Constitutional Framework of European Labour Law in Italy, France, Germany, Portugal and Spain 3031457161, 9783031457166

Table of contents :
Acknowledgements
Contents
About the Authors
Abbreviations
Chapter 1: Introduction
References
Chapter 2: Constitutionalisation of Labour Law
2.1 Introduction
2.2 Labour in Constitutions
2.2.1 Italy
2.2.2 Germany
2.2.3 France
2.2.4 Portugal
2.2.5 Spain
References
Chapter 3: Horizontal Application of Fundamental Rights
References
Chapter 4: Collective Labour Law
4.1 Right to Collective Bargaining
4.1.1 Italy
4.1.2 Germany
4.1.3 France
4.1.4 Portugal
4.1.5 Spain
4.2 Right to Strike and Lock-Out
4.2.1 Italy
4.2.2 Germany
4.2.3 France
4.2.4 Portugal
4.2.5 Spain
References
Chapter 5: Individual Labour Law
5.1 Job Security
5.1.1 Italy
5.1.2 Germany
5.1.3 France
5.1.4 Portugal
5.1.5 Spain
5.2 Right to Remuneration
5.2.1 Italy
5.2.2 Germany
5.2.3 France
5.2.4 Portugal
5.2.5 Spain
References

Citation preview

Luís Gonçalves da Silva Sara Leitão

Constitutional Framework of European Labour Law in Italy, France, Germany, Portugal and Spain

Constitutional Framework of European Labour Law in Italy, France, Germany, Portugal and Spain

Luís Gonçalves da Silva • Sara Leitão

Constitutional Framework of European Labour Law in Italy, France, Germany, Portugal and Spain

Luís Gonçalves da Silva Faculty of Law University of Lisbon Lisbon, Portugal

Sara Leitão Faculty of Law University of Lisbon Lisboa, Portugal

ISBN 978-3-031-45716-6    ISBN 978-3-031-45717-3 (eBook) https://doi.org/10.1007/978-3-031-45717-3 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland Paper in this product is recyclable.

Acknowledgements

The production of this study in English language was supported by CIDP—Centro de Investigação de Direito Privado (Private Law Research Centre), to whom the Authors thank.

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Contents

1

Introduction������������������������������������������������������������������������������������������������   1 References����������������������������������������������������������������������������������������������������   4

2

 Constitutionalisation of Labour Law ������������������������������������������������������   5 2.1 Introduction����������������������������������������������������������������������������������������   5 2.2 Labour in Constitutions����������������������������������������������������������������������   7 2.2.1 Italy ����������������������������������������������������������������������������������������   7 2.2.2 Germany����������������������������������������������������������������������������������   9 2.2.3 France��������������������������������������������������������������������������������������  11 2.2.4 Portugal ����������������������������������������������������������������������������������  14 2.2.5 Spain ��������������������������������������������������������������������������������������  17 References����������������������������������������������������������������������������������������������������  19

3

 Horizontal Application of Fundamental Rights��������������������������������������  23 References����������������������������������������������������������������������������������������������������  43

4

Collective Labour Law������������������������������������������������������������������������������  47 4.1 Right to Collective Bargaining������������������������������������������������������������  47 4.1.1 Italy ����������������������������������������������������������������������������������������  47 4.1.2 Germany����������������������������������������������������������������������������������  53 4.1.3 France��������������������������������������������������������������������������������������  59 4.1.4 Portugal ����������������������������������������������������������������������������������  63 4.1.5 Spain ��������������������������������������������������������������������������������������  70 4.2 Right to Strike and Lock-Out��������������������������������������������������������������  76 4.2.1 Italy ����������������������������������������������������������������������������������������  76 4.2.2 Germany����������������������������������������������������������������������������������  81 4.2.3 France��������������������������������������������������������������������������������������  84 4.2.4 Portugal ����������������������������������������������������������������������������������  86 4.2.5 Spain ��������������������������������������������������������������������������������������  98 References���������������������������������������������������������������������������������������������������� 104

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Contents

Individual Labour Law ���������������������������������������������������������������������������� 113 5.1 Job Security���������������������������������������������������������������������������������������� 113 5.1.1 Italy ���������������������������������������������������������������������������������������� 113 5.1.2 Germany���������������������������������������������������������������������������������� 117 5.1.3 France�������������������������������������������������������������������������������������� 120 5.1.4 Portugal ���������������������������������������������������������������������������������� 125 5.1.5 Spain �������������������������������������������������������������������������������������� 131 5.2 Right to Remuneration������������������������������������������������������������������������ 137 5.2.1 Italy ���������������������������������������������������������������������������������������� 137 5.2.2 Germany���������������������������������������������������������������������������������� 139 5.2.3 France�������������������������������������������������������������������������������������� 142 5.2.4 Portugal ���������������������������������������������������������������������������������� 144 5.2.5 Spain �������������������������������������������������������������������������������������� 148 References���������������������������������������������������������������������������������������������������� 151

About the Authors

Luís  Gonçalves  da Silva  Assistant Professor of the Faculty of Law of the University of Lisbon, Portugal; Vice-President of the Labour Law Institute of the Faculty of Law of the University of Lisbon (IDT); Member of CIDP—Centro de Investigação de Direito Privado (Private Law Research Centre); Director of the International Labour Law Review (RIDT); Deputy Director of Revista Jurídica Luso-Brasileira (CIDP); Lawyer and Consultant; Member of the list of presiding arbitrators of the Economic and Social Council; Member of the Scientific Committee for Collective Bargaining at the Labour Relations Centre. Luís Gonçalves da Silva participated in the elaboration of the Portuguese Labour Code of 2003, complementary legislation and other diplomas, is a regular speaker at conferences and postgraduate courses, and author of several dozen books and articles, especially in the field of labour law. Sara Leitão  Guest Lecturer at the Faculty of Law of the University of Lisbon, Portugal; PhD candidate; Member of the Board of the Labour Law Institute of the Faculty of Law of the University of Lisbon; Member of CIDP—Centro de Investigação de Direito Privado (Private Law Research Centre); Secretary-General of the International Labour Law Review (RIDT); Lawyer. Sara Leitão has participated as speaker in several conferences and courses, and is the author of several articles, especially in the field of labour law.

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Abbreviations

AAFDL Associação Académica da Faculdade de Direito de Lisboa BAG Bundesarbeitsgerichts BetrVG Betriebsverfassungsgesetz BVerfG Bundesverfassungsgericht CC Código Civil de 1966 (Portuguese Civil Code of 1966) Chap. Chapter cit. Cited Coord. Coordinated by CRP Constituição da República Portuguesa (Constitution of the Portuguese Republic) UDHR Universal Declaration of Human Rights Edn. Edition ET Estatuto de los Trabajadores (Workers’ Statute), revised by Royal Legislative Decree 2/2015, of 24 October, subsequently amended KSchG Kündigungsschutzgesetz LRCT Lei de Regulamentação Colectiva do Trabalho (Collective Labour Regulation Law) (Decree-Law 519-C1/79, of 29 December, subsequently amended) ILO International Labour Organisation op. cit. Work cited (opus citatum) para.(s.) Paragraph(s) RD Real Decreto (Royal Decree) RDL Real Decreto-Ley (Royal Decree-Law) RDES Revista de Direito e de Estudos Sociais RIDT Revista Internacional de Direito do Trabalho Sect. Section STJ Supremo Tribunal de Justiça (Supreme Court of Justice) TVG Tarifvertragsgesetz (German Law on Collective Labour Agreements)

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Chapter 1

Introduction

Comparative law, as an academic discipline, performs the valuable role of teaching us about other legal systems and the solutions they offer to issues arising from time to time, functioning as a “precious aid to the understanding of law”.1 In a globalised world, this perception is fundamental for an “understanding of the place occupied by national law among the different legal systems” and for “assimilation of its deepest and most enduring elements”.2 The importance of comparative law is not merely cultural; it provides real and effective input for the interpretation and reformulation of the law as it stands,3 and the idea that comparative law offers merely theoretical insights, without any practical repercussions on the development of the law, should be regarded as definitively outdated.4 Centred on “comparison between legal systems (generally at a given moment in history, normally the present)”,5 comparative law offers students a better understanding of the legal system and its institutions, supporting the tasks of interpretation and application of legal rules, including the rules of private

 Martinez (2021), p. 123.  Vicente (2019), p. 20, remarking that “no lawyer is able to arrive at a full understanding of the legal system in which he or she is trained without an awareness of the fundamental features of other systems” (pp. 20–21). 3  Magnani (2020), p. 2 4  As Fauvarque-Cosson has pointed out in France, the practical function of comparative law is perhaps still overlooked, and there is a need to move away from its traditional image as an “academic discipline par excellence, with no direct application, and therefore poorly equipped to satisfy the utilitarian aspirations of a good many students, legitimately more concerned with their professional future than with the breadth of their legal learning” (Fauvarque-Cosson (2002), p. 294). 5  Almeida and Carvalho (2017), p. 12. 1 2

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Gonçalves da Silva, S. Leitão, Constitutional Framework of European Labour Law in Italy, France, Germany, Portugal and Spain, https://doi.org/10.1007/978-3-031-45717-3_1

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international law, helping to fill lacunas when the person applying the law is able to draw on the tendencies in other legal systems and serving as a tool of legislative policy.6 Looking at comparative law analytically, we may distinguish its epistemological from its heuristic functions.7 The most important of the former are the (i) an understanding of national law and its position among different legal systems, as well as of many of its legal institutions, and (ii) adding to lawyers’ cultural awareness and critical spirit. Turning to the heuristic functions of comparative law, we may point to its role in (i) helping to determine the meaning and scope of the rules and institutions of national law, serving as an element for interpretation of the law, (ii) encouraging the phenomenon of “circulation of legal models” also in the field of jurisprudential development, (iii) assisting in the coordination of the different national legal systems, in particular through the mechanisms proper to private international law, (iv) revealing the shared principles of different legal systems, (v) harmonising and unifying national legal systems (where it plays an essential role) and determining the limits on this. In the field of employment, a branch of law especially sensitive to social change and the economic situation in the relevant state, the usefulness of comparative law is particular clear because, in a globalised world, the challenges and difficulties confronted by law are, to a large extent, common to the legal systems of jurisdictions characterised by a similar level of development. The relevance of comparative law in the realm of labour law is therefore especially clear to see. In the current socio-economic context, attempts to establish minimum standards in the field of labour relations—above all through the efforts of the ILO which, over a history of more than a century, has sought to establish common minimum conditions across different states and has played a leading role in the development and evolution of labour law in several countries belonging to the international community,8 but also in the context of Europe—together with globalisation, as a complex phenomenon with an impact on market structure and labour relations, have had a decisive influence on comparative labour law and left their mark on its development, both facilitating it and highlighting its urgency and inevitability.9 At the same time, it has long been acknowledged that constitutional texts are highly relevant to labour law,10 and scholars have established the usefulness of

 Almeida and Carvalho (2017), p. 17. Similarly, René David points out that comparative law is useful (i) in legal, historical or philosophical research, (ii) for a better knowledge and improvement of national law and (iii) for understanding foreign peoples and establishing a better basis for international relations (David 1978, p. 28). 7  Vicente (2019), pp. 20 et seq. 8  Martinez (2022), p. 191. On the role of ILO in the development of Labour Law, highlighting current challenges, cfr. Hyde (2014); Verma (2003); Ferreira (2019); Politakis (2007); Charnovitz (2000). 9  Weiss (2003), p. 169 et seq. 10  Cfr., in particular, Xavier (2003); Xavier (2009); Xavier et al. (2020), pp. 232 et seq.; Leitão (2021), pp.  64 et  seq.; Martinez (2022), pp.  154 et  seq.; Martinez (2001); Ramalho (2020), 6

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c­ omparative law in the field of constitutional law. Comparative constitutional law can claim to “uncover similarities and differences, projections and reactions between the constitutional institutions of more than one country or of a single country over different periods”.11 As the importance of both comparative law and also of constitutional law in the field of employment is therefore beyond dispute, we felt it would be useful to conduct the exercise proposed in this volume, which is to analyse how labour issues are addressed in social constitutions, in a context that encourages and facilitates the development of comparative labour law.12 Considering that Portuguese law belongs to the Romano-Germanic family, and more precisely to continental law, the authors have sought to examine how employment is addressed not only by the Portuguese constitution, but also by the constitutions of the legal systems that have the greatest influence on the Portuguese system, i.e. those of Germany, Spain, France and Italy.13 Starting out from a brief overview, which will look at the phenomena of constitutionalisation of labour law and the horizontal application of fundamental rights, a detailed comparison will be conducted of the institutions of collective and individual labour law, starting out from the underlying fundamental rights, as set out by the Portuguese Constitution.14 The authors therefore propose to examine how constitutions enshrine the right to collective bargaining, the right to strike and lock-outs, and then to consider job security and the right to remuneration.15 It should however be noted that the aim of this work is not to offer a comprehensive comparative analysis, but a brief description of how the Constitutions of the five selected countries address these issues, serving as a basis for a more detailed study on these topics. The production of this study in English language was supported by CIDP—Centro de Investigação de Direito Privado (Private Law Research Centre), to whom the Authors thank.

pp. 195 et seq. 11  Miranda (2020), p.  157, pointing out that, “as identical or similar questions arise around the world and have arisen in the past in a given country, it is important to be familiar not only with how positive law addresses them here and now but also how they are addressed in other systems or how they were considered in former times in the country in question. Hence the need for comparison between systems and over time”. 12  Weiss (2003), p. 172. 13  On the various legal families, see, among many others, Mendes (1982–1983), pp. 127 et seq. Vicente (2019), pp. 57 et seq. 14  Not unaware of the difficulty entailed by the institutionalist perspective of the proposed comparison, which starts out from the Portuguese example and the way in which the Portuguese Constitution regards and addresses employment and presents the fundamental rights or workers. Defending a functionalist perspective in the teaching of comparative labour law, Weiss (2003), pp. 172 et seq. 15  On the methodology for comparative law, among many others, Cordeiro (2012), pp. 181 et seq.; Mendes (1982–1983), pp. 25 et seq. who, whilst stressing that the expression “comparison of law” would be more correct, uses that of the text (comparative law) because it is widely used and accepted (pp. 9–10); Vicente (2019), 37 et seq.

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References Almeida C, Carvalho J (2017) Introdução ao Direito Comparado, 3rd edn. Almedina, Coimbra Charnovitz S (2000) The International Labour Organization in its second century. In: Max Planck yearbook of United Nations law, vol v. 4. Brill, Leiden, pp 147–184 Cordeiro A (2012) Tratado de Direito Civil, vol I, 4th edn. Almedina, Coimbra David R (1978) Les grands systemes de droit contemporains, droit compare. Meridiano, Lisboa. Portuguese edition: David R (1978) Os Grandes Sistemas do Direito Contemporâneo, Direito Comparado (trans: Carvalho H). Meridiano, Lisboa Fauvarque-Cosson B (2002) L’enseignement du droit comparé. Revue international de droit comparé 54-2:325–329 Ferreira A (ed) (2019) A Organização Internacional do Trabalho no direito do trabalho português: reflexos e limitações de um paradigma sociojurídico. Almedina, Coimbra Hyde A (2014) The International Labor Organization in the stag hunt for global labor rights. In: Shelton D (ed) The United Nations system for protecting human rights. Routledge, Farnham, p 417 Leitão L (2021) Direito do Trabalho, 7th edn. Almedina, Coimbra Magnani M (2020) Diritto Sindacale Europeu e Comparato, 3rd edn. Giappichelli Editore, Torino Martinez P (2021) Introdução ao Estudo do Direito. AAFDL Editora/Imprensa FDUL, Lisboa Martinez P (2022) Direito do Trabalho, 10th edn. Almedina, Coimbra Martinez P (2001) A Constituição de 1976 e o Direito do Trabalho. In: Evolução constitucional e perspectivas futuras: nos 25 anos da Constituição da República Portuguesa de 1976. AAFDL, Lisboa, p 149 Mendes J (1982–1983) Direito Comparado. Associação Académica da Faculdade de Direito de Lisboa, Lisboa Miranda J (2020) Direitos Fundamentais, 3rd edn. Almedina, Coimbra Politakis G (ed) (2007) Protecting labour rights as human rights: present and future of international supervision: proceedings of international colloquium on the 80th anniversary of the ILO Committee of Experts on the applications of Conventions and Recommendations. ILO – International Labour Office, Genebra Ramalho R (2020) Tratado de Direito do Trabalho, vol I, Parte I  – Dogmática Geral, 5th edn. Almedina, Coimbra Verma A (2003) Global Labour standards: can we get from here to there? Int J Comp Lab Law Indus Rel 19-4:515–534 Vicente D (2019) Direito Comparado, vol I, Introdução, sistemas jurídicos em geral, 4th edn. Almedina, Coimbra Xavier B (2003) A Constituição Portuguesa como Fonte do Direito do Trabalho e os Direitos Fundamentais dos Trabalhadores. In: Melgar A (ed) El Trabajo y la Constitución, Estudios en Homenage al Professor Alonso Olea. Academia Iberoamericana de Derecho del Trabajo y de la Seguridad Social, Ministerio de Trabajo y Asuntos Sociales, Madrid, p 415 Xavier B (2009) A Jurisprudência Constitucional Portuguesa e o Direito do Trabalho. In: XXV Anos de Jurisprudência Constitucional Portuguesa. Coimbra Editora, Coimbra, pp 209–254 Xavier B, Martins P, Carvalho A et al (2020) Manual de Direito do Trabalho, 4th edn. Rei dos Livros, Lisboa Weiss M (2003) The future of comparative labor law as an academic discipline and as a practical tool. Comp Labor Law Policy J 25:169–182

Chapter 2

Constitutionalisation of Labour Law

2.1 Introduction A constitution presents itself as an “element shaped by and an element shaping social relations”, and is “the most immediate expression of the basic legal values accepted or dominant in the political community”.1 It is therefore the product of a context, interacting with “dynamics of the life of a people”2 and, as the outcome of a process of social and cultural evolution, it seeks to respond to the needs and demands that are felt from time to time. A constitution therefore serves to guarantee the fundamental rights of citizens; “there are no fundamental rights without a constitution”.3 Liberalism and the idea of the liberal state, originating in the French and American revolutions, led to the enshrinement in the eighteenth century of rights of freedom4; following on from this, the nineteenth and, above all, the twentieth centuries were marked by the successful struggle for economic, social and cultural rights, which played a crucial role in shaping labour relations, making it possible to speak of a “constitutional basis for labour law”.5

 Miranda (2002), p. 510.  Miranda (2002), p. 510. 3  Miranda (2020), p. 9, asserting that “without the constitution of the modern constitutional tradition dating back to the eighteenth century, the constitution as the foundation or renewed foundation of the state legal system and indivisible from a constituent authority, the constitution as the rationalising and organising framework for the statutory norms of power and community”. 4  It may be said that the constitutions of the nineteenth century concerned themselves primarily with proclaiming rights and freedoms, and, as a general rule, ignored the function of guarantees (Bon 1990, p. 10). 5  Punta (2022), p. 142. 1 2

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Gonçalves da Silva, S. Leitão, Constitutional Framework of European Labour Law in Italy, France, Germany, Portugal and Spain, https://doi.org/10.1007/978-3-031-45717-3_2

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In effect, the end of the First World War marked the demise of individualist conceptions of the liberal state and the first steps towards the inclusion, in constitutional texts, of reflections on the common man, labour and the role of the State.6 A paradigmatic example of constitutional enshrinement of employment rights is the Mexican Constitution of 1917, which may be regarded as the “first social constitution”7 and proclaimed significant rights for workers, notably the freedom of labour and the right to the proceeds of labour (Article 4), limitation of the working day (Article 123, I. to IV.), right to the minimum wage (Article 123, VI.) and to equal pay (Article 123, VII.), freedom of association (Article 123, XVI.) and the right to strike (Article 123, XVII.).8 Two years later, the German Constitution of the Weimar Republic was approved, also dealing with employment and workers’ rights. It expressly asserts that labour enjoys the special protection of the Reich (Article 157), providing for the right to unionisation in order to defend and improve working and economic conditions (Article 159), the moral duty incumbent on all to invest their spiritual and physical energies for the common good and the right to a livelihood through exercise of a trade (Article 163).9 The phenomenon of social constitutions was, to an extent, in line with the new international approach to labour issues, which led to greater harmonisation of general principles in the field of employment. It may be noted that workers’ rights were “the first rights to be regulated and protected by international law […], at a time when such protection was in its infancy in many countries”.10 Following on from the Armistice of November 1918, signed at Compiègne, bringing the First World War to an end, the Treaty of Versailles (28 June 1919) devoted a section to employment issues (Part XIII, Articles 387–427, Fundamental Law of the new entity11), providing for creation of a permanent organisation attached to the League of Nations (Article 387), clearly demonstrating the importance that states assigned, or rather, were forced to assign, to the welfare of workers, badly hit  Ogier-Bernaud (2003), p. 53.  Martinez (2022), p. 154. 8  For a general appreciation of the constitutional framework of 1917, for example, Correa Freitas (2017), pp. 229–248; Kurczyn Villalobos (2021), pp. 151–174. 9  For further developments, for exemple, Gil Albuquerque (2017), passim. 10  Moreira (2014), p. 78. It should also be recalled that, prior to the founding of the ILO, there had been movements in the nineteenth century calling for “international legislation”, such as that led by Robert Owen, in the second decade of the century, the creation of the International Working Men’s Association (1864, the First International) and also, in 1876, the attempt by the Swiss federal government to organise an international congress for the protection of working men—cfr. Pic (1909), pp. 153 et seq.; Mazzoni (1936), pp. 25–26; Moreira (2014), pp. 81–92; Raynaud (1906), pp. 61 et seq. 11  Diário do Govêrno, of 2 April 1921, series I, no. 67, pp. 389 (Letter of confirmation and ratification of the Peace Treaty between the Allied and associated Powers and Germany, and attached Protocol, signed in Versailles on 28 June 1919), pp.  456 et  seq. (part XIII); or The Labour Provisions of the Peace Treaties, International Labour Office, Genève, http://www.ilo.org. On the phenomenon of labour in the Treaty of Versailles, see, for example, Clerc (1922), pp. 176 et seq. 6 7

2.2  Labour in Constitutions

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by the global war. They accordingly undertook, for example, to “assure and maintain fair and humane conditions of labour for men, women, and children” (Article 23), as well as asserting the principle of freedom of association (recitals to Part XIII). Employment became a central issue of government as never before. The new organisation was tripartite in structure (representatives of states, unions and employers) and its instruments naturally paid special attention to collective rights (recommendations and conventions12). These, as we have seen, included the freedom of association (on the part of employers and workers), which was internationally enshrined in the Treaty of Versailles, alongside many other employments issues (Article 427), clearly showing their importance as a structural element underpinning democratic states.13 The movement towards adoption of social constitutions was therefore a milestone in the evolution of social rights and in consolidating the democratic state; these tendencies were given fresh impetus with the close of the Second World War.

2.2 Labour in Constitutions 2.2.1 Italy Three years after the end of the fascist regime, the new Italian Constitution was finalised in 1947, ready to take effect on 1 January 1948.14 The text represented a “constitutional settlement” between political currents of Christian, socialist, communist and various shades of liberal inspiration.15 The Italian constitutional text belongs to the modern constitutional movement and, in line with the model of the Weimar Constitution and inspired by Roosevelt’s  The conventions are approved by the General Conference (Article 19.1, of the ILO Constitution, which may be consulted in “Documentos Fundamentais da OIT”, Gabinete para a Cooperação do Ministério do Trabalho e da Solidariedade Social de Portugal, Lisboa, 2007, pp. 5 et seq.), with a number of specific requirements for ordinary international conventions, because—although they are approved and ratified by the states that then become party to them (Article 19.5, ILO Constitution)—they are negotiated not only by the states, but also by the delegates representing workers and employers. ILO recommendations, on the other hand, as the name suggests, consist merely of guidance (Article 19.6, ILO Constitution) and do not constitute international legislation; however, States are required to report periodically, to the Director-General of the International Labour Office, with regard to the measures adopted, specifying to what extent the recommendations have been adopted or to which their adoption is proposed (Article 19.6 c) and d), ILO Constitution). 13  By way of historical example, we may point to the resolution adopted at the ninth session (1928) which, on the basis of a proposal from a German delegate (worker), stressed the importance of collective agreements as “a means of regulating terms of employment in accordance with modern principles of the social protection of workers”. Resolution transcribed by Gallart Folch (2000), pp. 61–62. 14  On the start of the proceedings, Pergolesi (1950), pp. 120 et seq. 15  Carinci et al. (2018), p. 31; Pergolesi (1950), p. 122. 12

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New Deal, marked the transformation of a classic liberal state into a democratic liberal state, on the political plane, and into a welfare state, on the economic plane.16 It marked the start of a new era for labour law, putting it on “new and stronger” foundations and setting the course for its development.17 The Constitution starts by proclaiming the Fundamental Principles, declaring that “Italy is a democratic Republic founded on labour” (Article 1.1), highlighting the position of employees as the protagonists of a new social order.18 It then enshrines the right to work, laying down in Article 4.1 that “The Republic recognises the right of all citizens to work and promotes those conditions which render this right effective”, reasserting the special position that labour occupies in the constitutional text and providing for an obligation on the part of the State to ‘promote’ labour.19 Paragraph 2 adds that “Every citizen has the duty, according to personal potential and individual choice, to perform an activity or a function that contributes to the material or spiritual progress of society”. In Title III of Part I, addressing economic relations, the Italian Constitution grants a broad array of rights and guarantees related to labour and workers. Article 35, the first in this title, asserts that “The Republic protects work in all its forms and practices” (para. 1), “provides for the training and professional advancement of workers” (para. 2), “promotes and encourages international agreements and organisations which have the aim of establishing and regulating labour rights” (para. 3) and “recognises the freedom to emigrate, subject to the obligations set out by law in the general interest, and protects Italian workers abroad” (para. 4). The Fundamental Law also guarantees workers the “right to a remuneration commensurate to the quantity and quality of their work and in any case such as to ensure them and their families a free and dignified existence” (Article 36.1), determines that maximum working hours will be set by law and guarantees the right to “weekly rest day and paid annual holidays”, an entitlement that cannot be waived (Article 36, paras 2 and 3). Article 37 addresses equality between men and women and conciliation of women’s working lives with “their essential role in the family” (para. 1) and the work of minors (paras. 2 and 3).

 ILO Conventions 87 and 98 were ratified by the Italian State in 1958 (Legge 23 marzo 1958, n. 367, www.normattiva.it). Pergolesi (1950), p. 122, identifies various influences, in particular, on the fundamental principles and Part I of the Charter, the American and French declarations of the late eighteenth century (on the articles concerning political relations), the European constitutions drawn up in the period following the WWI, especially the German Constitution of 1919 (on the articles concerning ethics and social relations); there are also original features, especially in part II, whilst referring to the antecedents of the French Constitution of 1946; Punta (2022), p. 68, also referring to external influences. On the influence of international law, Mazzoni (1967), pp. 65–66. 17  Punta (2022), p. 68. 18  Mazzotta (2019), p. 11. As Riccardo Del Punta points out, rather than underlining the “duty of labour” (which Article 4 reiterates), this provision seeks to recognise the historical value of labour as the cornerstone of the model of the state proposed by the Constitution (Punta 2022, p. 144). 19  Punta (2022), p. 151. 16

2.2  Labour in Constitutions

9

Article 38 establishes the right to welfare support for all citizens unable to work and lacking the necessary means of subsistence, and also to protection in the event of an accident, illness, disability, old age and involuntary unemployment, and well as the right of the disabled and handicapped to education and vocational guidance (paras. 1–3). The Italian Constitution regulates the freedom of association and collective autonomy (Article 39), laying down that “Trade unions may be freely established” (Article 39.1). It also prohibits the imposition of any obligation on trade unions, other than registration, in accordance with the law (Article 39.2); registration is conditional on their possessing democratically based statutes (Article 39.3). Lastly, it lays down that registered trade unions will have legal personality, with provision for unified representation, proportional to their membership, permitting them to enter into collective agreements that are effective erga omnes (Article 39.4). The right to strike is recognised by Article 40 of the Italian Constitution, which provides for its exercise “in compliance with the laws regulating it”. The constitutional text also establishes economic enterprise (Article 41) as the “cardinal rule of the economic constitution”20 and recognises private property (Article 42.2); it thereby enshrines a model of “‘institutionalised pluralism’”.21 Lastly, with the aim of the “economic and social betterment of workers and in harmony with the needs of production”, the Fundamental Law recognises “the right of workers to collaborate in the management of enterprises” (Article 46). The Italian Constitution of 1947 therefore occupies an important position in the hierarchy of sources, and it may even be said that it is in the Fundamental Law and in the compromise it succeeded in reaching between Catholic, secular Republican and social-communist ideals that we find the institutional foundations and values on which the social market economy is built.22

2.2.2 Germany The Basic Law of the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), approved in 1949, which transformed the three western zones into a sovereign State, the Federal Republic of Germany,23 does not

 Pera (2002), p. 29.  Carinci et al. (2018), pp. 13 and 32. For a general analysis of the Constitution as regards labour issues, Carinci et al. (2018), pp. 13 et seq., and 31 et seq.; Cicconetti (2008), pp. 95 et seq.; Pera (2002), pp. 28 et seq.; Pergolesi (1950), in particular, pp. 131 et seq.; Vallebona (2019), pp. 16 et seq. 22  Punta (2022), p. 142. 23  For general considerations, see Ramm (1989), pp.  127 et  seq.; Trenk-Hinterberger (1979), pp. 120 et seq. 20 21

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contain such highly detailed provisions on social rights as the Weimar Constitution.24,25 It should be stressed, in any case, that the constituent powers of 1949 “placed fundamental and human rights at the head of the new Constitution” (Article 1.3),26 putting special emphasis on freedom (Article 2)27; a central place is occupied by the right of persons freely to choose their occupation or profession, guaranteed by Article 12 of the Grundgesetz.28 The German Constitution also guarantees the freedom of association (in Article 9.3). As Germany is made up of 16 states (the Länder), the Constitution assigns concurrent legislative power to the federal State and to the Länder in order to regulate “labour law, including the organisation of enterprises, occupational health and safety and employment agencies, as well as social security, including unemployment insurance” (Article 74 (1) 12). At the same time, the Grundgesetz expressly provides for the constitution of the Federal Labour Court and the labour jurisdiction (Article 95(1)). Some of the rules of the Weimar Constitution on employment matters remain in force, under Article 140 of the Grundgesetz. An example of this is the right not to work on Sundays and holidays (Article 139 of the Weimar Constitution). In contrast to the meagre provisions on fundamental labour rights in the Grundgesetz, the constitutions of the Länder enshrine wide-ranging guarantees in the realm of employment. We may refer, for example, to the Bavarian Constitution, which contains a section devoted to labour issues (Articles 166–177), which starts by proclaiming that “work is the source of the prosperity of the people and shall be subject to the special protection of the state” (Article 166.1). It also establishes that all persons are entitled to a decent living from their work (Article 166.2) and that daily and weekly working hours will be subject to limits established by law (Article 173), expressly enshrining the right to rest (Article 174). It also deals with collective rights, enshrining the freedom of association (Article 170) and the right to participate in the activities of undertakings and to constitute works councils (Article 175). The Federal Constitution recognises the fundamental rights enshrined in the constitutions of the Länder, laying down, in Article 142, that, “notwithstanding article 31, provisions of Land constitutions shall also remain in force insofar as they guarantee basic rights in conformity with Articles 1 to 18 of this Basic Law”.  This of course does not prevent the constitutions of the individual states from establishing other fundamental rights, such as the right to work and to social security, and also the guarantees relating to collective bargaining. 25  Underlining the difference between the German Constitution and the Italian and French Constitutions (of 1946), cfr. Bon (1990), p. 19. 26  Neuner (2007), p. 219. 27  Whence the principle of private autonomy has been inferred, cfr. Rainer (2018), p. 386. 28  Hromadka and Maschmann (2023), p. 37. 24

2.2  Labour in Constitutions

11

The fact that the German Constitution contains few provisions expressly enshrining fundamental social rights has neither prevented the existence of effective protection, nor the development of a body of case law elaborating on core fundamental rights.29 Indeed, several labour rights have been recognised as fundamental and extracted from other legal norms, and labour, side by side with property, has been placed “at the centre of the identity of the human being”.30 This is the case of the right to collective bargaining, as mentioned above, which legal theory31 and the courts32 have deemed to flow from the freedom of association, applicable to associations of workers and employers, laid down in Article 9.3, whereby “The right to form associations to safeguard and improve working and economic conditions shall be guaranteed to every individual and to every occupation or profession. Agreements that restrict or seek to impair this right shall be null and void; measures directed to this end shall be unlawful”. It is therefore recognised that the omission of intervention by law has assigned a fundamental role to the courts,33 and it may be said that “the experience of Germany demonstrates that what matters is not the quantity but rather the efficacy of fundamental rights, even if starting out from a broad interpretation of constitutional principles, in order to arrive at the heart of employment law”.34

2.2.3 France The late nineteen fifties35 saw the preparation of the founding text of the Fifth Republic, more precisely the Constitution of 4 October 1958, adopted by the referendum 28 September that year.36

 Zachert (1995), pp. 11 et seq.; Trenk-Hinterberger (1979), p. 121, referring to judges as “quasi-­ legislators”. Also on labour matters in the German Constitution, among many others, Gamillscheg (1964), pp. 385 et seq., in particular, pp. 399 et seq.; Ramm (1991), pp. 1 et seq., in particular, pp. 4 et seq.; Weiss (2005), pp. 181 et seq. 30  Haberle (2003), p. 255. 31  For an analysis of this topic, cfr., among many others, Linsenmaier (2020), item 10, especially, D (Tarifautonomie), with plentiful references to legal scholarship and case law; Löwisch and Rieble (2017), §§ 106 et seq. Silva (2022), especially, pp. 312 et seq. 32  Cfr., for example, BVerfG, 30.11.1965–2 BvR 54/62, https://opinioiuris.de, where it is asserted that Article 9.3 “guarantees professional associations the right to determine working and economic conditions by means of collective labour agreements” (§ 27). 33  Poscher (2017), p. 235, also examining the workings of fundamental rights that need to be filled out with specific content, with important historical elements on the freedom of association. 34  Meireles (2018), p. 55. 35  We may note that ILO Convention no. 87 was ratified by the French State on 28 June 1951, and Convention no. 98, on 26 October of the same year. 36  For a general assessment, looking at historical and political aspects, Moss (1989), pp. 63 et seq., especially, pp. 66 et seq. 29

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This text retained in force the preamble to the Fundamental Law of 1946,37 which dealt with labour rights, and it is from the same text that the references in the new Constitution to labour and the constitutional rights of workers are taken. The Declaration of the Rights of Man and of the Citizen (of 27 August 1789) was retained in force by the preamble of the Fundamental Law, and so is part of the “set of constitutional provisions”. The distinction between laws and regulations contained in French labour legislation is defined by the French Constitution (of 1958), according to which statute law contains the fundamental principles of Employment Law and Trade Union Law (Article 34), whilst regulations will address matters not falling within the scope of these (Article 37). This situation restricts the legislator’s opportunity for intervention.38 Unlike other constitutional texts of the same period, the French Constitution does not contain provisions guaranteeing fundamental rights or make any move to proclaim fundamental principles in the domain of economic relations.39 For this reason, in France, it has been observed that the constitutionalisation of Labour Law has been a slow and diffuse phenomenon, involving interaction between social and institutional actors and with case law playing a very prominent role, meaning that it is possible to speak of the “creeping constitutionalisation” of Labour Law.40 As regards the preamble to the Constitution of 1946, it may be noted that, only after the Second World War, in view of the need to ensure a new political, economic and social order, was the enshrinement of economic and social rights achieved. With the restoration of the Republic, the Constituent Assembly sought to indicate the new principles on which it would be based, and these were set out in the preamble to the fundamental law, complementing the Declaration of the Rights of Man and of the Citizen.41 In filling out these principles, it is recognised that it is essential to proclaim the rights historically secured by the working classes.42 Economic and social rights are enshrined within a tradition of freedom, which can be seen both in the references to the Declaration of Rights of 1789 and in the formulation of certain new rights, complementing or flowing from the classical freedoms. It has been said that the constituent assembly of 1946 succeeded in “immersing afresh the abstract man of 1789 in the life of society”, enshrining constitutional principles that are particularly necessary in our time.43

 Ogier-Bernaud (2003), pp. 101 et seq., in particular, pp. 124 et seq. and 132 et seq.  Cfr. Camerlynck and Lyon-Caen (1975), p. 49; Javillier (1999), pp. 119–120. 39  Jeammaud (2007), p. 94. 40  Jeammaud (2007), p. 95. 41  Ogier-Bernaud (2003), pp. 60–61. 42  Ogier-Bernaud (2003), p. 61. 43  Ogier-Bernaud (2003), p. 62. 37 38

