Functional & Geographical Mobility and Substantial Changes to Working Conditions

Posted on Sep 13, 2024 in Law & Jurisprudence

ITEM 14: AMENDMENT OF THE PROVISION

1. Functional Mobility

2. Geographical Mobility

3. Substantial Changes to Working Conditions

A working relationship of a certain duration is subject to the likelihood of experiencing some modifications, either by work rules, by mutual agreement of the parties, or by the company’s decision. Under the general rules of contracts, there need not be a unilateral modification of the contents of the contract (Art. 1256Cc). However, in the employment contract, the worker is attached to a business organization, which is recognized as having the power to organize and direct the business. This power includes the right to make non-substantive changes in the labor contract.

1. Functional Mobility

The functions initially agreed upon do not necessarily remain the same throughout the life of the contract. In this sense, changes may be agreed upon by mutual agreement between the employee and the employer. However, there is also the possibility of a change of roles decided unilaterally by the employer.

According to Art. 39 ET, the unilateral change of functions can be performed while respecting legal limits.

Before discussing those legal limits, one must start from the premise that Art. 39 ET distinguishes between two types of functional mobility:

Internal or Horizontal Mobility:

This occurs within the professional group or, where applicable, if the job classification system in the company is not grouped into categories of those in professional groups, between equivalent grades. According to Art. 22.3 ET, professional status is equivalent to another when the professional competence necessary to perform the functions of the first allows the development of basic employment benefits of the second, after the execution, if necessary, of a simple process of training or adaptation.

External Mobility or Vertical Mobility:

This occurs outside of the group or between categories that are not equivalent.

Taking into account both types of functional mobility (within or outside the professional group), the limits of Art. 39 are as follows:

Requirement of Causation:

The law does not require causality in functional mobility within the same group or between equivalent grades, prohibiting in any case arbitrary or discriminatory business decisions.

By contrast, in functional mobility outside the group, causality is required for technical, organizational, or productive reasons, as well as when mobility is required for a specific time. If it is instructed to lower functions, further justification is required, namely that there are compelling or unpredictable needs of the productive activity.

Therefore, you can have one of the following situations:

• Functions that require higher or lower qualifications but within the group or between equivalent grades, in which case no justification is required (even a limit of discretion operates as respect for fundamental rights and the principle of non-discrimination).
• Higher functions that are required in excess of the group or category, in which case it requires technical or organizational reasons, but not unexpected or compelling reasons.
• Lower functions that are required in excess of the equivalent group or category, in which case they also require such urgent reasons.

Term Limits:

There are three situations to distinguish:

1. If mobility occurs within the group or equivalent grades, there are no time limits for the duration.
2. If you assume the performance of functions outside the group or non-equivalent categories, and these are top functions (upward mobility), it is limited to the essential time. Furthermore, after some time, namely a period exceeding six months for a year or two years and eight months, the employee may claim the upside if it does not prevent the collective agreement or the coverage of such vacancy in accordance with the rules applicable in terms of promotions in the company (39.4 ET). Against the refusal of the company and the report of the Committee or, if applicable, the staff representatives, the worker may complain to the competent jurisdiction.
3. If mobility is for the lower performance of different groups or between categories that are not equivalent (downward mobility), such business decisions should be limited strictly to the time required. In this case, the employer shall report such a situation to the representatives of workers (39.2 ET).

As a result, we can say that standing vertical mobility beyond the limits of the group or equivalent grades exceeds the limits of Art. 39, which admits only temporary mobility. This would be a substantial change in working conditions that requires agreement between the parties or the application of Article 41 ET or other guidelines which establish the agreement for substantial changes.

Boundary Common to Both Types of Mobility:

The Requirement for Certification:

Art. 39.1 ET requires the mobilized worker to have the qualifications (licenses, permits, etc.) or academic or professional qualifications (usually overlap) required to perform the new functions.

Respect for Professional Rights:

The Act requires that mobility does not cause harm to the dignity, education, or career advancement or job security of mobilized workers, even in the case of mobility within the group or equivalent grades. In this respect, one cannot invoke the grounds for dismissal occurring in the target of ineptitude or lack of adaptation in the case of performance of functions other than usual because of previous functional mobility (Article 39.3 ET).

Respect for Economic Rights:

In any kind of functional mobility, workers are entitled to pay corresponding to the functions they actually perform, even if the roles remain below the pay of origin (Article 39.3 ET). As for supplements, for example, the job, not being consolidated, will be lost (Article 26.3 ET). Supplements of quantity or quality will be consolidated or not according to what we agreed upon, and if there is no agreement, the non-consolidation of these supplements, if it is a major change, will require proper reasons and should be just through the procedure of Art. 41 of ET, as a substantial change in the pay system.

