Sources of collective labor law

It is important to point out that the sources of law in general are "… all those causes that generate the unconstitutionalized presence of legal norms, aimed at consolidating and regulating men's relations with each other."

The main and common sources to most branches of Law are law, custom, jurisprudence and doctrine. But each of the various branches has its unique characteristics to them. Collective labor law is not immune to this distinction and has its own sources that I will analyze throughout this work.

Classification of Source Types:

1. From the point of view of the role they play within the law, the following are distinguished:

Sources that specifically create law; such as laws, decrees, regulations, collective contracts. Sources that contribute to clarify or supply a Law or a gap that may arise: Natural Law, analogy, equity, general principles of Law. Intermediate source: The jurisprudence, whose mission is rather to give further enhance the specific application of each of the sources mentioned.

2. According to the hierarchy of sources in general terms, but taking into account the general principles of our Law, it is possible to establish the following order of priority:

The Constitution, with its complementary laws; Laws, Decrees and Regulations complementary to the Code; Internal Company Regulations: Individual Contract, and Collective Contract.

3. Another classification is the one that distinguishes: Direct and Indirect sources; National and international.

They are sources of nationals:

Direct: uses, customs, laws, decrees, regulations, municipal ordinances, police edicts, hygiene and safety regulations: Indirect: judicial or administrative jurisprudence, collective contracts, company regulations, doctrine, general principles of law, justice, social, moral, equity.

In the international order, bi or plurilateral treaties constitute direct sources and indirect sources of international order are the recommendations or votes that are approved in Official Congresses;

I. Analysis of the Main Sources of Collective Collective Law:

Formal sources:

1) The Law: Primal manifestation of the state will, in the internal work of formation of Labor Law, the law is in the first rank within the table of the sources of Law. As a source, it creates Law directly and concretely, but given its high hierarchy, often but not always, it disregards details. In most cases, it contains the most abstract principles and the most general provisions of labor regulations. Within this main formal source, there is a hierarchy according to the type of standard in question. I will point out below:

a) Constitutional Law, which is the predominant norm of the State, its hierarchy is superior to the rest of legal norms.

According to Marcial Rubio Correa, “The Constitution is the legal norm that declares the most important rights of people, it organizes the power of the State, indicating who exercises it and their powers. It is the highest standard of the State. No other rule can be opposed to it because it automatically ceases to be acceptable, that is, it has legal force ”

In the Political Constitution of 1993 it acts as a source of collective Labor law through the following articles:

Article 28: “The State recognizes the rights to organize, collective bargaining, and strike. Caution its democratic exercise:

It guarantees freedom of association It encourages collective bargaining and promotes forms of peaceful resolution of labor conflicts. The collective agreement has binding force in the scope of what has been agreed, it regulates the right to strike to exercise in harmony with the social interest. It points out its exceptions and limitations. ”

This article establishes three rights for workers, unionization, collective bargaining and strike, at the same time indicating the obligation to the State to recognize them, empowering them, only to protect them, that is, to establish norms to guarantee their exercise in democracy.

Article 42: “The rights to organize and strike of public servants are recognized. State officials with decision-making powers and those who hold positions of trust or leadership, as well as members of the armed forces and the national police are not included. ”

The purpose of this exclusion is to establish rationality in the use of the strike. If the bosses and those who trust them mount the strikes and organize to treat the State as employers, there would be an absurdity that they themselves would fulfill the role of employer and employee. As for the National Police and the Armed Forces, they are vertical and disciplinary organization institutions by nature, so the existence of a strike and union is impossible, since it would be impossible to govern a country with a public force that, collectively, negotiate with right to strike against the government.

Article 153: "Judges and prosecutors are prohibited from participating in union politics and from going on strike"

This is logical since clean judicial action was ensured, guaranteeing the independence of the judicial action. The Constitution provides for judges a remuneration that ensures them a standard of living worthy of their mission and hierarchy and this must be taken into account to prohibit their unionization.

b) Special Laws, are those that apply what the constitutional norm declares that regulate rights and make them a fact.

According to Dr. Guillermo Cabanellas “the hierarchical preeminence within the sources corresponds, of course, to the constitutional law, but this is a declaration of rights, it sets them; but its application is not carried out but by its development and the special law of effective validity "

In our paris the current law that legislates the collective labor relations is Decree Law 25593 Collective Labor Relations Law.

In addition, said laws must be regulated, to ensure effective compliance, expressing the Government its social will. They do not create Law, but they develop it allowing the practical application of the legal precepts in general. Indeed, as a hierarchically inferior and subordinate source, they cannot give rise to obligations and rights other than taxes or those recognized by law.