2.2  Labour in Constitutions

13

Specifically, the preamble to the Constitution of 1946 recognises equal rights for men and women in all areas (para. 3) and lays down that everyone has the right to work and the right to obtain employment (para. 5, part 1), as well as establishing that no one may be prejudiced, in their work or employment, by virtue of their origin, opinions or beliefs (para. 5, part 2). It recognises that all persons enjoy the possibility of defending their rights and interests through trade union action and the right to join a union of their choice (para. 6), and also establishes that the right to strike is exercised within the framework of the laws governing it (para. 7). At the collective level, paragraph 8 provides for worker participation, through their representatives, in collective determination of the terms of employment, and in the management of undertakings. More generally, the preamble to the 1946 Constitution also lays down that the Nation shall provide the individual and the family with the conditions necessary for their development (para. 10), guaranteeing everyone, including children, mothers and elderly workers, protection of their health, material security, rest and leisure (para. 11, part 1), going on to establish that any person who is unable to work, by virtue of their age, physical or mental condition, or economic situation, is entitled to obtain adequate means of subsistence from the community (para. 11, part 2). These principles are imposed on the legislature and constitute a “source of inspiration” for the courts.44 In the case law of the Conseil Constitutionnel we may detect the influence of liberal ideals, giving priority to the standards of the Declaration of 1789, and a social orientation, more sensitive to the preamble of the 1946 Constitution.45 The labours of the courts, responsible for the progressive constitutionalisation of Labour Law in France, in the final decades of the twentieth century, were to confer stability on the direct and binding efficacy of these fundamental rights, and the resulting case law belongs therefore to the relevant constitutional texts.46 It is therefore acknowledged that the constitutional rules must be applied directly in relations between private subjects, and in particular in labour relations.47 The French Constitution (and especially the preamble to the 1946 Constitution) has therefore become an important source of labour law.48

 Favennec-Héry and Verkindt (2020), p. 46.  Jeammaud (2007), p. 104. 46  Cfr., on inclusion of the preamble in the body of constitutional rules, for example, all available at www.conseil-constitutionnel.fr, Décision n.° 71–44 DC du 16 juillet 1971 (freedom of association); Décision n.° 77–79 DC du 5 juillet 1977 (right of workers to take part in establishing the terms of employment); Décision n.° 79–105 DC du 25 juillet 1979 (right to strike); Décision n.° 80–127 DC du 20 janvier 1981 (right to strike, §§ 17 et seq.). For further reading, Odoul-Asorey (2013), pp. 36 et seq., and 135 et seq.; Javillier (1999), pp. 775–776. 47  Jeammaud (2007), p. 110, pointing out that its precise relevance depends on the subject matter, the content of the legal rule and the shape of the legal relationship. 48  Favennec-Héry and Verkindt (2020), p. 45. 44 45

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2.2.4 Portugal Approved after the April Revolution and during the transition to democracy, the Portuguese Constitution elevated work to a “constitutive element of the overall constitutional order itself, and a prime instrument for realising the principle of economic and social democracy”.49 Following on from other constitutional texts, the Constitution of 1976 contains several provisions concerning labour law and labour relations, including in particular the enshrinement of the fundamental rights of workers, with the result that the application of the rules of Labour Law is evaluated at the constitutional level. Enshrining a vast array of rules relating to employment matters, the Constitution contains certain rules (‘preceptive norms’) which are valid and directly applicable in themselves, and others, called ‘programmatic norms’ which need to be subsequently fleshed out in legislation.50 The directly applicable provisions contained in the Constitution on employment matters include those on job security and the prohibition of unfair dismissal (Article 53), several provisions on working conditions, established in Article 59—in particular, the right to work in conditions of hygiene, health and safety (para. 1c)), the right to rest, to a weekly rest period and holidays (paras. 1 d) and 2 d)), to an upper limit on daily hours of work (para. 1 d) and 2 b)), and to an annually adjusted minimum wage (para. 2 a))—as well as the right to choose an occupation and type of work (Article 47.1), and, at the collective level, freedom of association (Article 55), the right to collective bargaining (Article 56, paras. 3 and 4) and to strike (Article 57.1) and the prohibition of lock-outs (Article 57.4). Examples of programmatic norms include the right to work (Article 58), to remuneration for work that guarantees a decent living (Article 59.1 a)) and to the organisation of work so as to ensure social dignity and to allow for personal fulfilment (Article 59.1 b)).51 The Portuguese Constitution sought above all to declare rights and organise the economy, proclaiming socialist principles in accordance with Marxist doctrine,52 regarding the construction of a socialist society as the fundamental goal. The Constitution therefore opened with the assertion that Portugal was “a sovereign Republic, based on the dignity of the human person and the will of the people and committed to its transformation into a classless society” (Article 1), declaring  Canotilho (2003), p. 347, although rejecting the “Labour Constitution” as an autonomous entity, recalling that it must be interpreted in the wider context of the Constitution as a whole. 50   On the distinction between preceptive and programmatic norms, cfr. Miranda (2002), pp. 640 et seq. 51  With further developments, for example, Carvalho (1998), pp. 35–64; Cordeiro (2018), pp. 245 et seq.; Leitão (2021), pp. 66–67; Martinez (2001), pp. 151–187; Martinez (2022), pp. 156 et seq.; Silva (2022), especially, pp.  879 et  seq., with bibliographical indications; Xavier (2003), pp. 163–203. 52  Caetano (1981), p.  141. With a description of the provisions embodying these ideals, cit., pp. 144 et seq. 49

2.2  Labour in Constitutions

15

the goal of “transition to socialism by creating the conditions for the democratic exercise of power by the working classes” (Article 2). Subsequent constitutional reviews53 made substantial changes to the Fundamental Law, and it must be acknowledged that there was a significant change in political and socio-economic direction in how workers’ rights were realised54; these changes went beyond the express amendments, and include “tacit changes”, emanating, in the first instance, from the case law of the Constitutional Court.55 However, the Constitution has maintained its underlying commitment to social progress and continues to pay special attention to fundamental rights.56 It may also be said that it continues to play a “transcendent role in labour law”.57 These changes cause the constitutional rules to be necessarily interpreted in the light of a given constitutional reality, and the rights of workers should be read in a fresh light58; no longer in the light of a regime in transition towards socialism, but of  For a critical appraisal, Miranda (2001), pp. 653 et seq., asserting that the revisions have increased the number of precepts, whilst reducing the number of articles “and the Constitution has thereby been loaded down with ever more rules not enforceable in themselves, leaving it bloated and redundant” (p. 657). 54  To this effect, Xavier (2003), p. 419, which adds: “We may therefore suppose that, in economic, social and employment matters, it is misleading to refer to the 1976 Constitution as in force today: the Portuguese fundamental law currently has little to do with that drawn up during the revolutionary process”, providing a number of examples over the following pages. Otero (2010), pp. 207 et seq., also speaks of “transfiguration of the Constitution”, analysing various factors (for example, in addition to revisions, the passage of time, the historical heritage of the State and intervention by political parties). However, Miranda (2001), p. 654, writes that, despite the constitutional changes, “the Constitution of 1976 has not ceased to be the same—in its organisation, its principles and fundamental structures (representative and pluralist democracy, the rule of law, prevalence of the rights, freedoms and guarantees of citizens and workers, enshrinement of social rights, diversity of economic arrangements, division of power, regional unitary State, local power, scrutiny of constitutionality and legality). Without losing the identity of its essential core, what the Constitution has undergone has been a process of development, not only through the revisions but also through case law (first by the Constitutional Commission, and later by the Constitutional Court) and by establishing itself in the civic culture of the Portuguese”. See also, by the same author, “A Afirmação do Princípio Democrático no Processo Constituinte”, cit., pp. 30–31; Machete (2006), pp. 63 et seq.; Moreira (2000), pp. 197 et seq., especially 209 et seq., concluding that: “But not even the most profound changes—in any case of limited scope—necessarily amount to a alteration in genetic identity. The Constitution has changed, greatly; but we have not changed Constitution. In several respects, the Constitution is different; but considered overall it is still the same Constitution”. 55  Miranda (2016), pp. 14 and 19 et seq., noting that “constitutional development does not entail the emergence of a different Constitution, it merely brings a deepening or a re-orientation of the reach of the Constitution in force. In a certain way, the results arrived at over time are actually contained in the fundamental principles on which it is based; and either it is a case of extracting their logical consequences or of one possible interpretation prevailing over another equally possible interpretation” (p. 22). 56  An overview of constitutional case law may be consulted in Pinto (2006), especially pp. 208 et seq. 57  Xavier (2003), p. 163. 58  Xavier (2003), pp. 166 et seq. See also, by the same author, “A Jurisprudência Constitucional Portuguesa e o Direito do Trabalho”, cit., p. 212. 53

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a market economy, anchored in free enterprise (Article 61), in private property (Article 62), basing its socio-economic arrangements on the principle of free enterprise and business organisation within the framework of a mixed economy and participation by organisations representing workers and industry in determining the main economic and social measures (Article 80, c) and g), respectively), in which the State is responsible, among many other things, for guaranteeing competition between enterprises (Article 81 f)), encouraging enterprise and exceptionally intervening in the management of undertakings (Article 86, 1 and 2), and where the interests of the workforce are an important criterion in managing the economy (Article 87).59 As we have seen, we should also consider the backdrop of a Republic founded on human dignity (Article 1) and committed to realising economic, social and cultural democracy, as well as to perfecting participatory democracy (Article 2).60 At the same time, stress should be laid on the “recognition of the ‘citizenship’ of the employer or business owner and the guarantee of the rights and freedoms of private enterprise, where the free constitution of undertakings and incorporation of companies prevails, as a personal right”, along with the management of those businesses.61 Without neglecting the relevance of the provisions concerning workers, it should be noted that, as well as the “dignity of the human person”, we can extract from the various provisions cited above (for example, Articles 80 c), 86.1) implicit recognition of subsidiary State intervention in its relations with civil society,62 which adds to the importance of collective bargaining as a source endorsed by the Fundamental Law. It may therefore be said that collective autonomy, as a consequence of  Cfr., for example, Leitão (2004), pp.  340–341, speaking of an actualist interpretation of the labour-related provisions of the Constitution; Moreira (2006), pp. 38 et seq. 60  The importance of Articles 1 and 2 CRP in the realm of labour law has been stressed, for example, in Judgment of the Constitutional Court 951/96, of 10 July, www.tribunalconstitucional.pt, paragraphs 7 and 8. 61  Xavier (2009), p. 214. 62  As pointed out by Otero (1998), pp. 34 et seq., adding further arguments, such as the Universal Declaration of Human Rights. Indeed, we may note that the first part of Article 6.1 CRP refers expressly to the State’s duty to respect the principle of subsidiarity in its organisation and functioning, although it should be recognised that, as this author writes, we have no express constitutional rule declaring the principle of subsidiarity in the State’s intervention in the economy and society. On the principle of subsidiarity, expressly enshrined in PIUS XI (S.S.), Quadragesimo Anno, cit., pp. 103–104, see Pinto (1983), p. 351, asserting that this principle implies, in the first place, that public powers should not substitute the specific function of groups within the scope of their particular purpose, giving the example of collective bargaining; and, in particular in the area of legislative powers, Morais (2008), pp. 227 et seq., especially pp. 231 et seq., where we may read: “of the attributes commonly inherent in subsidiarity in theological and legal thought, it is possible to extract a diffuse idea of a limitation on the exercise of powers by macro-communities, in favour of intermediate communities which, by virtue of their more direct proximity to persons, have been shown to be better able to perform certain tasks more appropriately and effectively” (p. 228), italic in the original; Moreira (1997), pp. 97 et seq., pointing to several dimensions and concluding that “outside self-management, syndicalist and corporative theories of economic organisation, self-­ regulation is not an obvious principle of the economic order. It arises from essentially free constitutional and legislative options” (p. 99). 59

2.2  Labour in Constitutions

17

r­ecognition of the capacity of collective subjects to produce legal rules, is the “expression of a civil society distinct (although today not separate) from the State”.63 Among the fundamental tasks of the State, attention may be drawn to promotion of genuine equality in Portugal and giving real effect to economic, social and cultural rights (Article 9 d)). This is the light in which we should read the section on economic, social and cultural rights (Articles 58 et seq.), and also the part dealing with organisation of the economy (Articles 80 and 81),64 from which it emerges that the prime purpose of economic and social measures is to improve the social and economic welfare and quality of life of persons, to further social justice and ensure equal opportunities, economic and social cohesion of the country’s territory as a whole and the efficient working of markets, in order to ensure balanced competition between undertakings (Article 81 a), b), d) and f)).65 It follows from this that the labour-related provisions of the Constitution66 and those concerning the economy67 inform each other, and it may be said that the relationship between them establishes their respective boundaries and, moreover, that the model outlined in the Constitution calls for subsidiary and essentially regulatory intervention by the State in the economy.

2.2.5 Spain The political changes that took place in Spain in the mid-1970s (restoration of the monarchy), accompanied by an economic crisis,68 were naturally reflected in legislative changes and also gave rise to a new constitutional text (1978).69 Prior to the Constitution of 1978, Spain had no Constitution as such, but merely politico-normative texts called “Fundamental Laws”, with a tendency to set out a programme of reforms.70  Jorge Miranda, in Miranda and Medeiros (2007), p. 713.  As rightly stressed by Canotilho and Moreira (1991), p. 86, with a more thorough treatment. 65  For an in-depth analysis of Article 81, with important elements on Article 9, Fonseca (2008), pp. 152 et seq. 66  For an overview of the main rules relevant to employment matters under the existing framework, Gouveia (2004), pp. 113 et seq. 67  Otero (2004), p. 282—elaborating further on subsequent pages—actually refers to “an umbilical link between the labour Constitution and the economic Constitution”; concerning the labour Constitution’s relationship with the political Constitution, the national Constitution and Community law, Otero (2004), pp. 281–282 and pp. 284 et seq., respectively. On the Economic Constitution, Santos et al. (2010), pp. 39 et seq. 68  With useful information, Martínez Matute (2014), p. 143. 69  For an analysis of the state of collective bargaining in the late nineteen seventies, also with plentiful references to various interconfederal agreements, Palomeque López (1982), pp. 17 et seq., with quantitative data. 70  An example of this was “Fuero del Trabajo”, approved in 1938, under General Franco, containing highly detailed and organised provisions on labour and welfare issues (Monereo Pérez et al. 63 64

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With the transition to democracy, the need was felt for approval of a constitutional text, and this process culminated in approval of the Constitution of 1978, which adopts the classical structure of Western social constitutions.71 The conception of the social and democratic state and rule of law, on which the Spanish Constitution of 1978 is founded, is expressed in the preamble, where it asserts the Nation’s desire “to establish a democratic and advanced society”. The Constitution accordingly proclaims the supreme values of the legal order to be “freedom, justice, equality and political pluralism” (Article 1.1), elevating itself to a “plane above positive law, accepting the conception that subordinates the law to morality”.72 Unlike the Portuguese Constitution, the Spanish Constitution of 1978 does not group together its precepts on workers’ rights in a single section, opting instead to organise its provisions on the basis of the legal treatment to be given to different topics.73 As a result, constitutional labour rights do not have “unitary and homogeneous” legal force.74 Specifically, the Spanish Constitution of 1978 describes trade unions and employers’ organisations as “basic institutions of the State” (Article 7), the freedom of association and the right to strike constitute fundamental rights (Article 28), the right to work, to free choice of trade, to a decent wage, among others, and the wider rights of collective autonomy and self-governance are ordinary legal rights (Articles 35 and 37), and other labour matters are addressed in provisions setting out a future course for society (such as the promotion of social and economic progress, provided for in Article 40).75 The Spanish Constitution also takes a different line on collective rights, and especially with regard to collective bargaining. Having established, in the preliminary section, that “trade unions and employers’ associations contribute to the defence and promotion of the economic and social interests which they represent”

2022, p. 81). 71  Monereo Pérez et al. (2022), p. 81. 72  Montoya Melgar (2004), p. 15. 73  Monereo Pérez et al. (2022), p. 82. The authors point out that the aim is not to assign a unique meaning to the phenomenon of work or to the employment relationship, but rather to ensure that a given economic and social treatment is afforded to workers, considered individually and collectively. 74  Monereo Pérez et al. (2022), p. 82. For an analysis of workers’ rights under the Constitution, Freixes Sanjuán (1986), pp. 73 et seq. (pp. 111–112, collective bargaining), especially 215 et seq. In relation to trade unions, for an analysis, including ordinary legislation, Montoya Melgar (2022), pp. 130 et seq. 75  Monereo Pérez et al. (2022), p. 82.

References

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(Article 7)76 and providing for the freedom of association77 and the right to strike (Article 28),78 it lays down, still on the subject of fundamental rights and duties (part I, Chap. II), that “the law shall guarantee the right to collective labour bargaining between worker and employer representatives, as well as the binding force of the agreements” (Article 37.1). Attention may also be drawn to the sole powers conferred on the State to legislate on employment matters, notwithstanding implementation of the resulting provisions by the authorities of the autonomous communities (Article 149.1, 7).79 Although it is acknowledged that, when the Constitution of 1978 was approved, Spain already had “well established” labour and social security law,80 it is undeniable that the Fundamental Law was the driving force behind significant changes, and proved to be a fundamental instrument in structuring a cohesive society.81

References Bon P (1990) La Protection Constitutionnelle des droits fondamentaux: aspects de Droit Comparé Europeen. Separata da Revista da Faculdade de Direito XXXI:9–65 Borrajo Dacruz E (1980) La Obligatoriedad General de los Convenios Colectivos de Trabajo en el Nuevo Derecho Español. Rev Polit Soc 126:5–42 Bravo Ferrer M, Casas Baamonde ME (2018) Comentarios a la Constitución Española, vol I and II. Wolters Kluwer, Madrid Caetano M (1981) Constituições Portuguesas, 5th edn. Verbo, Lisboa Camerlynck GH, Lyon-Caen G (1975) Précis de Droit du Travail, 7th edn. Dalloz, Paris Canotilho G (2003) Direito Constitucional e Teoria da Constituição, 7th edn. Almedina, Coimbra Canotilho G, Moreira V (1991) Fundamentos da Constituição. Coimbra Editora, Coimbra Carinci F, Tamajo L, Tosi P, Treu T (2018) Diritto del Lavoro, 1. Il Diritto Sindacale, 8th edn. Utet, Milão

 This article continues: “Their creation and the exercise of their activities shall be unrestricted in so far as they respect the Constitution and the law. Their internal structure and operation must be democratic”. 77  As stressed by Borrajo Dacruz (1980), p. 18, “the requirement of the pluralism resulting from the freedom of organisation is so significant that the Spanish Constitution of 1978 does not authorise statute law to limit the content of the individual freedom of organisation (Article 53.2) and requires that trade union issues be governed by no less than an Organic law (Article 28.1 in combination with Article 81.1)”. 78  The Constitutional Court, in Judgment no. 75/92, of 14 May, www.tribunalconstitucional.es, item II. 5, upheld the differentiation between the right of association and workers’ right of association, rejecting application of Article 28.1 of the Spanish Constitution to employers, which does not mean, it noted, that the Constitution does not contain rules protecting employers’ organisations. On the freedom of association for employers, see, for example, Lahera Forteza (2006), pp. 298 et seq. 79  For a commented appraisal of the various cited rules, Bravo Ferrer and Casas Baamonde (2018), passim. 80  Montoya Melgar (2004), p. 29. 81  Montoya Melgar (2004), p. 32. 76

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Carvalho AN (1998) Reflexão sobre a Constituição e o Direito do Trabalho. Prontuário de Direito do Trabalho 57:35–64 Cicconetti S (2008) Os Direitos Sociais na Jurisprudência Constitucional Italiana. Revista Brasileira de Direitos Fundamentais e Justiça 2:93–104 Clerc L (1922) Essai sur le Contrat Collectif de Travail (Art. 322–323 C.O.), Précédé d’un Exposé Historique sur les Législations des Divers États. Dissertation, Imprimerie la Concorde, Lausanne Cordeiro AM (2018) Direito do Trabalho, vol I. Almedina, Coimbra Correa Freitas R (2017) El Centenario de la Constitución Mexicana de Querétaro de 1917. Revista do Tribunal Regional do Trabalho da 15ª Região 51:229–248 Favennec-Héry F, Verkindt PY (2020) Droit du Travail, 7th edn. Lextenso, Paris Fonseca RG (2008) Comentário à Constituição Portuguesa  – Organização Económica (artigos 80.° a 107.°), II volume. In: Otero P (ed) Centro de Investigação da Faculdade de Direito da Universidade de Lisboa. Almedina, Coimbra Freixes Sanjuán T (1986) Los Derechos Sociales de los Trabajadores en la Constitucion. In: Tesis Doctorales. Ministerio de Trabajo y Seguridad Social, Madrid Gallart Folch A (2000) Las Convenciones Colectivas de Condiciones de Trabajo, «Crítica del Derecho». Granada, Comares Gamillscheg F (1964) Die Grundrechte im Arbeitsrecht. Archiv für die civilistische Praxis (AcP) 5/6:385–445 Gil Albuquerque R (2017) El Derecho del Trabajo Democrático en la República de Weimar. Bomarzo, Albacete Gouveia JB (2004) O Anteprojecto de Código do Trabalho e a Constituição Portuguesa. In: AAVV, Código do Trabalho – Pareceres, vol III. Ministério da Segurança Social e do Trabalho, pp 99–225 Haberle P (2003) El Estado Constitucional, (Héctor Fix-Fierro, Trans). Universidad Nacional Autónoma De México, México Hromadka W, Maschmann F (2023) Arbeitsrecht, Band 1, 8th edn. Springer, Berlin Javillier JC (1999) Droit du Travail, 7th edn. L. G. D. J., Paris Jeammaud A (2007) La «Constitutionnalisation Rampante» du Droit du Travail Français. Les Cahiers de Droit 48(1–2):93. https://doi.org/10.7202/043924ar Kurczyn Villalobos P (2021) El Derecho Mexicano del Trabajo a Cien Años de la Constitución Política de 1917. Anuario Coruñés de Derecho Comparado del Trabajo XIII:151–174 Lahera Forteza J (2006) España. In: AAVV, Libertad de Asociación de Trabajadores y Empresarios en los Países de la Unión Europea, director Valdés Dal-Ré, «coleccion informes e estudios, serie general, núm 18». Ministerio de Trabajo y Asuntos Sociales, Madrid, pp 279–230 Leitão LM (2004) A Conformidade da Proposta de Lei 29/IX (Código do Trabalho) com a Constituição da República Portuguesa. In: AAVV, Código do Trabalho  – Pareceres, vol III. Ministério da Segurança Social e do Trabalho, pp 333–398 Leitão LM (2021) Direito do Trabalho, 7th edn. Almedina, Coimbra Linsenmaier W (2020) Grundgesetz für die Bundesrepublik Deutschland (Art. 9). In: Müller-­ Glöge R, Preis U, Schmidt I (eds) AAVV, Erfurter Kommentar zum Arbeitsrecht, 20th edn. C.H. Beck, München. § 10 Löwisch M, Rieble V (2017) Tarifvertragsgesetz Kommentar, 4th edn. C. H. Beck, München Machete R (2006) A Identidade da Constituição de 1976 e as suas Diversas Revisões. In: AAVV, 30 Anos da Constituição Portuguesa 1976–2006, Themis – Revista da Faculdade de Direito da UNL, edição especial. Almedina, Coimbra, pp 63–68 Martinez P (2001) A Constituição de 1976 e o Direito do Trabalho. In: Nos 25 Anos da Constituição da República Portuguesa. Associação Académica da Faculdade de Direito de Lisboa, pp 149–188 Martinez P (2022) Direito do Trabalho, 10th edn. Almedina, Coimbra

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Martínez Matute M (2014) La Evolución del Sistema de Negociación Colectiva en España: Una Panorámica General. Temas Laborales: Revista Andaluza de Trabajo y Bienestar Social 123:139–161 Mazzoni G (1936) Corso di Legislazione Comparata del Lavoro, La Legislazione del Lavoro in Generale la Disciplina Giuridica del Mercato del Lavoro. Giuffrè, Milano Mazzoni G (1967) Italie. Revue Internationale de Droit Comparé 19(1):61–74 Mazzotta O (2019) Diritto del Lavoro, 7th edn. Giuffrè Francis Lefebvre, Milão Meireles E (2018) A Constituição do Trabalho. O Trabalho nas Constituições da Alemanha, Brasil, Espanha, França, Itália e Portugal, 3rd edn. LTR, São Paulo Miranda J (2001) Acabar com o Frenesim Constitucional. In: AAVV, Nos 25 Anos da Constituição da República Portuguesa. Associação Académica da Faculdade de Direito de Lisboa Miranda J (2002) Teoria do Estado e da Constituição. Coimbra Editora, Coimbra Miranda J (2016) A Evolução da Constituição de 1976 ao Século XXI.  Revista da Ordem dos Advogados 76(I–IV):7–23 Miranda J (2020) Direitos Fundamentais, 3rd edn. Almedina, Coimbra Miranda J, Medeiros R (2007) Constituição Portuguesa Anotada, Tomo III (artigos 202.° a 296.°). Coimbra Editora, Coimbra Monereo Pérez JL, Molina Navarrete C, Moreno Vida MN, Vila Tierno F (2022) Manual de Derecho del Trabajo, 20th edn. Granada, Editorial Comares Montoya Melgar A (2004) El Trabajo em la Constitución. Revista de Ciencias Jurídicas y Sociales 0:9–32. https://dialnet.unirioja.es. Accessed 30 Sept 2022 Montoya Melgar A (2022) Derecho del Trabajo, 43rd edn. Tecnos, Madrid Morais CB (2008) Curso de Direito Constitucional, A Lei e os Actos Normativos no Ordenamento Jurídico Português, tomo I. Coimbra Editora, Coimbra Moreira V (1997) Auto-Regulação Profissional e Administração Pública. Almedina, Coimbra Moreira V (2000) Revisão e Revisões: A Constituição Ainda É a Mesma? In: AAVV, 20 Anos da Constituição de 1976, Boletim da Faculdade de Direito, «Stvdia Ivridica», vol 46. Coimbra Editora, Coimbra, pp 197–212 Moreira V (2006) A Metamorfose da Constituição Económica. In: AAVV, 30 Anos da Constituição Portuguesa 1976–2006, Themis – Revista da Faculdade de Direito da UNL, edição especial. Almedina, Coimbra, pp 33–47 Moreira V (2014) Trabalho Digno para Todos – A «Cláusula Laboral» no Comércio Externo na União Europeia. Coimbra Editora, Coimbra Moss B (1989) La Réforme de la Législation du Travail sous la Ve République: un Triomphe du Modernisme? Le Mouvement Social 148:63–91 Neuner J (2007) A Influência dos Direitos Fundamentais no Direito Privado Alemão. In: Monteiro P, Neuner J, Sarlet I (eds) AAVV, Direitos Fundamentais e Direito Privado – Uma Perspectiva de Direito Comparado. Almedina, Coimbra, pp 213–236 Odoul-Asorey I (2013) Négociation Collective et Droit Constitutionnel. Contribution à l’Étude de la Constitutionnalisation des Branches du Droit, «Bibliothèque de Droit Social tome 59». LGDJ, Paris Ogier-Bernaud V (2003) Les Droits Constitutionnels des Travailleus. Economica, Paris Otero P (1998) Vinculação e Liberdade de Conformação Jurídica do Sector Empresarial do Estado. Coimbra Editora, Coimbra Otero P (2004) Parecer sobre o Anteprojecto de Código do Trabalho. In: AAVV, Código do Trabalho – Pareceres, vol III. Ministério da Segurança Social e do Trabalho, pp 273–329 Otero P (2010) Direito Constitucional Português  - Identidade Constitucional, vol I. Almedina, Coimbra Palomeque López MC (1982) La Negociación Colectiva en España, 1978-1979. Rev Polít Soc 135:7–43 Pera G (2002) Introduzione al Diritto del Lavoro Italiano. Cedam, Milão Pergolesi F (1950) The place of labour in the Constitution of the Italian Republic. Int Labour Rev 61(2):118–142

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Pic P (1909) La Protection Légale des Travailleurs et le Droit International Ouvrier. Félix Alcan, Paris Pinto M (1983) Doutrina Social da Igreja e Concertação Social. Economia VII(2):331–355 Pinto PM (2006) Reflexões sobre a Jurisdição Constitucional e Direitos Fundamentais nos 30 Anos da Constituição da República Portuguesa. In: AAVV, 30 Anos da Constituição Portuguesa 1976–2006, Themis – Revista da Faculdade de Direito da UNL, edição especial. Almedina, Coimbra, pp 201–216 Poscher R (2017) Die Koalitionsfreiheit als ausgestaltungsbedürftiges und ausgestaltungsfähiges Grundrecht. Recht der Arbeit (RdA) 4:235–245 Punta R (2022) Diritto del lavoro, 14th edn. Giuffrè, Milan Rainer M (2018) Lo Sviluppo dell’Autonomia Privata in Germania. Jus Civile 3:386–395 Ramm T (1989) La Costituzione del Lavoro della Repubblica Federale Tedesca Per una Storia della Costituzione del Lavoro Tedesca, (Antonio Capobianco, Lorenzo Gaeta, Roberto Romei e Gaetano Vardaro, Transl). In: Per la Storia del Pensiero Giuridico Moderno, vol 31. Giuffrè, Milano, pp 127–149 Ramm T (1991) Grundrechte und Arbeitsrecht  - Zur Verständigung über die Fragestellungen. JuristenZeitung (JZ) 1:1–16 Raynaud B (1906) Droit Internacional Ouvrier. Arthur Rousseau, Paris Santos A, Gonçalves ME, Marques MML (2010) Direito Económico, 5th edn. Almedina, Coimbra. reimpressão de 2004 Silva LG (2022) Da Eficácia da Convenção Colectiva, vol I. Imprensa FDUL, Lisboa Trenk-Hinterberger P (1979) El Desarrollo del Derecho Alemán del Trabajo en los Últimos 75 Años. In: del Trabajo DP, Dávila S-C (eds) AAVV, LXXV Años del Evolución Jurídica en el Mundo, vol v. Universidad Nacional Autónoma de México, México, pp 105–136 Vallebona A (2019) Istituzione di Diritto del Lavoro, I, Il Diritto Sindacale, 11th edn. Cedam, Milano Weiss M (2005) The interface between constitution and labor law in Germany. Comp Labor Law Policy J 26(2):181–198 Xavier B (2003) A Constituição Portuguesa como Fonte do Direito do Trabalho e os Direitos Fundamentais dos Trabalhadores. In: Melgar M (ed) AAVV, El Trabajo y la Constitución, Estudios en Homenage al Professor Alonso Olea. Academia Iberoamericana de Derecho del Trabajo y de la Seguridad Social, Ministerio de Trabajo y Asuntos Sociales, Madrid, pp 415–439 Xavier B (2009) A Jurisprudência Constitucional Portuguesa e o Direito do Trabalho. In: AAVV, XXV Anos de Jurisprudência Constitucional Portuguesa. Coimbra Editora, Coimbra, pp 209–254 Zachert U (1995) Lezioni di Diritto del Lavoro Tedesco. In: Quaderni del Dipartimento di Scienze Giuridiche, vol 12. Università degli Studi di Trento

Chapter 3

Horizontal Application of Fundamental Rights

The issue of how far private entities are bound by fundamental rights has been widely debated. The question posed has to do with the precise extent to which they are subject to constitutional values; in other words, how far are private entities bound to respect fundamental rights,1 more precisely rights, freedoms and guarantees (Article 18.1, CRP).2 Indeed, it has been debated whether fundamental rights apply to relations between private persons,3 in other words, whether the fundamental rights laid down  Stressing that private agreements must respect fundamental rights, Judgment of the Supreme Court of Justice, 3 May 2016, Case no. 1560/11.6TVLSB.L1.S1, www.dgsi.pt. 2  The problem may also be posed in relation to non-enforceable norms (‘preceptive’ or ‘programmatic’), because these are also, in a certain sense, directly applicable, because they prohibit the issuing of legal rules, as well as forms of behaviour that tend to prevent the acts those norms require; for example, elimination of the upper limit on working hours (Article 59.1 (d)); Miranda (2020), p. 366, therefore concludes that Article 18.1 should not be limited to rights, freedoms and guarantees. A little further on, the same author, op. cit., p. 387, lays stress on the efficacy of certain economic, social and cultural rights of private persons, describing it as beyond dispute, “to the extent to which they require certain renderings or impose certain obligations, or to which they compress rights”, giving the examples of Article 55.6 and Article 59.2 (b). 3  Private, external or horizontal efficacy of fundamental rights or else civil efficacy of fundamental rights. On the different names used and respective criticisms, for example, Andrade (2019), p. 228, note 530. Dray (1999), pp. 140–141, in line with some Germany theorists, distinguishes external efficacy (Drittwirkung der Grundrechte)—efficacy would be based on the idea that fundamental rights govern solely the relations between the State and private persons, meaning that external efficacy would imply respect by private persons for the rights of their peers in private relationships, and consequently limits on their private autonomy—from horizontal efficacy of fundamental rights (Horizontalwirkung der Grundrechte)—this name would point to something more, because here fundamental rights would also be binding on private parties in their relations with other private persons, although he addresses the issue solely with regard to the binding of private entities. 1

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Gonçalves da Silva, S. Leitão, Constitutional Framework of European Labour Law in Italy, France, Germany, Portugal and Spain, https://doi.org/10.1007/978-3-031-45717-3_3

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in the Constitution, historically depicted as prerogatives vis-à-vis the State, can be invoked in relations between private persons and, if so, on what terms. This topic, which originated in German legal theory, where it has been paid special attention (Drittwirkung der Grundrechte, Article 1.3 of the Constitution) 4 —later taken up by a number of European countries, including Portugal—has divided scholars, giving rise to a lively but inconclusive debate. Indeed, it has been described as “one of the most hotly debated and complex topics in the dogma of constitutional law”.5

 A historical summary of the debate may be consulted in Nipperdey (1954a, b), pp. 181–182. For an analysis of the debate, by way of example, Canaris (2003), pp.  52 et  seq., defends mediate efficacy, where the State is bound by an obligation to protect the fundamental rights of a citizen vis-à-vis another, offering the example, by way of exception, of the immediate efficacy of Article 9 (3) § 2 (relating to collective bargaining) (p. 53); on the other hand, this same author emphasises, op. cit., p. 75, that “even where fundamental rights are not applicable in their specific constitutional law dimension, and where a breach of the prohibition of excess or insufficiency is not in question, they may be relevant to the interpretation of private law, and, especially, to filling out the respective general clauses. Because in this case fundamental rights can always have effect as general principles of law positioned at an infra-constitutional level—as indeed like other general principle of law”; and also from the same author, “Die Allgemeinen Arbeitsbedingungen im Schittpunkt von Pivat-und Kollectivautonomie”, cit., pp. 21–22. For his part, Linsenmaier (2020), D—III 2, § 79, argues that “the autonomy of collective bargaining is in fact limited by individual positions vis-à-­ vis fundamental rights. However, the limit is different. It follows initially from an interpretation of the scope of powers over ‘economic and employment conditions’ on the basis of fundamental rights”. Neuner (2007), pp. 213 et seq., who regards fundamental rights as duties of protections, although admitting exceptional situations of direct efficacy such as that in Article 9 (3) § 2 (relating to collective bargaining) (p. 226); Schaub (2019), § 198, III, 2, looking at case law, which supports indirect efficacy; Singer (2007), pp. 326 et seq., contending that the structural imbalance existing in employment contracts requires that they be subject to fundamental rights (p. 332 et seq.). On this topic, see also Classen (1997), pp.  65 et  seq. In Spanish scholarship, see, for example, Bilbao Ubillos (2007) pp. 165 et seq., with references to the position of the Spanish Constitutional Court (pp.  191 et  seq.), advocating, especially pp.  207 et  seq., immediate application of fundamental rights through an assessment of the specific case in the light of the rights involved (attenuated efficacy); Dal-Ré (2019), pp. 242 et seq., with analysis of constitutional doctrine, noting that the issue has been raised essentially in connection with the principle of equality, which has served to tprevent arbitrariness; and for a general assessment, Dal-Ré (2003), pp. 499 et seq., especially, 503 et  seq., and also, Dal-Ré (2017), pp.  201 et  seq., identifying the Portuguese Constitution as an example of those providing for horizontal efficacy of fundamental rights (p. 202). For historical background and a comparative law analysis, in Portuguese, see Abrantes (1990), pp. 33 et seq., and, in further depth and more up-to-date, Abrantes (2005), pp. 74 et seq. and 147 et seq. (in relation to employment contracts); Andrade (2019), pp. 227 et seq.; Caupers (1985), pp. 162 et seq.; Dray (1999), pp. 135 et seq.; Crorie (2005), pp. 13 et seq. 5  Canotilho (2014), pp. 999. 4

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Taking the constitutional rules (Article 18.1, in fine)6 as the starting point, the debate in Portugal enables us to point, in brief, to three main lines of thought:7 1. On the one hand, the defenders of the immediate efficacy of rights, freedoms and guarantees, where we may identify those who defend:

(a) The binding of private entities without the need for mediation and on the same terms as for public entities, a position argued by authors such as João Caupers,8

