As explained in the previous post , the key to this labor reform is the relaxation of dismissal . The rest are ornaments, although in some cases, these ornaments are of some importance. But I think the most important policy change is one that has reached us by surprise as amended ("anyway?) Of Royal Decree Law on the labor reform is implemented. I refer to the regulation of business reasons for dismissal under the new Article 51 of the Statute of Workers, seems to have changed significantly in the last minute compared to earlier drafts. I think the press is too busy with the definition of "economic reasons" which are a mere vestige of the past little operant We can sidetrack well. The important thing is the definition of "technical reasons, organizational and productive", that is where the tomato. It is immaterial what the definition of "negative economic situation" if in any case the employer may carry out the dismissals, although this situation does not exist (this has some nuances, but we will not enter them.) As is known, the Workers' Statute allows the employer to amend or terminate the employment contract without the consent of the workers, based on the interests of the company. This does not mean that it can carry out these ups and downs when you want, because the system requires you there cause enough. Initially, the case definition was very strict, so that the company had to be really going down for the employer could unilaterally alter or terminate contracts. But the successive labor reforms (in particular the 1994 and 1997) were more flexible this initial stiffness.
For various reasons, the drafting of legal provisions dealing with this topic was quite cumbersome and complicated. In this context, there are many different interpretations by judges and academic literature and, indeed, employers were developing a level of uncertainty. But I think a careful reading could unravel an outline of these rules pretty clear, coherent and logical. The cause was a relationship between the measure of fitness business and overcoming a particular situation of ineffectiveness or inefficiency of the company. If the contract changes or layoffs were reasonably designed to overcome this situation, had to be considered appropriate. The most serious was the situation of inefficiency of the company, the more I allowed the law to the employer, following three steps: 1) whether the effectiveness of the company was "better" could be carried out substantial changes to transfers and conditions work. 2) If the company was "difficult" or had a "negative economic situation" could be conducted, in addition to the above, some redundancies (or suspensions, if these difficulties were short-term. 3) If the company's very existence was threatened, could be carried out, in addition to previous redundancies, ie, a significant number of layoffs in connection with the company payroll. 4) If the company was not viable, it could dismiss the entire workforce.
However, the labor reform of 2010 not limited to clarifying the description of the case incorporating the jurisprudence, it definitely dynamite this scheme, allowing the employer carry out collective redundancies simply to "improve the situation of the company" as well as to prevent future situations. is, puts the point 3) directly to 1). And see what happens with point 4). The consequences of this change are very important:
a) The employer may dismiss any number of employees, except, probably, to the entire workforce, if it proves that this profit. In the case of collective redundancies, the record of employment regulation may limit this effect, but ultimately, if no bargaining agreement, the Administration is supposed to resolve the case by applying legal expected.
b) This removes any uncertainty for employers regarding the origin of the business reasons, unless their decision is irrational in economic terms. This gives carte blanche to any place of employment in technology, outsourcing any process of employment (dismissal of workers to outsource the activity) and surely relocation processes of production facilities domestically, and international community.
c) The fact that the most important alteration (collective redundancies) can be carried out at the lowest level of seriousness of the situation (which the company makes something with the restructure) causes a significant knock-on effect on other vicissitudes. Of course, may be carried out individual dismissals. Also substantial changes, transfers, suspensions, reduced working hours (covered in a new way) and sags wage (again with a new regulation more clear.) Although the preamble states rhetorically that internal flexibility is provided to avoid layoffs, making layoffs is also easier and nowhere does the law operate as a last resort. Moreover, as discussed below, the flexibility also affects compensation, making the choice for dismissal is much easier and more attractive.
d) As mentioned in previous post , regulation of firing determines the position of power of the parties. So significantly increases this flexibility to the operator position, which is increasing due to the enormous levels of unemployment that we suffer. From the individual standpoint, workers will be more compliant, it will be easier and cheaper to dismiss. From the collective perspective, the representatives agreed in all kinds of lowering wages and substantial changes, threatened by the possibility of redundancies , which is regarding the cause easy and inexpensive compared to costs.
e) Thus, the change in the wording of the case, it is not, as is suggested in the preamble, a simple explanation of the cause, but a very favorable to business interests. Employers, therefore, are in luck with this reform. In contrast, no benefit at all workers. is false as to help create jobs , for the reasons mentioned in previous post. But is that also the relaxation of the cause does not only affect new hires, as also applies to contracts currently in force . Contibuirá, thus destroying the existing employment in the current context of economic crisis. When you return to work there, people will be hired through building new contracts with reduced compensation. The economic crisis is the excuse and the appropriate situation more precarious working conditions and backtrack on the social gains achieved so far.
f) Beyond the interest of workers, from legal logic, the relaxation of the cause may be, however, some positive effects if considered in isolation. So far, the business demands for more power within the employment relationship had not specially dedicated to the cause or severance pay from, as would be more logical, but compensation for unfair dismissal, they are ignoring the penalty for an illegal. In this context, unfair disciplinary dismissal had become the normal way to adjust the templates to changing market conditions. In this reform is a clear interest in eliminating this evil practice, easing the cause, subsidize payments and shortening the notice period. Formally, the dismissal is still causal. But what probably will happen is that arising from arbitrary firings and layoffs as economic rather than disciplinary dismissals. Because now appear to for cases of arbitrary pure business, it promotes economic unfair dismissal , which has much less logical than simply more flexible and lower compensation because the dismissal appropriate. From this we will in the next post.
g) What happens is that this is achieved without any security for workers . The penalty of temporary contracts has a very very limited, as I shall try to exhibit in future entries. He could have agreed a relaxation of the grounds for dismissal that would affect not only collective redundancies, or to incorporate precautions against the relocation of companies in exchange for strengthening the safeguards against arbitrary dismissal, for example, making compensation for unfair dismissal was not entirely predictable, could be graduated according to different factors (severity of business conduct, company size, economic capacity of the company , damage) and had a few stops but the minimum age of workers was small.
Ultimately, this change of wording is significant, perhaps the most important modification of this labor reform and if sustained, will produce a significant power imbalance in a labor market that is already unbalanced by the high levels of unemployment.
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