Substantial Changes:

If the change of roles also implies a substantial change in other working conditions, for example, of their day or schedule, Art. 41 of ET should be applied. But also, according to Art. 39.5 and 41.1f of ET, changes in roles outside the group or equivalent permanent categories represent a substantive change to working conditions and require either the agreement of the parties or the submission to the rules of Art. 41 of ET or the rules established for that purpose in the CC.

The Individual Contract as a Limit:

You can expressly agree in an employment contract on functional tenure, the waiver by business functions to vary the worker.

Functional mobility may be due to the protection of worker health,

for example, in the case of night workers, pregnancy and lactation, occupational disease, etc. Workers moving into these positions are exempt from the risks that affect them.

Outline of the Functional Mobility: (Art. 39) ET:

1 – Within the professional group or between equivalent occupational categories: (internal or horizontal) Art. 39.1 ET

• No causation requirement
• No time limit
• No procedure
• Academic or professional degrees
• Respect for the dignity of the worker, his upbringing, his career, and its stability (no objective dismissal Art. 52 a) and b))
• Respect for economic rights (salary according to functions performed, which remains lower than the pay of origin)

2 – Outside the professional group or between occupational categories that are not equivalent: (external or vertical) Art. 39.2 ET

• Causality:
  • In any case: due to technical or organizational reasons
  • If you are descending (lower functions): unforeseen or urgent needs of the productive activity
• Time limit:
  • For the period required, in any case
  • If you are up by more than 6 months to 1 year or more than 8 months in 2 years: the right to ask for promotion or coverage of the vacancy
• Procedure: downward slope, communication to the employee representatives
• Academic or professional degrees
• Respect for the dignity of the worker, his upbringing, his career, and its stability (no objective dismissal Art. 52 a) and b))
• Respect for economic rights (salary according to functions performed, which remains lower than the pay of origin)

3 – Mobility extraordinary (beyond the limits of Art. 39 ET):

Mutual agreement or submission to the rules provided for substantial change in working conditions (Art. 41 ET) or established by the collective agreement.

2. Geographical Mobility

The workplace is determined in the contract. As was the case with functions, the workplace may also vary throughout the contract period, either by agreement or unilaterally by the employer.

Art. 40 regulates in part the case of geographic mobility by business decision, as it only governs cases involving a change in the habitual residence of the worker: transfers and movements. This change of residence requirement shall be assessed in response to different circumstances (place of residence, distance to the new workplace, means of transport, time spent, etc.) immune to conventional regulation.

Transfers

Definition:

The transfer is a permanent or temporary change (over 12 months to three years) to a workplace different from the same company that requires changes in residence.

Excluded from the concept of workplace changes are mobile or traveling workers, i.e., workers who have been hired specifically to provide services in mobile companies (companies with assembly or installation).

Cause:

The transfer must be justified on the basis of economic, technical, organizational, or production reasons or contracts relating to the business. It is understood that the transfer will be justified in response to cases where the adoption of the proposed measures would improve the situation of the company through a more efficient organization of its resources, thus promoting its competitive position in the market or a better response to the requirements of demand.

Procedure:

The transfers will follow a different procedure depending on whether it is a single transfer (or plural) or collective. This rating is used for the procedure used.

Individual Transfers (or plural):

Those who, by their numbers, do not become collective.

Procedures: The employer must notify its decision to the worker concerned (the law should be understood that at least inform the new center, cause, and date) and their representatives at least 30 days before the date of effectiveness of the measure.

Collective Transfers

It is understood that a shipment is collective when:

1. It affects the entire workplace, provided that it occupies more than five workers.
2. When, in a period of 90 days, it includes a number of workers at least:
   • 10 workers in enterprises employing fewer than 100
   • 10% in those occupying between 100 and 300
   • 30 workers in enterprises employing 300 or more
   (The number of workers is counted in the total of the company, not the center in question).

When, with the intention of not following the procedure for collective shipments, the company makes shipments in subsequent periods of 90 days at no less than those indicated, without further causes concurring to justify such action, these new transfers will be considered made in circumvention of the law and will be declared null and void (Article 40.1 ET).

In terms of procedure, it is more complex than in the case of individual shipments, but the final decision rests with the employer. This should open a consultation period that will focus on the causes of the move and the measures necessary to mitigate its consequences, with employee representatives for a period not less than 15 days. The opening of the consultations and their conclusions should be communicated to the labor authority.

Such consultations could end in two ways:

1. With an agreement, which must be notified to those affected with 30 days’ notice.
2. Without an agreement, although it is possible that the company maintains its decision to move and reports to those affected 30 days in advance.