 As rightly cautioned by Jorge Miranda and Jorge Pereira da Silva, in Miranda and Medeiros (2010), pp. 334:: “the true meaning of the passage in question is to assert that, as well as being active holders of rights, freedoms and guarantees, private subjects are also (or may also be) principal passive addressees (or duty-bearers) of the same, and so establish among themselves true fundamental law relations, irrespective of their configuration (horizontal relations, vertical relations in which a private party has a ‘dominant position’, triangular relations in which the State protects the position of one of the private subjects, polygonal relations where multiple positions of private subjects intersect)”. 7  There are of course shades of opinion and different approaches, and so the classification of authors in particular camps is merely approximate and intended to facilitate an overall view of the subject. Silva (2015), pp. 97 et seq., identifies and examines ten tendencies, returning to the topic, for example, on pp. 388 et seq., where he argues: “so that no doubts remain, Article 18.3 contains a provision that establishes the applicability—mediate or immediate, although this is not truly decisive here—of fundamental rights in relations between private subjects” (p. 402), adding that “the binding nature of fundamental rights between private subjects is in itself established by the Constitution, and may not be subjected to the margins of free decision or assessment which are as a rule permitted to the ordinary legislator within the scope of his duties of protection” (p. 403). 8  This appears to be the position of Caupers (1985), pp. 158 et seq., when, after rejecting the arguments for mediate efficacy, he concludes that “faced with a specific instance of a clash between private autonomy and a fundamental right or principle, the issue will not be resolved in a manner substantially different from what would happen if the conflict were one between any other two fundamental principles or rights”, having recourse to practical concordance (pp. 170–171), italic in the original. However, this author, op. cit., pp. 171 et seq., argues that, in certain types of private relations, there may be factors requiring prevalence, such as the case of individual labour situations, where, as a rule, there is inequality, and so the subjection of private entities to fundamental rights (rights, freedoms and guarantees and rights of a similar nature) prevails over private autonomy. 6

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Liberal Fernandes,9 Vital Moreira and Gomes Canotilho,10 ­Menezes Leitão,11 Romano Martinez12 and Ana Prata;13

 Fernandes (1996), pp.  148 et  seq., defends immediate application of fundamental rights as a means of protecting workers; analogous to the need to defend the private persons against the State (p. 149), going on to conclude that whenever private law arrangements are inefficient in controlling or eliminating the power of supremacy between parties, it is through the fundamental law that legal positions must be protected, in particular by applying the rules relating individual fundamental rights (p. 150). 10  Canotilho and Moreira (2007), pp. 384 et seq. (IV). For these authors, op. cit., pp. 386–386, on the basis of Article 18.1, in fine, rights, freedoms and guarantees are fond to be effective erga omnes, rejecting the liberal view that sees these rights as a defence against the State, and so only relevant in relations between private subjects and the State. These two Coimbra professors emphasise the immediate efficacy of rights, freedoms and guarantees, which does not need any legislative intervention, being applied, as a rule, on the same terms as those governing situations between private persons and the State, irrespective of whether or not we are dealing with relations of power or dependency; they accordingly conclude that rights, freedoms and guarantees are only not applied in relations between private persons in cases where, by virtue of their nature or expressly, they can only be valid vis-à-vis the State, and are therefore subject to the same restrictive rules as those for public entities, notwithstanding that private contractual autonomy, as a value protected by the Constitution, forms the grounds for this restriction, More specifically on the subject of collective agreements, the authors, op. cit., p. 749 (XVI) assert that these agreements are bound to respect rights, freedoms and guarantees, arguing that the normative scale of those instruments and the consequent possibility of referral for a review of their constitutionality places them close, in functional terms, to extension regulations; they then conclude that the legislator has the duty to ensure that collective agreements comply with and ensure respect for rights, freedoms and guarantees, primarily with regard to the freedom of choice of occupation and the rights of the workers themselves. Writing individually at a later date, Canotilho (2014), pp. 975 et seq., and, especially, pp. 998 et seq., in a lengthy analysis, after considering Article 18.1 to be the “‘key’ to understanding the underlying purposes of the system of fundamental rights in the Constitution” (p. 977), arguing that “if an enunciation of constitutional norms, such as Article 18.1 CRP, brings an immediately prescriptive deontic rule (“are directly applicable and bind public and private entities”), this means that there is no need to justify or state grounds for the binding effect on private entities” (p. 1001, italics in the original); adding further that “when there are relations of power within the scope of fundamental rights of autonomy (within the scope of property law, labour law, family law, sports law) it is reasonable to submit these powers to rules and requirements arising from constitutional law, starting with requirements established in the Constitution (binding of private entities by directly applicable fundamental rights)” (p. 1005). 11  Leitão (2021), cit., p.  66, wrote that: “it is notable that, under Article 18 of the Constitution, rights, freedoms and guarantees apply directly and bind all public and private entities, meaning they are directly applicable in labour relations”; see also, for example, p. 151. 12  Martinez (2001), pp. 165–166, citing Article 18.1, in fine argues that, in the context of labour relations, and even in the absence of ordinary legislation, the constitutional rules on the rights, freedoms and guarantees of workers are preceptive, and therefore applicable to employees. This position is again set out by the same author in Martinez (2001), p. 244. Xavier (2003), pp. 432–433 and note 61, referring to Articles 58 and 59, writes, after defending the usefulness of the existence of obligations incumbent on the State in this matter, “it appears clear that all these rights are not merely obligational and irradiate beyond state or public obligations”, for example, to employers. 13  Prata (1982), pp. 137 et seq., who takes the same line as Gomes Canotilho and Vital Moreira. 9

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27

(b) And there are those who, although they defend direct efficacy, nonetheless admit varying degrees of binding force, which should be applied in private contractual arrangements where there is a relationship of power or authority, deeming that the same treatment is justified for reasons identical to those for supremacy in the relations of private subjects with the State. This line it taken by Nunes Abrantes,14 Vieira de Andrade,15 Guilherme Dray,16

 Abrantes (2005), pp. 131 et seq., especially pp. 134 et seq., and Abrantes (1999), pp. 112 et seq., asserting (p. 114, note 20) that “in legal situations of power-subjection, in particular in that emerging from employment contracts, the foundation and limits of Drittwirkung are found through analogy with the ‘power of the State’”, and A Vinculação das Entidades Privadas aos Direitos Fundamentais, cit., maxime, pp. 94 et seq., concluding that: “In short, in relations between ‘equal’ legal subjects, the direct efficacy of constitutional precepts will yield in principle before free will, and this will only not be so in cases where that freedom of will jeopardises the ‘essential content’ of a fundamental right” (p. 106, italic in the original). 15  Andrade (2019), pp.  239 et  seq., reaching a similar conclusion: “All things considered, this amounts only to providing, as and when justified, more intense protection for vulnerable private parties in dealings with powerful private parties (a guarantee that in fact responds to the concerns evinced by moderate theories of the duty of protection), whilst still taking into account the circumstance that those powerful private entities are also holders of fundamental rights, albeit, in most cases, we once again recall, these are legal persons which actually only enjoy these rights to a partial extent and by analogy”; outside these cases, private persons will not be subject to application of fundamental rights (p. 247). 16  Dray (2015), pp. 183 et seq., concluding that “protection of persons is only justified, with particular forcefulness, in imbalanced legal relations, for the sake of protection of the weaker contractual party and, in labour law, in order to protect the worker” (p. 191). 14

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Benedita Mac Crorie,17 Jorge Miranda,18 Paulo Otero,19 Palma Ramalho20 and Vasco Pereira Da Silva.21 2. On the other hand, other scholars have argued for mediate relevance, meaning that fundamental norms need the intervention of civil law and are accordingly, for example, dependent on indeterminate concepts or general clauses having the content filled out or specified. This position has been taken by Menezes

 Crorie (2005), pp. 61 et seq., above all 86 et seq., concludes by defending direct applicability but not along absolute lines, arguing that different solutions should be adopted, depending on the specific case and the fundamental rights in question; in the last instance, the values at stake have to be weighed against each other. 18  Miranda (2020), pp. 376 et seq., concluding, pp. 384 et seq., that it is not enough to limit political power (imperium), but that the dominium must also be limited, ensuring respect for the freedoms of each person vis-à-vis others. However, the same author, op. cit., pp. 385–386, advocates, as an approach to solving this, the application of the rules on rights, freedoms and guarantees to relations between members and the powers that be, to relations between private persons and de facto social authorities, and also, by analogy, to private parties on an equal footing. See also Jorge Miranda and Jorge Pereira da Silva, in Miranda and Medeiros (2010), pp. 337 et  seq., concluding that the system will arrive at “a complex framework for efficacy—in other words: an efficacy of variable geometry, where different effects will be addressed to different persons, cumulatively or alternatively; where principal and secondary, public and private duty-bearers will exist simultaneously; where relative effects and erga omnes effects will intersect; in short, where effects of greater or lesser intensity will be felt, either as principal effects, or else as external effects or effects in respect of third parties”, italic in the original. 19  Otero (2007), pp. 591 et seq., asserts, when addressing the added efficacy of constitutional rules: “The binding of public and private entities by the constitutional rules on the fundamental rights inherent in the human person entails a plurality of duties, albeit more so in the case of public than of private entities”. 20  Ramalho (2020), pp. 201 et seq., frames this matter, in the domain of employment, by raising two issues: (1) in relation to fundamental rights with labour implications, she argues that any fundamental rights (of a preceptive nature) of workers can be invoked, irrespective of whether they refer to the individual or collective domain (pp. 184–185); (2) and within the framework of the employment contract, she considers that the fundamental rights enjoyed by workers and employers in the capacity of citizens should be recognised as having civil efficacy “for a structural reason, arising from two elements in the employment relationship, which contribute to its uniqueness in the realm of private service relationships - the element of power and the fact of being tied to a particular person”, italic in the original (pp. 189–190). 21  Silva (1987), p. 270, concluding that “private persons who are duty-bearers in respect of rights, freedoms and guarantees can only be entities endowed with power, whilst other private subjects are only bound, in relations between individuals, on a secondary basis, by a general duty of respect for a right that any individual subject may enforce against authority”. 17

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29

Cordeiro,22 Mota Pinto,23 Paulo Mota Pinto24 and also by José de Melo Alexandrino25 and Heinrich Hörster.26 3. And then there are those who advocate the theory of duties of protection, according to which it falls to the organs of the State (in particular, the legislature), and only in exceptional situations also to the courts, to ensure the protection of the

 Cordeiro (2019a), pp. 458 et seq., above all, pp. 460–461, for whom fundamental rights would have an impact on civil law matters through interpretation, the filling out of indeterminate concepts, such as good faith and boni mores (common decency) (p. 460), whilst also admitting “direct application when their normative meaning, if axiologically and functionally appropriate, gives rise to this” (p. 461); by the same author, Cordeiro (2009), pp. 375 et seq., especially 380–381. See also, by the same author, applying the general principles to employment issues, Cordeiro (1998), pp.  19 et  seq., especially pp.  29 et  seq.; likewise by the same author, Cordeiro (1999), pp.  23 et seq., above all 31 et seq. 23  Pinto (2005), pp. 71 et seq. For this Coimbra professor, op. cit., pp. 74–75, fundamental rights are recognised and protected in the domain of private relations through means proper to civil law, more precisely norms that reproduce their content; general clauses and indeterminate concepts; in absolutely exceptional cases, in view of the absence of a general clause or indeterminate concept, a constitutional rule recognising a fundamental right is applied unmediated by any provision of private law. The same author, op. cit., p. 75, also alerts us to the need to soften certain constitutional principles, asserting that the principles of equality must yield in the face of freedom of contract (Article 405, Civil Code). 24  Pinto (1999), pp. 227 et seq., arguing that norms establishing fundamental rights must be applied, in the first place, through the rules of private law, whether they reproduce constitutional norms, or else have recourse to indeterminate concepts or general clauses, their content being filled out by means of the values enshrined in the Constitution and, in particular, through interpretation consistent with fundamental rights; in the event of a lacuna or in order to set aside unconstitutional norms, the judge must have direct recourse to the Constitution, applying the constitutional norms, directly and without mediation, to private law relations (pp. 238 et seq.). See also, by the same author, “A Influência dos Direitos Fundamentais sobre o Direito Privado Português”, various authors, Pinto (2007), pp. 145 et seq., especially, 155 et seq. 25  Alexandrino (2007), pp. 92 et seq., especially pp. 94 et seq., arguing that the binding force of fundamental rights is neither direct nor immediate, whilst asserting that there are rights, freedoms and guarantees which appear to have been formulated in order to apply directly to private entities, such as those in Articles 27.2 and the first part of Article 34.3; even in situations of private relations involving power, Alexandrino (2007), p. 98, and “apart from situations such as interpretation in accordance with the Constitution, the legislator must activate the duty of protection, so as to protect the constitutional situation of the weaker party”. 26  Hörster and Silva (2019), pp. 108 et seq., concluding (pp. 111–112) that Article 18.1 “provides for immediate application of the precepts concerning rights, freedoms and guarantees between private entities, binding them, with two logical reservations: (1) direct application only occurs when this is compatible with their character as a defence against the State (conservative orientation of Article 18.1) or against superior private powers with comparable force (orientation towards renewal of Article 18.1); (2) immediate application only takes place if the private right, with its own norms and principles already shaped by the values of the Constitution, fails to offer an adequate solution (the private law clashes with the Constitution, its principles do not accord with the Constitution, or is wholly omissive)”. Article 18.1 of the Constitution accordingly enshrines a suppletive or default system of rules. Otherwise, application of the rule in Article 18 would lead to destruction of the principle of private autonomy or would produce unreasonable results” (p. 97). 22

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various fundamental rights in relations between private persons. This position has been taken by Reis Novais.27 It may be noted that the doctrine of immediate efficacy has been accepted in constitutional case law.28 For example, on the subject of: 1. Freedom of association and the right to self-organisation (Article 55, paras 2 (c) and 3, CRP), it has been stated that “the constitutional precept in question [Article 55] is directly applicable to and immediately, directly and automatically binding on public and private entities. This is not an incomplete rule, presenting an open-ended concept to be filled out by ordinary legislation: its essential core is perfectly perceptible, and can be implemented in itself, as indeed the constitution requires”.29 2. The right to the secrecy of correspondence (Article 34, CRP), it has been stated that this is one of those rights “which, by virtue of its nature, cannot but apply erga omnes, imposing itself not only on public authorities and their agents, but also in the domain of relations between private persons”;30 3. The right to strike, the Court has ruled that its inclusion in the number of rights, freedoms and guarantees confers on it the protection of the Constitution, which means, among other things, that it is “binding on public and private entities, implying State neutrality (prohibition of prohibition) and the obligation of employers to maintain employment contracts; the right to strike offers a paradigmatic example of the general efficacy of fundamental subjective structures”;31 4. Political parties, the Court has ruled that: “the guarantee of the rights of members to take part in the internal life of parties derives from the ‘horizontal efficacy of rights, freedoms and guarantees’”;32 5. The principle of proportionality: “Whilst application of the principle of proportionality was initially restricted to shaping the acts of public authorities and protecting fundamental rights. it must be recognised that the relevance of this principle was subsequently allowed to expand gradually to encompass other legal situations, without any real obstacles being found to its operation in the field of private law relations. It is therefore not disputed that the proportionality principle is a general principle of law that shapes no only the acts of public authorities but also, at least to  Novais (2006a), pp. 69 et seq., especially pp. 77 et seq.; see pp. 107 and 108. See also, by the same author, Novais (2003), pp. 80 et seq. and 86 et seq. 28  As in ordinary case law, for example, Judgment of the Supreme Court of Justice, of 25 September 2003, Colectânea de Jurisprudência (STJ), ano XI, 2003, Tomo III, pp. 57, apropos of Article 22 of the Portuguese Constitution. 29  Judgment 46/85, of 13 March, cit., p. 4953. 30  Judgment of the Constitutional Court no. 198/85, of 30 October, section II.2, italic in the original; it should be noted that, despite Article 34.1 CRP, para. 4 refers only to public authorities. 31  Judgment 289/92, of 2 September, cit., item 2. 32  Judgment of the Constitutional Court 185/2003, of 3 April, www.tribunalconstitucional.pt, italics in original. 27

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31

a certain extent, the acts of private entities, and inspires the solutions adopted by the law itself in the field of private law”;33 6. Lastly, the guarantee of job security, the Court has reiterated “that, in establishing the existential condition of the person, the citizen and the worker as criterion for the modulation of the holding of rights, freedoms and guarantees, the Constitution made it clear that the rights of defence that it itself enshrines may not be seen only as rights to abstinence on the part of the State or rights referring only to the State, as these also include—particularly in the Chapter referring to workers’ rights— rights which, having effect on relations between citizens, will be especially able to ‘bind private entities’, as stated in the final part of Article 18.1”.34 As may be seen, the debate has centred essentially on the situation of individuals.35 This is understandably so: this is the area where the differences between the parties are greatest, as a rule,36 requiring greater care in providing protection and justifying effective measures to safeguard the weaker party. Although this is not the place to explore this matter with the breadth and in the depth that it requires, a number of points may be stressed, also relating, in the field of employment, to the specific character of collective sources, especially permeable to the outcome of the debate on how far private parties are bound by fundamental rights. 1. First of all, the different arguments and positions are not necessarily and absolutely incompatible, and do not even lead to substantially divergent outcomes;37 they should not therefore be interpreted as opposing views, but merely as different perspectives and constructions; 2. The constitutional precept in question (Article 18.1, in fine) does not bind public and private entities to the same extent (for example, in terms of breadth, form and intensity), and attention must be paid, when interpreting the law, to the specific features and nature of situations, not forgetting that private entities are also holders of fundamental rights; 3. It must likewise be borne in mind that the ordinary legislator itself treats collective agreements and employment contracts differently, conferring a signifi Judgment of the Constitutional Court 302/2001, of 27 June, www.tribunalconstitucional.pt.  Judgment of the Constitutional Court 632/2008, of 23 December, www.tribunalconstitucional.pt (item (B), 7), identifying other passages to the same effect. On the case law of the Constitutional Court, see Mota Pinto, “A Influência dos Direitos Fundamentais sobre o Direito Privado Português”, cit., pp. 158 et seq. 35  It should first of all be made clear, that we are not of course dealing here with rights where only the State can be the duty-bearer (such as, for example, to the setting and revising of the national minimum wage, Article 59.2 (a), CRP), but rather with those which may apply in relations between private parties (for example, Article 53, CRP). 36  Obviously, and hence the reservation of as a rule, relations between individuals are not necessary unequal, and there are cases where the worker (for example, a world-class footballer or a technician with expertise which is all but unique) have (de facto) bargaining power superior to that of the employer, but these are clearly exceptional situations. 37  To this effect, Andrade (2019), pp.  234–235; Jorge Miranda and Jorge Pereira da Silva, em Miranda and Medeiros (2010), p. 335.

33 34

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cantly wider scope of regulation on the former (Articles 3, paras. 1, 3 and 4, and 476); 4. In the field of collective bargaining, the issue is therefore framed on specific terms. It must be recalled, on the one hand, that collective agreements are instruments especially geared to regulating questions of fundamental rights, and so there is naturally the possibility of affecting them; on the other hand, that private autonomy (more precisely collective autonomy) is at stake here, a value of structural importance which, although it may not be unlimited, also cannot be ignored or purely and simply swept aside, and this of course will naturally have an impact on the application of rights, freedoms and guarantees in the context of private relations;38 5. And in this matter, the parties are found in a position of (formal and material) equality,39 and the same concerns for the protection of one of them neither arise nor are justified;40 it should be stressed that the application of rights, freedoms and guarantees—as if one of the parties were the State—would lead, by virtue of both holding fundamental rights, to the different rights being cancelled out; 6. On the other hand, when a situation of equality exists, who better than the parties to ensure the conclusion of a freely and fairly negotiated agreement; 7. It is clear that the constitutional rule requiring private entities to respect rights, freedoms and guarantees (Article 18.1) cannot be disregarded, on pain of it becoming a “dead letter” and of undermining the unity of the legal system;41  To this effect, Miranda (2020), p. 382.  Underlining this point, for example, Agria (n.d.), p. 1; Leitão (2004), p. 379; Pinto (1996), p. 194, actually stating that “with regard to the freedom of association…, a position of fundamental legal equality between the parties is a condition for the actual system of collective labour relations”; Maia (1992), p. 184. In Livro Branco das Relações Laborais, p. 99, we may also read: “the argument of equality of bargaining power is, to a large extent, valid, not least because employers’ associations have weaknesses similar to those of trade unions. Accordingly, wider negotiability would appear advantageous for the dynamics of collective bargaining without necessarily representing a risk for the workers”. As early as 1913, Silva (1913), p. 229, wrote that: “the collective labour agreement— which represents, far from the inequality of situations created by individual contracts, the employer negotiating with the union as one power with another and with respect immediately ensured for the legitimate interests of workmen”. Of interest to this question, see Aliprantis (1980), pp. 49–50; and also BVerfG, 26.06.1991 - 1 BvR 779/85, cit., § 57, where it is stated that “the autonomy of collective bargaining sets out to compensate the structural inferiority of individual workers in the conclusion of employment contracts through collective action, and thereby to permit negotiation of wages and working conditions on an approximately equal footing”. 40  As rightly stressed by Cordeiro (2009), p. 380, enforcement of fundamental rights often results in a sacrifice for other private parties who—unlike the State itself—are also holders of fundamental rights; “the weight of those rights must be distributed throughout society, through the state, and cannot be concentrated in a single person: that, moreover, would go against equality itself”. 41  Indeed, we may note that the Ombudsman (Provedor de Justiça) can also take action with regard to situations between private parties. The Ombudsman Statute tells us: “The Ombudsman’s scope of action may also include relations between private parties which entail a special relationship of dominium, in connection with the protection of rights, freedoms and guarantees” (Article 2.2, Law 9/91, of 9 April, amended by Laws 30/96, of 14 August, and 52-A/2005, of 10 October). 38 39

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33

8. However, efficacy of the same breadth in situations between private persons and the State and between legal persons would not be a limit on the right to collective bargaining, but rather an intolerable restriction on the scope of collective autonomy, substantially restricting a fundamental right which is intended, among other things, to restore an equal footing that does not exist in the individual relationship; 9. In other words: the binding of private bodies by rights, freedoms and guarantees may not assume a dimension that undermines self-regulation as enshrined in the Constitution, preventing collective bargaining from performing the function conferred on it by the Constitution (Article 56, paras. 3 and 4); 10. It should also be noted that the extent to which private entities are bound by fundamental rights will in all cases follow from the interpretation of constitutional provisions, because that extent “depends greatly on the content and structure of the rights in question”, which points us to an assessment of the concrete situation;42 11. Lastly, we should add that this position does not clash with the Fundamental Law (Article 18.1, in fine), because rights, freedoms and guarantees are still binding on private entities, only they are applied differently,43 leaving room for regulation through collective autonomy, thereby harmonising the different rights, including collective autonomy; the principle of maximum effectiveness or efficiency of constitutional provisions is thereby assured;44 12. That being said, it should be noted in conclusion that the parties in collective bargaining are subject to the constitutional rules45—unless it follows otherwise

 Jorge Miranda and Jorge Pereira da Silva, in Miranda and Medeiros (2010), p. 337 (XXI), with examples. See, moreover, our considerations above concerning the right to collective bargaining. 43  This difference follows, for example, from Article 3.3 of the Portuguese Constitution and the specific reference to the acts of public entities. 44  On this principle, Canotilho (2003), p. 1224. 45  In its Opinion no. 18/78, of 27 July, cit., p. 13, the Constitutional Commission stated that “no one can say in our system that a collective bargaining procedure can no longer move, for example, within the limits of the minimum and maximum wage and other conditions established, by the ordinary legislator, under Articles 52, 53 and 54 of the Constitution. Just as, for example, collective bargaining cannot breach the rules on the welfare system, established under Articles 63 et seq. of the Constitution itself”. We therefore concur with the position taken by Silva (1987), pp. 267–268, for whom the process of applying fundamental rights to private relations may occur in three situations: (a) ordinary law has given concrete form to fundamental rights, giving rise to indirect application; (b) ordinary law has established general clauses and indeterminate concepts, in which case their content is also determined on the basis of constitutional values, through indirect application of the Constitution; (c) the constitutional law regulates the matter, but there are no laws giving concrete form to these provisions, nor any general clauses or indeterminate concepts (or, if these exist, their scope of application is more restricted), and the Constitution is directly applicable; all this without prejudice to negative delimitation of the content of the rules of ordinary law which, if not consistent with the Constitution, will be unconstitutional. 42

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from interpretation of those rules46—and, on the other hand, being subject to those rules, the space for intervention must be identified through conciliation in practice between (collective) private autonomy and simultaneous realisation of the other fundamental rights,47 underpinned by the unity of the legal system, which will of course require attention to be paid to the differences between duty-bearers, the positions of the subjects involved and the intensity of the binding force of the rules, safeguarding at all times the dignity of the human person. 13. However, on the one hand, constitutional rules (relating to labour matters) are normally fleshed out in ordinary legislation48 and, on the other hand, many of the constitutional rules built into the rights, freedoms and guarantees of workers are by their nature structurally important to labour relations, therefore imposing an imperative of protection,49 meaning that, on pain of not complying with the Constitution, intervention by collective subjects cannot ignore this situation.50 Legal scholars have recognised the possibility of the holders of fundamental rights disposing of their rights and therefore agreeing not to exercise them during a given period. To this end they have invoked the general principle of freedom (in its negative dimension) and imposed, as a limit on disposal, the dignity of the human person, the catalogue envisaged for a state of siege (Article 19.6) or that it should offend values which, although personal, also belong to the community; in short, that relate to morality, public policy and well-being in a democratic society.51  For instance, it appears clear that in Articles 54.4 and 55.6, as well as in 58.2 (it falls to the State), the duty-bearer is the State. 47  For example, Miranda (2020), pp. 384–385, setting out possible solutions (p. 385). 48  For example: (1) Article 53 CRP (job security) is (partially) repeated in Article 338; (2) Article 54 CRP (workers’ committees) is fleshed out in Articles 405, 406.1 (b), 407–414, 415–439 and 469–475; (3) Articles 55 (freedom of association) and 56 (rights of trade unions and to collective bargaining) are fleshed out, for example, in Articles 405–414, 440–468, 469–475 and 476–504; (4) Article 57 (right to strike and prohibition of lock-out) is filled out in Articles 530–545, and is also (partially) repeated in Articles 530 and 544.2; (5) it should also be stressed that, on many matters, the legislator has intervened directly, materialising and adapting constitutional rules to the realities of employment (for example, Articles 14–16, freedom of expression, physical and moral integrity and the right to privacy; Articles 23–32, equality). 49  The expression belongs to Canaris (2003), pp. 81 et seq. 50  For example, it is our view that it would be unconstitutional for a collective agreement to permit unfair dismissal or dismissal on political or ideological grounds (Article 53); we have already considered (relative) industrial peace clauses to be valid, as well as those which, in view of the particular features of the industry, establish specific rules on strikes (such as longer prior notice or additional duties during a strike), cfr. Xavier (1984), p. 151, note 2. 51  See, for example (although the terminology is different, as the author speaks of self-suspension, self-restriction, self-limitation or waiver), Miranda (2020), pp. 494 et seq., asserting that fundamental rights cannot be disposed of or waived in relations with public authorities clarifies that this does not mean “that, in certain circumstances and for purposes which are also supported by the Constitution, or at least which are not contrary to the principles of the democratic rule of law, their holders cannot or must not accept restrictions on them; or that they cannot, of their own will, suspend exercise of some of those rights” (p. 495). The author distinguishes self-restriction (for example, membership of the judiciary) from self-suspension (for example, agreeing not to exercise a given profession or trade, Article 47, or not to exercise the right to strike while a given collective 46

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35

agreement is in force, Articles 57 CRP and 542.1, Labour Code of 2009). Also arguing that rights may be surrendered, Andrade (2019), pp. 303 et seq., includes this matter, which he calls self-­ limitation of rights, among special instance of collision (p. 263); Gouveia (2004), pp. 208 et seq., starts by considering that in fundamental rights there is little room for private autonomy, but ends by acknowledging that they can sometimes be surrendered; Novais (2006b), pp. 211 et seq., dealing only with the waiver of fundamental rights in relations between the State and other public entities or citizens, considering nonetheless that the conclusions reached are essentially applicable (excluding the issue of matters reserved for law), duly adapted, to private situations; this author clarifies (p. 221) that “in waiver, the private person legally binds himself not to invoke a fundamental right he may have vis-à-vis public entities, namely, he undertakes, in general, not to exercise, on a temporary or occasional basis, any of the claims, options or powers inherent in that right”; reference is also made to self-restriction in the sense of waiver (for example, p. 236). A general assessment of the surrender of fundamental rights (in dealings with the State) may be consulted in Novais (2006b), pp. 233 et seq., with references to the grounds, preconditions and limits on surrender, and also to the requirements for validity; of special interest is the part on the guiding criteria for assessing the material validity of a specific instance of waiver of a fundamental right (pp. 269 et seq.). See also Alexandrino (2007), pp. 136 et seq. In the realm of civil law, Cordeiro (1997), pp. 762 et seq., note 444, writes that: “the principle that alienable rights may be extinguished on the wishes of their holder should constitute a general rule of private property law”, also arguing that “when Article 62.1 CPR guarantees private property and its transferability as a right, it logically follows that it provides for the possibility of waiver”. Looking at the question in the field of labour law, and expressly taking a position on the question in hand, Ramalho (2023), pp. 364 et seq., refers first to the limits inherent in fundamental rights (deriving from the fact that the legal situations have to be exercised within the frameworks for adjustment for which they were conferred)—and in the personality rights she also addresses—and to the extrinsic limits (arising from other interests or rights that conflict with them), and then expressly admits voluntary limitations, the sources of which may be (in addition to the will of the worker himself—self-limitation) the employment contract and collective bargaining instruments. Also on the alienability of the right to strike—prior to the 2003 Labour Code—Xavier (1984), p. 143, stressed, as we have seen: “it should be clearly noted that unwaivability does not actually mean inalienability. Whilst individual and collective agreements are clearly not permitted to waive the right to strike, as a definitive and irrevocable act abdicating from the rights, the same cannot be said of acts that merely conflict with forms of exercise of that right. Moreover, these acts are matched by a quid pro quo from the employer, negotiation of the modes of exercise of strike thereby serving the purposes that an actual strike might pursue—which is perhaps why we cannot actually speak here of acts of disposal”, italic in the original. In a more recent study, Xavier and Martins (2009), pp. 443 et seq., writing in the context of individual rights, explain first that inalienable rights (direitos indisponíveis, literally, non-disposable rights) are “rights beyond the reach of the holder’s free disposal, which cannot be the object of acts that entail their loss or extinguishment by the will of the holder, as happens in transaction”, and then go on to state that “most workers’ rights, as rights of an essentially economic nature, cannot be classified as inalienable rights, in the precise sense of the term” (italic in the original, p. 453); in turn, they classify as non-derrogatable (inderrogáveis) “those deriving from provisions of necessary law and possessing as their essential characteristic the fact that they cannot be shaped by contract, with the effect of excluding acquisition of the right through non-application of the rule attributing it” (p. 456, italic in the original) and so “non-derrogatable rights are not necessarily inalienable rights”, and this characteristic is seen “only at the moment the right is brought into being, referring to legal situations not yet constituted (or matured)” (italic in the original, p. 459); lastly, unwaivable rights are those where “the respective holder cannot dispose of them through this particular form [waiver, “unilateral transaction of disposal, whereby a person extinguishes a right they hold”] of the act of disposal”. See also Vasconcelos (2011), pp. 254 et seq., in connection with employment claims; and also Dessì (2011), especially, pp. 257 et seq., addressing trade union intervention. Along the same lines, we may read

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In the field of employment, the system of sources and the importance of collective regulations to labour relations raise an additional problem, which has to do with the possibility of fundamental rights being affected by collective agreements. Specifically, although this is a vast topic, we should outline certain principles52 relating to the possibility that, through collective bargaining, the exercise of fundamental rights53 is something that can be negotiated, with the consequence that their in the case law of the Spanish Constitutional Court, Judgment 11/1981, of 8 April 1981, Jurisprudencia Constitucional, tomo primeiro, Boletín Oficial del Estado, p. 199, analysing the word ‘renúncia’ (waiver) used in Article 8.1 Real Decreto-Lei 17/77, “that it is clear that we are not here dealing with true waiver. This is […] because waiver is always a definitive and irrevocable act and what is called ‘waiver’ in Article 8.1 is merely temporary and transitional (for the duration of the agreement) and does not affect the right in itself, but only its exercise, so that the right is not actually extinguished, but instead there is an undertaking not to exercise it, which consists of a pure obligation, which may be breached, bringing the consequences of such breach. When the agreement not to exercise the right is established, in return for certain forms of compensation, it cannot be said that an industrial peace clause is unlawful, much less that it is unconstitutional”. Of interest to this question, Pinto (2002), pp. 527 et seq., especially 539 et seq., referring to internal limits (those resulting from the actual subject matter and content of the right in question) and external limits (defined through opposition to other rights or values that merit protection) (p. 533), although also using the word ‘restriction’ (p. 545); and also, Moreira (2010), pp. 476 et seq., analysing the worker’s consent apropos of the Personal Data Protection Law and in connection with individual relationships. 52  Legal theory—Novais (2006b), pp. 215 et seq. and 226 et seq.—has drawn attention to several analytical points, assessment of which lies outside the scope of this study. Nonetheless, but by way of example: (1) in view of the nature of the provision, this matter always presupposes analysis of a specific situation, because there are rules that exclude free disposal (for example, Article 276.1 CRP); (2) on the other hand, it is necessary to bear in mind the legal nature of the object of disposal, which may be the holding of a legal position protected by a fundamental rights rule (which will mean the power inherent in the right is definitively and irrevocably affected during the agreed period) or exercise of the right (which is not definitive, the holder continuing to be able to revoke the agreement concluded); (3) also important is the quantitative aspect of the subject matter of the agreement, because all the faculties included in the right may be at stake, or only some of them; (4) also in quantitative terms, the time dimension is likewise relevant (definitive/temporary); (5) lastly, disposal could also be total or partial, or else either in respect of ownership of the right, or its exercise. See also Alexandrino (2007), p. 138, who refers to a postulate of differentiation. For example, in abstract terms and on the subject of strikes, we might find an irrevocable agreement concerning the holding of part or all of the right, which would prevent the party concerned from exercising the right to strike during the period established; the situation might equally concern the mere exercise of certain strikes (such as political strikes) and so, the holding of the right being unaffected, the holder could revoke the agreement. See also the considerations of Andrade (2019), pp. 306 et seq. 53  Different responses will be needed to the topic of personality rights, as required in the first place by the legal framework (for example, Article 81.2 CC); however, we cannot ignore the fact that, even in cases where ordinary legislation has intervened, that intervention will at all times be construed in the light of the Constitution, on pain of inverting the hierarchy of sources. On the other hand, we are in agreement with Andrade (2019), p. 306, note 732, when he writes that the existence of rules in civil law (Article 81 and 340 CC) and criminal law (Articles 38 and 39 of the Criminal Code) on the validity and reach of disposal and consent “cannot be seen as parameters for interpretation of the constitutional provisions (the opposite is true), but should be taken into consideration, albeit critically, insofar as they reveal the distilled result of centuries of legal practice, which, as a

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content is affected during a circumscribed period of time. However, we have to acknowledge that the question is a minor one due to the fact that ordinary legislation has already set the general limits, in most situations, on the reach of collective agreements, specifying and harmonising many of the fundamental rights enshrined in the Constitution;54 in this case, legislation itself has already demarcated the possible areas of intervention. In any case, our position of principle is that disposal of the exercise of fundamental rights is admissible and, therefore, their content is affected through collective bargaining—as distinct, therefore, from the context of employment contracts55— considering this to be borne out by the following assertions:56 1. We may find the grounds for the possibility of disposal of fundamental rights in the will of the holder of the right, in other words, in the recognition that the rule, should be presumed to be constitutional. Moreover, those provisions refer precisely to the conditions of free and informed will and to the limits imposed by law or by community values (what is called ‘public policy’ and ‘common decency’), on terms similar to those set out at the level of constitutional law”. For further reading on personality rights, by way of example, Ascensão (2009), pp.  9 et  seq., (critically) untangling fundamental rights and personality rights; Campos (1991), passim; Cordeiro (2019b), pp. 45 et seq.; Cupis (1961), pp. 45 et seq.; Dray (2006), passim; Pinto (2002), pp. 531 et seq.; Pinto (2005), pp. 98 et seq. Addressing employment issues in particular, Leitão (2021), pp. 149 et seq.; Ramalho (2023), pp. 355 et seq., with plentiful references to authorities. 54  This of course concerns clauses that refer to the fundamental rights of the parties, and to those of their members. It should nonetheless be stressed that this question is especially pertinent in relation to the members, because the effects on the rights are mediated by the collective bodies, which raises specific issues. We might think, for instance, of an exclusivity clause for the workers in question (Article 47 CRP) or an obligation accepted by employers not to make redundancies, thereby abdicating for a given period of time from a faculty inherent in free enterprise (Article 61.1 CRP); or, in another example, of two confederations (trade union and employers’) agreeing on a reduction in pay and, at the same time, agreeing not to proceed with any redundancies on economic grounds; or else of an exponential increase of a retroactive character. It is with situations of this kind especially in mind that we undertake the following analysis. It may be noted that, in addition to the general parameters set by Article 3, paras. 1 and 3, which cannot be unrelated to the constitutional framework, there are several provisions of ordinary law that give practical form to fundamental rights or move within an orbit expressly and directly regulated by the Constitution (for example, the question of dismissal, Articles 351 et seq.). 55  Arguing that it is necessary to distinguish carefully between collective bargaining and individual relations, on the subject of the principle of equal pay, Medeiros (2016), pp. 88–89, highlighting “the balance that tends to underlie the relationship between the respective parties” (p. 92, italic in the original). 56  As we have seen, this position can in part be traced back to Rosário Palma Ramalho and Lobo Xavier (on the subject of strikes). Also in Judgment of the Constitutional Court 338/2010, of 22 September, cit., item 2. 8, we may read, apropos of the regulation of the organisation of working hours by a contractual instrument: “In effect, there is a collective waiver that the law itself contains within the limits of due proportion (by setting upper limits) and which is intended to realise interests which are deemed, at a given and duly delimited moment, to prevail in specific circumstances over rest and family life. Those interests may include the economic viability of the company and the consequent survival of the workers’ jobs and working conditions”; see also, taking a critical line, the explanation of vote from Supreme Court Judge Cura Mariano.

