Information for the week of 28.11.2008 to 04.12.2008
(well wena publisher, each book you buy what you updated and you can read this magazine)
Summary. The principles of labor law up one of the main elements needed to support the autonomy of the legal discipline. Nevertheless, the doctrine did not paid sufficient attention. The aim, at this time, confront the traditional theory of the principle of supremacy of reality with new problems arising from their application in industrial relations.
initial approach
One of the elements to affirm the autonomy of labor law as legal discipline is the existence of certain principles that are proper and, therefore, are different from those existing in other areas of law. These principles are to form the substrate of labor law and respond to a particular conception of it. In this regard, the principles of the Labor Law must appear connected and harmonious, since, in full, outlining the characteristic features of this branch of law.
Indeed, the Labour Law has certain principles that inform and inspire some labor standards directly or indirectly a number of solutions (judicial, administrative, etc.), so it can serve to promote and guide the adoption of new standards, guide the interpretation of existing and resolve cases not covered. However, the receipt and application of these principles in our legal system has not been uniform and has waxed and waned. In this sense, Professor José Luis Ugarte has confirmed the importance of "quiet return after decades of silence during the era of labor flexibility, as classic as the forgotten principles of labor law. "
Now, pick the question posed by Professor Américo Plá, author inevitable when discussing the principles of labor law: Who can invoke these principles?, "Only the workers or you can rely on the employer? The same author tells us that an initial response suggests it may only be invoked by the workers, since these principles respond to the rationale of the Labour Law, that is, a guardianship or protective nature of most Weak relations work. However, careful reflection point requires a more nuanced. The first is to distinguish the principles derived from the idea that protective or custodial nature (protective principle, the principle of inalienability and principle of continuity) of the other principles (for example, the principle of supremacy of reality).
Regarding the former, it seems logical that can only be raised by the worker. In contrast, in principle no reason to prevent others can be invoked both by the worker as the employer. In short, the principles of labor law need not always apply for the worker, although generally so, but must be read to apply to any employment relationship, under any circumstances.
problems in implementing the principle of supremacy of reality
approach the problem in the application of these principles, the supremacy of reality, and review some illustrative cases. Professor Plá
defines this principle by stating that "in cases of discrepancy between what happens in practice and what emerges from documents or agreements, preference should be given to the first, ie what happens in the field of facts. " In this way, there have been the notions of "contract" reality "and" effective relationship work ", meaning that the application of labor law is increasingly dependent on a strict legal relationship, whose existence is independent of the act that determines its birth.
However, this principle also be applied with some habitual in our courts, has been taken over by our legal work on Article 8 of the Labour Code, which establishes a presumption of employment factors, stating that "any provision of services on the terms stated in the previous article presumes the existence of an employment contract. " Furthermore, the acceptance of so-called "clauses tacit "and the origin of the modification of contracts in this way confirm the validity of this principle. But, what problems has the principle of supremacy of reality with respect to certain legal concepts?
a) The concept of subordination or dependence. The employment contract has three essential elements to be submitted copulatively: the provision of services, compensation, and the subordination and dependence. Except for this last item, others are also in the provision of services not covered by the Labour Law (leasing services, office, commission, etc.) what follows that the element tipificante of the employment relationship is precisely the subordination or dependency.
However, this element has not been specifically defined by the legislature, as has been the doctrine and jurisprudence, administrative or judicial, who have filled this concept differentiating content. Thus, one could argue that there are tangible signs of dependence or subordination, such as the existence of generic or specific instructions on how to do the work, some time off work and well-circumscribed, the obligation assistance to the workplace, the use of uniform, the obligation to pay interim accounts, exclusive services, participation of workers in the business organization, and so on.
The problem is that the traditional or typical work is in crisis, so it is not so easy, now, to determine the occurrence of the element of subordination or dependence. Moreover, the requirement of evidence showing this link, by the law, has two limitations: a.
- First, there is no uniformity regarding the requirement of one or more of these signs demonstration. The rating can not be done in the abstract, but each case must be analyzed.
b. - On the other hand, Some of these are challenged by evidence showing the same line, so there is controversy over its authorship.
However, in respect of legal concepts such as this, is very important the principle of supremacy of reality. For this purpose, such principle can be summarized by noting that the terms the parties use to describe the form or manner that will regulate the legal relationship has no special importance, since Article 8 of the Labour Code establishes a presumption work. Generally, the question arises in respect of cases where the parties have self-appointed legal relationship as a benefit service, but when it ends, usually by unilateral decision of the employer, the provider of the service claimed that there was an employment contract. However, as originally anticipated, I believe this principle should apply in both directions, ie the new form view (provided they meet in particular the cases of subordination or dependence) and in the opposite direction, this is, when the parties have their legal relationship as self-appointed work and in fact there is evidence of the requirements of article 8.