Labor Law Service:

Notified of the decision, the employee may:

1. Terminate the contract with compensation (20 days per year to a maximum of 12 months).
2. Accept the transfer with compensation for costs incurred, both own and their dependents. The parties agree on compensation, which is sometimes agreed upon in the collective agreement.
3. Comply with the shipment but challenge the decision before the competent court business (20 days). The ruling will decide on the transfer:
   • If you declare it unreasonable, the employee is entitled to be reinstated to the job of origin (if the employer refuses, the worker must request the execution of the sentence and the termination of a contract, in which case they would charge the same compensation as unfair dismissal and possible additional compensation).
   • If you declare the employee will abide by it justified or opt for termination of the contract with compensation of 20 days’ salary per year of service capped at 12 months.
   • If you declare it null (absence of proceedings or discriminatory), the employee is entitled to be reinstated to the job of origin (if the employer refuses, the worker must request the execution of the sentence on its own terms with pecuniary hardship or termination of the contract, in which case it would charge the same compensation as unfair dismissal).

In collective transfers, compared to the agreement or decision to move, the objection may be raised before the competent jurisdiction not only individually but through a collective dispute procedure, in which case the individual claims in the meantime will be paralyzed.

In any case, the employee representatives will have priority to stay in jobs where shipments occur.

In collective transfers, an administrative proceeding may be opened before the Labor Authority (RD43/96) so that, in view of the positions of the parties and the economic and social consequences, it can justify extending the deadline for reinstatement to the new workplace of those affected to 6 months.

Special Cases:

In Case of Insolvency of Employer:

While processing the right to contest the termination with compensation for collective transfer is suspended with a maximum of 1 year since it was agreed that where the new center is in the same province as the source and less than 60 km unless credit given to travel time exceeds 25% of the normal working day (tries to avoid loss of workforce and economic damage that would affect the viability of the company).

(In other cases, the burden on the employee is not suspended.)

Transfers Initiated by the Employee:

In Case of Gender Violence:

Paragraph 3a is added to Art. 40, which grants female victims of gender violence who have to leave the job at a location to establish its full protection or assistance the preferential right to occupy another position in the same professional group or equivalent category that the company has a vacancy in other workplaces. In principle, this transfer will last for 6 months, during which the company must reserve the worker’s former post. At this time, the worker must be eligible for the position, stopping the reserve.

Family Reunification:

For workers who are spouses of the same company when one of them has been transferred, the other is entitled to transfer to the same location if there were jobs (40.3 ET).

Swaps by the Collective Agreement:

Some agreements recognize the right to swap between workers of the same class or professional group and a similar post but reserving the company’s acceptance of it.

Transfers for Disciplinary Reasons for the Convention:

For very severe penalties.

Displacement

Meaning:

Workplace changes that involve changes in the usual place of residence that differ from shipments in time because the movements are temporary, with a limit of up to twelve months from here would transfer (application of its Laws).

Causes:

It must also be justified and lists the same grounds for the move: economic, technical, organizational, products, or contracts relating to the business.

Procedure:

A requirement that the employee is informed in advance of the displacement of at least 5 working days if the displacement is more than three months and, in any event, in time (Article 40.4 ET).

Rights:

If the term is more than three months, the employee is entitled to time off work for 4 days at their old home for three months each shift, counting travel days apart, whose expenses are borne by the employer. In the event that the employee may not enjoy or collect compensation in cash (Jurisprudence).

It also establishes the obligation to pay, in addition to salaries, allowances and travel expenses. CC is usually stipulated, and if not, it should go to the jurisdiction where stakeholders must substantiate the amounts claimed.

In the workers’ movement order, the right to opt for termination of the contract awarded is not granted.

The order is enforceable, the employee must comply, but may appeal, as in the case of shipments, if it considers that it is unjustified or zero. If you use and the displacement is declared invalid or unwarranted, the employee is entitled to be reinstated, and if the company could not meet the same consequences apply to the transfer and studied Art. 501c of ET and Art. 138.5 LPL.

The priority of stay with the company for workers’ representatives holds also for the case of displacement.

Other Cases of Geographical Mobility

Sometimes, we deal with workplace changes that do not require a change of residence. In these cases, the provisions of the CC should apply, and if it does not say anything, provided that such changes are not substantial, they may be performed unilaterally by the employer based on his management power.

3. Substantial Modification of Conditions of Work

The conditions under which it has been agreed to develop the work are established by the various sources of employment: laws, regulations, CA, and the employment contract.

The modifications thereof may occur by different pathways:

1. Hereby modified as reformed by later standards.
2. By mutual agreement.
3. Unilaterally by the employer.

This third way is the one implemented by Article 41 of the ET. It seems necessary to apply this article when there is an agreement between the employer or employee or when the CC provides for a procedure to carry out such amendments or in the case of non-substantive changes that would be within the power of corporate management.