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holder of the right, due to being the holder, has the power to dispose of it, his will being legally relevant.57 Indeed, to deny this possibility would be to attribute to the democratic State a paternalism in no way consistent with the pillars supporting it, which are the dignity of the human person and the inherent freedom of development of personality, from which it flows that the mandatory exercise of rights or the impossibility of disposing them should constitute the exception and not the rule;58 2. It is of course not just any agreement that concerns us here, but rather a collective agreement, which performs an important role in shaping the rights of workers (and also of employers), identified in the Constitution as a way or restoring balance to employment contracts, with the dignity of a fundamental right, on pain of negating “all the virtues of collective bargaining”, which would be in breach of the Fundamental Law, which views collective bargaining “as an essential instrument for ordering labour relations and the actual meaning of Convention, where collective will prevails over the individual, and the interests of the collectivity over the specific interests of individuals making up that collectivity, it sometimes being necessary to set limits on some of the latter interests in order to effectively promote the former”;59 3. Among the requirements for disposal (general), legal theory (albeit in general presupposing individual subjects) usually lays stress60 on the need for an act to  To this effect, despite dealing with the relationship between private parties and the State, Novais (2006b), p. 236. 58  Taking a similar line, Andrade (2019), p. 304, referring to the principle of disposability of fundamental rights, which of course does not mean that the objective dimension (community and social) of fundamental rights might not also be at issue. 59  Judgment 58/1985, of 30 April, cit., p. 4, concerning the provision in a collective agreement for “compulsory retirement”, ruling that the agreement may deal with individual rights, drawing attention to the need for the relationship between collective and individual autonomy to respect two basic principles: (a) collective bargaining cannot invalidate individual autonomy; (b) the possibility of collective autonomy prevail over individual autonomy. 60  For example, Andrade (2019), pp. 303 et seq., refers to the following conditions for legal validity: (a) authenticity and genuineness of the expression of will, which must therefore be the clear outcome of free and informed will; (b) exercise “by the actual right-holder, consent or agreement of someone who exercises a power on behalf or as guardian of the holder not being sufficient, as a rule, except with regard to those rights which, on the contrary, cannot be freely exercised by the incapacitated person” (p. 304); (c) with regard to free revocability, “being a valid limitation, it has to be limited in time, but, during the validity period, it is binding, so any revocation must entail an obligation to compensate the losses caused, especially within the contractual scope” (p.  305); Miranda (2020), p. 496, points to the following requirements: (a) freedom of decision or consent; (b) regulation by law, whenever they involve any connected power of the Administrative Authorities; (c) time limit; (d) freedom of revocation, assuming that this is permitted by the nature of things. In contrast, Novais (2006b), despite, we repeat, analysing the relationship between private persons and the State and other public entities, pp. 249 et seq., identifies as preconditions of waiver, in addition to the (specific) validity requirements: (a) declaration of will to weaken the legal situation protected by the fundamental right rule, together with (b) the voluntary character of the declaration. In relation to the first point, he stresses that the power of waiver is inseparable from the person of the right-holder, considering, for example, the situation where parents give consent 57

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be one of free and informed disposal, which in the case in hand raises no special problems. Indeed, we are dealing here with collective parties (subjects), which in relation to works offers general assurances. Indeed, what happens here is that the expression of will is produced by the actual right-holder61 or by the collective subject representing them,62 and there is no vulnerability—because unions find themselves on an equal footing with employers’ organisations—and it is clear that the parties are in a position to comply with the requirements, in other words, free and informed exercise of disposal of their rights; 4. This element is commonly joined by the need for us to be dealing with a personal act of disposal of the right-holder, which may constitute an insuperable obstacle, insofar as we are here dealing, as a rule, with the acts of collective subjects representing their members. However, it is our view that, one the one hand, the general position taken in legal theory does not pay heed to the specific features of the source in question and, on the other, even when it does, it does not prevent disposal by the entities entering into the agreement:



(a) We will start by stressing that one of the consequences of membership of a (labour) association is being subject to a series of duties and acquiring a corresponding series of rights, which is why it may be said that it always entails the disposal of various legal situations (active and passive); (b) Membership by workers and employers (or the latter as the parties entering into the agreement) confers on collective entities powers of labour representation to dispose of various rights and duties, without which it would be difficult for the collective agreement to have relevant subject matter to address; it might even be said to be of little practical value were it prevented from intervening in these matters. Indeed, due to the fact that collective ­bargaining deals primarily with situations which fall within the topic of fun-

on behalf of their child to be a non-autonomous restriction, and so moving away from the concept of a true waiver; with regard to the voluntary character of the declaration, he considers that it must be conscious and free, although he ends up relativising these elements. Of interest to the debate, Pinto (2002), pp. 542 et seq. 61  In the event of it being the parties disposing of their rights or the employer entering directly into the agreement, as happens with company agreements. 62  Which will happen in several situations (for example, collective contracts and collective and company agreements, as regards the workers), this being where the matter comes to the fore. Xavier (2009), p. 67, note 93—in line with the position previously defended in Xavier et al. (1997), p. 171—argues that certain matters need to be negotiated directly by the persons involved (on the employer’s side), asserting that: “It is not considered that a collective labour contract (with an employers’ organisation) is a suitable instrument, even when it provides for a non-contributory plan for the workers, in order to force companies not directly signing the contract to set up funds and to collaborate in a welfare system, with parafiscal obligations”. We do not concur with this position, because, on the one hand, this would mean differentiating between the treatment of employer members and worker members, as the latter will never enter into the agreement directly, therefore being left with less protection against what their representatives have agreed; on the other hand, it would constitute a restriction on the negotiating capacity in collective bargaining of second degree entities, for which there is no provision in law.

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damental (labour) rights, a bar on intervention63 would radically curtail the matters open for negotiation. And because membership comprises the voluntary exercise of a right, just like non-membership (Article 444, paras. 1 and 6), we can establish that, through membership and the resulting representation, members voluntarily surrender their labour rights and duties. This surrender is of course within limits, not least the fact that it only encompasses labour rights and duties which, under labour law and the respective articles of association of the collective entities, can be exercised by those entities; (c) The normative autonomy enshrined in the Constitution explains why no restrictions are placed on their content, except in cases where other legal values of equal or greater weight so determine, respecting at all times the essential content (Article 18 CRP). And this is because the matter at stake is still the exercise of fundamental rights, including that to collective bargaining, permitting their exercise and thereby obtaining benefits in return which are worthwhile for the respective parties. It is a question of recognising the economic dimension of fundamental rights in connection with everyday social reality,64 permitting their exercise to be shaped in accordance with the objective needs of their holders or whoever legally represents them;65 (d) It should moreover be stressed that the opposite view, considering that exercise of the right to collective bargaining is limited to collective subjects, would result in the absolute inalienability (non-disposability) of fundamental rights precisely in an instrument that provides special guarantees of equality in negotiation and that it is actually intended to ensure a level playing field. We therefore consider that it would be legally incongruous to close off this area to collective autonomy, and to restrict it to individual autonomy. 5. Another obstacle might arise from the fact that legal theory points, as a rule, to the need for the voluntary disposal of fundamental rights to be freely revocable. This position might undermine the limitation of rights under a collective agreement, because those clauses belong to a source which is not of especially short duration, as well as presenting a degree of unity and balance established through

 Be it to restrict or to broaden; indeed, in many cases it will do both, depending on the perspective of the subjects involved. 64  Referring to personality rights, Pinto (2002), p. 551, who adds: “in our view, it is not right to argue against this ‘commercialisation’ by invoking the personal nature of the interests protected by personality rights, as that does not exclude a concomitantly economic dimension”, italic in the original. 65  And it should not be contended that, when rights and duties of an essentially personal nature are involved, that possibility would be barred. That would have the consequence, we repeat, that a collective agreement could only increase fundamental rights, for all the persons involved (a practical impossibility), because, by its nature, the content of the agreement deals basically with rights (and duties) of a personal nature, because this is the area in which labour regulations operate (whether established in law, collective agreements or individual contracts). 63

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negotiation and the outcome achieved. However, in view of the instrument in question, we do not believe it is possible, while the agreement is in force, for the members to reverse the disposal of fundamental rights (the same is true for the parties) agreed by the collective subjects, given that:

(a) They are not a party to the instrument entered into, so they lack standing to do this; (b) The admissibility of this (we may note that there is no constitutional requirement for this) clashes with the values established in the Labour Code (for example, Article 496);66

6. In addition, it would be incongruous not to permit this intervention by collective autonomy when, we repeat, labour issues often come down to fundamental rights and, moreover, ordinary legislation allows collective bargaining agreements to intervene with more or less favourable effect (Article 3.1). In other words: if we might possibly have accepted that the most favourable treatment should go hand-­ in-­hand with the unwaivability of the rights granted by law, 67 when that treatment no longer exists, that relationship should clearly be eliminated; 7. Lastly, we believe the position proposed here is indeed borne out by the law:

(a) On the one hand, with the Labour Code (of 2003, maintained in 2009), the legislator eliminated the prohibition of regulatory instruments limiting68 the exercise of fundamental rights guaranteed by the Constitution,69 demonstrating the need to do away with the “fetters” on collective agreements;

 It should also be noted that it is necessary that we be dealing with true limitations on the exercise of personality rights, which, according to Sousa (1995), p. 410, is not the case “when the agreement, albeit related to the values of personality, does not effectively result in a limitation on the exercise of the respective rights. That appears to us to happen when the whole formed by a non-­ essential personality value compensated by the increase or development of another value of the same personality, within the scope of the active subject’s powers of self-determination”, italic in the original. 67  Ventura (1950), p. 333, where we may read: “I also consider that acceptance of the principle of application of the rule granting the best treatment to the worker should be complemented by the unwaivability of the rights granted by these [legal] rules. In effect, what would be the point of organising the hierarchy of sources of law so that the relationship is governed by the rule most favourable to the worker, if the worker were able to freely set aside the rules resulting from that principle? […] The prohibition of unfavourable derogation, by means of collective agreements or individual employment contracts, points to the desire to guarantee what are regarded as the minimum benefits, however one might seek to contest them”. 68  Here in the sense, adopted above, of restriction; irrespective of the sense, the prohibition of setting limits would logically impose the same prohibition on restrictions. It is our view that Article 542, paras. 1 and 2 also refers to a restriction, as per the definition adopted. 69  See Article 6.1 (a), of the Collective Labour Relations Law (LRCT), not found in Articles 533.1, Labour Code of 2003, and 478.1, Labour Code of 2009. 66

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(b) On the other hand, legislation expressly provides for instances of disposal of fundamental rights, including the possibility of the parties conferring retroactive effect on clauses of a pecuniary nature (Article 478.1 (c)).70

8. There is still one point that needs to be clarified, which is whether the rights are affected on a non-autonomous or autonomous basis.71 Scholars have classified situations of legal representation as non-autonomous;72 this common feature in the situation might point us to the same conclusion. But a careful examination of the situations shows that the shared features are few, as there is a substantial difference: a member becomes a member by virtue of a voluntary act (which, for instance, is of course not the case with a minor), and so we consider that, by way of what we can actually call a necessary and natural consequence, the member has permitted his or her labour rights to be ‘managed’, within the scope of regulation through collective bargaining, by collective subjects, in defence of the collective interest, whilst the possibility still continues to exist of making changes to the rules, with the employer’s agreement, to render them more favourable (Article 476). In other words: for the sake of the collective interest, the worker has voluntarily surrendered his individual autonomy, albeit partially, in view of the current Article 476. Our position of principle, we repeat, naturally requires us to assess, in relation to each specific fundamental right, the extent and degree to which it may be freely disposed of, although it should be stressed that, in any case, the dignity of the human person must be safeguarded at all times.73

 Even if we accept that this only extends to retroactive effect in melius—which is not our view, as we shall see—the freedom of enterprise would still be voluntarily affected (Article 61.1 CRP). 71  With regard to the rights held by the subjects entering into the agreement, there is no doubt that they are shaped autonomously. 72  Novais (2006b), p. 250, cites as an example of a non-autonomous restriction the situation where a right is waived by the parents of a minor. Taking the same position, Alexandrino (2007), pp. 138–139. 73  On the dignity of the human person, concomitantly grounds for and limit on the disposal of fundamental rights, Novais (2006b), pp. 273 et seq. As rightly pointed out by Andrade (2019), p. 308, in situations between subjects on an equal footing, “when free and informed will is assured, the material limits on self-limitation cannot be the principles of proportionality or rationality, but merely those which are indisputably imposed by respect for the essential core of the rights (the dignity of a person) or for basic community values”, italic in the original. See also Canaris (2003), pp. 71 et seq., underlining the function of fundamental rights as an imperative of protection and referring to the minimum level of protection imposed by constitutional law. 70

References

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Dal-Ré FV (2019) El Derecho Constitucional a la Negociación Colectiva. Revista Direito das Relações Sociais e Trabalhistas 5(3):228–252. http://publicacoes.udf.edu.br/. Accessed 30 Sept 2022 Dessì O (2011) L’ indisponibilità dei diritti del lavoratore secondo l’art. 2113 C.C. Giappichelli Editore, Torino Dray G (1999) O Princípio da Igualdade no Direito do Trabalho (Sua Aplicabilidade no Domínio Específico da Formação de Contratos Individuais de Trabalho). Almedina, Coimbra Dray G (2006) Direitos de Personalidade – Anotações ao Código Civil e ao Código do Trabalho. Almedina, Coimbra Dray G (2015) O Princípio da Proteção do Trabalhador. Almedina, Coimbra Fernandes FL (1996) O Direito às Prestações Complementares de Segurança Social no Âmbito dos Regimes não Profissionais. Questões Laborais 8:132–151 Gouveia JB (2004) O Anteprojecto de Código do Trabalho e a Constituição Portuguesa. In: AAVV, Código do Trabalho – Pareceres, vol III. Ministério da Segurança Social e do Trabalho, pp 99–225 Hörster HE, Silva ESM (2019) A Parte Geral do Código Civil Português – Teoria Geral do Direito Civil, 2nd edn. Almedina, Coimbra Leitão LM (2004) A Conformidade da Proposta de Lei 29/IX (Código do Trabalho) com a Constituição da República Portuguesa. In: AAVV, Código do Trabalho  – Pareceres, vol III. Ministério da Segurança Social e do Trabalho, pp 333–398 Leitão LM (2021) Direito do Trabalho, 7th edn. Almedina, Coimbra Linsenmaier E (2020) Grundgesetz für die Bundesrepublik Deutschland (Art. 9). In: Müller-­ Glöge R, Preis U, Schmidt I (eds) AAVV, Erfurter Kommentar zum Arbeitsrecht, 20th edn. C.H. Beck, München, p § 10 Maia P (1992) Conflitos Internacionais de Convenções Colectivas de Trabalho. In: Boletim da Faculdade de Direito da Universidade de Coimbra, volume LXVIII Martinez PR (2001) A Constituição de 1976 e o Direito do Trabalho. In: AAVV, Nos 25 Anos da Constituição da República Portuguesa. Associação Académica da Faculdade de Direito de Lisboa, pp 151–187 Medeiros R (2016) O Direito Fundamental à Retribuição em Especial, o Princípio a Trabalho Igual Salário Igual. Universidade Católica Editora, Lisboa Miranda J (2020) Direitos Fundamentais, 3rd edn. Almedina, Coimbra Miranda J, Medeiros R (2010) Constituição Portuguesa Anotada, Tomo I (artigos 1.° a 79.°), 2nd edn. Coimbra Editora, Coimbra Moreira TC (2010) A Privacidade dos Trabalhadores e as Novas Tecnologias de Informação e Comunicação: Contributo para um Estudo dos Limites do Poder de Controlo Electrónico do Empregador, «Teses». Almedina, Coimbra Neuner J (2007) A Influência dos Direitos Fundamentais no Direito Privado Alemão. In: Monteiro P, Neuner J, Sarlet I (eds) AAVV, Direitos Fundamentais e Direito Privado – Uma Perspectiva de Direito Comparado. Almedina, Coimbra, pp 213–236 Nipperdey HC (1954a) Evolución del Derecho Laboral en la República Federal de Alemania desde 1945: II. Revista Internacional del Trabajo, Ginebra L(2):164–185 Nipperdey HC (1954b) Evolución del Derecho Laboral en la República Federal de Alemania desde 1945: I. Revista Internacional del Trabajo, Ginebra L(1):29–48 Novais JR (2003) As Restrições aos Direitos Fundamentais não Expressamente Autorizadas pela Constituição. Coimbra Editora, Coimbra Novais JR (2006a) Os Direitos Fundamentais nas Relações Jurídicas entre Particulares, Direitos Fundamentais – Trunfos contra a Maioria. Coimbra Editora, Coimbra Novais JR (2006b) Renúncia a Direitos Fundamentais, Direitos Fundamentais – Trunfos contra a Maioria. Coimbra Editora, Coimbra Otero P (2007) Instituições Políticas e Constitucionais, volume I, Almedina, Coimbra Pinto M (1996) Direito do Trabalho, Introdução e Relações Colectivas de Trabalho. Universidade Católica Editora, Lisboa

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Pinto PM (1999) O Direito ao Livre Desenvolvimento da Personalidade. In: AAVV, Portugal-Brasil Ano 2000, Boletim da Faculdade de Direito da Universidade de Coimbra, «Stvdia Ivridica». Coimbra Editora, Coimbra, pp 149–246 Pinto PM (2002) A Limitação Voluntária do Direito à Reserva sobre a Intimidade da Vida Privada. In: AAVV, Estudos em Homenagem a Cunha Rodrigues, vol II. Coimbra Editora, Coimbra, pp 527–558 Pinto CAM (2005) Teoria Geral do Direito Civil, 4th edn. Coimbra Editora Pinto PM (2007) A Influência dos Direitos Fundamentais sobre o Direito Privado Português. In: Monteiro P, Neuner J, Sarlet I (eds) AAVV, Direitos Fundamentais e Direito Privado – Uma Perspectiva de Direito Comparado. Almedina, Coimbra, pp 145–163 Prata A (1982) A Tutela Constitucional da Autonomia Privada. Almedina, Coimbra Ramalho RP (2020) Tratado de Direito do Trabalho, Parte I  – Dogmática Geral, 5th edn. Almedina, Coimbra Ramalho RP (2023) Tratado de Direito do Trabalho, Parte II – Situações Laborais Individuais, 9th edn. Almedina, Coimbra Schaub G (2019) Arbeitsrechts-Handbuch, 18th edn. C. H. Beck, Nuremberga Silva FE (1913) As Greves, vol I. Imprensa da Universidade, Coimbra Silva VP (1987) A Vinculação das Entidades Privadas pelos Direitos, Liberdades e Garantias. RDES 1:259–274 Silva JP (2015) Deveres do Estado de Protecção de Direitos Fundamentais Fundamentação e Estrutura das Relações Jusfundamentais Triangulares. Universidade Católica Editora, Lisboa Singer R (2007) Direitos Fundamentais no Direito do Trabalho. In: Monteiro P, Neuner J, Sarlet I (eds) AAVV, Direitos Fundamentais e Direito Privado – Uma Perspectiva de Direito Comparado. Almedina, Coimbra Sousa RVAC (1995) O Direito Geral da Personalidade. Coimbra Editora, Coimbra Vasconcelos J (2011) A Revogação do Contrato de Trabalho. Almedina, Coimbra Ventura R (1950) Extinção das Relações Jurídicas de Trabalho. Revista da Ordem dos Advogados 10(1 and 2):215–364 Xavier BL (1984) Direito da Greve. Verbo, Lisboa Xavier BL (2003) A Constituição Portuguesa como Fonte do Direito do Trabalho e os Direitos Fundamentais dos Trabalhadores. In: El Trabajo y la Constitución, Estudios en Homenage al Professor Alonso Olea. Academia Iberoamericana de Derecho del Trabajo y de la Seguridad Social, Ministerio de Trabajo y Asuntos Sociales, Madrid Xavier BL (2009) Problemas Jurídico-Laborais dos Fundos (Fechados) de Pensões. Direitos dos Trabalhadores. RDES 3-4:13–83 Xavier BL, Martins PF (2009) A Transacção em Direito do Trabalho: Direitos Indisponíveis, Direitos Inderrogáveis e Direitos Irrenunciáveis. In: AAVV, Liberdade e Compromisso: Estudos Dedicados ao Professor Mário Fernando de Campos Pinto, vol II.  Universidade Católica Editora, Lisboa, pp 443–497 Xavier BL, Martins PF, Carvalho AN (1997) Pensões Complementares de Reforma  Inconstitucionalidade da versão originária do art. 6.°, 1, (e) da LRC. RDES 1–3:147–184

Chapter 4

Collective Labour Law

4.1 Right to Collective Bargaining 4.1.1 Italy The Italian Constitution regulates the freedom of association and collective autonomy in Article 39, which in paragraph 1 lays down that “trade unions may be freely established”, adding in paragraph 2 that “no obligations may be imposed on trade unions other than registration at local or central offices, according to the provisions of the law”.1 The Fundamental Law assures the protection of workers by guaranteeing the possibility of organising trade unions, which amount to a form of self-protection.2 A union is therefore viewed as a free and spontaneous association of workers, set up with the purpose of protecting the occupational interests of its members. The rule in question is characterised by a degree of vagueness as to its breadth, and it may be said that “union activity and/or organisation is any that sets out to protect the collective interests that gravitate around the relations concerning human

1  See the analysis, for example, of Ales (2006), pp. 460 et seq.; Carinci (2014), pp. 309 et seq.; Carinci et al. (2018), pp. 99 et seq.; Ballestrero (2018), pp. 45 et seq., with details of the debate in the Constituent Assembly. 2  Arguing that Article 39.1 of the Constitution applies equally to workers and employers, Ales (2006), pp. 459 and 460; Carinci et al. (2018), pp. 106–107; Ballestrero (2018), pp. 106 et seq.; Mazzotta (2017), pp. 11–12; taking a different line, cfr. the observations made by Vitaletti (2018), pp. 153 et seq.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Gonçalves da Silva, S. Leitão, Constitutional Framework of European Labour Law in Italy, France, Germany, Portugal and Spain, https://doi.org/10.1007/978-3-031-45717-3_4

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labour. It is therefore the ends pursued by the activity that demarcates it as that of a trade union”.3 Article 39.1 therefore builds on the general freedom of association enshrined by the Italian Constitution in Article 18.4 Article 39 § 2 lays down that unions may not be subject to any obligation other than to register with local or central authorities, as established in law. As a condition for registration, the Constitution provides for the need for unions to adopt “internal regulations, based on democracy” (Article 39 § 3), thereby requiring unions to be organised democratically. Under § 4 of this article, “registered trade unions are legal persons”. Notwithstanding the constitutional requirement that trade unions be registered, this model proved unworkable because unions, which were already private, refused to register with the authorities, which is established as a constitutional prerequisite for enjoying legal personality. Freedom of association therefore amounts to the freedom to set up trade unions (including more than one per occupation), the freedom to choose the union that the workers decides to join and also the freedom to exercise union rights and to publicise them, including at the workplace. In the abovesaid Article 39, the Italian Constitution provides that unions “may, through a unified representation that is proportional to their membership, enter into collective labour agreements that have a mandatory effect for all persons belonging to the categories referred to in the agreement” (para. 4). As stated, despite the constitutional provisions on the creation of trade unions and on the conclusion and efficacy of the collective agreements they enter into, the constitutional model was found to be unworkable, because trade unions refused to register with the public authorities and continued to enter into collective agreements outside the constitutional rules,5 which allowed the legal model of collective bargaining—“true backbone of the labour relations system in Italy”6—to encourage the “emergence and development of a web of collective relations in a context of

 Mazzotta (2017), p. 6. For their part, Carinci et al. (2018), p. 99, asserting that “despite the inactivity of the subsequent paragraphs, the immediate preceptive character and breadth of content has never been called into question”, also highlighting (pp. 110 et seq.), that the protection under this rule is multi-directional (public and private entities); cfr. also, Santoro-Passarelli (2013), pp. 31 et seq. 4  For a comparative assessment of free establishment of trade unions (Article 39) and the freedom of association (Article 18), Persiani (1972), pp. 42 et seq. 5  The aim of the constitutional provision was that the registered unions should together form a single representative body, each union having a number of votes proportional to the number of members. However, technical difficulties (such as how to determine the number of members) and political difficulties (such as union objections to State intervention in industrial relations, and their fears of losing their bargaining power) meant that this never actually happened. For further reading, see, for example, Carinci et al. (2018), pp. 33–34; Loy (2017), pp. 127 et seq.; Mancini (1963), pp. 570 et seq.; Persiani (2010), pp. 332 et seq.; Sandri (1959), pp. 112 et seq.; Veneziani (2005), pp. 161–162. 6  Veneziani (2005), p. 170. 3

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absolute liberty,7 which therefore constituted the inter-union order”, in keeping with the rationale of plurality of orders and the doctrinal framework.8 This means that the elimination of the “corporative order did not destroy the provisions of the corporative collective agreements which existed alongside the collective agreements under ordinary law, which are governed, in addition to the provisions contained in the Civil Code for corporative collective agreements, by the rules on contracts in general provided by the same code, their relevance being based on Article 39 of the Constitution of the Republic”.9 Within this framework, legal scholars commonly identify four types of collective contracts: (a) corporative agreements, which were entered into by the fascist social organisations under the corporate regime, and are generally effective, having remained in force, despite the end of the regime, by operation of the Luogotenenziale Decree-Law no. 369, of 23 November 1944; (b) Which formed the subject matter of Law no. 741, of 14 July 1959,10 having an effect identical to that achieved, in other legal systems, by a government extension order (portaria de extensão), for which there is no provision in Italy; (c) The provisions of Article 39 of the Constitution, which to date have not been filled out by regulations; (d) And lastly, that existing under ordinary law, the only one of the four types still possible, governed by the rules established for (general) contract law, with a scope of application defined by the agreement itself.11 Italian labour law has evolved based simultaneously on two sets of regulations: that of the State and that of the unions, where the former “are those of worker protection legislation issues to complement and fill out, in a way, the direct protection provided by collective agreements, which are the work of unions and are more closely connected to the evolution of production”.12 Indeed, on the matter of collective bargaining, “in a perpetually disappointed climate of hope as to the existence of a legal trade union system”13 implementing the constitutional framework, the

 Veneziani (2005), p. 163.  As construed, it is recalled, by Giugni (2014), pp. 17 et seq., within the framework of democracy, in line with the teachings of Romano (1945) (cfr. supra), well established in Italian doctrine, despite a number of reservations, such as those of Pera (2007), pp. 1641 et seq., stating that his doubts arise from his view that “it is impossible to identify self-sufficiency in the supposed intertrade union order”, which is assumed (p. 1643). On this topic, see also Ballestrero (2018), pp. 73 et seq.; Ichino (2007), pp. 258 et seq.; Loy (2017), pp. 132 et seq. 9  Nicolini (2004), p. 80. 10  The Law of 14 July 1959 had a duration of 1 year (Article 6); but it was extended for a further 15 months by Law no. 1027, of 1 October 1960, which was later ruled to be unconstitutional by the Constitutional Court (Corte Costituzionale) in judgment no. 106, of 19 December 1962. 11  For example, Carinci et al. (2018), p. 236; Sanseverino (1962), pp. 65–66. 12  Mazzoni (1967), p. 61, whose position, asserted in 1967, remains valid today. 13  Mancini (1963), p. 570. 7 8

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“abstentionist model”14 has continued to be a reality, resulting in a shift towards civil law, that some, whilst referring to union law, identify as an “essential guarantee against the risk of imprisoning the system as a result of a public conception of collective bargaining”;15 whilst others highlight the need for non-autonomous intervention.16 In short, we are faced with a lasting and current twofold legislative omission: (a) criteria of representativeness and (b) a general framework for collective bargaining. This situation was to leave to legal scholarship, the courts and social actors, not to mention localised interventions by the law,17,18 the task of harmonising reality with the Constitution, leading to a “re-founding of Labour Law”,19 incorporation of trade union practice into the legal framework and adaptation of the latter to the reality of everyday collective relations, with special importance being taken, with regard to collective agreements, by ordinary contract law20 in the face of a mistrust of legislative interventions, behind which (behind the declared intentions), it was feared, lurked the danger of freedom being undermined”.21 These legal conditions led to collective bargaining being developed essentially on the basis of the rules of ordinary contract law and of the contractual practice established by the various inter-confederal agreements22 which were consolidated over time with the help of legal theory and case law; this situation still exists today.

 Loy (2017), p. 135.  Ichino (2011), p. 37. 16  Tamajo (2018), § 9. Cfr. the above text, on the need for legislative intervention. 17  Carinci et al. (2018), p. 18. 18  The absence of a specific framework did not however prevent the legislator from intervening in particular areas, through recourse to concepts of representativeness and to the terminology used in collective bargaining, leading legal scholars to refer to “legal recognition of the self-legitimised contractual system”, cfr. on the subject of unions in the workplace, D’Antona (1998), § 5, giving examples of several pieces of legislation, that use Sindacati maggiormente rappresentativi and sindacati comparativamente più rappresentative. Tamajo (2018), § 2, identifies: (a) “rappresentatività «presunta»” (‘presumed’ representativeness), based on the concept of the most representative or comparatively most representative union, for which the criteria have been filled out by the case law, and dating back to the 1970s, when it was found in several provisions, such as ‘comparatively most representative union’ in Decreto Legislativo 15 giugno 2015, n. 81, Disciplina organica dei contratti di lavoro e revisione della normativa in tema di mansioni, a norma dell’articolo 1, comma 7, della legge 10 dicembre 2014, n. 183); (b) “rappresentatività «verificata»”, (‘verified’ representativeness) concerning the conclusion of a collective agreement applicable in the production unit (Article 19, Statuto Lavoratori); (c) “rappresentatività «quantificata»” (‘quantified’ representativeness) resulting from formal data, RSU election result. For an analysis of this topic, for example, Ballestrero (2018), pp.  122 et  seq., especially, pp.  124 et  seq.; and also the in-depth reflection by Grandi (2004), pp. 627 et seq. 19  Persiani (2010), p. 331. 20  Perone (2004), p. 39, who writes: “After rising from the ashes of corporative law, the growth of Trade Union law was driven by legal theory and case law, rather than by legislation—in the centre of ordinary contract law”. 21  Perone (2004), p. 40. 22  Cfr. infra. 14 15

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And, despite “the general context of informality or low-level institutionalisation of collective relations, collective bargaining plays an important role in the social and economic structure of Italian labour relations”.23 The real structure of collective bargaining has emerged from a process that started with the end of the corporative regime, resulting from the tendency of unions and employers to use centralised collective bargaining, like that conducted under the fascist regime, which gained strength due to the economic situation existing after the Second World War;24 we should also recall that the collective bargaining model provided for in the Constitution (Article 39 § 4) was not carried any further by subsequent legislation,25 which means that collective agreements are not legally entered into by recognised associations,26 nor are they effective erga omnes, the provision of the Fundamental Law remaining unenforceable, which creates a “state of uncertainty that undermines the stability of the system and even pollutes the behaviour of the different parties”;27 and so “the field was left free for self-­regulation by unions and employers’ organisations based on the principle of ‘mutual recognition’, which in practical terms meant creating a negotiating oligopoly, in favour of the CGIL, CISL and UIL”,28 despite the instigation to intervene, for example, on matters of representativeness.29

 Veneziani (2005), p. 178. See also, Treu (2019), pp. 1 et seq., especially, pp. 6 et seq.  Veneziani (2005), p. 178. 25  Although it my be argued that, several decades on, the parameters for interpretation of Article 39 have changed, D’Antona (1998), § 2, also noting that “the practice of social dialogue has assumed the existence of a system of social representation of crucial importance for balancing the economy and for the effectiveness of public policy” (§ 8th). 26  Veneziani (2005), p. 164, clarifying that trade unions and employers’ associations, which are de facto associations, unrecognised and lacking legal personality, fall under Articles 36–38 of the Civil Code, establishing that they are governed by the terms agreed between their members; for further treatment, Ballestrero (2018), pp.  116 et  seq.; Punta (2022), pp.  205 et  seq.; Vallebona (2019), pp. 89 et seq. 27  Tamajo (2018), § 1. 28  Carinci et al. (2018), p. 371, referring to trade union law. 29  We refer, for example, to sentenza della Corte Costituzionale n.° 231 del 23 luglio 2013, which calls on the legislator to intervene, asserting, after mentioning several abstractly possible criteria, for filling out Article 19.1 (b), of the Statuto Lavoratori, that “it falls to the legislator to choose between these or other solutions” (Sect. 9). In legal scholarship, for example, Tamajo (2018), § 1: “In short, there is a need for legislative regulation able to bring at least a little order to an area where the actors no longer appear capable of self-government and of accepting mutual recognition; regulation which can stabilise and guarantee a system”, to replace the existing system, which has led parties to “sidestep arrangements and even desert representative associations, in the case of workers, moving to unions which have not signed up to certain collective agreements, in order to avoid unwanted or harmful contractual clauses; in the case of companies, to escape the constraints imposed by the CCNL [national collective contract] and so to reach company agreements, to form the sole set of collective provisions, instead of a national blueprint requiring them to opt out of clauses”. 23 24

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Faced with an established general regime on collective agreements in ordinary law30—anchored in the theory of union representation31—and in view of the failure to issue specific regulations to fill out the constitutional rules,32 we may start by noting that we are here in the ordinary domain of private contractual autonomy,33 looking at an atypical contract entered into by trade unions, insofar as it does not contain specific legal regulations34 (Articles 1321 et seq. of the Codice Civile), and so the general rules on contracts apply to this instrument that governs the relationships between the parties and the employment contracts of their members; the collective agreement, which in essence governs employment situations35 is therefore regulated by the Codice Civile. In view of the absence of legal regulations on who can participate in collective bargaining, it has been maintained that, on the workers’ side, this is open to groups of workers (permanent or otherwise), (traditional) trade unions, associations and company committees, whilst on the employers’ side, it can be business owners individually, or in a group or association.36,37  The debate on how to characterise collective agreements under ordinary law as a source of law remains of interest today, in view of their limited effects, cfr. Ballestrero (2018), pp. 319 et seq.; Carinci et al. (2018), p. 17; Vallebona (2019), p. 35, also rejecting this characterisation. 31  Ballestrero (2018), p. 228. 32  As asked by Ghera (2014), p. 179, “what should be done with Article 39 of the Constitution? The question, or rather the answer, might appear obvious. After 65 years of non-fulfilment of the second part of the constitutional norm—paragraphs 2, 3 and 4, which envisage a sets of rules on unions and collective agreements of ‘mandatory effect for all persons belonging to the categories referred to in the agreement’ (§ 4)—the historical reasons for this omission by the legislator are no longer in question”; adding: “What is left of the constitutional norm, in all its force, is the principle of freedom of association (§ 1: trade unions may be freely established), within the framework of which a system of actors and unions relations has grown up and established itself, and shown itself able to evolve over time and to regulate itself on an exclusively voluntary basis The legislator has intervened, but outside the scope of the constitutional provision, to support trade unions: in particular to ensurte their acceptance in undertakings with the workers’ statute, in the first place; and then, to regulate strikes in public services”. See also the observations of Romagnoli (2017), pp. 649 et seq. 33  Giugni (2014), p. 139; Ichino (2007), pp. 279–280, distinguishes this type of collective contract from that resulting from “reenvio legislativo, como elemento de una fattispecie normativa complessa”, which has “a function (although not a nature) belonging essentially to public law”, applying to a company or to an entire sector; Mazzotta (2017), p. 119. 34  Carinci et al. (2018), p. 237; Vallebona (2019), p. 35; speaking of conformity to type, Ballestrero (2018), p. 229. 35  There are however exceptions, such as home working (Article 2128 of the Codice Civile and Article 8 of Legge 18 dicembre 1973, n. 877 (Nuove norme per la tutela del lavoro a domicilio), www.gazzettaufficiale.it. 36  Vallebona (2019), p. 163; Veneziani (2005), pp. 163 and 173–174. 37  It should be recalled that, for example, in the 1970s, Il Patto Federativo CGIL-CISL-UIL, of 3 July 1972—https://elearning.unito.it—made provisions for a “Consiglio dei delegati”, grassroots union bodies, partly elected, unitary and with collective bargaining powers within the company; in many cases, these bodies continued to exist for many years, “remaining ‘frozen’ by agreement between the confederated organisations; in other cases, one or more organisations seceded, raising delicate issues concerning the division of rights of organisation and negotiation, which not a few collective agreements entrust to these councils”, D’Antona (1990), p. 89. 30

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When negotiations have been conducted38 and the collective agreement concluded,39 it has been discussed whether this agreement must be drawn up in writing. Case law holds that the non-existence of written form does not affect the validity of the source, in view of the absence of any law or other source requiring it, leaving this subject to the general rule in the Codice Civile, which establishes freedom of form, meaning it does not fall within the exception in Article 1350, constituting a formality ad substantiam;40 the collective agreement must then be deposited, with the Consiglio Nazionale dell’ Economia e del Lavoro, CNEL, artigo 17 da Legge 30 dicembre 1986, n.° 936,41 which, in view of what we have seen, is not a requirement for its validity, or for its efficacy, considering that the law of 1986 requires the document to be deposited within 30 days of its conclusion.

