Navigating Employee Transfers and Functional Mobility
Changing Conditions in Employment Contracts
Insubstantial Changes: Minor changes to a contract worker’s terms can be unilaterally implemented by the employer, and the worker must accept them. This stems from the employer’s power, known as ius variandi.
Substantial Changes: These changes significantly alter the employment relationship due to economic, technical, organizational, or production reasons. Examples include changes to working time, remuneration systems, performance work systems, and assigned functions or tasks.
Procedures for Substantial Changes
The employer must notify the employee of the decision at least 30 days in advance. For collective changes, a consultation period with employee representatives, not exceeding 15 days, must precede the decision.
Employee Options
- Seek rescission of the contract.
- Ask the judge to terminate the contract.
- Challenge the amendments in the Labour Court (especially for collective modifications).
Functional Mobility
Functional Mobility: This occurs when an employer directs an employee to perform functions different from their regular duties and the role for which they were hired.
Types of Functional Mobility
Horizontal Mobility: Definition and Rules
Performing functions within the same professional category.
Reason: The employer has the discretion, and the worker must generally accept.
Effects on the Employee: Mandatory acceptance. Continued salary at the same rate.
Vertical Mobility: Definition and Rules
Performing functions outside the original professional category. This can be descending or ascending.
Causes: Technical or organizational reasons are required. The change should last only as long as necessary. Downward mobility also requires justification for urgent needs. The worker must possess the necessary qualifications.
Effects on the Worker:
- Downward: Acceptance is required, provided it doesn’t undermine personal dignity or hinder training and career development. The employee is entitled to continue receiving their original salary.
- Ascending: The employee has the right to request the salary of the higher professional level. They may apply for upgraded services if the tasks have been performed for over 6 months in a year or 8 months in 2 years.
Geographical Mobility
Displacement
Concept: A temporary change of workplace for a period exceeding 12 months within 3 years.
Procedure: The employee must be informed in advance, with a minimum of 5 days’ notice if the displacement exceeds 3 months.
Effects: The worker can accept the displacement and receive travel expenses and subsistence or reject it and appeal to the Labour Court if they believe there are no justifying economic or technical reasons.
Transfer
Concept: The worker must work at another facility, requiring a permanent change of address.
Procedure: The transfer must be communicated 30 days before the effective date (15 days for collective transfers).
Effects: The worker can accept the transfer and receive transportation costs for themselves and their family, appeal to the Labour Court if they believe there are no justifying economic or technical reasons, or terminate the employment contract with compensation of 20 days’ salary per year of service, up to a maximum of 12 months.