Cause:

It establishes the possibility for the employer to agree to substantial changes in working conditions where there is proven need for economic, technical, organizational, and production reasons.

Concept:

Substantial changes will include those involving the following subjects:

1. Workday
2. Schedule
3. Regime shift work
4. Remuneration system
5. Performance work system
6. Functions that exceed the limits for functional mobility provided for in Article 39 of the ET

From this list, it says it is not exhaustive “nor are all that are neither are all that are.” First, it is an open list (for food aid, voluntary improvements SS, etc.). And secondly, not every change in the matters listed is “substantial,” a vague legal concept, which corresponds to its realization in the Courts. In this sense, the jurisprudential approach is to consider that a change is substantial if it transforms the fundamental aspects of the employment relationship in such terms that they become notoriously others, whether or not they cause injury to the worker (STS 11/12-97, Castilla-La Mancha STSJ 16-6-95). It depends on the entity’s change of condition affected, the consequences for the worker, and the duration of the measure.

There are changes that cannot be done this way, regarding them as changes in contractual arrangements or contractual novation requires the consent or agreement of the employee: Special or alter the common nature of the employee, modify the duration of the contract, a contract to transform part-time to full-time or vice versa, to transform an ordinary contract into one at home or vice versa, etc.

Causes:

It requires economic, technical, organizational, or productive reasons to justify the change that should help to promote the company’s competitive position or to give a better response to the requirements of demand.

Article 41.2 of the ET distinguishes between:

1. Modifications of individual character
2. Modifications of collective character

The criterion of distinction is in THE ORIGIN OF CONDITIONS AFFECT, not the number affected.

The procedure differs depending on the nature of the amendment:

Modifications of Individual Character:

Definition:

Includes both individually agreed conditions explicitly as tacit (individual agreement or decision of individual projection company).

Procedure:

Notification is required only to workers with at least 30 days before the date of effectiveness (as in individual shipments) and representatives.

Exception of the Case:

As we will also follow this procedure, the collective functions by source and time when, for an unknown number, become collective.

Amendments Collective:

Meaning:

Those that refer to conditions accorded to workers under an agreement or collective agreement or enjoyed by those under an employer’s unilateral decision to collective effects. The agreed upon in the collective agreement STATUTORY are collective but follow a special procedure (see below).

The collective changes have a special procedure whatever the number of workers affected. Exception: In terms of functions and time, they are subject only to such a special procedure when collected also from a quantitative perspective, i.e., when their origin or enjoyment is plus collective concern in a period of at least 90 days:

1. 10 workers in companies with less than 100 employees
2. 10% between 100 and 299 employees
3. 30 in companies with 300 or more employees

Otherwise, the procedure is the characteristic of the individual modifications of the collective origin, regardless of the condition.

The procedure is the same as for collective transfers (consultation period, agreement or no agreement can be the business decision), except that in this case, the Authority cannot be delayed or suspended Labor effectiveness of the measures.

For the purposes of the business decision for the worker, he may either:

1. Rescind (court) the contract with compensation of 20 days’ salary per year to a maximum of 9 months, but only if that change affects certain subjects: day, time, or shift work regime and the worker gets hurt by the same (it is the employee’s responsibility to test the injury).
2. Request for judicial resolution of his contract if it is a substantial change (any of the materials, but in practice often changes roles) which undermines their dignity or harms their training. In this case, the compensation shall be 45 days per year to a maximum of 42 months (Art. 50.1 ET).
3. Agree so far.
4. Comply but challenged to understand that it is unjustified or invalid (20 days of expiration). Depending on the contents of the statement, the statement of justification, justification, or invalidity shall not produce the same effects as discussed for the case of shipments.

Changes to Statutory Conditions Agreed in DC:

Only under certain conditions, which are as follows (Article 41.2 ET):

1. The amendment must relate to the schedule, shift work regime, the compensation system, or the system of work or performance. They cannot be modified other subjects (time and functions).
2. The change has to occur by agreement between the employer and the majority of employee representatives. If there is no agreement, it cannot be changed.

Thus, for example, changing the time agreed in CC statutory requires the signature of a new CC; it is possible to carry it out even through an agreement between representatives of workers and the employer.

Modification of Collective Competition if the Employer:

When he asked to be declared bankrupt, the employer’s collective significant changes follow a special procedure (Insolvency Act). They can be requested by the administration in bankruptcy, the debtor, or the workers through their representatives.

This opens a consultation period not exceeding 30 days between the insolvency administration and representatives of workers. If there is no agreement, the judge, following a report by the labor authorities, will decide to the extent permitted, and if there is not, the judge will permit it if justified esteem. The right to compensation for this cause extinction is suspended during the pendency of the contest up to 1 year since the amendment was approved.