4.1.2 Germany Article 9 of the German Constitution provides, in general terms, for the rights of association, laying down in paragraph 1 that “All Germans shall have the right to form societies and other associations”. In relation to employment, paragraph 3 states that “the right to form associations to safeguard and improve working and economic conditions shall be guaranteed to every individual and to every occupation or profession” and goes on to provide that any agreements intended to restrict or impair that right are null and void and that any measures to that end are unlawful. As has been stressed, Article 9.3 of the Grudgesetz seeks not only to confer protection on associations of workers and employers,42 but also to re-establish the equal footing which does not exist in individual relations, instituting a series of

 These being negotiations between private parties, there is no intervention by public bodies, except for the possible intervention by the Ministry of Labour, on the basis of its institutional functions, including settlement of disputes (individual and collective), cfr. Magnani (2018), p. 8. 39  Unions have commonly made use of referenda to consult workers prior to finalising a collective agreement, cfr. Lassandari (2003), pp. 27–28. 40  For example, also including acts of cessation, Cassazione, 23 October 2018, case no. 30264, www.italgiure.giustizia.it, § 14; Cassazione, 8 November 2017, case no. 8379, www.italgiure. giustizia.it, § 3.1.; Cassazione, 27 November 2014, case no. 4176, www.italgiure.giustizia.it. In legal scholarship, see the observations of Carinci et  al. (2018), p.  284; Mazzotta (2017), pp. 128–129; Nogler (2008), pp. 772 et seq.; Vallebona (2019), pp. 175 et seq. 41  Legge 30 dicembre 1986, n.° 936 (Norme sul Consiglio nazionale dell’economia e del lavoro), www.normattiva.it. This requires CNEL to set up a National Archive of Collective Labour Contracts and Agreements, where authentic copies of renewal agreements and new contracts are deposited, within 30 days of their conclusion (Article 17.1), the Archive being entrusted with their conservation and allowing public consultation (Article 17.3). With additional information, MartínRetortilho (2013), pp. 118 et seq., and 139 et seq.; Mazzotta (2017), pp. 138–139. 42  For example, Adomeit (2006), p. 213. 38

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fundamental rights, including, as we have seen, the right to collective bargaining;43 in short, collective autonomy is protected by the Constitution insofar as it seeks to “guarantee the effective purpose, which is that of the freedom of association”,44 the State being obliged to guarantee an efficient collective bargaining system.45 The freedom of association is established, “primarily as a right of freedom”,46 proclaiming the freedom of professional associations to decide autonomously on measures to promote working and economic conditions, at the constitutional level.47 Workers are subject to dual representation: on the one hand, the union (Gewerkschaften) which essentially represents its members, and on the other, the works council (Betriebsrat), which represents all workers, irrespective of membership;48 the former may conclude collective agreements (Tarifvertrags) with the employer or employers’ associations (§ 2, 1), whilst the works council reaches works agreements with the employer (Betriebsvereinbarungen, § 77, no. 2), both having normative effect.49 It has been argued that this rule applies to associations of workers and employers, it being understood that “freedom of association […] applies to workers and employers”, protecting the existence of professional associations and their activities with a view to maintaining and promoting working and economic conditions. In addition, whenever pursuit of the purpose of the professional association depends on the use

 Schaub (2019), § 195, I, classifying constitutional protection of collective autonomy as incontestable, and III, noting that the direct and binding effects of the source are supported by the Fundamental Law; Zachert (2007), p. 1036. For an analysis of this provision, cfr. Däubler et al. (2017), pp. 1922 et seq.; Nipperdey (1954), pp. 40 et seq. 44  Dieterich (2016), p. 567. This position, to the effect that the content of the freedom of association is demarcated by forms of conduct “indispensable” for its defence, is accepted in constitutional case law, cfr., for example, BVerfG, 14.11.1995–1 BvR 601/92, https://openjur.de/u/217534.html, em especial, §§ 27 et seq. 45  Dieterich (2016), p. 565. 46  Cfr. BVerfG, 01.03.1979–1 BvR 532/77, 1 BvR 533/77, 1 BvR 419/78, 1 BvL 21/78, https:// dejure.org, after a brief historical overview of Article 9.3 (§ 189). 47  Cfr. BVerfG, 28.04.1976–1 BvR 71/73, https://openjur.de, “professional associations are free, within the limits of the legislation in force, to determine autonomously how they wish to promote the working and economic conditions of their members” (§ 30). 48  Zachert (2007), p. 1039, pointing out, however, that the differences between the trade union and works council are not as deep as might be thought, pointing to “fairly close symbiosis” between them, considering that between 70% and 80% of the members elected to works councils, every 4 years, belong to one of the DGB trade unions. 49  Richardi (2018), C-I, 4, § 26, referring to the obligational effect and noting that there may exist company agreements which only have such effect (C-III, 4, §§ 63 et seq.). This author further adds (C-IV, 2c, § 77, that “the authority of the company’s partners to structure working conditions on a normative basis is not a power of legislation delegated by the State. However, it is based on the State’s intervention to share regulatory power between the employer and the worker in the organisation of labour in the undertaking. Its basis therefore differs from that of the autonomy of collective bargaining, which grew out of private autonomy and is based on the possibility guaranteed to the individual by the fundamental right of freedom of association of regulating wages and other employment conditions through an organised association”. 43

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of certain means, these are also encompassed by the protection of this fundamental right.50 As a manifestation of collective autonomy, guaranteed by the Constitution, collective bargaining is an especially important means in the German legal system of regulating employment situations, as well as a key element in industrial peace and stability.51 Collective agreements regulate the rights and duties of the parties to the agreement, containing provisions that determine the content of employment relationships, how they start and terminate, as well as corporate and legal issues concerning the democratic organisation of the undertaking (§ 1, no. 1 TVG).52 Powers to enter into collective agreements lie with unions, employers and employers’ associations (§ 2 TVG);53 they must be concluded in writing, on pain of nullity (§ 1, para. 2, TVG),54 but do not need to be published.55 Interested parties can obtain information from the Register of Collective Agreements.56 However, in order to ensure employees are aware of the relevant terms, employers are required to display collective agreements in force in the company in a visible location (§ 8 TVG).57  Cfr. BVerfG, 26.06.1991–1 BvR 779/85, https://dejure.org, section 1, maintaining that one of the core elements of the rule is the conclusion of collective agreements (§ 43). Similarly, see also, BVerfG, 04.07.1995–1 BvF 2/86, 1 BvF 1/87, 1 BvF 2/87, 1 BvF 3/87, 1 BvF 4/87, 1 BvR 1421/86, www.bundesverfassungsgericht.de, especially, §§ 107 et  seq.; and, more recently, BVerfG, 14.11.2018–1 BvR 1278/16, www.bundesverfassungsgericht.de. 51  In Germany, the relative duty of industrial peace is deemed to be implied by the conclusion of a collective agreement, and so does not need to be expressly stipulated. As stated in some German case law, an obligation not to apply any measures designed to alter the existing agreement is automatically in force in any collective agreement, cfr. Däubler (1990), pp.  157 et  seq.; Magnani (2020), pp.  171–172; Schaub (2019), § 199, I; Zachert (1995), pp.  56–57; Weiss and Schmidt (2008), p. 186. 52  Concerning the content of collective agreements, cfr. Zachert (1995), pp. 47 et seq. 53  Pursuant to § 2, federations (or unions and of employers’ associations) may also enter into collective agreements on behalf of their member associations, provided they are duly authorised (para. 2), and may also do this autonomously if their articles of association include this as one of their functions; see also para. 4, as well as § 12. 54  Franzen (2020), ponto 600, § 1 – B, III, 4, § 29; Hromadka and Maschmann (2020), p. 62. 55  Schaub (2019), § 197, IV, 1; Holler (2020), pp. 82–83. 56  On registration, Schaub (2019), § 197, IV, 3; Weiss and Schmidt (2008), p. 189, arguing that failure to register does not affect the validity of the collective agreement. 57  The Ministry of Labour is responsible for keeping the register of collective agreements, containing records of the conclusion, amendment and revocation of contractual and autonomous instruments (declaration of general efficacy of the agreement) (§ 6 TVG). For this purpose, the parties are required to furnish the relevant information, not just to the Ministry of Labour but also to the labour authorities in the Länder covered by the agreement; failure to do so is an administrative offence (§ 7 TVG). Attention is also drawn to the existence of Collective Bargaining Law Implementing Regulation, of 20 February 1970 (Verordnung zur Durchführung des Tarifvertragsgesetzs), which, in §§ 14–16, deals with records of agreements, more precisely as regards organisation and information. On this matter, cfr. Hromadka and Maschmann (2020), p.  62; Martínez Girón (2008), pp.  183 et  seq.; Richardi and Bayreuther (2019), p.  49; Zachert (2004), pp. 42–43. 50

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However, the efficacy of the agreement is conditional neither on registration nor on display by the employer, insofar as neither have constitutive effect.58 The coming into effect of the instrument depends on the will of the parties, this being a consequence of their autonomy.59 The case law (BAG, 28.03.2006, 1 ABR 58/04), following on from a claim from the Metal Industry Union (IG Metall) that the Christian Metal Union (CGM) was not a union with collective bargaining powers, and not even a union for the purposes of Labour Law (§§ 13 and 14, respectively), has examined this matter extensively (especially, §§ 34 et seq.); whilst acknowledging that the concept of a union with collective bargaining powers does not exist, although the law presupposes it (§ 2, no. 1, TVG, §§ 36 and 37), a number of component elements were identified, in accordance with stable case law, including, in particular, that unions are formed with a function established in their articles of association of safeguarding their members; or being prepared to enter into collective agreements; being constituted freely, independent and organised on a supra-company basis; recognising the collective bargaining law in force as binding; being able to perform usefully its function as party to the agreement, i.e. being able to stand up to the employer or employers’ organisation (industrial influence) and having the capacity to perform the resulting obligations (§ 35, with further elaboration in the subsequent §§).60 In contrast to the situation under National Socialism, and in view of the new constitutional framework, the public authorities maintained a detached stance in relation to the parties in collective bargaining, in line with the “principle of non-­ intervention in the free play of industrial forces”.61 Within the framework of the new constitution, the Collective Bargaining Law (of 1949), which maintained the main features of the 1918 legislation, overturned by

 Franzen (2020), § 6, § 2 and § 8, § 1.  Although the parties may establish that the instrument has retroactive effect, the principle of legitimate expectations notwithstanding, cfr. Richardi and Bayreuther (2019), pp. 46–47; Spinner (2020), B – VIII, 5, b, § 277. 60  See also, with abundant references to case law, BAG, 14.12.2004, 1 ABR 51/03, https://dejure. org, §§ 32 et seq. For its part, the Constitutional Court has ruled, for example, BVerfG, 01.03.1979–1 BvR 532/77, 1 BvR 533/77, 1 BvR 419/78, 1 BvL 21/78, cit., that “as a party to collective labour agreements, professional associations must be freely constituted, independent of the opposing parties and organised on a basis that extends beyond the company […], in addition to being, by virtue of their structure, sufficiently independent to defend on a lasting basis the interests of their members within the scope of labour and social security law […] and to recognise as binding the law in force on collective bargaining” (§ 190). 61  Hromadka and Maschmann (2020), p. 52; Nipperdey (1954), p. 47, also pointing out that the same principle formed the basis for the Law of 11 January 1952 (Gesetz über die Festsetzung von Mindestarbeitsbedingungen, Vom 11. Januar 1952, available at https://www.bgbl.de) on the setting of minimum conditions and concerning conciliation and arbitration, with the abolition of mandatory arbitration (pp. 47–48); which does not mean that intervention is not needed to correct shortcomings in the collective bargaining system, Dieterich (2016), p. 565. 58 59

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the National Socialist regime,62 was subsequently revised and republished, 63,64 and also complemented by the Collective Bargaining Law Implementing Regulation, of 20 February 1970 (Verordnung zur Durchführung des Tarifvertragsgesetzes, TVGDV), establishing legal frameworks still in force today. The stability of the regime is a relevant factor, and has enabled legal doctrine and case law to elaborate on the rules, notwithstanding some calls for reform, without affecting the framework in force.65 In the context of a partial “corporatisation” of the structure of the agreement66 and of a “move away from collective bargaining”, collective agreements apply to a limited set of persons and effect between the parties. More precisely, they bind only the actual parties entering into them and their members (§§ 3, no. 1, and 4, no. 1),67 and legislation has laid down that cessation of membership cannot eliminate the

 Fuchs (2016), p. 928.  Neufassung des Tarifvertragsgesetzes, 25 August 1969, https://dejure.org. 64  There were changes in 1974, through the law making changes to home working (§ II, § 1, 29 October 1974, Gesetz zur Änderung des Heimarbeitsgesetzes und anderer arbeitsrechtlicher Vorschriften, Heimarbeitsänderungsgesetz, https://www.bgbl.de), which added § 12a, in order to permit collective bargaining for para-subordinate workers, cfr. Oetker (2019), pp. 65 et seq. On 11 August 2014, the TVG was again amended by Article 5 of the Gesetz zur Stärkung der Tarifautonomie (Tarifautonomiestärkungsgesetz, https://dejure.org), dealing with the issue of extension of collective agreements, in particular eliminating the requirement that the employers bound by a collective agreement should employ at least 50% of the workers included within the agreement’s scope of application; this law also created the minimum wage (Article 1). More recently, in May 2020, a further amendment through article 8 Gesetz zu sozialen Maßnahmen zur Bekämpfung der Corona-Pandemie (Sozialschutz-Paket II), 20 May 2020, https://www.bgbl.de, which again focused on the extension of the collective agreement (§ 5 Allgemeinverbindlichkeit), allowing the participation of interested parties by videoconference. For an analysis of the issues, see, for example, Carta (2019), pp.  653 et  seq.; Henssler (2015), pp.  43 et  seq., especially, pp. 50 et seq. 65  For example, Dieterich et al. (2004), pp. 65 et seq., who call, among other measures, for collective agreements not to apply in business crisis situations, simplification of recourse to extension orders, a source which should ensure pay and working hours conditions, in order to ensure fair and reasonable minimum working conditions, as well as more efficient publicity for collective instruments. 66  Dieterich (2016), p. 561. 67  Schaub (2019), § 195, II. Waas (2017), pp. 242 and 243, and also, by the same author, Waas (2019), pp. 292 and 294, pointing to the possibility of extending effects through accession. This does not mean that, in practice, it is not applied in most cases to all workers, and it is common for employment contracts to refer to the collective agreement rules, which then, of course, take effect as individual clauses, cfr. Remy (2007), pp. 32 et seq.; Zachert (1995), p. 54; Weiss and Schmidt (2008), p. 187, pointing out that the different treatment for members and non-members can act as an incentive to join a union, leading in some cases to employers applying the rules in the agreement. It may be noted that the law has a broad scope of application, governing, for example, workers who are economically dependent (§ 12a), a rule introduced by the Law of 29 October 1974; on this question, for example, Pagotto (1998), pp. 229 et seq., especially, pp. 239–240; Schaub (2019), § 200, II, in particular, 2. 62 63

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element of connection and consequently the application of the collective agreement, which will remain in force until its termination (§ 3, no. 3).68 Collective agreements take effect “immediately and imperatively” with regard to the situations they encompass (§ 4, no. 1), in other words, they are applied irrespective of the will of the persons concerned, thereby preventing any deviation from their terms, unless to more favourable effect.69 In other words, an employment contract may establish different terms in two situations: (a) a provision is made in the collective agreement or (b) it is more favourable to the worker (§ 4, no. 3); on the other hand, waiver of rights arising from the agreement “is only admissible through through equitable conciliation between the parties to the agreement” (§ 4, no. 4). After several decades in which employment case law maintained the principle of a single collective agreement in a company, the TVG was amended on 3 July 2015 [(Gesetz zur Tarifeinheit (Tarifeinheitsgesetz)], after several attempts to ensure the unity of the collective agreement applicable, both in the case of concurrent agreements, and in the case of plurality of agreements (parallel agreements); the change was intended to resolve through legislation a problem that arose through modification of case law, ensuring, in the name of protection, conciliation and ordering of the provisions of agreements, so that a single collective agreement applies in each company, that agreement being chosen on the criterion of that signed by the majority union, to whose members only it will apply (Tarifkollision, § 4a, nos.1 and 2); the legislator went on to impose a number of limits, in order to protect the minority union, conferring on it the right to be informed by the employer of any negotiations and to submit proposals (§ 4a, nos. 4 and 5). In response to a claim that this undermined the freedom of association (Article 9, § 3, of the Constitution), the matter was assessed by the Constitutional Court (Bundesverfassungsgericht),70 which objected in part to § 4a (no. 2, para. 2) of the TVG, ruling however that it would remain in force until altered by the legislator, no later than 31 December 2018;71 on the other hand, it stressed that “until new rules are issued, the precept may be applied, provided that the exclusion indicated in § 4a, no. 2, para. 2 only takes effect when there is plausible evidence that the majority union seriously and effectively took into account in its collective agreement the interests of the groups of occupations whose collective agreement is excluded”.72

 Schaub (2019), § 204, I, §§ 1 et  seq.; Waas (2017), p.  243, referring to the situation of the employee; also, by the same author, Waas (2019), p. 293. 69  Löwisch and Rieble (2017), § 4-A, IV, 1 and 2, §§ 29 et seq. 70  Several claims were also submitted to the ECHR, for which proceedings are currently pending: (a) Association of Civil Servants and Union for Collective Bargaining (dbb) v. Germany, no. 815/18, of 21 December 2017; (b) Marburger Bund – Association of employed and State employed physicians in Germany v. Germany, no. 3278/18, of 10 January 2018; (c) Trade Union of German Train Drivers (GDL) v. Germany, no. 12380/18, of 8 March 2018; (d) and Angert and Others v. Germany, nos. 12693/18 and 14883/18, of 8 March, and 21 March 2018, respectively. 71  BVerfG, 11-07-2017 - 1 BvR 1571/15, www.bundesverfassungsgericht.de, § 218. 72  BVerfG, 11-07-2017 - 1 BvR 1571/15, cit., § 215. For further reading, Arufe Varela (2018), § 18 et seq.; Fuchs (2018), pp. 222 et seq.; Linsenmaier (2019), D – II – 5, § 68c. 68

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The legislator then intervened, on 18 December 2018,73 within the framework delimited by the Constitutional Court, enshrining, grosso modo, the position it had advocated. As a result, the solution is now application of the agreement concluded by the majority organisation, without prejudice to the members of the minority union being covered by their own agreement, if the interests defended by this union have not been duly considered (§ 4a, no. 2, para. 2). 74

4.1.3 France Paragraph 6 of the Preamble to the French Constitution of 1946 states that all men may defend their rights and interests through union action and may belong to the union of their choice. However, the French Constitution does not provide for the right to collective bargaining. Its existence as a right guaranteed by the Constitution follows from paragraph 8 of the preamble to the Constitution of 1946, which states that all workers participate, through their representatives, in the collective determination of their working relations.75 It follows from this provision, in combination with Article 34 of the Constitution (stating that the law must determine the fundamental principles of Labour Law), that, once the rights and obligations relating to working conditions and relations are defined, the legislator must allow employers and workers, or the organisations representing them, the possibility of deciding on the material application of the rules of employment law, through collective bargaining,76 and the right of workers to collective bargaining can even be characterised as a general principle of law.77 Several pieces of legislation have sought to grant special status to collective bargaining, which, according to some legal scholars, reflects the legislator’s wariness of collective autonomy, a degree of regulatory indecision and the influence of changing economic and social circumstances;78 at the same time, in a “profoundly

 § 4f Gesetz zur Stärkung der Chancen für Qualifizierung und für mehr Schutz in der Arbeitslosenversicherung (Qualifizierungschancengesetz), https://dejure.org. The TVG was again amended to introduce, in connection with the procedure for the act of extension, participation by the entities concerned by video link or conference call (§ 5, no. 2), cfr. Article 8 Gesetz zu sozialen Maßnahmen zur Bekämpfung der Corona-Pandemie (Sozialschutz-Paket II) (SozSchPG II), https:// dejure.org. 74  This solution has been greeted with reservations and criticism, cfr., among many others, Carta (2019), pp. 658–659, actually speaks of “interpretative knots”; Bepler (2022), pp. 189–199, with relevant historical information; Gooren (2022), pp. 444–452. 75  Ray (2014), p. 23. 76  Decision of the Conseil Constituionnel no. 2004-494 DC, of 29.04.2004 (https://www.conseilconstitutionnel.fr). 77  Javillier (1999), p. 765. 78  Camerlynck and Lyon-Caen (1975), p. 531. 73

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legalistic” country,79 the different sets of rules established have been especially relevant to the development of collective agreements, which in recent decades have acquired special dominance as a source of labour law.80 In contrast to English law, collective bargaining was for many years a secondary source, in view of the proliferation of legislation, but this has changed over the past four decades, and collective agreements are now a prime source of labour law.81 From a one-sided professional, the Code du Travail confers on workers the right to collective bargaining, in order to establish the terms of their employment, vocational training, work and social guarantees (Article L. 2221-1).82 French law is commonly characterised as offering great freedom for collective bargaining, which can take place at different levels—national, confederal, inter-confederal, regional, local or even limited to the company or establishment.83 Accordingly, the Labour Code lays down that a collective agreement is entered into, on the workers’ side, by one or more trade unions, and, on the employers’ side, also by one or more employers’ organisations or by one or more employers (Article 2231-184). As well as conferring capacity to negotiate on employers and their associations, the collective bargaining system is based on the union monopoly of workers’ trade unions85 (Articles L. 2132-2 and L. 2232-1686), distinguishing between elected representatives, with duties to inform and consult, and union representatives, holding the right to collective bargaining; despite the openness to other possibilities(e.g. members of the company committee), it may still be said that, apart from in

 Caire (1994), p. 263.  Ray (2014), section I. 81  Camerlynck and Lyon-Caen (1975), p. 529; along the same lines, Javillier (1998), p. 244: “One of the fundamental characteristics of the French system of industrial relations therefore continues to be, in the first place, that of permanent State intervention. However, the autonomy of the social partners appears to have acquired growing importance with the turn of the century”. 82  Article 2221-2 draws a distinction between convention collective and accord collectif, depending on their material scale, the former containing provisions on all the matters listed in 2221-1 for all the professional categories concerned, whilst the latter addresses one or more of these specific matters; cfr. also Article L. 2222-1. 83  For example, Javillier (1998), p. 248. 84  This provision also allows them to be entered into by employers’ associations constituted under the Loi du 1er juillet 1901 (Article L. 2231, § 2). 85  Trade unions have civil personality (personnalité civile, Article L. 2132-1). It should be recalled that, since 1920, trade union congresses, federations and confederations also have civil personality. We may further note that unions are subject to the principle of speciality, i.e. their object comprises the material and moral interests, both collective and individual, of the entity indicated in the Articles of Association (Article L 2131-1 Code du Travail, in a formulation that in 1982 substituted the previous more restrictive wording). Unions are therefore barred, for example, from carrying on commercial or political activities. For further reading on this matter, see, for example, Auzero et al. (2020), pp. 1281 et seq. 86  This rules states that company agreements are negotiated (including review and termination) between the employer and the trade unions representative of the company’s workers. 79 80

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exceptional situations, only representative trade unions 87 have powers to negotiate and enter into collective agreements, the representativeness of unions serving as criterion for differentiating the powers of associations and legitimating the intervention of trade unions in establishing employment rules. On the question of the representativeness of unions, the Code differentiates between different levels. At company and establishment level, it introduces an additional criterion, which is the winning of 10% of the votes cast in the first round of the last elections for members of the social and economic committee, irrespective of the number of voters (Articles L. 2122-1 to 2122-3-1); at group level, although maintaining the criterion for company or establishment level, it adds a further element, which is that all votes obtained in the companies or establishments in question are considered (Article L. 2122-4); at the level of the professional sector, the code refers to the criterion contained in Article L. 2121-1 or requires that the union be “established in a balanced way in the sector” or that it have obtained 8% of the votes cast in the first round of the last elections to the social and economic committees (Articles L. 2122-5 to L. 2122-8); lastly, at national and multi-sector level, unions are deemed representative when they meet the criteria set out in Article L. 2121-1, when they are representative in industry, construction, commerce and services, and also those which obtained no less than 8% of the votes cast, as stated above (Articles L. 2122-9 and L. 2122-10).88 Turning now to the representativeness of the employers, we should recall the specific rules contained in the Labour Code (Article L. 2151-1, I), setting requirements (cumulative) which are inspired by the rules for trade unions (Article L. 2121-1): (1) respect for Republican values; (2) independence; (3) financial transparency; (4) it must have operated for at least 2 years in the professional and geographical area, considering the negotiation level; (5) influence, characterised principle by activity and experience; (6) and reach, measured on the basis of member companies or their workers subject to the French social security system, bearing in mind that this element varies depending on the negotiation level in question for the purposes of representativeness (see also Articles L. 2152-2, L. 2152-4).89

 It should be recalled that, in Decision no. 96-383 DC, of 06.11.1996 (https://www.conseil-constitutionnel.fr), the Conseil Constituionnel ruled that there are no constitutional grounds for granting trade unions a monopoly for the purposes of collective bargaining (§ 8). On the other hand, legal scholars have classified agreements not signed by unions (workers) to be atypical, cfr. JeanClaude Javillier, Droit du Travail, cit., pp. 773–774 and 781–782, referring to the union monopoly. 88  On gauging the reach of trade unions in relation to companies with less than 11 employees, cfr. Articles L. 2122-10-1 to 2122-10-11; see also Articles L. 2122-11 to L. 2122-13. 89  With further information, Auzero et al. (2020), pp. 1310 et seq.; Bélier et al. (2018), pp. 142 et seq.; Lokiec (2019), pp. 516–517; Ray (2020), pp. 564 et seq. 87

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After the phase of negotiation,90 when duly presented in writing (Article L. 2231-3),91 deposited (Article L. 2231-6)92 and published (Article L. 2231-5-1),93 the collective agreement is applicable, unless otherwise provided, as from the following deposit (Article L. 2261-194). Collective agreements are binding on the signatories, and on the respective members (Article L. 2262-1). However, the Code du Travail also determines that, when the employer is bound by a collective agreement, because it is a signatory or a member of a signatory,95 that agreement applies to all its employees, unless more favourable terms are stipulated elsewhere (Article L. 2254-1). This means, therefore, that the relevant element of connection is the situation of the employer. In other words: it is necessary and sufficient for the employer to enter into the agreement directly or to be a member of the signatory association, but if this is not the case, even if the worker is a member, the agreement cannot bind the employer to follow the agreed rules, with the result that the worker’s union membership is irrelevant (Article L. 2254-1). This has led legal scholars to speak of erga omnes effects of collective agreements.96,97

 The Labour Code provides for mandatory negotiations, for example, at sector level, every 4 years, when the parties must negotiate various matters, including pay and measures for ensuring occupational equality between men and women (Article L. 2241-1, 1 and 2; see also Article L. 2241-8); at company level, negotiations are to be held every 4 years on pay, in particular effective salaries, and working hours (Article L. 2242-1). For an analysis of this matter, Auzero et al. (2020), pp. 1201 et seq., 1682 et seq., and 1740 et seq.; Teyssié (2018), pp. 900 et seq. 91  On pain of nullity. The Labour Code also requires that agreements be drawn up in French; a foreign language clause cannot be enforced against a worker to whom it may cause harm (Article L. 2231-4). There are other requirements where breach does not result in nullity (Article L. 2222-3-3). 92  The precept refers to regulatory provisions, cfr. Articles D. 2231-2 to D. 2231-8; see also Article R. 2231-9. 93  For an analysis of deposit and publication, see, inter alia, Auzero et al. (2020), pp. 1634 et seq. 94  See also Article L. 2232-29-1 for company (or establishment) agreements. 95  Under Article L. 2262-2, membership of a signatory organisation or grouping entails the consequences of accession to the agreement or to the actual collective labour accord, provided the accession requirements established in Article L. 2261-3 are met. 96  Béroud et al. (2012), p. 11; Javillier (1999), pp. 795–796; Lokiec (2019), p. 668; Ray (2020), pp. 764 et seq. 97  Notwithstanding, for example, the mechanism for accession (Articles L. 2261-3 to L. 2261-6) or for extension of scope to include other persons and organisations, highlighting a number of particular features, such as the distinction between ordinary collective agreements and agreements which may be extended, the latter being subject to more rigorous requirements than the former (extension and élargissement, Articles L. 2262-1, first part, and L. 2261-15 to L. 2261-31). 90

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Insofar that, within the framework of the constitution and the law,98 collective agreements regulate employment situations,99 they have effect on employment contracts, and legal theory speaks of their mandatory, immediate and automatic application.100 Collective agreements shape the content of the employment contract and prevail over it, except for more favourable clauses in the employment contract (Article L. 2254-1).

4.1.4 Portugal In addition to the general right of association (Article 46), established as a personal right, freedom and guarantee, the Portuguese Constitution expressly provides for and regulates other types of associations, such as trade unions (Articles 55 and 56);101 at the same time, the Constitution regulates another representative organisation: workers’ committee or works councils (comissão de trabalhadores), as a means of defending workers’ rights (Article 54). The Constitution accordingly provides for twofold representation of workers.102 Trade union freedom (in the broad sense),103 which must be exercised without any discrimination (Article 55.2 CRP), functions in a dual dimension: (1) individual freedoms ([i] freedom to constitute—Article 55.2 (a) CRP—and [ii] freedom to join or not to join a trade union—Article 55.2 (b) CRP and (2) collective freedoms

 Teyssié (2018), p. 1045, refers, apropos of the relationship between the collective agreement and the law, to three factors: public policy (absolute and social), the scope of collective bargaining and subsidiary provisions, cfr., inter alia, Ray (2020), pp. 65 et seq.; taking a different line, Bélier et al. (2018), p. 527. 99  See, for example, Odoul-Asorey (2013), pp. 194 et seq., and 222 et seq., and 319 et seq. 100  Auzero et al. (2020), pp. 1655 et seq.; Bélier et al. (2018), pp. 483 et seq. 101  The freedom to organise a trade union is a corollary of the freedom of association in general, despite its many specific features, and amounts to an autonomous type (Canotilho and Moreira (2007), p.  730 (I), and Xavier (2004), p.  148, and also, from the same author, Xavier (1978), p. 296). 102  For an analysis of collective subjects (legal persons), Silva (2003), albeit written prior to the Labour Code of 2003. On the differences between trade unions and works councils or workers’ committees, Canotilho and Moreira (2007), pp.  716–717 (I); Rui Medeiros, em Miranda and Medeiros (2010), pp. 1069–1070; Fernandes (2022), pp. 899 et seq. 103  Trade union freedom, as stated in a ruling of the Constitutional Court (Judgment of the Constitutional Court 118/97, of 19 February, Diário da República, of 24 April 1997, series I - A, no. 96, p. 1844), “does not only mean the right to create trade unions, and to join or not to join them. Instead, it supposes the right of workers to defend, together, their rights and interests vis-àvis their employer, which amounts, in particular, to collective bargaining and also to the possibility, likewise collectively (because only then will there be a level playing field with the employers), of ensuring compliance with labour rules, namely those resulting from the collective bargaining process”. 98

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([i] freedom of organisation and internal regulation—Article 55.2 (c) CRP—[ii] right to carry on union activities in the company—Article 55.2 (d) CRP—[iii] right to join international organisations—Article 55.5 CRP–, [iv] contractual autonomy, materialised in the right to collective bargaining—Article 56, paras. 3 and 4, CRP—and [v] self-protection, manifested essentially in exercise of the right to strike—Article 57 CRP). An especially important aspect of the activity of trade unions and employers and their associations is the signing of collective agreements which, in Portugal, enjoy constitutional status: the rules providing for them are included in the catalogue of workers’ rights, freedoms and guarantees (part I, title II, Chap. III). According to the Fundamental Law, “trade unions have the competence to exercise the right to enter into collective agreements, which shall be guaranteed as laid down by law” (Article 56.3);105 in addition, “the law shall lay down the rules governing legitimacy to enter into collective labour agreements and the efficacy of the respective norms” (Article 56.4).106 Under Article 56.3, in fine, CRP, the ordinary legislator is required to guarantee exercise of the right to collective bargaining. We should note that what is at stake here is to guarantee the right, and not to require ordinary law to define it,107 and so its essential content must be found within the constitutional framework (notwithstanding, of course, any complementary elements contained in law), on pain of misrepresenting the constitutional requirement and the intentions of the authors of the constitution. This is not therefore a “blank cheque” given to the ordinary legislator,108 insofar as the legislator does not have the right to fill out the content of the right to collective bargaining at its own discretion, wiping out the right for all practical purposes, or rendering it meaningless. But more than this: it falls to the law to regulate the right to collective bargaining and not to determine its content, as we are not dealing here with a right deemed subject to the law, the scope of which is dependent on interpositio legislatoris. Instead, we have here a referral to legislation which “is above all procedural in its reach, in addition to seeking to ensure that the right enshrined by the Fundamental 104

 In the first case, at stake is the exercise of the rights of subjects considered individually, whilst in their collective freedoms we are dealing with the activities of the trade union itself, as an entity distinct from its members. As we may read in Judgment of the Constitutional Court 342/86, of 10 December, cit., p. 3486, “trade union freedom is not a mere ‘collective class freedom’, but rather a right of workers considered uti singuli”. 105  We may recall the very similar rule in Article 37.1 of the Spanish Constitution; that country’s legal theory and case law is especially relevant. 106  For a developed analysis of the collective agreement in the constitutional framework, Silva (2022), pp. 1173 et seq. 107  A different understanding appears to be set out by Andrade and Maçãs (2001), p. 33, when they refer to the “circumstance of the Constitution recognising the right ‘under the terms of the law’”. What the Constitution does is require legislation to guarantee the right, but not to recognise it, which is quite another thing. 108  Also to the same effect, for example, Reis (2003), pp. 161–162. 104

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Law is not restricted by ordinary law”,109 at least, unless for the sake of other values of constitutional status. Accordingly, the fact that, on the one hand, its grounds derive directly from the Constitution, on the other, that we are here faced with a particular feature of private autonomy and, also, that it has to be guaranteed “under the terms of the law”—and not “in the cases provided for in law”—means necessarily that the legal situations involved are not dependent on the ordinary legislator. It may therefore be said that “the content of Article 56 of the Constitution is not therefore that of a pure referral to the terms of the law of the right to collective bargaining, but, on pain of undermining that right, that of a protection against the law of the essential core of that right, which has to imply that its limits must be situated in the realm of public policy and protection of the minimum limits for worker protection and that the law may not encroach, without manifest justification, on the domain of the matters agreed through collective bargaining”.110 In short, it is within the framework of the Constitution that the content of the right to collective bargaining must be defined—on pain of one of the most important elements of this right being left in the hands of the ordinary legislator111—no powers to shape it being reserved for the law,112 which of course does not mean there are no restrictions or limits, as we shall see. Constitutional protection of the right to collective bargaining, like the right to strike, also requires the State to abstain from certain forms of behaviour. Indeed, at stake here is a protection for the freedom and autonomy of labour subject with a view to protecting them from the public authorities, and the State should view the right to collective bargaining as an expression of the autonomy of those entities and consequently abstain from any behaviour (legislative, administrative or other) that might undermine it. The reservation of collective bargaining is a space of freedom in which labour subjects dictate their own rules at different moments in the shaping of a collective agreement (from the start of negotiations through to entry into force), which therefore prevents the legislator from permitting any intervention of a supervisory character by public bodies (for example, assessment of the merit of its content, modification of the negotiated content)113 or any administrative intervention by way

 Ramalho (2009), p. 81, note 134, also assigning procedural reach to this rule.  Fernanda Palma, in explanation of vote, Judgment of the Constitutional Court 391/2004, of 2 June, www.tribunalconstitucional.pt. 111  As incisively argued by Gomes et al. (2011), pp. 247–248: “It would be absurd to think that the authors of the constitution took the trouble to explain who exercises the right and that the Constitution ‘doesn’t know’ what the right consists of, because it delegated that definition to the ordinary legislator. In principle, […], constitutional dogmatics construct Rights by starting with their content, defining or definable within the constitution, then moving on to the question of their exercise”. 112  In other words, there is no constitutional referral for the right to be established in law. 113  To this effect, Carvalho (1981), pp. 44–45. 109 110

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of “authorisation” (confirmation).114 It follows from this reservation of collective bargaining that the legislator must refrain from intervening, unless values of constitutional status that so require are at stake. In other words: the intervention by state authorities will in all cases be minimal—and be supported by law115—during the drafting, deposit, publication and validity period of the agreement, which is why the legislator must only intervene when required by matters of public policy.116 The law and collective agreements should therefore be viewed as complementing each other,117 in view of their different functions. The existence of intervention by the law to supplement collective agreements logically requires that the legislator be subject to the same rules of behaviour in relation to the administrative authorities, which is why it should be stressed that the Constitution confers special prevalence on collective autonomy vis-à-vis the intervention of the administrative authorities, as follows from the status and importance assigned to collective agreements. It would moreover have been inconsequential— not to say incongruous—for the authors of the Constitution to have recognised that collective subjects enjoy special powers of regulation and then to allow the administrative authorities to dilute or deplete those powers. Collective autonomy therefore enjoys particular protection against the powers of the administrative authorities,118 from the stage of drafting up to the entry into force of the collective agreement, and also within the regulatory scope that those authorities may occupy through administrative sources, However, this is not to say that the law prevents the administrative authorities from intervening (through extension orders and employment terms), but rather that they are required to do this on a subsidiary basis (issue and application), on pain of breaching the Constitution, in addition to their international obligations. The added importance attributed to collective autonomy by the Fundamental Law leads necessarily to a reduction in public powers (legislative and administrative) with regard to the design and the validity of collective agreements, The constitutional protection of collective autonomy is not limited to a requirement that the State refrain from doing certain things (status negativus), and is therefore more than a mere right of defence against the State; this follows from its inclusion in the category of rights, freedoms and guarantees, meaning that, as well