It is precisely in the social area where the regulatory power is presented in full breadth in consideration of the complex nature of labor relations, precisely, because the laws cannot provide all the details and circumstances, they are supplemented by regulations as an integral part of the law correspondent.

c) International agreements and declarations, such as the following:

ILO Convention No. 87: Relating to freedom of association and protection of the right to organize, approved in June 1948, ratified by Peru through Legislative Resolution No. 13281 of December 15, 1959. Convention No. 98: Relating to the application of principles of the right to organize and collective bargaining, approved in June 1949, ratified by Legislative Resolution No. 14712 of November 18, 1963. Convention No. 151: Relating to the protection of the right to organize and the procedures for determining employment conditions in public administration. Ratified by the seventeenth general and transitory provision of the 1979 Constitution. The Declaration of Human Rights: Approved by the General Assembly of the United Nations on December 10, 1948,ratified by our country through Legislative Resolution No. 13282 of December 9, 1948.

2) Custom: Uses and customs have played a role in Labor Law similar to that in other legal matters in training.

"Custom is the set of facts or practices accepted and carried out on a mandatory basis by a large group of people or in this specific case by a group of workers. That is to say, custom or customary law is the spontaneous legal form constituted through time by the constant and uniform repetition of social uses that by general consensus enters into the conviction of constituting a mandatory rule of conduct ”

“The use is a practice or way of proceeding and configures an element of custom. The use is considered as a fact, while the custom is a Right. That not all use is custom, but all custom is use "

A certain number of customs, over time, has received confirmation from the modern legislator; others were repealed due to their incompatibility with the new tutelary concepts of the State. In recent times, however, the advance of the law, written in labor matters, has made custom lose hierarchy.

The custom is characterized by the presence of two elements, one material and the other spiritual.

The Material Element is constituted by the uniform and constant monitoring of the ruler spontaneously over time. But only it is not enough to constitute a legal custom, since a custom can be repeated constantly and be accepted by many people without for that reason coming to assume the character of rule of law. For what its second element requires, the spiritual or subjective one, which is the consciousness of its obligatory nature, it is necessary for the said consciousness to emerge, which characterizes the bilaterality of legal norms. This spiritual aspect must arise spontaneously in all or most of the members with the force of law, therefore it involves the conviction that it is a mandatory precept.

The types of custom that apply to Collective Labor Law are the following:

Praeter Legen Custom: It is the custom that applies when there is no exactly applicable law to the case; that is, it is the legal norm by virtue of which the conflict not legally regulated is resolved. Before the law, it can be applied as a rule before gaps or loopholes in the law, provided it is not contrary to morality and public order. The competent authority can apply the custom of this type as a subsidiary legal norm in the sentence, from this point of view the labor custom constitutes a fact for the purposes of the evidence and considered as a right to substantiate the sentence; Thus, it constitutes an important means to improve current legislation and establish more favorable conditions in favor of workers. Custom Secumdum legen: Exists when the legislator refers the solution to custom.Thus the custom ceases to be a subsidiary source to become the main source. Custom against the law or against legen. It is the custom against the law or derogation. The effectiveness of the custom against legem depends on the solution given to the hierarchy of the source. In modern law where custom is basically a subsidiary source, since the main source is the law, it is difficult to admit the validity of the custom against legem.it is difficult to admit the validity of the custom against legem.it is difficult to admit the validity of the custom against legem.

3) Jurisprudence: Its mission is rather to give greater prominence to the concrete application of the sources of Law. Judicial and administrative jurisprudence, as an indirect source, occupies a prominent place among all of them. It is true that judges do not create Law, since they only dedicate themselves to interpretation in the specific cases that are submitted to it, but since they cannot refuse to judge as obscure or insufficient as the law, they have the power to apply analogous laws or the general principles of Law, thus filling a supplementary mission.

When a uniform interpretation is obtained by a series of successive rulings, the jurisprudence receives an application as firm as the law itself. The jurisprudence that has been formed around Labor Law is, from a double point of view, a source of this Law.

It can be said that the jurisprudence "is the uniform and constant way in which the superior courts of justice apply law"

There is a lot of discussion about whether jurisprudence understood as a judgment or court rulings constitutes a source or not. According to certain authors, a single judicial resolution can be considered as a source of law, according to others, its repetition is necessary.

According to Lamas, the importance of jurisprudence in Labor Law is:

From the repeal of the immutable principle of res judicata From giving rise to the sentence, in certain cases, to the creation of the rules, That the jurisprudence covers the rights of those who have not been part of the process.