The preceding statement becomes important if we think that, due to lack of clarity and uniformity on the subject, there are still Where the parties have signed labor contracts in circumstances where such contracts do not exist in reality, for lack of the relationship of subordination or dependence. Consider, for example, in the case of part-time faculty, for which the judicial and administrative law initially argued that it should be governed by the Labour Code to then consider and hold otherwise. Another example is the simulated work contracts for immigration benefits. In short, the principle of supremacy of the evidence suggests that in the event of a discrepancy between what happens in practice and what emerges from the documents or agreements, must accept what has been happening in the realm of facts, this solution is favorable or not the interests of the worker. Professor Plá notes in this regard that "in the search for real truth, that is what inspires the principle of primacy of reality, either party may invoke the real truth in front of the formal aspects that deface" .
This conclusion has been challenged, noting that the principle of supremacy is not really a first round, since it prevails in its application the protective principle, especially in dubio pro rule operator. In this way, and applying this reasoning to the problem, when in doubt about whether certain factual circumstances set or not the element of subordination or dependency, Shall be understood that there is contract work, because it implies a higher level of protection of the worker.
While experience shows that hardly the employer to the employee will recognize a category that does not perform effectively in the facts, or will commit in writing to enforce a contract which will then ignored in practice, the same experience shows that there are exceptional circumstances, so the employer can not be deprived of the possibility of invoking that principle of reality. Moreover, the rule in dubio pro operator only plays in the interpretation labor standards, but not in the establishment of factual circumstances, this would imply that that rule has left its natural environment. In short, the protective principle does not entitle to do anything in the name of protecting the worker, unless when in fact there is no employment relationship.
b) The concept of undertaking in the Chilean labor law. Another concept that has required the application of the principles of the Labor Law is the company for labor law purposes. In our current regulatory model has prevailed interpretation of the term that identifies companies with the legal form that shows the holder. This from definition in Article 3 of the Labour Code, specifically to the requirement of certain legal individuality. This design limits the exercise of employment rights even more than it already limits the legislature itself. On the other hand, new forms of economic organization show that business organizations are much more complex, so-called emerging business groups and other phenomena. Professor Sergio
Gamonal recognizes that the principle of supremacy of reality has played a crucial role in determining whether a group of companies is a single company for business purposes. But the author goes further. States that the principle of supremacy of reality is applied based on two elements: a) there is a discrepancy between what happens in practice and what emerges from the documents, and b) the situation where the facts are more favorable to worker who issued the documents. In the opinion of Professor Gamonal, so that the interpreter may give preference to the facts, must attend the two conditions copulatively. He argues this indicates that the principle of supremacy of reality is objective in its application, respecting the two items described, as it relies on the power control of the employer, within the organization that conducts and manages, and is inserted the worker, which leads to the reality of the employment contract never occurs behind the employer, because the law gives power hierarchy within the enterprise. " Again the question is moot.
however, already indicated that this principle is usually invoked by the worker, and that only in exceptional cases where it would appear its invocation by the employer. I think, in this order of things, that the tutelary nature of labor law in its current state, does not preclude the possibility of starting to analyze the reality of the facts regardless of the interests of each party. This does not mean entering the "diabolical test" of the motivations of employer, as the professor Gamonal, but only strictly apply the principle at issue. Conclusions
is necessary to reopen discussions on the principles of the Labor Law, from a dogmatic and practical. A factual scenarios arise daily calling for the application of these principles so that the debate is in itself important to reaffirm the autonomy of the legal discipline. Professor Plá notes that these principles "have enough elasticity to fertility and not get caught in concrete legislative formulas and must have the proper malleability to inspire different rules depending on the diversity of circumstances. " Elasticity and fertility is that which should not hinder that certain principles can be invoked by both sides of the employment relationship, to discuss the merits of its application, to indicate that there was an excess or to find the right frame if the counterparty has made improper use of it. Ultimately, and with the understanding that the application of the principles can not be measured with a precision characteristic of the sciences, was recognizing that the principles have a certain amplitude and plasticity, but no longer have limits and thoroughness. Can not be stretched to either side and with any intensity. Must conform to certain parameters, but existing elastic.