 To this effect, for example, Coimbra (1994), p. 145.  Indeed, this follows from the reservation of legislative powers (Article 165.1 (b)), and so there cannot be restrictions except when established in law (Article 18.2). 116  This is the case of the need to ensure that all the persons affected are informed, requiring publication in an official document, in this case the Boletim do Trabalho e do Emprego. 117  It should also be noted that, in many situations, the existence of legislation on certain matters may have the effect of opening the way to intervention to complement the agreement, or vice versa, when the law “absorbs” rules or principles established in agreements, as has happened with holiday leave, with the proviso that this content may be adapted by the parties. 118  As incisively noted by Canotilho (2014), p. 988, “The rules on rights, freedoms and guarantees result in subjective claims to protection through the administrative authorities both against state aggression and against interference by third parties”, italic in the original. 114 115

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as being an area free from State interference, it is also incumbent on the State, when filling out and developing those fundamental rights, and the legal system itself, to adopt the solutions most consistent with those rights (positive dimension).119 The fact that the authors of the constitution deferred to ordinary law the task of regulating the question of standing to enter into collective agreements, and also the efficacy of those agreements (Article 56.4), makes it clear that we are dealing with a right whose interpositio legislatoris is of special importance, and so legal standing is dependent on a legislative measure in order to take full effect.120 The Labour Code includes collective bargaining instruments among the specific sources of Labour Law (Article 1), including collective conventions (convenção colectiva) among collectively negotiated regulatory instruments (Article 2, paras. 1 and 2), in the specific forms of collective contracts (contrato colectivo) (between a trade union and an employers’ organisation), collective agreements (acordo colectivo) (between a trade union and plurality of employers) and company agreements (acordo de empresa) (between a trade union and one employer)—Article 2.3. In the absence of criteria of representativeness, any association (trade union or employers’ organisation), irrespective of the level of representation, can negotiate and enter into a collective agreement (pluralism of union negotiation),121 and must choose the scope and the level it deems most appropriate, limited of course by the match between the scope of representation of the parties, which does not prevent it being more restricted than that match, in accordance with the wishes of the parties. 122,123

 To this effect, Alexandrino (2007), pp. 89–90.  As was underlined in Judgment of the Constitutional Court no. 581/95, of 31 October, Diário da República, of 22 January 1996, series I, no. 18, p. 117: “This [Article 56.3] does not amount to authorised interference by the legislator, setting a limitation on the right to collective bargaining. What it establishes is a reservation as to formation (Ausgestaltungsvorbehalt): the legislator does not intervene to impose limits on the right, but the right only fully exists in the shape conferred on it by the legislator”. 121  This is the expression used by Pinto (1996), p. 304, who also mentions (pp. 304–305) fragmentation of collective bargaining (“when the scope of the various negotiations refers to parts of a whole industrial sector or one company”) and multiplication of collective bargaining (“reflecting the existence of ‘parallel’ unions, i.e. open to representing the same workers”). 122  The law does not prevent a trade union affiliated in a union association (associação sindical) entering into a company agreement, even when there is a collective contract signed by that association or negotiations are in progress to that end, as follows, moreover, for example, from the rules on competition (Article 482.1 (a) and (b)), the same being true on the employers’ side. On this matter, see also Camanho (2002), pp. 189–190. 123  Notwithstanding the existence of atypical collective bargaining phenomena, where subjects without the capacity to enter into collective agreements (especially workers’ committees or works councils) enter into agreements on working conditions; concerning this phenomenon, Ramalho (2020), pp. 222 et seq. and, by the same author, Ramalho (2009), passim. On capacity to enter into collective bargaining, Silva (2022), volume I, pp. 1535 et seq. 119 120

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The negotiation process starts with submission of a proposal to the other party (declaration subject to acceptance)124 for conclusion or revision of a collective agreement, which must be made in writing, stating grounds and containing a number of elements (Article 486 paras. 1 and 2125). The party receiving the proposal is required to reply, also in writing and with grounds, within 30 days of receipt, unless a different time limit is agreed or if the proponent has indicated a longer period (Article 487.1); the reply (also subject to acceptance) must set out a position in relation to all the clauses in the proposal, which it may of course accept or reject, making a counter-proposal in the event of rejection (Article 487.3).126 The Code also established the duty of the parties, whenever possible, to give priority to different matters (remuneration, duration and organisation of working hours and health and safety at work), without however determining penalty effects (Article 488.1) and also stressing that the unfeasibility of an agreement on those matters does not constitute grounds for breaking off negotiations (Article 488.2); private autonomy is therefore not affected. The parties are subject to the general duty of good faith,127 resulting, by way of example, in legal requirements such as that of responding to proposals and counter-­ proposals as quickly as possible (duty of celerity), of respecting the negotiation protocol (if any), of being represented at meetings (duty of loyalty), of consulting their members in due time, which process cannot form grounds for interrupting or 124  Distinguishing between a proposal and an invitation to contract, Martinez (2022), p. 1144. See also Cordeiro (2018), pp. 653 et seq., stating that “a collective bargaining proposal is an indication, albeit precise, given in writing by one partner to the other, that it intends to initiate a process of collective bargaining” (p. 655). 125  These elements are: (a) designation of the entities subscribing it in their own name or on behalf of others; (b) indication of the agreement to revise and date of publication; (c) indication of the negotiated regulatory instrument and respective date of publication, if any, for the purpose of Article 482.5) (sub-paras. (a), (b) and (c) of para. 2, respectively). It follows from sub-paras. (b) and (c) that the source to be indicated, in accordance with this sub-para. (c), is the source connected to the instrument to be reviewed. 126  This results in a general duty to negotiate—different from the duty to contract—which constitutes a limit on collective autonomy, as moreover is confirmed by the fact of the legislator exempting from that duty a party receiving a proposal within less than 6 months of the agreement taking effect, although it is required to inform the proponent within ten business days (Article 487.2). Arguing that there is a duty to negotiate, Leitão (2021), pp.  614–615; Xavier (2020), p.  146. Arguing against this, Martinez (2022), p. 1146—stating that “it follows from this that there is a duty to negotiate, but not a duty to conclude the negotiations and enter into the collective agreement”. 127  Martinez (2022), p.  1145, states that this enshrines the general principle of culpa in contrahendo, contained in Article 227 of the Civil Code; Ramalho (2020), p. 255, also advocates application of Article 227 of the Civil Code. For Leite (2004), p. 164, note 237, within the framework of the Collective Labour Relations Law (LRCT), the duty of good faith outlined here goes beyond the parameters of contractual good faith, not least because we are here dealing with a fundamental right of workers which the law must guarantee; Leitão (2021), p. 646, “the duty of good faith has a significantly broader content, as indeed follows from the constitutional recognition of the right to collective bargaining”, referring to the examples set out in law.

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suspending the contacts under way (duty of loyalty), and of furnishing the information requested, unless this undermines their interests (duty of information) (Article 489, paras. 1–3). Lastly, we should point to technical support from the administrative authorities, visible in the requirement that the employment authorities and those responsible for the economic sector must furnish the information in their possession (Article 490.1); in addition, this is also the framework within which the duty of the parties to send their proposals and replies to the ministry responsible for employment matters should be considered (Article 490.2).128 Once the collective bargaining instrument has been (successfully) negotiated, the collective agreement is entered into.129 This must be done in writing, on pain of nullity (Article 477), and the agreement must be delivered to the relevant departments of the ministry responsible for employment matters130 for deposit (Article 494.1)131 and published in the Boletim do Trabalho e Emprego (Article 519.1, first part), taking effect in accordance with the framework established for the law (Articles 494 and 519.1). The Labour Code has established a general principle concerning application of the agreement—the principle of membership (heading to Article 496) or principle of double membership,132 determining that “The collective agreement is binding on an employer which signs it or is a member of the employers’ association signing it, and also on the workers in its service who are members of the trade union signing it” (Article 496.1).133 In accordance with the demarcation resulting from this rule, the agreement has effect in relation to the employer entering into it or, when it is entered into by an employers’ association, to employers belonging to that association; on the workers’ side, in view of the impossibility of workers signing a collective agreement without the  For more thorough treatment of the negotiation process, Menezes Cordeiro, Direito do Trabalho, volume I, cit., pp. 648 et seq.; Cordeiro (2018), pp. 648 et seq.; Leite (2004), pp. 164–165 and 175–176, which is still relevant; Leitão (2021), pp. 644 et seq.; Martinez (2022), pp. 1143 et seq.; Silva (2022), volume I, pp. 1548 et seq.; Silva, in Martinez et al. (2022), pp. 1035 et seq. 129  Obviously, it is possible for negotiations to take place without the parties reaching any collective agreement. 130  DGERT (Directorate-General of Employment and Labour Relations) is the authority responsible for overseeing and promoting collective bargaining, more precisely, in the area of labour relations and working conditions, for depositing and arranging publication of collective labour agreements, and their revocation, of accession agreements, arbitral awards and the resolutions of joint committees (cfr. Article 2, para. 1, final part, and para. 3, (b) and (d), of Regulatory Decree 40/2012, of 12 April). 131  This is an essential preliminary to publication and the consequent entry into force and consists of receipt and registration of the signed agreement, and any acts on the part of the employment authorities interfering with the content of the agreement are clearly precluded. On deposit and the respective prerequisites, cfr. Silva (2022), volume II, pp. 1879 et seq. 132  Expression used, for example, by Martins (2001), p. 277; Silva (2001), p. 20. 133  On the (subjective) effects of the agreement, see, for example, Judgment of the Supreme Court of Justice, of 5 December 2007 (Case no. 07S3656), cit., item 3.2.1.; Judgment of the Supreme Court of Justice, of 9 March 2017, Case no. 161/15.4T8VRL.G1.S1, www.dgsi.pt, sectopm III. 1. 128

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intervention of the union, the agreement is also binding on the workers belonging to the entity entering into it who are in the service of the employer signing it or belonging to the entity signing it.134 In other words: the collective agreement applies, on the one hand, to the employer signing it or belonging (directly or indirectly) to an employers’ association which is a party and, on the other hand, to the workers belonging (directly or indirectly)135 to the trade union association signing the instrument who fall within the scope of application of the collective bargaining instrument, meaning that it is necessary in all cases—except in the case of a company agreement136—for the two parties to the employment relationship to be members of the respective associations.

4.1.5 Spain The Spanish Constitution of 1978, “radically modern and laboriously drawn up through a process of consensus”,137 determines, in its preliminary part, that “trade unions and employers associations contribute to the defence and promotion of the economic and social interests which they represent” (Article 7), going on to state that “their creation and the exercise of their activities shall be unrestricted in so far as they respect the Constitution and the law. Their internal structure and operation must be democratic”. This article “constitutes an atypical and unusual precept in comparative constitutionalism”, as it is unusual for trade unions and business associations to be expressly subject to the same legal framework.138 In addition, after establishing the freedom of association139 and the right to strike (Article 28),140 it lays down, also in the section on fundamental rights and duties

 The concepts of association law are set out in Article 442. For further reading, Silva, in Martinez et al. (2022), pp. 975–976. 135  We use the term “direct” to refer to the situation where the member belongs to the signing organisation and “indirectly” to that where the member belongs to an association which in turn is a members of the signing entity. 136  In company agreements, the employer is simultaneously party to the agreement and a subject falling within its scope as party to the employment contract. 137  Martínez Girón (1999), p. 759. 138  The article proceeds: “Its creation and the exercise of its activity shall be free in compliance with the Constitution and the Law. Its internal structure and functioning shall be democratic”. 139  As stressed by Borrajo Dacruz (1980), p. 18, “the requirement of the pluralism resulting from the freedom of organisation is so significant that the Spanish Constitution of 1978 does not authorise statute law to limit the content of the individual freedom of organisation (Article 53.2) and requires that trade union issues be governed by no less than an Organic law (Article 28.1 in combination with Article 81.1)”. 140  The Constitutional Court, in decision no. 75/92, of 14 May, www.tribunalconstitucional.es, section II. 5, upheld the differentiation between the right of association and workers’ right of association, rejecting application of Article 28.1 of the Spanish Constitution to employers, which does not mean, it noted, that the Constitution does not contain rules protecting employers’ organisations. On the freedom of association for this class, see, for example, Lahera Forteza (2006), pp. 298 et seq. 134

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(part I, Chap. II), that “the law shall guarantee the right to collective labour bargaining between worker and employer representatives, as well as the binding force of the agreements” (Article 37.1). It should be noted that “worker and employer representatives” are recognised as having the right to collective bargaining, there being no reference to unions or employers’ associations.141 Collective bargaining is included in the activities and means of action encompassed by trade union freedom, when exercised by union organisations.142 Collective autonomy and the right to collective bargaining are established as an essential right in the democratic functioning of the labour market, contributing to improvement in the working and living conditions of workers, and serving as a fundamental tool in ordering labour relations.143 The normative core of Article 37.1 is not only collective autonomy, but rather collective bargaining understood as a system, i.e. as a set of rules of action and organisation whereby social actors exercise the autonomy guaranteed to them by the Constitution, forming the basis of a new system of producing norms in the domain of Labour Law, which goes beyond the idea of collective bargaining as a subordinate normative system.144 By laying down that the “law shall guarantee the right to collective bargaining”, the Spanish Constitution expressly provides for this right to be configured in law, conferring a mandate on the legislator and requiring further legislation designed to guarantee that right.145 Article 37.1, cited above, recognises the right to collective bargaining, entrusting the task of assuring this right to the legislator. It therefore delegates the matter to ordinary law, which may limit the scope of intervention of collective bargaining in

 We may also point to the attribution of powers in labour matters to the State (Article 149.1, vii)). Montoya Melgar (2022), p. 131, highlights the omission of any reference to unions and employers’ associations in the constitutional precepts on collective bargaining—recognised as a right of representatives, not necessarily trade union representatives, as indicated in the Preliminary Draft, of workers and employers. Strike is also recognised as a right of “workers” (Article 28.2), and the right to adopt collective labour dispute measures is also attributed to “workers and employers” (Article 37.2). In view of this, he concludes that the Constitution intended to leave open the possibility of the interests of workers and employers being represented and defended on a basis other than through associations. For an examination of the freedom of association, in view of the constitutional rules on collective bargaining, see, in addition to Montoya Melgar (2022), pp. 133 et seq., Alarcón Caracuel (1993), pp. 56 et seq.; Alonso Olea (1990), pp. 111 et seq.; Garcia Blasco (2004), pp. 67 et seq.; Duran Lopes (1980), pp. 532 et seq.; Fernández López (2011), pp. 31 et seq. and 193 et seq.; Freixes Sanjuán (1986), pp. 295 et seq., with a wide-ranging analysis of other collective phenomena (pp. 243 et seq.). 142  Cfr. Decisions of the Constitutional Court no. 4/1983, of 28 January, and no. 39/1986, of 31 March (http://hj.tribunalconstitucional.es). 143  Cfr. Decision of the Constitutional Court 88/2014, of 7 July (http://hj.tribunalconstitucional.es). 144  Dal-Ré (1979), p. 471. 145  Dal-Ré (1979), p. 472. 141

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certain aspects or on certain matters, insofar as law ranks about collective bargaining in the hierarchy of sources.146 The Estatuto de los Trabajadores (“Workers’ Statute”, or ET)147 includes collective bargaining (negociación colectiva) among the sources of labour law (Article 3.1 (b)) and in the catalogue of the “basic” rights of workers (Article 4.1 (c)), conferring on it a broad scope of intervention (Article 85.1).148 In the event of conflict between the law and collective agreements, the Statutes determines, without prejudice to the hierarchy of sources (Article 85.1 ET) and respect for the “minimum legal standards”, that the norm to be applied will be that most favourable to the worker “considered as a whole and calculated on an annual basis, as regards quantifiable concepts” (Article 3.3 ET). The Statute considers the parties to collective agreements to be “the representatives of workers and employers” (Article 82.1).149 In effect, in line with Article 37.1 of the Constitution, it assigns standing to be party (Article 87 ET)150 to the representatives of workers and employers, determining precisely who can enter into collective labour agreements. This is a decentralised model for collective bargaining which, on the workers’ side, requires union representation—entrusted to the trade unions (Article 87.2 ET), such as the union representation in the company or at a lower level (Article 87.1 ET)— or the unitary representation of the workers in the company or workplace—company committee and workers’ delegates (Article 87.1 ET)151—lending support to the aspiration of unions to play a key role in collective bargaining, as well as excluding the possibility of such as role being taken by ad hoc or unrepresentative groups.152

 Cfr. Decisions of the Constitutional Court no. 210/1990, of 20 December, and no. 119/2014, of 16 July (http://hj.tribunalconstitucional.es). 147  ET has recently undergone a major reform, in the framework of the Social Agreement with the social partners, dated 23 December 2021, through Royal Decree-Law 32/2021 (Urgent measures for labour reform, the guarantee of employment stability and the transformation of the labour market, of 28 December, and Royal Decree-Law 1/2022 of 18 January. For an analysis of the amendments, among others, Mella Méndez (2022), passim; Cruz Villalón (2022), pp. 11 et seq, in particular, pp. 22 et seq; Sáez Lara (2022), pp. 335 et seq., in particular, pp. 349 et seq.; Molina Navarrete (2022), pp. 387 et seq., in particular, pp. 397 et seq. 148  As stated by the article, “within the terms of the law, collective agreements may regulate economic, employment and trade union matters and, in general, others that affect working conditions and the scope of relations between, on the one hand, workers and the organisations representing them and, on the other, the employer and employers’ organisations, including procedures for resolving disagreements arising in the consultation periods provided for in Articles 40, 41, 47 and 51″; see also, § 2 and para. 2. For a thorough examination of this matter, Vicente Palacio (2015), pp. 1 et seq., http://fundacion.usal.es. 149  The subjects who conduct the negotiations (comisión negociadora) are distinct from the parties; Article 88 contains specific regulations on this matter. 150  Montoya Melgar (2022), p. 176, refers to “capacity to be party”. 151  Collado Garcia et al. (2015), p. 209, stress that joint negotiation by both forms of representation (unitary and union) is not permitted. 152  Montoya Melgar (2022), pp. 170–171 and 176 et seq., who points out that the representation here, in both committees and delegates, is “deeply unionised” (p. 176), which is understandable in view of the important role taken by unions in electing the representatives (for example, Articles 67.1, (i) and iii), and 69.3 of the Statute). 146

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Capacity to be a party to a collective agreement, on pain of nullity, 153 varies depending on the type of instrument in question. On the workers’ side, it belongs to: (a) company (or smaller scope) agreement—company committee, workers’ delegates and the unions which, overall, have the majority of committee members (Article 87.1 ET154);155 (b) industry agreement—the most representative unions at state level (and also, in their respective fields, the entities affiliated with them) or that of the autonomous community when existing only within its territory (and respective affiliated organisations, in their respective areas) and also the unions that have at least ten per cent of the members of the company committees or workers’ delegates (within the geographical or functional scope to which the agreement refers) (Article 87.2, (a) to (c), respectively, ET;156 (c) state-wide agreement—the most representative unions of the autonomous community (Article 87.4 ET157).158 In addition to the Statute, attention should be paid to the Trade Union Freedom Law (Ley Orgánica 11/1985, de 2 de Agosto, LOLS),159 which confers certain prerogatives on the most representative union, underlying which is the need to identify “the union organisations with legitimacy to represent the general interests of the workers (not only those of their members)”.160 These include, in particular,

 Montoya Melgar (2022), p. 177.  See also § 2 of Article 87.1 ET. In relation to agreements applying to a group of workers with a specific occupational profile, the Statute also provides for the involvement of the unions which have been chosen by a majority of those they represent, through individual, free, direct and secret ballot (Article 87.4 § 4). 155  The workers’ delegates and company committees are representative bodies provided for in the first chapter of title II (Articles 61–76) of the ET, entitled Of the Right to Collective Representation. Workers’ delegates and company committees have the same powers (Article 62.2), which include authority to receive information on the general evolution of the economic sector in question and likely evolution of employment in the company; to be informed of the economic situation and to pronounce on reorganisation measures, short-time working (Article 64.1, § 1, 3 and 4). 156  These delegates and committees also have powers to enter into an agreement for a group of companies or that affects a plurality of companies for organisational or production reasons, specifically named (Article 77 sections 1 § 3 and 2). 157  The law adds, “as established in Article 7.1, of Organic Law 11/1985, of 2 August”. 158  For further reading, Montoya Melgar (2022), pp. 145 et seq. and 176 et seq.; and Collado Garcia et al. (2015), pp. 33 et seq., 53 et seq. and 207 et seq. 159  Boletín Oficial del Estado, of 8 August 1985, no. 189, pp. 25119–25123, last amended on 28 July 2011, www.boe.es, with consolidated text; as is common in Spain, the Explanatory Memorandum contains a detailed account of the law. 160  Montoya Melgar (2022), p. 145. For nationwide unions, the criteria for determining the most representative are: (a) obtaining in elections ten per cent or more of the total of workers’ delegates or members of company committees (direct representativeness); (b) membership of an organisation which is the most representative (representativeness through membership), Article 6.2 (a) and (b) LOLS. In relation to unions at regional (Autonomous Community) level, the Trade Union Freedom Law provides specifically that the most representative are those that have at least 15% of the workers’ delegates and employees’ representatives on company committees, whenever they have a minimum of one thousand, five hundred representatives; those affiliated to a trade union organisation at regional level deemed most representative on the above terms (Article 7.1 (a) and (b) LOLS). On this matter, cfr., for example, Collado Garcia et  al. (2015), pp.  28 et  seq.; Álvarez 153 154

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“­ collective bargaining, on the terms established in the Workers’ Statute” (Article 6.3 (b)), in other words, with general efficacy.161 In addition to the most representative unions (nationwide), the legislator (of the LOLS) admits that quasi most representative unions (with effects within the geographical and functional scope in which they represent a minimum of 10% of the workers) and unions of ordinary representativeness (with effects limited to their members) are also able to enter into collective agreements.162 In relation to employers,163 whose organisations, under Article 7 of the Spanish Constitution, are subject to the same legal rules as trade unions,164 the Statute states that employers and their associations have standing to enter into collective agreements (Article 87.3, ET 2015). Cuesta (2006), pp. 67 et seq. and 146 et seq.; Lahera Forteza (2006), pp. 1 et seq., www.adapt.it; Montoya Melgar (2022), pp. 145 et seq. 161  They also enjoy other privileges: (1) institutional representation before the public administrative authorities or other state or regional bodies and entities; (2) participation as interlocutors in determining terms of employment in the public administrative authorities, through consultation and participation procedures; (3) participation in non-judicial labour dispute resolution systems; (4) organisation of elections for workers’ delegates and company committees (Article 6.3, (a), (c), (d) and (e), respectively, LOLS). 162  The expressions are those used by Montoya Melgar (2022), pp. 147–148, in characterising and distinguishing between types of unions, explaining that: (a) quasi most representative unions are those which, while failing to meet the requirements for the most representative, nonetheless have, within a specific territorial and functional scope (distinct from national or regional level), a minimum of ten per cent of workers’ delegates or members of company committees, thereby having “standing” or capacity to exercise, within such territory or field, the powers established in law, including those of collective bargaining (Article 7.2 LOLS); (b) in contrast, unions of ordinary representativeness are those which do not meet any of the requirements established for the others, enjoying none of the prerogatives established for the most representative and quasi most representative unions. However, they still have a series of powers enjoyed by any trade union, such as to draft their articles of association, constitute federations, affiliate themselves with international organisations and, very importantly, to engage in collective bargaining and to organise strikes (Article 2.2 (a) to (d), LOLS). Trade union activities, among which the legislator includes collective bargaining, are carried on “on the terms laid down in the corresponding legal rules” (Article 2.2 (d), in fine, LOLS); the corresponding legal rule in this matter is the Estatuto de los Trabajadores (Title III), which confers erga omnes efficacy on collective agreements and does not recognise the capacity of unions of ordinary representativeness. The Constitutional Court was called on to pronounce on certain issues of the constitutionality of the law and ruled that “all unions can conduct collective bargaining of limited effects”, which permits ordinary unions to enter into collective agreements, albeit with effects limited to their members, cfr. Sentencia no. 98/1985, de 29 de Julio, Boletín Oficial del Estado, de 14 de Agosto de 1985, no. 195 (suplemento), pp. 47 et seq., 58, www.boe.es, with an analysis of the different in treatment of unions on the subsequent pages. See also Montoya Melgar (1986), pp. 473 et seq., especially, pp. 476 et seq.; and, in considerable depth, Monereo Pérez (2016a, b), pp. 1–18, Sala Franco (2017), pp. 62 et seq. and 200 et seq.; see also decision no. 75/92, of 14 May, cit., on the “status of most representative”. 163  It should be noted that the LOLS (disposición derogatoria) recognises the right of employers to form associations, notwithstanding international conventions to which the State is party. On this matter, Montoya Melgar (2022), pp. 153–154. 164  In greater depth, Montoya Melgar (2022), pp. 153–154.

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As in the case of trade unions, the legal framework (Article 83.3, (a) to (c)) specifies the terms on which employers have “capacity for collective bargaining”: (a) company (or smaller scope) agreements—the employers, directly or through its representatives; (b) agreements for corporate groups or that affect a plurality of companies—the structure or person representing those companies; (c) collective agreements at industry level (of national, regional or provincial scope, etc.)— employers’ organisations which within the territorial and function scope of the agreement165 represent 10% of employers166 and which employ the same percentage of the workers affected, as well as associations that account for 15% of the workers affected; (d) in sectors or industries where employers’ associations do not have this level of representativeness, “capacity” to negotiate agreements at industry level will lie with national associations that account for 10% or more of the companies or workers in that sector, as well as regional employers’ association (at autonomous community level) that account for at least 15% of undertakings or workers; lastly, nationwide agreements—regional employers’ association who account for at least 15% of employers and workers within the scope of the agreement (Article 87.4, ET, and disposición adicional sexta).167 After a phase of negotiation,168 the collective agreement must be drawn up in writing—on pain of nullity (Article 90.1, ET)169—and is subject to deposit, registration and publication, taking effect on the date agreed by the parties (Article 90, paras. 2–4, ET).170 It also falls to the parties to define the geographical and functional scope of application (Article 83.1, ET), within those they represent.171 The legal rules have endorsed the general efficacy of collective agreements, determining that they “are binding on all employers and workers falling within their  Functional scope is identified “with the industry, economic sector or subsector, undertaking or workplace or multi-industry scope”, García Viña (2011), p. 133. 166  Under Article 1.2, ET 2015. 167  See also, Montoya Melgar (2022), p. 178. 168  See in the first place Articles 88 and 89 ET: and for an analysis, Montoya Melgar (2022), pp. 189 et seq.; Sala Franco (2017), pp. 231 et seq. 169  For more thorough treatment, Arufe Varela (2009), pp. 411 et seq. 170  Publication is in the Boletín Oficial del Estado or, in line with the territorial scope of the agreement, in the official gazette of the corresponding autonomous community or province (Article 90.3, ET 2015). See also Real-Decreto 713/2010, de 28 de Mayo, Boletín Oficial del Estado, de 12 de Junio de 2010, núm. 143, pp. 50339–50369, regulating the registration and deposit of collective labour agreements; on this matter, cfr. García-Murcia and Rodríguez Cardo (2009), pp. 569 et seq., classifying publication as a requirement for validity; and also Monereo Pérez (1987), pp.  519 et seq.; Montoya Melgar (2022), pp. 183–184; Martín-Retortilho (2013), pp. 38 et seq., cited above also containing a historical analysis (pp. 23 et seq.). 171  The geographical scope may be local, provincial, multi-provincial, regional (autonomous community) or national, whilst functional scope (the industry or sector operated) may encompass an entire economic sector (for example, the chemical or footwear industries), all the workers in a company (or workplace, department or section), a group of companies or specific category of workers (franja, for example, management staff or doctors) within a given territory (mentioned above) or company, cfr. Montoya Melgar (2022), pp. 175–176. 165

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scope of application and for their entire duration” (Article 82.3, ET).172 They therefore apply imperatively to all workers and employers included within the functional and territorial scope established in the agreement, irrespective of whether they belong to the signatory parties, for the their entire duration,173 notwithstanding that unions which do not meet those requirements may enter into agreements applicable to their members (agreements with limited efficacy or ‘extra-statutory’ agreements);174 it is noted that the “the normative character and general efficacy of collective agreements derive directly from the idea of general or majority representation”.175

4.2 Right to Strike and Lock-Out 4.2.1 Italy In Italy, the Fundamental Law (of 1947) laid down that the “the right to strike shall be exercised in compliance with the law” (Article 40). This amounts to a “compromise and oblique” provision that was imported from the preamble to the French Constitution of 1946,176 although it has been accepted,  Notwithstanding that Article 82.3 ET states that, due to economic, technical, organisational or production reasons, an agreement between the company and the workers’ representatives with “standing” to negotiate a collective agreement may stipulate that the employment terms established in the collective agreement are not applied, on matters such as daily working hours and the respective distribution, and pay; this provision also specifies the different causes and establishes the necessary procedures, providing for the possibility of agreement not being reached and intervention by the Comisión Consultiva Nacional de Convénios Colectivos, which will then decide on the matter; see also disposición adicional novena, (c) os para. 1. For further reading, in addition to the sources already indicated, Goerlich Peset (2014), pp. 49 et seq.; Sala Franco (2017), pp. 249 et seq. and 288 et seq.; Terradillos Ormaetxea (2016) pp. 1 et seq., especially, pp. 6 et seq., www. adapt.it, with plentiful references to ILO instruments; Quintanilla Navarro (2016), pp. 157 et seq., with an annex summarising court rulings. 173  This rule on duration (for the entire validity period) has been invoked by legal theory and case law to consider irrelevant any changes in terms of the prerequisites for representative “standing”, i.e. the prerequisites in relation to the permitted organisations (for example, a reduction in the membership of employers’ associations) are assessed at the start of negotiations, cfr. Sala Franco (2017), p. 251. 174  Collado Garcia et al. (2015), p. 213, stress that agreements of this type “cannot provide on the employment rights and guarantees established in generally effective agreements. In the event of a generally effective agreement already existing, they can only improve on the terms established in it, and not affect the rights recognised or vary the rules on working conditions”. See also, notwithstanding the note above, Baylos Grau (2010), pp. 32 et seq., referring to the subsidiary character of ‘extra-statutory agreements’ (p. 34); Montoya Melgar (2022), pp. 173 et seq.; Sala Franco (2017), pp. 263 et seq. 175  Baylos Grau (2010), p. 27, with further treatment of the subject on the following pages. On the binding nature of collective agreements, for all, Duque González (2018), pp. 706 et seq. 176  Carinci et al. (2018), p. 335. 172

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not without debate, that this amounted to recognition of a directly applicable fundamental right,177 which must be exercised in accordance with the legal framework. 178 In line with a certain tradition in the Italian legal system (we may recall the failure to act on Article 39), the issue of strikes lay untouched by (general) legislation for almost 40 years, although it should be stressed that, in contrast to the phenomenon of collective bargaining, the absence of regulation allowed legal theory and case law to fill the gap, as well as recognising that this is a directly applicable right.179 On the other hand, it is important not to ignore the Statuto del Lavoratori (1970), which, without directly regulating this matter, protected the right to strike (e.g. discriminatory acts, Article 15 (b); anti-union conduct 28, § 1).180 The Corte Costituzionale was eventually called on to pronounce on the various rules of the Codice Penale (Regio Decreto 19 ottobre 1930, n. 1398), which, not having been expressly repealed, raised doubts as to the rules penalising labour disputes (Articles 502–508), classified as offences against the national economy; these included strike and lock-out, with or without contractual purposes, political strike, sympathy strikes, boycott, 181 factory sit-ins and sabotage). This process of clarification naturally made it possible to establish the rules on strikes and lock-outs.182 The debate as to the scope of the right to strike divided legal scholars, with some advocating a contractual model (strike is an instrument of contractual self-defence), and others arguing that strikes are a mechanisms for enforcing the freedom of trade union organisation and activity. The Corte Costituzionale took the line that no separation existed between the trade union and political domains, which was to be the prevailing view in the legal system, stating that “In general, we may observe that it appears difficult, if not impossible, to distinguish between a strike with economic aims and a strike with political aims, given that close connection between the two forms, so that even a strike that results essentially in pressure and should be regarded  Calamandrei (2019), pp. 453 et seq., analysing the relevance of its being enshrined in the constitution; Giugni (2014), p. 260; Punta (2022), p. 285. 178  Calamandrei (2019), p.  444, explaining that, during the preparatory proceedings of the Constituent Assembly, it was proposed that the right to strike be “formulated simply and categorically”, proclaiming it directly and unconditionally: “All workers are assured the right to strike”; or: “All workers have the right to strike”. However, this proclamation was softened and “almost disguised”, in the formulation that later became Article 40, “in which the tonic, which in the original formulation was placed on the affirmation of the right to strike, was shifted and concentrated in the provision for the laws which will govern its exercise. However, this is not to say that, albeit in this indirect and almost circumspect way, the Article does not actually recognise the right to strike, insofar as it features as an assumption”. For a commentary on the article, Romagnoli (1979), pp. 289 et seq. 179  Carinci et al. (2018), p. 337. 180  Romagnoli (1979), pp. 302 et seq. For a general analysis of the Statuto del Lavoratori, cfr. above note and Carinci (2021). 181  This term is derived from the name of a land agent in Ireland whose brutal treatment of his tenants in the 1870s triggered a movement in which local people refused to work for him or sell him any materials; this caused him to be socially ostracised. 182  For example, Carinci et al. (2018), pp. 339 et seq.; Fernandes (1984), pp. 377 et seq.; Giugni (2014), pp. 258 and 273 et seq.; Pascucci (2011), pp. 217 et seq.; Tarello (1972), pp. 57 et seq. 177

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as an economic strike, amounts to a political strike for the political authorities insofar as it encourages them to accept certain demands of a particular class, such as improved legislation on safety at work, more appropriate welfare measures for workers and their families, at work, etc.”. And also: “at the current historical moment in Italian society, the concept of strike should have a meaning and reach much broader than a mere refusal to work”, concluding that, “as well as including Articles 35, 38, 45 and 46 of the Constitution, the protection conferred by Article 40 appears also to extend to Article 3. What is more, this article would seem indeed to represent the starting point for interpretation of Article 40 and all the other rules mentioned in the title in which it is included”.183 The path was therefore clear to a broad concept of strike, which the ordinary case law confirmed, by deciding that strike, in the social context, which could not be ignored by the authors of the constitution and ordinary legislation, “means nothing more than a collective refusal to work, organised by a plurality of workers, in order to achieve a common objective”.184 In contrast, lock-out was characterised as a mere freedom, on the basis of Article 39.1 of the Constitution, not having the nature of a right, as in the case of a strike (Article 40); in other words, “The position that was then determined with regard to strike and lock-out, in the context of the system of freedom envisaged in Articles 39 and 40 of the Constitution, is therefore this: strike is recognised by the Constitution as a right, but one, in accordance with the precise requirement of Article 40, destined to be regulated by law, while lock-out, although not enjoying that recognition, is also no longer classified in criminal law terms as it was at the time by company law, is currently an act not prohibited by criminal law or, as commonly said, a criminally lawful act”.185 And so it is the protected freedom that has contractual purposes, in other words, that exercised to resist an alteration in better terms of employment or to accede to a modification in pejus of those terms.186 This difference in regulation, which was not limited to restoring a freedom, was based on the lack of a level playing field between

 Sentenza della Corte Costituzionale n.° 290/1974, of 27 December, www.giurcost.org, § 3, which ruled that Article 503 of the Criminal Code—deeming political strikes to be a crime—was unconstitutional. See also Carinci et al. (2018), pp. 351–352. 184  Corte di Cassazione, 30 January 1980, case no. 711, Il Foro Italiano, volume 103, 1980, no. 1, columns 28 et seq. (30), adding that: “on the other hand, the actual reality of the facts had already done the work of setting aside the theory of ‘unfair damage’, or of ‘equal sacrifices’, because in any undertakings with continuous operations, any type of strike, even those falling within the parameters considered ‘normal’, nonetheless bring losses greater than the mere loss of production during the period in which labour is withdrawn, due to the unavoidable waste of raw materials and the particular technical requirements of restarting operations” (30). 185  Sentenza della Corte Costituzionale no. 29/1960, of 4 May, https://www.giurcost.org/, § 4, which examined whether criminalising lock-outs was compatible with the Constitution. See also Mazzotta (2017), pp. 183–184. 186  Carinci et al. (2018), pp. 380 et seq., especially, pp. 382–383. 183

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the two sides of industry, and is a manifestation of the difference between the Welfare State and the Liberal State.187 Various consequences have been shown to flow from the rule’s constitutional status, including: 1. Strike constitutes the exercise of a (fundamental) workers’ right,188 and does not entail breach of contract; 2. By virtue of the absence of any general regulations on strikes, the limitations arise from the socio-historical rationale of the constitutional precept and the unassailability of other constitutionally guaranteed rights and interests; 3. Strike presupposes a withdrawal of labour, decided on and implemented collectively in order to protect collective interests—including interests not related to pay and those of a general political nature, when and insofar as employment relations are affected; 4. The objective assessment that may be made of the strike’s validity and reasonableness, and of the importance of the related demands, as well as of the failure to formally proclaim the strike and notify the employer and the fact that the strike is damaging to the employer, halting or reducing the company’s output, “is a natural consequence of the strike’s mandatory function of self-protection”;189 5. During such exercise, the contract is suspended, the worker being released from his duty to work, and the employer from its corresponding obligations; 6. Lock-out is a mere freedom, and does not enjoy the same constitutional protection as strike. This means that it amounts to a breach of contract, the employer being obliged to compensate the workers for any damages caused, as well as potentially constituting anti-union behaviour (Article 28 Statuto Lavoratori).190 In addition to the Corte Costituzionale, trade unions were to have (and still have) an important role in regulating strikes (unilateral/self- or agreed regulation).191 It was four decades before publication of Legge no. 146/1990, 12 giugno (Norme sull’esercizio del diritto di sciopero nei servizi pubblici essenziali e sulla salvaguardia dei diritti della persona costituzionalmente tutelati. Istituzione della Commissione di garanzia dell’attuazione della legge, with amendments), regulating strikes in essential public services.