Regarding the mission of the jurisprudence, it can be stated according to Niceto Alcalá Zamora y Castillo that they are as follows:

Explanatory Mission: When the law is obscure, it allows the competent authority to determine its meaning Supplementary Mission: When the case that occurs is not provided in the law and the judge must find the solution within the positive order. Differential Mission: The application of the law It requires differentiation based on the circumstances of the case. Renewal Mission: When based on the praeter legen custom, it constitutes a source of new rulings or sentences or new laws.

Of course, specifying that the judge does not create a norm, but integrates the creative will of the legislator when interpreting it for its application to the contract case, avoiding injustice and ensuring the social purpose of the norm.

Arbitration Mission: This function has the sense of creating, in the absence of a written law, a customary law (praeter legen), since many times labor law evolves under the impulse of judicial action.

4) Doctrine: Doctrine is also considered as a formal source of law and can be defined as the set of opinions of the jurisconsults, issued for theoretical purposes or in order to facilitate the application of law. This pursuing a triple purpose: scientific, practical and critical, increasingly enriching the science of law.

As a source of Labor law, they are made up of studies, investigations, opinions, opinions of jurists, etc.

They are technical means of interpretation and elaboration of the law and it serves firstly to establish the meaning of the legal provisions or the scope of legal customs and secondly to fill the gaps that may exist in these two sources of law.

5) General Principles of Law: The General Principles of Law are the legal truths of universal validity, elaborated by the Philosophy of Law as a common basis of the legal system.

The general principles of law are a source of labor law, and that they are almost always as supplementary to the lack of sources in this field, such as the Constitution and ordinary laws.

They are legal truths of universal validity, elaborated by the philosophy of Law as a common base to the legal system, they constitute the foundation of the different legal matters and legal systems, they can be applied against the vacuum of the positive norm of law. These principles apply to all legal matters and legal systems, being applicable against the void of the constitutional or legal principle in relation to the contract case to be resolved.

Some principles of labor law:

The idea of work as a right and a social duty: This principle aims to achieve fair and humane conditions for its entire population. Society has the right to expect useful and honest work from its members. On the one hand, work is a man's duty to provide his services in an efficient way. On the other hand, society has an obligation to create social living conditions that allow men to carry out their activities. The idea of freedom and the right to work: No person can be prevented from dedicating himself to the profession, industry or trade, or work that suits you. According to this principle, every man is free to select the job that pleases him, according to his aptitudes, tastes and aspirations. Principle of equality:This principle means that any distinction may be made between workers, based on race, sex, age, religious creed, political doctrine or social condition. Both freedom and equality are principles that are closely linked; equality without freedom cannot exist, and it does not flourish where that is lacking. The idea of human dignity: Human dignity consists of the attributes that correspond to man by the mere fact of being. In the workplace, he has the right to be treated with the same consideration that the employer pretends to be the same.The idea of a decent existence: This principle establishes that it intends that the worker be able to satisfy all his material needs and his family,to provide the education of the children and to achieve that he and his family can develop their physical, intellectual and spiritual faculties.

Special sources:

1. Internal Regulation: It consists of the true law of the employee, while providing services within the company. As an unknown institution in other branches of law, its legal nature is discussed.

2. Individual Contract: “Work contract shall be understood as the convention in which the employer or employer and the worker or employee mutually oblige each other, they to perform any material or intellectual work or service, and those to pay for this work or service a determined remuneration ». In Labor Law, the contract is not only a source of obligations, but also a source of Labor Law and in its most tangible expression: source for the application of Law itself to a specific case. The living realization of the Doctrine of Legal Direction has in the old "service leasing" contract its most powerful realization. The increasingly pronounced intervention of the State in contractual life attests to this. Thus, there is no doubt that the Employment contract is a source of Labor Law.

3. Collective Contract: Like the individual contract, it is also a source that concretely and directly creates a Right. In attention to the legal elements that form it, it is customary to define it as one that celebrates a legally constituted Union with an employer or employer or with an association of employers or employers and that have as their object the stipulation of uniform clauses for the compliance of the mutual benefits.

Corresponds to indirect sources conceived by the most advanced legislation.

They characterize an equally new institute, the nature of which has been little discussed.

4. Opinions of the General Directorate of Labor. Its purpose is the interpretation of Social Law. Here is another difference between Labor Law and the generality of the other branches of Legal Science. An Administration Body, whose main mission is to obtain the correct application of the Labor Law and with supervisory powers, also has powers to indicate the scope of labor provisions.

The opinions that it evacuates ex officio or by consultation of interested parties have the character of a true authentic interpretation of the Law, in the same way that the legislator himself would do when he himself fixes meaning to the expressions of his will, by the authoritarian way.