. ▪ Control of company decisions: it is pressumed that the employer is changing you due to a real reason, so we assume the veracity of what they are saying. However a form of controling this decisions is communicating the change to the workers representative. ▪ Professional qualifications: maintains because it is imposible to change a worker that doesn’t have a certain degree of qualification to carry out the job/task. ▪ Economic rights: the worker has the right to receive the salary coresponding to the task the workers performing except you are going to perform inferior tasks, in this case they will pay you the same salary.  2. Autonomous limits: Contractual – they are the ones that the parties decide but always respecting the legal limits. It is bilateral. Conventional – they are the ones established in a general agreement. In both limits they can be negotiated but they have to respect the general limits established in Art 39 because they are mandatory nature. Types of functional mobility – Vertical ascendant: - 6 months in one year - 8 months in two years After that the worker can ask for promotion (ascenso) or request the position to be covered by other else. - The salary should be equivalent to the task the worker is carrying out - In the case they do not want to give you the promotion you can sue the company as you are doing a non-coresponding task Vertical descendant: - There is no time limits but it is understood that the necessary time. - The salary is maintained as it is an inferior task. Geographic mobility – In an employment contract one of the most important and substantial labour conditions is the workplace. That is the place the where the worker is going to perform his job. It can be an office, workshop, factory, store, theater… or it can be an intinerant workplace, such as that of a sales rep who, on behalf of the employer, performs his work in different places depending on where the customer is located. Geogrpahic mobility occurs when the jobplace is modified. Due to certain circumstance they can modify a change of residence or work place. This modification can be temporary or permanent and it can be a transfer or displacement. Displacement = desplazamiento Transfer = traslado Transfer (Art 40 WS) : this workers that where not hired to move around but be in the same workingplace but due to certain circumstances they have to be: economic, technical, organizational or production (ETOP) reasons to justify it. This will mean that the worker is moved to a diffeerent web center of the same company and it also will require a change of residence. When there is a transfer certain legal rights are established.  - To balance the workers life and company what happens is that the legislator is going to regulate the powers given to the employer so therefore more control and mechanism and compensation when the transfer is greater and the impact on daily life. - Permanent or period of time Types: Reassignment: imply a change of destination and that also means that the previous job and has been changes. Change differnet work center: always on the same company. Change of residence: can be national or aborad. Jurisprudence: If its more than 36km or takes more that 25% of the working day or 20% cost of the salary. Or its permanent or it has to be +12 months in 3 years if its less it’s a dispalcement not a transfer. The workers representatives have the priority to remain in their jobs. Also other groups in the company may have those priorities like: victims of gender violence, household help, disability, illness… Individual or collective ▪ Individual: it still can affect a certain number of workers, if it doesn’t affect the minimum required it is considered individual. If in a period of 90 days the decision of transfer affects less than 10 workers in a company less than 100 workers OR if the transfer afects less that 10% workers in a company between 100-300 workers OR less than 30 workers in a company with more than 300 workers. ▪ Collective: it will affect the entire workplace and there has to be more than 5 workers. If it doesn’t affcet the entire workplace it is also considered transfer if in a period of 90 days 10 or more workers and less than 100 workers OR 10% or more in a company between 100 and 300 OR 30 or more workers in a compay greater than 300 workers. Consultaion period, its when the workers representaties and company get together and have 15 days to discuss the measures, motives, avioding… If after the 15 days there is an agreement between the reps and the company then the transfer will happen. However, if one of the workers doesn’t agree with the transfer, he can challenge the company and take them to court (collective conflict). Displacement: a change of workplace to a different place from the one of the domicile of that person, change of work and residence. It is not the law who stablishes the distance, it’s the jurispruedence. It is an unusual measure and always take into acount the employment contracts, CBA… The companys decision has certain limits: It has to be justified Has to have ETOP reasons or anything that has to do with business activity  If its more than 3 months the worker has to be notified with 5 days in advanced The worker is entitled to the allowance and travel expenses For every 3 months that he works he is also entitles to leave 4 working days The workers rep has the right to remain in their jobs The worker has no option but if he doesn’t want to go he can resign but then he will get no compensation or unemployment benefits. Substantial mobility – This mobility is when there is substantial changes in the mobility. In the reform of 2012 they made changes regarding to the substantial mobility because they wanted to make it easier for the employer to adapt the working conditions to the changes in the workplace. Therefore the legislator gave more powers to the employers to be able to modify the working conditions; which included the salary system. Now a days its also posible to modify substantial changes in the contract or CBA or any conditions agreed between employer and employee which the employer can unilaterally change. The possibility of legal substantially modifying working conditions. The posibility of legal substantially modify working conditions is regulated by: (COPIAR DEL PPT) 1. They have to be ETOP reasons. Those modifications affecting the folowing items shall be considered as substantial modifications to working conditions (Art 41 WS): a) Working day b) Distribution of working time schedule c) Shift work system d) Remuneration system and salary amount e) Work and performance system f) Task, which exceed the limits set by Art 39 of functional mobility 2. Substantial modifications to working conditions may be individual or collective Worker can: Accept the change Not accept change if the worker terminates the contracts it will have the compensation of 20 days of salary per year up to 9 months. (ex: gets paid 1500€ 50 x 20 = 1000 * 10 (years worked) = 10000 (compensation) but it can’t be more than the working salary times 9 months so 1500 x 9 = 13500€) He can take them to court. If he takes them to court and the court gives him the centain in the favour then they will have to reasign to his previous conditions.