 Giugni (2014), p. 259.  For an analysis of this issue, Calamandrei (2019), pp. 449 et seq., presenting arguments that remain valid today. 189  Corte di Cassazione, 17 December 2004, case no. 23552, Il Foro Italiano, volume 108, 2005, no. 10, columns 2774 et seq. (2777). 190  Calamandrei (2019), pp. 464 et seq.; Carinci et al. (2018), pp. 353 et seq., especially, pp. 367 (effects of strike); Giugni (2014), pp. 261 et seq.; Mazzotta (2017), pp. 183–184, 188 et seq. and 212 et seq.; Pileggi (2011), pp. 605 et seq.; Punta (2022), pp. 285 et seq. In the case law, admitting the use of management resources seeking to limit the damages caused by a strike, Corte di Cassazione Civile, of 28 March 2019, case no. 8670, https://sentenze.laleggepertutti.it. 191  Carinci et al. (2018), pp. 344 et seq. 187 188

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This law, which came in the wake of several decisions of the Corte Costituzionale concerning the Codice Penale (1930), on the matter of public services (e.g. Articles 330, 333 and 340),192 was naturally influenced by those decisions; in addition, this legislation was drawn up with the full participation of union federations, and so also paid heed to the existing self-regulatory frameworks.193 Irrespective of the legal nature of the employment relationship, the law regulates essential public services, especially those intended to ensure enjoyment of personal rights protected in the Constitution, namely to life, health, freedom and security, to freedom of movement, welfare and social security, education and freedom of communication (Article 1). From this starting point, it establishes a number of rules, in particular those which protect the situation of employers and the community, namely, establishing the obligation to give notice, among other things, of the reasons for the strike, to the employer and to the relevant authorities (Article 2.1); this notification must be given (at least) 10 days in advance (Article 2.5); both workers and employers are required to provide indispensable services (Article 2.3); a significant feature of the legal framework is the broad scope offered for collective bargaining (e.g. Article 2.2, which provides for contractually agreed resolution procedures) and for the Comissione di Garanzia della Attuazione della Legge (independent administrative authority194), responsible for guaranteeing application of the law, in order to assess the adequacy of the measures designed to ensure a balance between exercise of the right to strike and enjoyment of the personal rights protected by the Constitution (Article 12.1), with powers to assess the adequacy of indispensable services and, if they are not deemed adequate, to set provisional rules on essential services, conciliation procedures, to pronounce on self-regulation agreements and to inform the parties about breaches of the law, as well as the relevant authority of situation where strike may result in an imminent danger of undermining constitutionally protected rights (Article 13, sub-paras (a), (b), (d) and (f), respectively).195

 For example, Sentenza della Corte Costituzionale no. 123, of 28 December 1962; Sentenza della Corte Costituzionale no. 31, of 17 March 1969; Sentenza della Corte Costituzionale no. 125, of 23 July 1980, available at https://www.cortecostituzionale.it. 193  Carinci et al. (2018), p. 398. 194  The Commission comprises nine members, chosen, on the basis of nominations from the Presidents of the Chamber of Deputies and the Senate, from among specialists in constitutional law labour law and industrial relations, and appointed by decree of the President of the Republic, for a non-renewable 6-year term of office (Article 12, paras. 2 and 3). 195  For a detailed analysis, inter alia, Carinci et al. (2018), pp. 395 et seq.; Ferrari (2011), pp. 419 et seq.; Giugni (2014), pp. 287 et seq.; Mazzotta (2017), pp. 197 et seq.; Pilati (2011), pp. 277 et seq.; Punta (2022), pp. 303 et seq.; Santoro-Passarelli (2020), pp. 407 et seq. 192

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4.2.2 Germany No provision is made expressly in the German constitutional law on the subject of industrial disputes, in particular on strike action, although such provision may be extracted from Article 9.3 of the Basic Law. 196 The legal rules have been developed by case law and legal theory, with the former being clearly “permeable” to the latter, meaning that to speak of “law shaped by the courts is effectively to speak of ‘law made by jurists’, insofar as case law has been decisively influenced by legal theory, and most particularly by Hueck and H. C. Nipperdey”.197 The first decisive judicial decision dates from the mid-1950s, and is regarded as the “starting point”.198 This was a ruling of the Federal Labour Court (BAG), of 28 January 1955, which expressly recognised that “industrial disputes (strikes and lock-outs) are generally undesirable because they cause economic damage and undermine industrial peace, which is in the interest of the community as a whole; but they are permitted within certain limits, in the basic liberal social order of the Federal Republic of Germany”, and so “there is freedom of industrial action, freedom of strike action and freedom of lock-out”.199 Strikes set out to “suspend the employment relationship in order to put pressure on the other party to promote collective labour agreements with more favourable terms of employment”, and strikers intend to resume compliance with their employment contracts at the end of the dispute. At the same time, the ruling invoked the principle of social appropriateness, despite its “home territory” being criminal law and, in private law, the field of unlawful acts. The Court also ruled that strike action decided on by a union and taken by workers without prior notice does not entitle the employer to terminate employment contracts immediately, on grounds of breach of contract.200 Also significant was the position taken that “recognition of union action, the principle of neutrality and the principle of equality under Article 3 of the Basic Law bars the State, in order words, its legislation, administrative authorities and government, from treating the armoury of the two social partners unequally”; the principle of equality of arms must be respected.201 And so it concluded that employers may have recourse to “measures of collective defensive struggle (defensive lock-out)”.202

 Schaub (2019), § 192, IX, 1, who writes that “the fundamental right under Article 9 III of the Constitution permits associations to choose the means they deem appropriate for achieving their ends”. It may be noted that there are state constitutions containing provisions on collective disputes, Hromadka and Maschmann (2020), pp.  163–164, for example, Constitution of Hesse (Article 29.5). 197  Martín Valverde (1972), p. 34. 198  Martín Valverde (1972), p. 37. 199  BAG, 28.01.1955 - GS 1/54, Neue Juristische Wochenschrift (NJW), 1955, no. 23, p. 883. 200  BAG, 28.01.1955 - GS 1/54, cit., p. 884. 201  BAG, 28.01.1955 - GS 1/54, cit., p. 884. 202  BAG, 28.01.1955 - GS 1/54, cit., p. 885. 196

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On the basis of this decision and with the help of legal theory and subsequently developments in case law,203,204 various structural features of the German system were consolidated. In outline, we may point to the following:205 1. Equality of arms: the two labour subjects are able to make use of dispute mechanisms (strike and lock-out), because “if one of the sides, namely manpower represented by the union, were alone able to decide on a fight, and the employer had merely to tolerate and endure the union action, there would be the risk that the regulation of terms of employment would cease to be based on a system of free agreements, which is a prerequisite for the functioning and internal rationale of the system of collective bargaining”;206 “the grounds for lock-out lie in collective autonomy, for which the core guarantee is contained in Article 9.3 of the Constitution”;207 2. Social appropriateness(Sozialadäquanz): on the basis of Sect. 823, I, of the BGB,208 from which follows the general rule of relief for damages, parameters were developed for the lawful strikes and lock-outs, which means that unless the behaviour is socially appropriate, there will be unlawfulness and the consequent obligation to provide relief, provided of course the other requirements are met.209 For behaviour to be deemed socially appropriate, allowing the labour dispute to be conducted “in keeping with the ethical and social order, developed historically, of the life of society, essential working life, and also in accordance with the  For an analysis of the main rulings of the BAG, Linsenmaier (2019), pp. 167 et seq.  Despite a number of attempts to regulate collective disputes, such as the proposal by Birk et al. (1988) (the main body of this draft law is translated in Hanau (1993), pp. 101 et seq.), enshrining, in many cases, consolidated case law and legal doctrine, such as the principle of proportionality (§ 2) or the ultima ratio principle (§ 3). 205  Kaskel and Dersch (1957), p. 327, identify four requirements for a labour dispute to be legitimate and appropriate: (1) called by a professional association or which has been subsequently approved and continued by that association, after starting spontaneously; (2) the aims must fall within the scope of the terms of employment, thereby excluding political strikes; (3) it must be socially appropriate, which means it cannot be go against a collective agreement; (4) comply with the legal framework, especially as regards boni mori (common decency or community values). Notwithstanding the authorities identified below, see also the general assessment in Fernandes (1984), pp. 352 et seq., criticising the German model; Martín Valverde (1972), pp. 33 et seq., especially, pp. 38 et seq. 206  BAG, 21.04.1971 - GS 1/68, Neue Juristische Wochenschrift (NJW), 1971, no. 37, pp. 1669–1670. 207  BAG, 10.06.1980–1 AZR 168/79, https://www.prinz.law/, § A. I. The Constitutional Court was later to reaffirm this position, BVerfG, 26.06.1991–1 BvR 779/85, https://openjur.de, § 42, declaring that freedom of association applies, by virtue of Article 9.3 of the Federal Constitution, to all and to all professions, and so, although historically it was successfully fought for by the workers, “it was conceived of as a fundamental right only of workers, but also of employers”. Hromadka and Maschmann (2020), pp. 172–173 and 184–185. 208  This article lays down that anyone who “intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable to make compensation to the other party for the damage arising from this”. 209  For an analysis of this concept, imported from criminal law, Rönnau (2011), pp. 311 et seq.; Nikisch (1959), pp. 114 et seq. See also Fernandes (1984), pp. 360 et seq. 203 204

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principles of collective bargaining law” (e.g. collective autonomy),210 a number of principles have been identified: (a) Right holders (strike and lock-out): these are the unions and employers’ associations or employers individually, preventing non-institutional strikes, namely those organised by works councils (§ 74.2, BetrVG);211 (b) Addressees: the “adversary” is the other party in the employment contract, in other words, it must be in a position to accept the demands (contractual model), which for example makes political strikes unlawful;212 (c) Aims: these must involve defence of the terms of employment, as well as a collective legal aim, insofar as only persons or organisations with capacity for collective bargaining can be party to a collective dispute; (d) Collective bargaining law: the rules of this area of law must be complied with; (e) Ultima ratio: prohibiting arbitrary or groundless use of the means of “struggle”;213 3. Proportionality: in view of the ill effects caused by a dispute, not just to the parties involved, but also to other workers and third parties, as well as the possibility of it affecting society as a whole, in view of the responsibility of the parties in collective bargaining to the general public, it is necessary that industrial action “can only be initiated and conducted when it is appropriate and objectively necessary to achieve the legitimate objectives of the dispute and subsequent industrial peace”;214

 Hueck and Nipperdey (1962), pp. 263 and 140 et seq. (on the principles).  For an assessment of this matter, Hromadka and Maschmann (2020), pp. 221 et seq.; Schaub (2019), § 194, II, 5, looking at the function of the committee during a strike. 212  To this effect, Hromadka and Maschmann (2020), p. 177. BAG, 19.06.2007–1 – AZR 396/06https://www.hensche.de/, submitted sympathy strike action to the criterion of proportionality, recognising that a general limitation of strike action to the field of collective bargaining could be difficult to conciliated with Article 6.4 of the European Social Charter (especially, §§ 12 et seq.); on this type of strike, Wolfgang Hromadka and Maschmann (2020), pp. 191 et seq., and identifying the relevant international texts, pp.  165 et  seq.; Stamer (2010), pp.  646 et  seq., looking at sympathy strikes in relation to (relative) industrial peace clauses, finding them to be admissible. 213  Hueck and Nipperdey (1962), pp. 263 et seq. Hromadka and Maschmann (2020), pp. 186 et seq. In the case law, BAG, 21.04.1971 - GS 1/68, cit., p. 1669, which reviews some of the rulings in the decision of 28 January 1955, asserting that: “Industrial action—such as a strike or lock-out—may […] only be taken after exhausting all possibilities of communication; industrial action must therefore be a last resort (ultima ratio)”. 214  BAG, 21.04.1971 - GS 1/68, Neue Juristische Wochenschrift (NJW), cit., 1971, p. 1669, with thorough treatment of this matter. For a commentary on the court decision, see also Marc Spielberger (2017), “Arbeitskampfmaßnahmen; Suspendierung der Arbeitsverhältnisse”, cit., pp. 3103–3104, who considers this ruling a “significant landmark” in the legal treatment of labour disputes and in altering the decision of 28 January 1955, moving away from formal parity and replacing it with material parity in relation to employment subjects; and Hromadka and Maschmann (2020), pp. 188–189; Schaub (2019), § 192, VI; Zunft (1993), pp. 177 et seq. 210 211

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4. Suspension of contract: strike action suspends employment contracts, not therefore causing them to be terminated, as this is not a case of (unlawful) breach of contract;215 in addition, the parties to the dispute must ensure the safety of the facilities, and also provide emergency services (Notstandsarbeiten)—such as the fire service, hospitals—it being noted that in the absence of agreement it is the worker’s responsibility to make the necessary arrangements.216

4.2.3 France The French Constitution of 27 October 1946, which, as we have seen, made history by enshrining a series of labour rights in its preamble, drew attention to strikes by asserting: “The right to strike shall be exercised within the framework of the laws governing it”. The founding text of the Fifth Republic dates from 1958; this is the Constitution of 4 October, adopted by referendum of 28 September that year, which retained the preamble of the Fundamental Law of 1946,217 as well as reserving for the legislator the task of establishing “the fundamental principles […] of Labour law, trade union and welfare law” (Article 34); the case law built up over the years has consolidated the binding and direct efficacy of these fundamental rights, and this case law is an integral part of French constitutional law. The Constitutional Court has provided clarification, stating in § 7 of the preamble that “the authors of the constitution sought to indicate that the right to strike is a principle of constitutional value but which has limits and permitted the legislator to determine those limits, conciliating as necessary the defence of professional interests, for which strike is a means, and the safeguarding of general control, which strike action may undermine; that, especially as regards public services, recognition of the right to strike could not have the effect of preventing the legislator from being able to identify the necessary limitations on this right in order to ensure the continuous provision of public services, even if the right to strike enjoys constitutional status”,218 and so it is unlawful for the legislator to delegate the task of specifying rules on exercise of the right to strike to a collective instrument or agreement.219

215  Hueck and Nipperdey (1962), pp.  257–258; Kaskel and Dersch (1957), pp.  143–144 and 327–328. 216  For an analysis of the effects of a lawful strike, Hromadka and Maschmann (2020), pp.  201 et seq., and of an unlawful strike, pp. 213 et seq., laying stress in the first place on the imputation of damages to the unions; Schaub (2019), § 194, II, 1. 217  Ogier-Bernaud (2003), pp. 101 et seq., in particular, pp. 124 et seq. and 132 et seq. 218  Décision no. 2007-556 DC 16 août 2007, www.conseil-constitutionnel.fr (dialogue social et la continuité du service public dans les transports terrestres réguliers de voyageurs), § 10. 219  Décision no. 2007-556 DC 16 août 2007, cit., § 7. See also Décision no. 79-105 DC du 25 juillet 1979 (Loi modifiant les dispositions de la loi n° 74-696 du 7 août 1974 relatives à la continuité du service public de la radio et de la télévision en cas de cessation concertée du travail), www.conseil-constitutionnel.fr, § 1.

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It also added that “strike action is not reserved solely for collective movements based on causes relating to the undertaking”.220 This subject matter has been regulated in ordinary law, as required by the Constitution, and is included in the Code du Travail. The general framework prohibits termination of contract on the grounds of exercise of the rights, unless the worker is seriously at fault, and dismissal is deemed void (Article L. 1132-2, §§ 1 and 3);221 any discriminatory measures in the (lawful) exercise of the right to strike are likewise prohibited (Artcles L. 1132-2 and 2511-1, § 2). Labour law contains a series of special rules on public services (Article 2512-1222), in particular a requirement of 5 days’ advance notice from a representative trade union organisation, indicating the reason for the strike, and an obligation to negotiate during that period (Article 2512-2).

The brevity of the regulations naturally left space for elaboration by legal theory and case law. On the basis of these, a number of general guidelines have been built up— based on equality of arms223—which may be outlined as follows: 1. Workers are the right holders, there being no trade union monopoly, except in public services; 2. No prior notice outside those services;224 3. Inadmissibility of (purely) political strikes,225 although strike action against the government in defence of professional interests is lawful226 and so it is sufficient for working conditions to be at stake—even if indirectly;

 Décision no. 2007-556 DC 16 août 2007, cit., § 12. For further reading, inter alia, Gay (2014), pp. 35 et seq.; Magnon (2017), pp. 39 et seq.; Ogier-Bernaud (2003), pp. 101 et seq., especially, pp. 116 et seq. and 303 et seq. 221  On this matter, Cour Cassation, 6 June 2018, case no. 17-18.770, www.legifrance.gouv.fr. 222  For the purposes of the chapter regulating strikes in public services, these relate to the employees of the State, regions, départements and municipalities with more than 10,000 residents, as well as the workers of public or private companies, organisations and establishments which are responsible for managing a public service. 223  For example, Javillier (1999), pp. 716–717. 224  Albeit with variations, Javillier (1999), pp. 734–735. On this topic, Décision no. 2012-650 DC du 15 mars 2012 (Loi relative à l’organisation du service et à l’information des passagers dans les entreprises de transport aérien de passagers et à diverses dispositions dans le domaine des transports), https://www.conseil-constitutionnel.fr/, which deemed constitutional the obligation on airline workers (whose absence affects the airline’s flights) to notify the employer of their intention to join the strike, 48 h prior to its start, and also to inform the employer, 24 h in advance, of their intention not to participate in the strike or to return to work (§§ 5 et seq.); Cour Cassation, 6 June 2018, case no. 17-18.770, www.legifrance.gouv.fr. 225  Grandguillot (2022), p. 156. 226  To this effect, Petit (2022), p. 102. Cour Cassation, 23 October 2007, case no. 06-17802, www. legifrance.gouv.fr, dealing with a public service concession. 220

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4. Prohibition of sympathy strikes (external and internal, when an individual situation is involved227), although a sympathy strike is deemed lawful if the facts have collective effects and are unjustified;228 5. Lock-out is unlawful and unconstitutional, although it can be considered legally acceptable in certain situations, such as the impossibility of non-strikers doing their work, which allows the employer to suspend employment contracts, invoking force majeure, or for reasons of order and safety; 229 6. Suspension of contract as a consequence of joining the strike.230

4.2.4 Portugal The Constitution of 1976 expressly enshrined the right to strike, and this protection was maintained in all subsequent reviews (1982, 1989, 1992 and 1997). In effect, Constitutional Law 1/82, of 30 September, combined Articles 59 and 60, respectively on the right to strike and prohibition of lock-out, and these matters were then contained in Article 58; with Constitutional Law 1/89, of 8 June, this article was changed to no. 57, which position it retains today; in turn, Constitutional Law 1/97, of 20 September, added para. 3 to Article 57, with the following content: “the law shall define the conditions under which services that are needed to ensure the safety and maintenance of equipment and facilities and minimum services that are indispensable to the fulfilment of essential social needs are provided during strikes”, thereby explicitly enshrining something that was already implicit. In other words, this law already existed (Law 65/77, of 26 August, LG), and it needed to be included here in order to harmonise expressly the right to strike with other fundamental rights, highlighting that the provision of minimum services was already considered a limit (internal) and not a restriction.231 Albeit contained in a different provision from the freedom of association, the right to strike is still a component element of that freedom, like collective bargaining, considered above. The constitutional understanding of the phenomenon of strike action cannot be immune either to constitutional reviews, or to the process of conceptual evolution which many of the institutions based in the Fundamental Law have undergone.  Rejecting a sympathy strike demanding exclusion from a lawfully applied disciplinary penalty, Cour Cassation, 15 February 2006, case no. 04-45738, www.legifrance.gouv.fr. 228  Favennec-Héry and Verkindt (2020), p.  227; Lokiec (2019), pp.  777–778; Petit (2022), pp. 102–103; see also Cour Cassation, 30 May 1989, case no. 86-16765, www.legifrance.gouv.fr. 229  Favennec-Héry and Verkindt (2020), pp. 232–233; Grandguillot (2022), p. 157; Javillier (1999), pp. 741 et seq.; Lokiec (2019), pp. 791 et seq.; Petit (2022), pp. 109–110. 230  To this effect, Grandguillot (2022), p. 156. For a general assessment of the effects of a strike, inter alia, Auzero et  al. (2020), pp.  1798 et  seq.; Favennec-Héry and Verkindt (2020), pp.  229 et seq.; Lokiec (2019), pp. 782 et seq.; Petit (2022), pp. 104 et seq. 231  For example, Canotilho and Moreira (2007), p. 159. 227

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Strike, “like any collective public freedom, can have a perfume of revolution and radical questioning of labour relations and industrial relation”;232 and so, in the words of Castanheira Neves, it is an “‘unarmed rebellion’”.233 Indeed, the enshrinement of the right to strike constitutes a “foundational political decision”, revealing the “presence of a dimension of principle, expressing the solemn presumption that the constitution will smile on various forms of private protection of legal situations”.234 In short, this is “an unambiguous symptom of democracy”,235 a “mechanism for self-protection and non-submission, a means for workers to cause damage to others (primarily the employer) at the cost of their own hardship (sacrificing their wages)”.236 The legal system’s recognition of the right to strike renders lawful acts which, under the general rules, would constitute serious breaches of the law; examples include disregarding the principles of pacta sunt servanda (non-performance of contract), of no unilateral modification of contract (the workers makes changes to the contractual relationship, in particular, suspending it without needing the employer’s consent) and of prohibition of committing harmful acts (the worker causes harm to the employer).237 In other words: strike action is a means of applying pressure, with a dual aim: (a) immediate—to cause harm to the employer; (b) mediate–to obtain satisfaction of the workers’ demands;238 the first is therefore instrumental to achieving the second. The constitutional provision (Article 57) addresses four aspects, which have to be considered in the light of the constitutional framework, on pain of inverting the hierarchy of sources and allowing ordinary law to take the lead in establishing the content of the rules of the fundamental law: (a) right and guarantee, which will include the holder and the means (para. 1); (b) definition of the scope and interests to be defended by strike action (para. 2); (c) delegation to ordinary law of regulation of minimum services in the broad sense (i.e. those intended to satisfy essential needs and necessary for the safety and maintenance of plant and facilities) (para. 3); (d) prohibition of lock-out (para. 4).

 Javillier (1999), p. 715.  Neves (1990), p. 449. 234  Alexandrino (2006), pp. 763 and 764, respectively, italic in the original. 235  Amado (2014), p. 196. 236  Amado (2014), p. 196. 237  Ramalho (2020), p. 546, stressing the unique character of this institution. 238  For example, Pinto (1996), p. 51; Ramalho (2020), pp. 481–482; Xavier (2020), p. 278. 232 233

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It is commonly accepted that the holders of the right to strike are workers, more precisely (all) employees (see also Article 530.1),239,240 which means that the constitutional concept of worker is also especially relevant here. On the other hand, legislation that gave trade unions a monopoly on declaring strikes would clash with the constitutional framework, insofar as the authors of the constitution opted not to adopt an institutional conception of strike (i.e. only triggered by trade unions), permitting also non-institutional strikes (criterion of organisation),241 despite the importance of unions in the practical expression of the right to strike, for example, in triggering and managing strikes;242 for this reason, it is asserted that strike is an individual right that needs intermediation (collective, e.g. through trade unions) in order for workers to be able to exercise it fully243 or, in other words, it presents itself “as an individual right whose exercise is collective, geared to common protection of a collective interest”.244 This is a right that has its basis in the Constitution, and is reaffirmed in the Labour Code (Article 530.1); it is therefore a fundamental right,245 insofar as it establishes an entitlement to act, creating in the legal sphere of its holders an

 For example, Canotilho and Moreira (2007), p. 751, asserting emphatically that “the right to strike is a right of the workers: of all the workers and only of the workers”, italic and underlining in the original; Martinez (2022), p.  1211; Leite (2004), p.  187; Rui Medeiros, in Miranda and Medeiros (2010), p. 1127; Leitão (2021), p. 689, pointing out that this is an individual right of workers. Fernandes (2013), pp.  31–32, entertaining the hypothesis of economically dependent workers, but ultimately rejecting it. Taking a different line, arguing that the constitutional rule encompasses economically dependent self-employed workers, Reis (2018), pp. 53 et seq., especially, pp. 89 et seq. Fernandes (2013), pp.  5 et  seq., asserted that the right to strike should be redrawn, arguing nonetheless “that the Portuguese legal system is not sufficiently well developed to permit a third category of labour activity—economically dependent or para-subordinated labour—alongside self-employment and subordinated employment” (p. 9). 240  In relation to the right to strike of holders of public office, Rui Medeiros, in Jorge Miranda and Rui Medeiros, in Miranda and Medeiros (2010), p.  1128; Alexandrino (2006), pp.  747 et  seq.; Miranda (2006), pp. 287 et seq. Jorge Miranda, in Miranda and Medeiros (2006), pp. 625 et seq. 241  Judgment of the Constitutional Court 306/2003, cit., p. 4161: “its ‘normal’ exercise, by trade union decision, not imposed by the constitution but merely established in ordinary law, moreover on non-exclusive terms, should not lead us to forget that the actual holders of the right are the workers”. Gomes Canotilho and Moreira (2007), pp. 754–755, also consider there is no constitutional foundation for a norm that reserves, as a rule, to trade unions the right to decide on and declare a strike; Rui Medeiros, in Miranda and Medeiros (2010), pp. 1126–1127, argues that, under the constitutional rules, it is “doubtful that the decision to declare a strike can only be taken by trade unions (or an assembly of the workers of a company …)”. 242  Judgment of the Constitutional Court 306/2003, cit., p. 4161 “It should not be forgotten that, although the right to strike is, by nature, a right which is exercised collectively, its holders are each and every one of the workers. Its ‘normal’ exercise, by trade union decision, not imposed by the constitution but merely established in ordinary law, moreover on non-exclusive terms, should not lead us to forget that the actual holders of the right are the workers”. 243  To this effect, for example, Abrantes (2012), p. 82; Martinez (2022), p. 1210. 244  Judgment of the Constitutional Court no. 289/92, of 2 September, § III. 2. 245  Among many others, Miranda (2020), p. 101. 239

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e­ ffective ‘active’ legal situation, and it thereby demonstrates that the Constitution regarded it as a particularly significant phenomenon, allowing, in general terms, the collective interest to have the upper hand over individual interests, and also in contrast to the general interest of the citizens not involved in the union dispute.246 This characterisation of the right therefore requires that its exercise be protected by the legal system, which means a prohibition of obstructing or penalising its exercise, through the exercise of either public powers (e.g. classification as a crime, administrative impediments) or private powers (e.g. those of the employer). This fundamental right “belongs to the set of rights, freedoms and guarantees enunciated in Title II and presents an essential dimension of defence or negative freedom: the freedom to withhold labour due under contract, postulating the absence of State or private interference that might undermine it”.247 The constitutional formula enunciates the guarantee of the right, which may be understood in the light of the historical context in which the text was approved, when the new constitution sought to ‘guarantee’ the right to strike, first and foremost, against the ordinary legislator”.248 This guarantee presupposes the central features of the content of the right to strike, and the provision of the institution of strike action in the constitutional text requires that the concept be developed within the framework of the fundamental law, the ordinary legislator being “prevented from tampering with the legal definition when configuring the legal facti species”.249 Indeed, this being a constitutional right, and in the absence of any ordinary legislation defining its content, that content must be found within the constitutional framework, on pain of subverting the hierarchy of sources; the Labour Code accordingly refers the configuration of this right to the framework of the Constitution (Article 530.1). The labours of legal theorists and the courts have enabled strike action to be generically recognised “as the concerted withdrawal of labour by a plurality of workers with a view to achieving common ends”.250

 To similar effect, Calamandrei (2019), p. 445.  Judgment of the Constitutional Court no. 289/92, of 2 September, www.tribunalconstitucional. pt, § III. 2. As may be recalled, this characterisation has a series of effects: (a) direct applicability—not requiring the mediation of any law—and binding force on public and private entities (Article 18.1, CRP); (b) it is subject to restrictions by virtue of the principle of proportionality (Article 18.2); (c) prohibition of retroactive effect and safeguarding of the essential content of the norm (Article 18.3, CRP); (d) it is to be regulated by the Assembly of the Republic (Article 165.1 b), CRP); material limits of review (Article 288 (e)). 248  Fernandes (2013), p. 13. 249  Fernandes (2010), p. 78. 250  Martinez (2022), p.  1208; Leitão (2021), p.  682, accepting this idea; Canotilho and Moreira (2007), p. 753, argue that the constitutional concept of strike presupposes two essential elements: (a) collective and concerted action; (b) a halt to work, adding, in relation to this, “(with or without absence from the workplace) or any other typical form of withholding labour”; Cordeiro (2018), p. 789, in line with Brox and Rüthers, defines strike as “the withholding of labour, undertaken on a joint and planned basis by several workers, in order to achieve a purpose”; Leite (2004), pp. 202–203, defines what he calls traditional strikes as “collective and concerted withdrawal of 246 247

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It might be said the powers entailed by the right to strike include the possibility of the worker joining or not joining the strike, without having to state grounds; they also include the unilateral actions of the striker, producing unavoidable consequences in the legal sphere of the employer, so that the refusal to work does not qualify as a breach of contract,251 we are therefore dealing with a potestative fundamental right;252 considering that this is a right belonging to workers, it also entails the irrelevance of membership, insofar as what “entitles” the worker to strike is his or her capacity as employee; the characterisation of the right to strike as a right, freedom and guarantee of workers, more specifically a negative subjective right, also determines that its holders cannot be prevented from exercising this right or obliged to discontinue such exercise.253 As we have seen, the characteristic elements of strike include concerted withdrawal of labour—i.e. that withdrawal is part of a pre-defined plan, established in advance by the workers, “normally mediated by the union, with the employer being notified of this intention”254—an issue of central importance in delimiting the concept of strike, pointing us to the question of stoppages where there is no withdrawal of labour, improper or atypical strikes (criterion of exercise, plan of action or of

labours as a means whereby workers put pressure on employers in defence of their occupational interests”, concluding from this “that the range of collective behaviours that the current Portuguese legal system places under the rules protecting strikes is broader, as borne out by the following elements, relating to the interests to be defended or promoted through strike action, the persons against whom such action is taken and the various forms such protest takes”, italic in the original; Pinto (1996), p. 388, “a strike requires the decisive moment of collective withdrawal of labour for a period of greater or lesser duration, such withdrawal being effective and total”, it being recalled that, for the same author, “O Direito perante a Greve”, p. 52, “traditionalor classical strikes: consist of the suspension or interruption of labour, with workers absenting themselves from their workplace”, italic in the original; Xavier (1984), p. 56, who defines strike, in the first instance, as “withdrawal of labour, by a group of workers, as a means of applying pressure to achieve common objectives” (italic in the original); subsequently, Xavier (2020), p. 153, defined strike more simply as “withdrawal of labour, by a group of workers, as a means to achieving shared objectives”. In case law, in line with the scholarship of Monteiro Fernandes, Judgment of the Évora Court of Appeal, of 8 June 2017, Case no. 3061/15.4T8FAR.E1, http://www.dgsi.pt, writing that: “it has been understood, generically, that this is a collective withdrawal of labour, resulting from an agreement within a group or category of workers, in order to force the employer to agree to their common objectives”. In Opinion of the Prosecutor-General’s Office no. 41/2011, of 30 December 2011, www.ministeriopublico.pt, we may read: “the legal definition of strike requires collective and concerted withdrawal of labour on the initiative of groups of workers, as a rule, trade unions, in order to exert pressure for a certain common interest or objective to be realised” (conclusion no. 2). 251  Fernandes (1978), p. 326. 252  Andrade (2019), pp.  166–167. Also highlighting that this is a potestative right, for example Abrantes (2012), p. 82; Cordeiro (2018), p. 839. 253  Canotilho and Moreira (2007), p. 751. 254  Martinez (2022), p. 1210. Xavier (1984), p. 59, points out that “this is the attitude of a group and not the sum of isolated withdrawals of labour, because an element of solidarity or concerted action is required”, italic in the original.

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means),255 where it may be debated whether this is still in fact a strike, given the absence of one of the characteristic elements: the withdrawal of labour. As the name suggests—improper strikes—we believe that these are not true strikes, in the legal sense.256 Lastly, the element under analysis (concerted withdrawal of labour) also points to what are called abusive strikes (criterion of exercise, plan of action or means),257 where there are periods when the employment contract is formally respected so that workers retain a minimum entitlement to pay, but the stoppages have an especially prejudicial effect on the employer, and are organised on the basis of a plan of

 The following types of strike are commonly identified here: (a) go-slow: the workers work slowly and unproductively, so that there is a drop in output (e.g. a car is serviced slowly, causing delays); (b) work to rule: the worker complies with obligations, in keeping with the rules but with exaggerated attention to detail, undermining the purposes of the rules and resulting in a drop in output (e.g. repeatedly checking the same industrial component); (c) administrative strike: the workers perform their main duties, but omit secondary or accessory duties (e.g. quality control staff do not record anomalies detected); (d) ‘courtesy strike’: workers perform their main tasks, but breach the obligation of courtesy to clients. The common feature in all these is that workers continue to work, but deliberately modify the obligations to which they are subject, whilst seeking to maintain their remuneration; in other words, the appearance of performance of the employment contract is maintained, but labour is disrupted, rendering management inefficient, without the workers’ pay being affected, which means a “strike” with no costs for the workers and increased losses for the employer. 256  The admissibility of overtime bans has also been debated, with some legal scholars considering this to be an improper strike, causing it to be unlawful, arguing that as overtime is compulsory, it is “part of the normal rendering of labour, and is only apparently autonomous, as reflected in the special rate of pay”; in addition, a strike entails a total refusal to perform employment contracts, and does not permit workers to pick and choose their duties, such as the accessory duty of overtime work (Xavier (1984), pp.  69 and 69–70, respectively; Xavier (2020), pp.  174–175, in brief). Another doctrinal current, supported by case law (cfr. Judgment of the Évora Court of Appeal, of 8 June 2017, cit.; Opinion of the Prosecutor-General’s Office 41/2011, of 30 December 2011, cit. § IV, 2) points out that the behaviour in question consists of not doing something, and the (legal) rules do not prevent the suspension of labour taking place during a part of working hours (Canotilho and Moreira 2007, p. 753; Fernandes 2022, pp. 1040–1041; Ramalho 2020, p. 473). 257  Examples of these are: (a) ‘thrombosis’ (or strategic strike): the stoppage occurs in the undertakings’ nerve centres—the other workers being concerted with those downing tools, in view of shared demands (e.g. air traffic or underground railway controllers); (b) intermittent strike: labour is withdrawn simultaneously and in full, but during finite spaces of time, with the primary aim of rendering the work done in the intervening periods useless or less useful, the workers demanding to be paid for those periods (for example, breaks every 2 h in the preparation of meals); (c) rotating strike: labour is withdrawn on an alternating basis and successively, in different sectors of the undertaking, in short cycles, in order to disorganise production and so make it impossible to take advantage of the labour rendered, although workers seek to be paid for the time when they are allegedly available (e.g. they withdraw labour from the organisation of raw materials, then from production, and then from quality control); (d) retroactive strike: labour is withdrawn at a “key” moment, rendering useless all the work previously done (e.g. a performance by an orchestra); (e) self-service strike: on the basis of long-term prior notice, workers down tools and return to work on an arbitrary basis, causing severe disorganisation in the workings of the company structure. 255

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stoppages (by sector or periods of time) designed to disrupt the functioning of the undertaking.258 One of the main issues that remains a vexata quaestio, and has formed the subject of scholarly debate, is the scope of the right to strike, i.e. the aims that may be invoked. The fact that the Constitution lays down that “workers have powers to define the scope of the interests that are to be defended by a strike and the law may not limit that scope” (Article 57.2) has contributed to the difficulty of clearly and rigorously determining what interests may be pursued through strike action, and this point has been widely discussed. Different types of strike action have been identified on the basis of the aims pursued: 1. Political strikes: intended to exert pressure on political authorities (e.g. the Assembly of the Republic, the Government, or the legislatures or executives of the autonomous regions) to act in certain ways. The reasons for these strikes may be: (a) Purely political: seeking to influence the political direction taken by the country, by applying pressure to the State, for example, not to sign and international treaty or not to take part in an international conflict, or objecting to environmental reforms; (b) Labour-political strikes: intended to bring pressure to bear on the State, calling for political changes connected to employment, such as a change to the Labour Code. 2. Occupational strikes: seeking to alter terms of employment, either in reaction to changes being made or adopted (defensive strikes) or demanding alteration of existing provisions (offensive strikes); 3. Sympathy strikes: supporting the causes of other workers in the same company (internal sympathy strikes) or in the same occupational or economic sector, or otherwise (external solidarity strikes). Three basic models have been identified in legal theory: 1. Multidimensional: based on a broad vision of the purposes of strike action, arguing that “the interests to be defended through strike action cannot be reduced to merely occupational interests”, meaning that “the point of contention should be situations or measures that affect their condition or status as waged workers”; accordingly, “the Portuguese Constitution does not conceive of strike action in terms of its function, meaning that exercise of the right to strike is not tied to any category of values”;259

 For background reading, Xavier (1984), pp. 74 et seq.; Ramalho (2020), pp. 474 et seq.  Leite (2004), pp. 203 and 207, italic in the original. Abrantes (2012), p. 74, for whom ordinary law “cannot contain provisions on the reasons for a strike, defining which are admissible and which are not, insofar as such (in)admissibility may only exist insofar as it arises from the actual constitutional system”; Canotilho and Moreira (2007), pp. 755–756, concluding: “for a strike to be legitimate in terms of its reasons and aims, it is enough for these to have to do with the workers’ 258 259

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2. Contractual: in this case, the right to strike will be exercised in connection with collective labour disputes, more specifically “in the area of socio-vocational disputes between employers and workers”,260 distinguishing between the right to strike (Article 57.1, CRP) and the freedom of strike action (Article 57.2, CRP), which would not generate contractual immunity;261,262 or, from another perspective, only labour demands situated within the legal sphere of the employer fall within the right to strike;263 3. Functional: the right involved is here deemed to be “functionally limited to the interests that the employees are pursuing (and which, under Article 57.2 of the Constitution, they must be free to define) precisely in the capacity of workers— and not in any other capacity”, which means that political or sympathy strikes are admissible when there is an interest—direct or indirect—connected to the workers’ employment situation.264

rights and interests, albeit indirectly, and for them not to be unlawful under the Constitution”; Leitão (2021), p. 683, contending that a general strike may be called, arising from the workers’ dissatisfaction with the government or in solidarity with an oppressed people. 260  Xavier (1984), p. 140. Pinto (1996), p. 387, who takes the contractualist view, writing that, “in referring to the scope of interests to be defended through strike action, the Portuguese Constitution postulates that such scope of interests coincides with the scope of the interests of the workers’ collective autonomy. In other words: in practice, the purpose of the right to strike coincides with the purposes of trade union autonomy. This appears to have been the constitutional rationale for prohibiting limitation of the interests to be defended through strike action”. 261  Xavier (1984), clarifies that “strike action cannot occur outside the limits of collective autonomy, understood in the broad sense” (p. 130), in other words, “coinciding with the powers and responsibilities of the unions in question” (p. 128). This would be the case of the right to strike provided for in Article 57.1 CRP (p. 135); otherwise, in Article 57.2, we would have the freedom of strike action, which would allow workers’ organisations to go beyond the bounds of sociooccupational issues, thereby conferring legitimacy on political and sympathy strikes (provided there is a connection “with the direct interests proper to the unions or workers involved”, p. 132), underlining, nonetheless, that if we are dealing here with a freedom, in strikes that overstep the function of the right to strike, the workers would breach their employment contracts, subjecting themselves to the respective consequences (pp. 136 et seq.). In brief, Xavier (2020), pp. 278–279. 262  As rightly observed by Fernandes (2010), pp. 52 et seq., note 78, this argument runs up against an insuperable obstacle: under Article 18.1 of the Constitution, the distinction between right and freedom does not permit differentiation of the effects on the terms argued, and it would moreover be contradictory for strike action to be protected against the State (liability for criminal or administrative offences, or other) but to be subject indirectly to penalties through disciplinary law (p. 53). 263  Martinez (2022), p. 1211, explaining that “insofar as strike functions as a means of exerting pressure to achieve certain ends, if the demands cannot be satisfied by the employer, the situation cannot be characterised as a true strike. […] Not least because it is the employer who bears the risk entailed in strike, namely of having to pay wages to non-striking workers and compensation for failing to honour obligations to third parties. It will only be fair for the employer to bear this risk if it has the possibility of satisfying the workers’ demands”. 264  Ramalho (2020), p. 485, explaining that “strike action is not limited to the socio-occupational objectives of the workers”, “but, obviously, if we reject the theory that the right to strike is absolutely unlimited, we have to accept that this right is limited as to its exercise, like any other right, by the general rules of good faith and abuse of rights, developed in Article 334 of the Civil Code” (p. 484). See also Judgment of the Évora Court of Appeal, of 22 June 2004, Case no. 1115/04-2, www.dgsi.pt, deeming lawful a strike against, among other things, approval of the Labour Code.

