Understanding the Principles of Inalienability and Most Beneficial Condition

Posted on Feb 5, 2025 in Law & Jurisprudence

The Principle of Inalienability of Rights

Article 3.5 of the Spanish Workers’ Statute (Estatuto de los Trabajadores – ET) establishes that workers cannot validly dispose of rights recognized to them by law, neither before nor after their acquisition. This applies to rights considered absolutely necessary. It also prohibits the disposal of rights recognized as unavailable by collective bargaining agreements. This precept implies the following:

  • Who is allowed to waive workers’ rights? The law uses the term “validly dispose.” This must be understood to include not only express waivers but any act of disposition. This raises two main issues:
  1. Impact on transactions: These transactions occur daily, both inside and outside the courthouse. The acts of the transaction are considered valid acts of disposal.
  2. Balance receipts and settlements: These documents often contain either one or both of the following:
    • The time reference implies that the nullity affects both the right and the right acquired during the acquisition process.
    • Article 3.5 refers to rights recognized by laws of both absolute and relative necessity.
    • Regarding collective agreements, despite the confusing wording of the second paragraph of Article 3.5, it should be understood that rights recognized in the collective agreement are unavailable, even without explicit recognition.

The Principle of Most Beneficial Condition

According to Article 3.1.c of the ET, the rights and obligations concerning the employment relationship are regulated by the will of the parties, manifested in the employment contract, and its lawful purpose. In no case can less favorable conditions, or those contrary to laws and collective agreements, be established to the detriment of the worker. A sensu contrario, judicial interpretation has affirmed that the will of the parties may establish more advantageous conditions than those regulated by laws and collective agreements. The parties are prohibited from establishing *more harmful* conditions. This is a jurisprudential principle of creation; the law does not explicitly state this.

Key Aspects of the Most Beneficial Condition Principle

  1. Contractual Source: The most beneficial condition must originate from the contract, or more precisely, from the freedom of contract. There can be no most beneficial conditions of political origin. Its origin is the employment contract, but certain figures are assimilated to the employment contract, such as unilateral concessions by the company or the employer, because it is understood that the most beneficial condition is incorporated into the contractual nexus.
  2. Continuous, Effective, and Habitual Application: The condition must be applied continuously, effectively, and habitually.
  3. Unequivocal Will of the Employer: There must be an unequivocal will of the employer, express or implied. This can be affected by several factors:
    • Mistake.
    • Mere tolerance; there must be a clear desire for recognition as more beneficial.
    • Working conditions related to the job are not consolidated.
  4. Limits: The condition cannot be contrary to laws and conventions. In particular, it cannot disregard the provisions of necessary law. A potential problem is the possibility of discrimination through beneficial conditions (e.g., granting a more beneficial condition to some workers and not others). If done based on union membership, sex, etc., it constitutes discrimination. It could undermine the principle of equality. The Constitutional Court (TC) has stated that workers must determine working conditions freely. If someone is given preferential treatment, it must be objectively justified.
  5. Duration, Modification, and Deletion: Limits will be subject to the agreement itself that gives rise to the most beneficial condition. Unilateral modification by the employer is possible, as established in Article 41 of the ET regarding substantial changes to working conditions. However, the employer must prove the concurrence of economic, technical, organizational, or production reasons.
  6. Absorption and Compensation: Most beneficial conditions are subject to absorption and compensation (e.g., an agreement for a 36-hour workweek instead of 38 hours with an employee. If a new agreement establishes a 37-hour workweek, the employer might argue that the employee should now work 35 hours. However, it is absorbed). Nevertheless, it should be noted that:
    1. Absorption and compensation must be made between homogeneous elements.
    2. Non-absorbability can be agreed upon.
    3. This is a business practice, not a legal imperative.
    4. Wages have specific regulations under Article 26.5 of the ET.