Feeddelamona (well wena publisher, each book you buy what you updated and you can read this magazine)
relations and the principle of supremacy reality
Rodrigo Ignacio Palomo Vélez Professor of Labour Law
Faculty of Laws, University of Talca
Rodrigo Ignacio Palomo Vélez Professor of Labour Law
Faculty of Laws, University of Talca
Summary. The principles of labor law up one of the main elements needed to support the autonomy of the legal discipline. Nevertheless, the doctrine did not paid sufficient attention. The aim, at this time, confront the traditional theory of the principle of supremacy of reality with new problems arising from their application in industrial relations.
initial approach
One of the elements to affirm the autonomy of labor law as legal discipline is the existence of certain principles that are proper and, therefore, are different from those existing in other areas of law. These principles are to form the substrate of labor law and respond to a particular conception of it. In this regard, the principles of the Labor Law must appear connected and harmonious, since, in full, outlining the characteristic features of this branch of law.
Indeed, the Labour Law has certain principles that inform and inspire some labor standards directly or indirectly a number of solutions (judicial, administrative, etc.), so it can serve to promote and guide the adoption of new standards, guide the interpretation of existing and resolve cases not covered. However, the receipt and application of these principles in our legal system has not been uniform and has waxed and waned. In this sense, Professor José Luis Ugarte has confirmed the importance of "quiet return after decades of silence during the era of labor flexibility, as classic as the forgotten principles of labor law. "
Now, pick the question posed by Professor Américo Plá, author inevitable when discussing the principles of labor law: Who can invoke these principles?, "Only the workers or you can rely on the employer? The same author tells us that an initial response suggests it may only be invoked by the workers, since these principles respond to the rationale of the Labour Law, that is, a guardianship or protective nature of most Weak relations work. However, careful reflection point requires a more nuanced. The first is to distinguish the principles derived from the idea that protective or custodial nature (protective principle, the principle of inalienability and principle of continuity) of the other principles (for example, the principle of supremacy of reality).
Regarding the former, it seems logical that can only be raised by the worker. In contrast, in principle no reason to prevent others can be invoked both by the worker as the employer. In short, the principles of labor law need not always apply for the worker, although generally so, but must be read to apply to any employment relationship, under any circumstances.
problems in implementing the principle of supremacy of reality
approach the problem in the application of these principles, the supremacy of reality, and review some illustrative cases. Professor Plá
defines this principle by stating that "in cases of discrepancy between what happens in practice and what emerges from documents or agreements, preference should be given to the first, ie what happens in the field of facts. " In this way, there have been the notions of "contract" reality "and" effective relationship work ", meaning that the application of labor law is increasingly dependent on a strict legal relationship, whose existence is independent of the act that determines its birth.
However, this principle also be applied with some habitual in our courts, has been taken over by our legal work on Article 8 of the Labour Code, which establishes a presumption of employment factors, stating that "any provision of services on the terms stated in the previous article presumes the existence of an employment contract. " Furthermore, the acceptance of so-called "clauses tacit "and the origin of the modification of contracts in this way confirm the validity of this principle. But, what problems has the principle of supremacy of reality with respect to certain legal concepts?
a) The concept of subordination or dependence. The employment contract has three essential elements to be submitted copulatively: the provision of services, compensation, and the subordination and dependence. Except for this last item, others are also in the provision of services not covered by the Labour Law (leasing services, office, commission, etc.) what follows that the element tipificante of the employment relationship is precisely the subordination or dependency.
However, this element has not been specifically defined by the legislature, as has been the doctrine and jurisprudence, administrative or judicial, who have filled this concept differentiating content. Thus, one could argue that there are tangible signs of dependence or subordination, such as the existence of generic or specific instructions on how to do the work, some time off work and well-circumscribed, the obligation assistance to the workplace, the use of uniform, the obligation to pay interim accounts, exclusive services, participation of workers in the business organization, and so on.
The problem is that the traditional or typical work is in crisis, so it is not so easy, now, to determine the occurrence of the element of subordination or dependence. Moreover, the requirement of evidence showing this link, by the law, has two limitations: a.
- First, there is no uniformity regarding the requirement of one or more of these signs demonstration. The rating can not be done in the abstract, but each case must be analyzed.
b. - On the other hand, Some of these are challenged by evidence showing the same line, so there is controversy over its authorship.
