Labor Law: Clauses, Ius Variandi, and Employment of Minors
Permitted and Prohibited Clauses in Employment Contracts
Permitted clauses are those that the parties may freely agree upon and that impose duties higher than those required by law or improve conditions in favor of the worker (e.g., increased vacation time). They do not include regular aspects that are not covered by law. Prohibited clauses involve a waiver of rights under labor laws, which is not legally appropriate in light of Article 5 (principle of irrenunciability).
Ius Variandi: Employer’s Right to Modify Contracts
The Ius Variandi is the power that the law gives the employer to unilaterally alter the terms of the employment relationship. As noted, the general rule is that modifying an employment contract requires agreement between the parties. However, the law allows, in some cases, modification of certain aspects at the sole discretion of the employer.
Tacit Clauses in Employment Contracts
Tacit clauses are implicit agreements not explicitly stated between the parties on various aspects of the employment relationship, manifested primarily through the repeated conduct of the parties. Examples include changes in work hours or functions.
Requirements for the Existence of a Tacit Clause
The only requirement for the existence of a tacit clause is the fact that the parties are willing to enter into an agreement related to employment.
Employment of Minors: Legal Capacity and Restrictions
Individuals 18 Years and Older
Individuals 18 years and over have full working capacity. Article 13 of the Labor Code provides that “For the purposes of labor laws, individuals over eighteen years of age are considered adults and can freely contract out the provision of their services.”
Individuals Under 18 and Over 15 Years
- Jobs they can perform: They can only enter into employment contracts for light work that will not jeopardize their health and development.
- Requirements: They must have the express permission of a parent or, in their absence, a paternal or maternal grandparent. They should also have completed their secondary education or be currently enrolled in secondary or basic education.
- Hours of work: All children under eighteen who are currently pursuing their primary or secondary education may not carry out work for more than thirty hours per week during the school year. In no case may individuals under eighteen years of age work more than eight hours per day.
Children Under 15 Years
The employment of children under 15 years is exceptional, requiring compliance with the requirements prescribed for those over 15 and under 18 years, provided they have authorization from their respective legal representative or the Family Court.
Work Prohibited for Those Under Eighteen
Hazardous Work
All children under eighteen years of age shall not be allowed to perform work or tasks that require excessive force or activities that may be hazardous to their health, safety, or morals.
Underground Work
In this case, the age group rises. Article 14 provides that persons under twenty-one years may not be hired for underground mining without undergoing and passing a proficiency examination. A penalty of 3 to 8 UTM (Monthly Tax Units) applies if someone under 21 years is hired for such work.
Work in Cabarets
Article 15 of the Labor Code prohibits the employment of minors under eighteen years in cabarets and other similar establishments that present live shows, as well as those that sell alcoholic beverages for consumption on the premises, except with the express authorization of the respective legal representative and the Family Court.
Night Work
Article 18 of the Labor Code prohibits minors under eighteen years from all night work in industrial and commercial establishments, to run between twenty-two and seven hours, except those in which only family members are working under the authority of one of them. Exceptions to this prohibition exist for boys over sixteen years in industries and businesses, as determined by the rules, for work which, because of its nature, must necessarily continue day and night.