However, in respect of legal concepts such as this, is very important the principle of supremacy of reality. For this purpose, such principle can be summarized by noting that the terms the parties use to describe the form or manner that will regulate the legal relationship has no special importance, since Article 8 of the Labour Code establishes a presumption work. Generally, the question arises in respect of cases where the parties have self-appointed legal relationship as a benefit service, but when it ends, usually by unilateral decision of the employer, the provider of the service claimed that there was an employment contract. However, as originally anticipated, I believe this principle should apply in both directions, ie the new form view (provided they meet in particular the cases of subordination or dependence) and in the opposite direction, this is, when the parties have their legal relationship as self-appointed work and in fact there is evidence of the requirements of article 8.
The preceding statement becomes important if we think that, due to lack of clarity and uniformity on the subject, there are still Where the parties have signed labor contracts in circumstances where such contracts do not exist in reality, for lack of the relationship of subordination or dependence. Consider, for example, in the case of part-time faculty, for which the judicial and administrative law initially argued that it should be governed by the Labour Code to then consider and hold otherwise. Another example is the simulated work contracts for immigration benefits. In short, the principle of supremacy of the evidence suggests that in the event of a discrepancy between what happens in practice and what emerges from the documents or agreements, must accept what has been happening in the realm of facts, this solution is favorable or not the interests of the worker. Professor Plá notes in this regard that "in the search for real truth, that is what inspires the principle of primacy of reality, either party may invoke the real truth in front of the formal aspects that deface" .
This conclusion has been challenged, noting that the principle of supremacy is not really a first round, since it prevails in its application the protective principle, especially in dubio pro rule operator. In this way, and applying this reasoning to the problem, when in doubt about whether certain factual circumstances set or not the element of subordination or dependency, Shall be understood that there is contract work, because it implies a higher level of protection of the worker.
While experience shows that hardly the employer to the employee will recognize a category that does not perform effectively in the facts, or will commit in writing to enforce a contract which will then ignored in practice, the same experience shows that there are exceptional circumstances, so the employer can not be deprived of the possibility of invoking that principle of reality. Moreover, the rule in dubio pro operator only plays in the interpretation labor standards, but not in the establishment of factual circumstances, this would imply that that rule has left its natural environment. In short, the protective principle does not entitle to do anything in the name of protecting the worker, unless when in fact there is no employment relationship.
b) The concept of undertaking in the Chilean labor law. Another concept that has required the application of the principles of the Labor Law is the company for labor law purposes. In our current regulatory model has prevailed interpretation of the term that identifies companies with the legal form that shows the holder. This from definition in Article 3 of the Labour Code, specifically to the requirement of certain legal individuality. This design limits the exercise of employment rights even more than it already limits the legislature itself. On the other hand, new forms of economic organization show that business organizations are much more complex, so-called emerging business groups and other phenomena. Professor Sergio
Gamonal recognizes that the principle of supremacy of reality has played a crucial role in determining whether a group of companies is a single company for business purposes. But the author goes further. States that the principle of supremacy of reality is applied based on two elements: a) there is a discrepancy between what happens in practice and what emerges from the documents, and b) the situation where the facts are more favorable to worker who issued the documents. In the opinion of Professor Gamonal, so that the interpreter may give preference to the facts, must attend the two conditions copulatively. He argues this indicates that the principle of supremacy of reality is objective in its application, respecting the two items described, as it relies on the power control of the employer, within the organization that conducts and manages, and is inserted the worker, which leads to the reality of the employment contract never occurs behind the employer, because the law gives power hierarchy within the enterprise. " Again the question is moot.
however, already indicated that this principle is usually invoked by the worker, and that only in exceptional cases where it would appear its invocation by the employer. I think, in this order of things, that the tutelary nature of labor law in its current state, does not preclude the possibility of starting to analyze the reality of the facts regardless of the interests of each party. This does not mean entering the "diabolical test" of the motivations of employer, as the professor Gamonal, but only strictly apply the principle at issue. Conclusions
is necessary to reopen discussions on the principles of the Labor Law, from a dogmatic and practical. A factual scenarios arise daily calling for the application of these principles so that the debate is in itself important to reaffirm the autonomy of the legal discipline. Professor Plá notes that these principles "have enough elasticity to fertility and not get caught in concrete legislative formulas and must have the proper malleability to inspire different rules depending on the diversity of circumstances. " Elasticity and fertility is that which should not hinder that certain principles can be invoked by both sides of the employment relationship, to discuss the merits of its application, to indicate that there was an excess or to find the right frame if the counterparty has made improper use of it. Ultimately, and with the understanding that the application of the principles can not be measured with a precision characteristic of the sciences, was recognizing that the principles have a certain amplitude and plasticity, but no longer have limits and thoroughness. Can not be stretched to either side and with any intensity. Must conform to certain parameters, but existing elastic.
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