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As regards the guarantee of the right to strike, in addition to the general features of the content of the right, as set out above, the legislator is entrusted with the special task of ensuring effective protection by deeming unlawful any acts of employers or third parties intended to prevent or neutralise the taking of strike action. This is the case, for example, of the general rule prohibiting substitution of strikers (Article 535),265 acts of coercion or discrimination or causing damage to the worker because of joining or not joining the strike (Article 540) and contractual immunity for striking, in other words, suspension of contract, the legal employment relationship being altered (Article 536)266 and also the prohibition of coercion and discrimination on the grounds of participation or non-participation in a strike (Article 540); in view of the constitutional model, the same occurs with the exclusion of lock-out.267 The Constitution requires the legislator to intervene on the matter of minimum services (in the broad sense), i.e. services relating to the safety and maintenance of the plant and facilities, and those needed to satisfy pressing social needs (Article 57.3).268 There is no right to strike within the scope of minimum services; moreover, exercise of this right does not legitimise undermining the essential content of important

 Judgment of the Constitutional Court 15/2005, of 18 January, www.tribunalconstitucional.pt, which assessed (within the framework of Article 6 of the old General Labour Law, now Article 535.1) the constitutionality of the rule insofar as it prohibits the substitution of strikers by transferring workers of the same employer from their workplace, when the strike is not directed against the employer and its aims cannot be satisfied by the employer through violation of the constitutional principles of free private enterprise (Article 61.1, CRP) and of free business organisation (Articles 80 c) and 86, CRP) (§ 4); concluding that “the prohibition of substitution is manifestly appropriate for ensuring the practical efficacy of the strike, necessary for avoiding its being rendered useless and not excessive” (§ 8), irrespective of whether the demands are addressed to the employer (§ 9). 266  Leite (2004), p. 199, argues that “the essential core of this right therefore resides in the worker’s power to make a temporary change to his or her employment”. Somewhat differently, Cordeiro (2018), p. 789, notes that “this factor was rejected: the suspension effected by workers who start immediately to search for other jobs is still a strike”. 267  Canotilho and Moreira (2007), p. 754. 268  In our view it is at least questionable that this amounts to a restriction on strikes and not an (internal) limitation on the right to strike, insofar as this is a delimitation, the content of which not only requires the provision of minimum services but also, of course, prevents exercise of that right within the scope of these services. Canotilho and Moreira (1978), p. 159, initially argued that “the imposition of obligations on strikers in undertakings or establishments that satisfy pressing social needs does not appear in itself to constitute a restriction on the right to strike”. In a later edition, the authors, CRP – Constituição da República Portuguesa Anotada (artigos 1.° a 107.°), volume I, cit., p.  757, refer, apropos of Article 57.3, to restrictions. Also considering this a restriction, Abrantes (2012), p.  100, who refers to “external limits”; Judgment of the Constitutional Court 572/2008, of 26 November, www.tribunalconstitucional.pt, § II., 5.2., asserting that “however difficult the a priori and abstract distinction may be between rules that restrict a right and rules that [only] shape or set conditions for their mode of exercise—because more often than not the distinguishing factor is a question of degree—the truth is that, in this case, we are unquestionably faced with a restriction on the right”, italic in the original; Opinions of the Prosecutor-General’s Office nos. 35/2018, of 29 November, cit., § VI, 6/2019, of 15 February, cit., § 1. 265

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values in the legal system, such as the right to life (Article 24 CRP) and to personal integrity (Article 25), among others. It may therefore be said that the constitutional mandate for legislative intervention arises from a collision of rights, i.e. between the right to strike and other constitutional values. 269 The general heading of minimum services (in the broad sense) actually shelters two quite different realities, with distinct scopes, grounds and activities. As regards scope, in the case of satisfaction of pressing social needs, the obligation imposed by law, in keeping with the constitutional framework, applies in situations of strike action by the workers of companies or establishments that satisfy basic needs; whilst the safety obligation is intended for companies and establishments where a stoppage may jeopardise safety or the maintenance of the respective plant and facilities; in other words, “the former is therefore […] an outward facing obligation and the latter an inward facing obligation”.270 As regards grounds, although the protection of other fundamental rights is at stake in both instances, in the case of satisfaction of pressing social needs, the protection is for “natural persons, it is the basic rights and interests of the users of the product or service of the undertaking or establishment in question”.271 In the case of plant safety and maintenance services, what is at stake is the preservation of jobs, as well as the industrial units, and the avoidance of unreasonable damage to the employer;272 these values are, among others, those envisaged by the right of property and by the right of free enterprise, which must be regarded as shaping these rules. Lastly—the activity—whilst the satisfaction of pressing social needs requires “a productive activity i.e. an activity creating goods and services able to meet a social need”,273 in the case of the services needed for the safety and maintenance of plant and facilities, the activity will be one of “mere maintenance or mere monitoring of the risk of an accident or deterioration of the plant and/or equipment”.274 A key issue, which must be clarified in the light of the Constitution, is what is meant by “pressing social needs” (Article 57.3, in fine, CRP). The idea that presents itself is that these needs are essential and urgent, with the danger of irreversible individual or collective harm.275  Amado (2014), p. 199. See also Rui Medeiros, in Miranda and Medeiros (2010), p. 1130.  Leite (1994), p. 77. 271  Leite (1994), pp. 77–78. 272  To this effect, Cordeiro (1989), p. 391; Leite (1994), p. 78. 273  Leite (1994), p. 78. 274  Leite (1994), p. 78. 275  In view of this, we readily concur with the line taken by the Prosecutor-General’s Office, when it states: “they will be those whose activity sets out to provide to members of the community that which, being essential to individual or collective life, involving, therefore, a primary necessity, needs to be used or taken up immediately, on pain of irreparable harm to life”, adding: “the multiplicity of those needs and the multifaceted manner in which they present themselves prevents them from being catalogued in advance without serious risks of omission, in addition to which the urgency of their satisfaction will depend, in many cases, on the specific circumstances in which they present themselves” (Opinion no. 86/82, of 4 January, Diário da República, of 8 June 1983, series II, no. 131, p. 4759. The doctrine in this Opinion has been endorsed on other occasions, such 269 270

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As we have seen, contrary to what happens in other legal systems, such as in Germany, the Portuguese Constitution prohibits lock-outs, doing so in the same article in which it regulates the right to strike (Article 57.4);276 the prohibition is then reiterated in Article 544.2.277 Inequality of “arms” is therefore the rule in labour disputes,278 and the Constitution has rejected “a neutral stance in industrial disputes”;279 this difference has been upheld by the Constitutional Court.280 Considering where this provision is located and its purpose, the lock-out banned by the Constitution must consist of a unilateral decision by the employer on the grounds of a labour dispute.281 This difference in the means of defence allowed to the parties in a dispute is intended to balance the structural difference in the position in which the two (worker and employer) find themselves.282 However, it should be noted that, despite the strong historical and ideological associations of the prohibition of lock-out, in which workers teamed together in unions and employees were isolated (or might belong to employers’ associations), a material equality thereby being reinstated, it is clear that, more than four decades on from that unequal situation, the prohibition is still in place, and there has been no debate about changing the rules. Further explanation is needed for prohibition of lock-outs. We should start by pointing to the different types of lock-out: 1. Individual vs. collective: in other words, action by a single company, or else by several, through mutual agreement;

as in Opinion 1/99, Diário da República, of 3 March 1999, series II, no. 52, pp. 3171 et seq.). Legal theory may be seen to have arrived at rather similar definitions. Cfr., by way of example, Abrantes (2012), p.  103; Amado (2014), p.  201; Fernandes (2010), p.  358. In case law, for example, Judgment of the Supreme Administrative Court, of 6 March 2008, case no. 05/06, www.dgsi.pt. 276  It may be recalled that Canotilho and Moreira (2007), p.  759, consider that this prohibition constitutes a guarantee of the right to strike. 277  Historically, this prohibition is explained by the special “hostility” with which workers’ movements were treated under the Estado Novo regime, and also by the ideological and politically engaged component of the Fundamental Law, revealing a clear option for inequality of arms. It was therefore politically and legally necessary to exclude parity of instruments in disputes, in other words, not to allow strike to be matched by lock-out. 278  In relation to Article 13 CRP, Martinez (2022), p. 1270, writes that “there are reasons for accepting inequality, considering that strike action is understood as a means to seek to establish balance in a contractual relationship which has some tendency towards being unbalanced”. 279  Canotilho and Moreira (2007), p. 759. 280  Judgment of the Constitutional Court 480/89, of 13 June, www.tribunalconstitucional.pt, § II. A. 281  Rui Medeiros, in Miranda and Medeiros (2010), p. 1134. 282  Stress is often laid on the idea of resetting the balance of power, for example Xavier (1984), p. 51; Reis (2018), pp. 193 et seq., with further treatment. In case law, Judgment of the Constitutional Court no. 480/89, of 13 July § II, B, 11 et seq. A different line is taken by Martinez (1978), p. 97: “admitting strike action in broader terms and prohibiting lock-outs, the managers of undertakings are left entirely in the hands of the workers—or of their leaders”.

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2. Suspensive vs. resolutive: seeking to suspend the employment activity or to discontinue it; 3. Offensive vs. defensive: depending on whether intended to anticipate and neutralise an initiative by the workers, or seeking to respond to a dispute already in progress.283 Equally relevant is the legal definition contained in the Labour Code (Article 544.1), constituting section II, immediately following that on strikes, but located in sub-title III (collective labour disputes); this organisation of subject matter is in line with that in the Constitution, where lock-outs are regulated in the same article as strikes (Article 57.4). In the Labour Code’s definition we find various kinds of constitutive elements: 1. Subjective: unilateral decision by the employer; 2. Material: this element includes several forms of behaviour: (a) total or partial shutdown of undertaking; (b) some or all the workers banned from entering the workplace; (c) refusal to provide work or the tools of work; (d) potentially resulting in the shutdown of some or all of the sectors of the undertaking; 3. Teleological: with purposes unconnected to the normal activity of the undertaking. Secondly, we may note that the legal definition encompasses any of the types of lock-out identified above. In effect, a lock-out consists of unilateral closure of the undertaking (or part thereof), by refusing to let workers in or to provide the working conditions they need to do their job, in order to achieve ends unconnected with the normal activity of the undertaking; in addition, we are here in the context of collective disputes, where the aim is of course to undermine the usefulness of a strike, avoiding (or diminishing) the damaging effects it would have. This situation is prohibited by the Constitution, and the rules were filled out by the Labour Code. These tell us that a lock-out is an unlawful act of the employer which, as well as constituting an administrative (Article 544, no. 3) and criminal offence (Article 545),284 has effects in relation to the contractual relationship. Indeed, given that a legal rule has been breached and the employment relationship has not been suspended, the workers normally remain entitled to pay and to the counting of length of service; at the same time, in view of breach of the duty to provide effective occupation (Article 129.1 (b)) and given that the prerequisites for (subjective) fair grounds are satisfied, the worker is entitled to terminate the contract (Article 394.2 (b)) and to compensation (Article 396). However, it is important to distinguish carefully between lock-out (e.g. offensive and defensive) from the situation where an employer, on the basis of the freedom of enterprise and the right of private property (Articles 61 and 62 CRP) closes the

 Carinci et al. (2018), p. 380.  To the effect that these consequence raise no constitutional issues, Medeiros, in Miranda and Medeiros (2010), p. 1134; in the case law, Judgment of the Constitutional Court 480/89, of 13 July § II, B, 14, clarifying that “it is nonetheless essential that lock-out should only be punishable (and punished) when there are no grounds able to justify it”. 283 284

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undertaking (totally or partially), prohibits workers from entering or refuses the collaboration needed for the worker to do his or her job, but is motivated by a reason not unconnected to the normal activity of the undertaking, and instead based on objective management criteria, without the intention of undermining a strike; in this case, such conduct is lawful.285 In short: lock-out as prohibited under the Constitution and the law refers only to “company closures which constitute a reprisal in the face of strike action”.286

4.2.5 Spain The Spanish legal system is an example of those where explicit reference is made to labour disputes at constitutional level. The Fundamental Law (of 1978)287 provides for a wide array of fundamental rights, including the right to strike (Article 28). This provision regulates the freedom of association and recognises that workers have the right to strike in defence of their interests, requiring the law to regulate the exercise of this right, determining the guarantees needed to ensure the continued provision to the community of essential services (para. 2); the Estatuto de los Trabajadores also considers the right to strike one of the “basic rights” of workers (Article 45.1 (e)). This is a right that falls within the essential content of the freedom to organise trade unions, which extends to “the rights to the activities and means of action of trade unions—strike, collective bargaining and promotion of disputes. which constitute the minimum essential and inalienable core of the freedom to organise trade unions”.288 The right to strike arises as a consequence of the threefold legal dimension adopted by the authors of the Constitution: (1) Social state, subject to the rule of law (Article 1.1), legitimising instruments for the defence of socially subordinate groups; (2) recognition of the institutional role and socio-political character of trade unions (Article 7), contributing to the defence and promotion of their

 Some of these situations are moreover expressly or implicitly provided for in the Code: this is the case, for example, of temporary closure and reduction in activity (Article 309 et seq.), or it may be due to unforeseeable circumstances or force majeure (Article 309.1 (a)), or to a fact attributable or due to the employer (Articles 309.1 (B) and 311 et seq.). We may also point to the situation of failure to provide the minimum safety and maintenance services for plant and facilities (Article 537.3), which might jeopardise the physical safety of workers or third parties, or else to the case of an agreement between employer and workers to suspend operations, the right to remuneration being maintained in both cases. As rightly noted in Judgment of the Constitutional Court 480/89, of 13 July § II, B, 14, “a lock-out, as a means of defending property, as well as life or physical safety, or even the the company facilities and property, cannot but be admitted”. 286  Martinez (2022), p. 1273. 287  For a comparative analysis of the Spanish and Portuguese Constitutions, for example, Martins (2003), pp. 607 et seq., especially 614 et seq., on fundamental rights. 288  Judgment 130/2021, of 21 June 2021, § II.3., www.tribunalconstitucional.es. 285

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interests; (3) effective freedom and equality of individuals and social groups (Article 9.2), which the political authorities are tasked with ensuring.289 This right—“the principle weapon of workers for their self-defence”—is located at the same level as other essential rights of citizens, such as the right to life, to freedom and safety, and to privacy,290 and the Constitution rejected the principle of parity of arms, in other words, “this was, without doubt, the basic idea of the authors of the Spanish Constitution, who recognised the right to strike as a fundamental right in its own name in Article 28, although they included lock-outs in the general list of ‘labour dispute measures’, in Article 37”.291,292 We are looking here at a legal situation which is configured “as a true right of workers to protect themselves”,293 with direct and immediate efficacy294 and the nature of a subjective and fundamental right,295 the holders of which are workers; it is therefore materialised in suspending the employment contracts of striking workers, limiting the freedom of the employer, in particular to substitute those workers or to close the undertaking; but it is also a right enjoyed by trade unions (Article 7 of the Spanish Constitution) because, if unions were deprived of the right to exercise strike action, their capacity for intervention, in a democratic society, would be

 Palomeque López (1993), pp. 51–52.  De La Villa Gil (1993), p. 44. 291  Judgment of the Constitutional Court 11/1981, of 8 de Abril, cit., § 22, admitting this only in exceptional situations, such as when the physical safety of the workers is at stake. To the same effect, Montoya Melgar (2022), p. 808. 292  Article 37.2 states: “the right of workers and employers to adopt collective labour dispute measures is hereby recognised. The law regulating the exercise of this right shall, without prejudice to the restrictions which it may establish, include the safeguards necessary to ensure the operation of essential community services.”. For an analysis of the two provisions (28.2 and 37.2), cfr. for example, Judgment of the Constitutional Court 11/1981, of 8 April, cit., § 22, pointing to historical reasons and to the ordering of the constitutional provisions to reject any overlap between the rules. It therefore concludes that “the authors of the constitution regarded the right to strike as one of the fundamental rights, whilst the right to adopt dispute measures is not a right in that category. Of this whole approach, it follows that the argument of partial reiteration must be rejected and the separation between the two provisions must be recognised, as clearly happens from the perspective of the workers and consists basically of: (a) Article 37 confers on them the use of dispute measures other than strike action, so that such action is not the only dispute measure, and (b) Article 28 does not necessarily tie strike action to a collective dispute. It is true that all strikes are closely connected to labour disputes, but in the configuration of Article 28 strike action is not a right arising from labour disputes, but rather an autonomous right. In addition, the limitations that Article 37 permits are greater than those permitted by Article 28, insofar as it makes explicit reference to the limitations that the law may establish”. See also, untangling the two rules, Baylos Grau (1981), pp. 16 et seq.; Freixes Sanjuán (1986), pp. 277 et seq. 293  Martínez Girón (1999), p. 761. On the relationship between advocacy by public authority (heterotutela) (or judicial procedure) and strike, Martínez Girón (1999), pp. 761 et seq., with a relevant historical review, and also, by the same author, Martínez Girón (1993), pp. 125 et seq. 294  Freixes Sanjuán (1986), p. 263. 295  For a thorough analysis of classification of the right to strike, Monereo Pérez and Ortega Lozano (2019), pp. 117 et seq. 289 290

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irretrievably undermined.296 In short: the right to strike is a right “attributed to workers uti singuli, although it has to be exercised collectively through concertation or agreement among them”.297 We should also recall that the Constitution did not adopt the contractual model position, rejecting an intrinsic link between the right to strike and the right to collective bargaining.298 It has been supported in this by the Constitutional Court, which has likewise rejected a close connection between strike and collective bargaining, admitting strike action in situations of breach of the collective agreement, in the event of change in circumstances or in relation to matters not entailing changes to that agreement.299 This Court also ruled that it is “clear that the right to strike encompasses the power to declare a strike—establishing the cause or reason for the demands pursued—and the power to choose the type of strike”. However, it warns that the power to choose the type of strike must not overstep “those types or modes that the law admits”, pointing out that “the legislator may consider certain types unlawful or abusive”, whenever, justifiably, “the legislative decision does not strip the right of its essential content and provided that the types or modalities that the legislator admits are sufficient in themselves for recognition that the right exists as such and is effective for achieving the purposes of the right to strike”.300 On the other hand, one of the central constitutional provisions is the mandate for the legislator to determine “the guarantees needed to ensure the continued provision to the community of essential services” (Article 28.2, in fine, of the Spanish Constitution). The Constitutional Court has filled out this provision as follows: “Rather than to certain industrial and commercial activities providing vital and necessary benefits for the life of the community, the concept of essential services refers to the nature of the interests that the service is intended to satisfy, linking up with fundamental rights, public freedoms and values protected by the Constitution. This latter perspective, which attaches value to the goods and interests of the person, and not the former, which deals only superficially with the need for organisations carrying on  Sentencia do Tribunal Constitucional n° 11/1981, of 8 April, § II. 9, www.tribunalconstitucional.es. 297  Sentencia do Tribunal Constitucional n° 11/1981, of 8 April, § II. 11., cit. 298  Martínez Girón et  al. (2006), p.  453. As the authors state, ibidem, at the time when the Constitution was drawn up, two models were debated for the right to strike: (a) extensive, arguing that this is a “multipurpose, multidimensional right with erga omnes efficacy”, without any connection to collective bargaining; (b) restrictive (or contractual), holding it to be an instrumental right in the service of collective bargaining. For an analysis of the preparatory documents for the Fundamental Law, Freixes Sanjuán (1986), pp. 71 et seq. On the constitutional framework, see also Baylos Grau (2010), pp. 12 et seq., especially, pp. 26 et seq. 299  Judgment of the Constitutional Court 11/1981, of 8 April, § II. 14, cit. http://www.tribunalconstitucional.es/. 300  Judgment of the Constitutional Court 11/1981, of 8 April, § II. 10., cit. Also on the scope of strike action, for example Freixes Sanjuán (1986), pp.  267 et  seq.; Monereo Pérez and Ortega Lozano (2019), pp. 245 et seq. http://www.tribunalconstitucional.es/. 296

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the activities, is most consistent with the principles inspiring our Constitution. With the consequence that, a priori, there is no type of productive activity that may in itself be deemed essential. It will only be so considered in cases where the satisfaction of the said values or interests requires the service to be maintained, and to the extent and degree required, provided the essential services are not harmed or jeopardised by any strike action, it being necessary in each case to examine the contributing circumstances”.301 The matters delegated by the Constitution should have been addressed in a ley orgánica (Article 81 of the Spanish Constitution), which did not happen and, despite a number of attempts to deal with the matter,302 the regulations in Real Decreto 17/1977, of 4 March303 continue to apply; this legislation predates not only the Fundamental Law, but also the first democratic elections (15 June 1977), belonging to a period “‘of political transition’ and which was constitutionalised ex-post judgment (one of the first and most detailed) of the Constitutional Court 11/1981, of 8 April”,304 which “almost amounts to a treatise in collective labour law”.305 Indeed, considering that this decree (comprising 45 articles, with various final and additional provisions) predates the current constitutional framework, it was overhauled by the Constitutional Court,306 or more precisely given a “constitutional ‘face lift’”, in which “it used—and I believe abused—the interpretative judgment technique, causing certain norms […] to say things which, in reality, they did not say, in order to salvage its constitutionality”.307 The Real Decreto had already broken the mould of the previous legal regime.308 In the explanatory memorandum, it highlighted the “need for a thorough reform of the rules, inspired by the principle of liberalisation of labour relations, in keeping with the legal systems in force in the countries of Western Europe belonging to the same cultural context”. And it added that the recent political changes required the “the rules in force to be replaced by others enshrining strike action as a right,

 For example, Judgment of the Constitutional Court 193/2006, of 19 June, www.tribunalconstitucional.es, § II. 2. b. For thorought treatment, with references to legal scholarship and case law, Monereo Pérez and Ortega Lozano (2019), pp. 435 et seq., especially, pp. 456 et seq. From a comparative perspective, Birgillito (2019), pp. 91 et seq. 302  Such as the draft ley orgánica submitted by the Government to Congress in the spring of 1992, after the chaos caused by strikes controlled by the most representative trade union federations at national level, Martínez Girón et al. (2006), p. 454. With further exploration of this topic, Alonso Olea (1993), pp.  15 et  seq.; Diéguez Cuervo (1993), pp.  59 et  seq.; Martínez Girón (1999), pp. 760–761; Montoya Melgar (1993), pp. 89 et seqq. 303  Available at www.boe.es. 304  Alonso Olea (1993), p. 16. 305  Martínez Girón et al. (2006), p. 454. 306  For an analysis of this matter, Judgment of the Constitutional Court 11/1981, of 8 April, cit., especially, § II. 5 et seq., containing a detailed assessment of the Real Decreto-Ley. 307  Alarcón Caracuel (1993), p. 48. 308  This Real Decreto (disposición final primera) repealed Decreto-Ley 5/1975, of 22 May (on the settlement of collective labour disputes). 301

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simplifying the procedure for its exercise and setting the limits and boundaries to ensure that the higher interests of the community are safeguarded”.309 Innovations in relation to the previous legislation (Decreto-Ley 5/1975, of 26 May (regulation of Collective Labour Disputes): 1. Recognition of the possibility of strike in economic sectors providing public services (Article 4); 2. Specific indication of situations where strikes are unlawful (Article 11); 3. Recognition of the “strike committee” as the body representing the workers in the dispute (Article 5); 4. Definition of the effects of strike action on the legal employment situation and social security (Article 6); 5. The rule that a cierre patronal (lock-out) is only valid by way of a response, when certain preconditions are met, including the danger of violence to persons or serious damage to the facilities (Article 12 et seq.).310 Among the matters addressed by this legislation, we may point to prohibition of waiver of strike action (Article 2), the requirement of an agreement between the workers or their representatives for a declaration of strike and the consequent notification, in writing and 5 days in advance, of the employer and the labour authority, indicating the objectives, starting date and members of the strike committee—comprising workers from the workplace where the strike is to take place (Article 5— (Article 3); if public services are involved, 10 days’ prior notice is required, and the strike organisers must arrange the publicity needed for the users of those services to be warned (Article 4); participation in a strike suspends the employment contract— workers are then prohibited from entering the workplace (Article 7.1)311—those not joining the strike must be assured the freedom to work and strikers must not, as a  Explanatory memorandum, § I.  Judgment of the Constitutional Court 11/1981, of 8 April, cit., § 22, ruled that “the employer has the power to police and to duty to promote order within its undertaking, when a situation of danger to life, physical integrity, facilities or property is created by the disorganisation brought about by the dispute measures adopted by the workers. It may therefore be concluded that the power to impose a cierre patronal as a policing measures to safeguard the integrity of persons and property is not contrary to our Constitution, provided there is a determination to open the establishment as soon as the risk has subsided, and any type of closure that undermines or obstructs the right to strike s contrary to the Constitution”. See also Judgment of the Supreme Court (Social Division), of 31 March 2000, appeal no. 2705/1999, § 2, https://app.vlex.com/, which states: “unlike an offensive lockout, a defensive lockout, in response to developments, is made without any intention of preventing, interfering with or penalising exercise of the fundamental right to strike, and with the sole purpose of protecting persons and property from the excessively burdensome and disproportionate consequences that might result from exercise of that right. This temporary closure is the only one permitted in the Spanish legal system, in the light of the provisions of Articles 12 and 13 RDLRT [Real Decreto 17/1977, of 4 March]”. On this topic, Duque González (2018), pp. 705–706; Martínez Girón et al. (2006), pp. 469 et seq.; Monereo Pérez et al. (2022), pp. 745 et seq.; Monereo Pérez and Ortega Lozano (2019), pp. 157 et seq.; Montoya Melgar (2022), pp. 808 et seq. 311  Some legal scholars have extracted from Article 7 an indirect definition of strike, Alarcón Caracuel (1993), p. 49. 309 310

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general rule, be substituted (Article 6, paras. 2, 4 and 5); for the duration of the strike, the strike committee is required to ensure provision of the services needed for the safety of persons and property, maintenance of premises, and the employer is responsible for indicating the workers who should carry out those services312 (Article 6.7); on the other hand, in the event of a strike in companies providing public services or services recognised as necessary as a matter of urgency, and in especially serious circumstances, the government may establish the measures needed for the functioning of the services (Article 10.2).313 It is further noted that the ordinary legislation classified as unlawful, for example, rotating strikes, work-to-rule (Article 7.2),314 political strikes or those where the aims are unconnected to the professional interest of the workers affected, and also sympathy strikes (unless the professional interest of the supporters is at stake), strikes seeking to alter the terms of a collective agreement or strikes in breach of the legal rules or those of collective agreements concerning labour disputes (Article 11315), topics which have been interpreted creatively in case law.316,317

 Judgment 11/1981, of 8 April, cit., ruled that it was unconstitutional for the employer to have sole authority to designate the workers. 313  Judgment 11/1981, of 8 April, cit., raised no objection to the rule defining essential community services. See also Judgment 148/1993, of 29 Abril, https://hj.tribunalconstitucional.es/, which, admitting “possible excesses in the definition of minimum services”, concluded: “A correct assessment of the constitutional rights and values involved in strikes that affect essential community services requires procedures to be established that allow the corresponding decisions imposing minimum services to be subject to immediate judicial control” (§ II. 4.), in this case, in the administrative courts. For a commentary on the judgment, Baylos Grau (1993), pp. 289 et seq., especially, pp. 294 et seq. 314  On Article 7.2, Judgment of the Constitutional Court 11/1981, of 8 April, cit., § 10, concluded that “the wording chosen makes it clear that what the precept contains is a presumption iuris tantum of abuse of the right to strike. This means that anyone seeking to draw the consequences of the illegality or abusive character of a strike may invoke the presumption, but it also means that the presumption, like all those of this type, holds until proven otherwise. Consequently, strikers using this type of action can prove that in their case such use was not abusive. This is a question which, obviously, should be left to the discretion of the courts of justice and, as the case may be, of this Court as the result of an appeal procedure”. 315  Also on this topic, the Constitutional Court has admitted the validity of this type of strike, in certain circumstances, deeming unconstitutional the segment of the provision that deemed lawful sympathy strikes that affected “‘directly’ the professional interest of those promoting or supporting them”, cfr. Judgment 11/1981, of 8 April, cit., § 21. 316  The Constitutional Court—Judgment of the Constitutional Court 36/1993, of 8 February—was called on to pronounce on a political strike, which had been declared by two union federations (CCOO and UGT), without prior notice and found to be unlawful by the Higher Court of the Astúrias. For a critical analysis, Martínez Girón, “Reflexiones sobre el Cierre Patronal y la Huelga como formas de Lucha Ritual”, cit., pp. 764 et seq. 317  For a general assessment of the rules on strikes, inter alia, Duque González (2018), pp.  699 et seq.; Martínez Girón et al. (2006), pp. 453 et seq.; Monereo Pérez et al. (2022), pp. 715 et seq., especially, pp. 716 et seq.; Monereo Pérez and Ortega Lozano (2019), pp. 157 et seq.; Montoya Melgar (2022), pp. 787 et seq., in particular, pp. 785 et seq. 312

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Goerlich Peset JM (2014) Régimen de la Negociación Colectiva e Inaplicación del Convenio en la Reforma de 2012, «colección laboral, 218». Tirant lo Blanch, Valencia Gomes J, Carvalho R, Carvalho C (2011) Da (In)constitucionalidade das Reduções Salariais previstas no Orçamento de Estado aprovado pela Lei n.° 55-A/2010, de 31 de Dezembro. Questões Laborais 38:229–259 Gooren P (2022) Tarifeinheit und Tarifkollision (§ 4a TVG) in der Praxis. Neue Zeitschrift für Arbeitsrecht (NZA) no. 7:444–452 Grandguillot D (2022) L’Essentiel du Droit du Travail, 22nd edn. Lextenso, Paris Grandi M (2004) In Difesa della Rappresentanza Sindacale. Giornale di Diritto del Lavoro e di Relazioni Industriali 104:627–650 Hanau P (1993) Ejercicio del Derecho de Huelga: el Caso Alemán. In: AAVV, Revista de la Facultad de Derecho de la Universidad Complutense de Madrid, El Derecho de Huelga  – Seminario Hispano-Alemán, vol 17, pp 97–111 Henssler M (2015) Mindestlohn und Tarifrecht. Recht der Arbeit (RdA) 1:43–56 Holler DE (2020) Die Ordnungsfunktion des Tarifvertrags, «Schriften des Instituts für Arbeitsund Wirtschaftsrecht der Universität zu Köln», vol 133. C. H. Beck, Nuremberg Hromadka W, Maschmann F (2020) Arbeitsrecht, Band 2, 8th edn. Springer, Berlin Hueck A, Nipperdey HC (1962) Grundriß des Arbeitsrechts, Zweite Auflage. Franz Vahlen, Berlin Ichino P (2007) Primi due Decenni del Diritto del Lavoro Repubblicano. I. Dalla Metà degli Anni '50 alla Legge sui Licenziamenti Individuali. Rivista Italiana di Diritto del Lavoro 3:249–284 Ichino P (2011) Il Percorso Tortuoso del Diritto del Lavoro tra Emancipazione dal Diritto Civile e Rotorno al Diritto Civile. In: Convegno dell’Associazione dei Civilisti Italiani su Il Diritto Civile e “gli altri”. Università “la Sapienza” di Roma, pp 1–41. https://archivio.pietroichino.it. Accessed 30 Sept 2022 Javillier JC (1998) Verso le 35 Ore: Intervento Statale ed Autonomia delle Parti Socialia. Diritto delle Relazioni Industriali 2:243–254 Javillier JC (1999) Droit du Travail, 7th edn. L. G. D. J., Paris Kaskel W, Dersch H (1957) Arbeitsrecht, 5th edn. Verlag, Berlin Lahera Forteza J (2006) España. In: Valdés DR (ed) AAVV, Libertad de Asociación de Trabajadores y Empresarios en los Países de la Unión Europea, «coleccion informes e estudios, serie general, núm 18». Ministerio de Trabajo y Asuntos Sociales, Madrid, pp 279–306 Lassandari A (2003) La Contrattazione e il Contratto Collettivo, «Il Diritto del Lavoro». Ediesse, Roma Leitão LM (2021) Direito do Trabalho, 7th edn. Almedina, Coimbra Leite J (1994) Direito da Greve. Serviços de Acção Social da Universidade de Coimbra, Coimbra Leite J (2004) Direito do Trabalho, vol I.  Serviços de Acção Social da Universidade de Coimbra, Coimbra Linsenmaier W (2019) Das Richterrecht bleibt unser Schicksal – Zur Rechtsfortbildung durch das BAG. Recht der Arbeit (RdA) 3:157–169 Lokiec P (2019) Droit du Travail, «Thémis Droit». Puf, Paris Löwisch M, Rieble V (2017) Tarifvertragsgesetz Kommentar, 4th edn. C. H. Beck, München Loy G (2017) Sobre Algunas Anomalías y Convergencias del Sistema de Relaciones Laborales en Italia. In: Villalón C, Calvo M, Guastavino N (eds) AAVV, Representación y Representatividad Colectiva en Las Relaciones Laborales. Libro Homenage a Ricardo Escudero Rodríguez. Bomarzo, Albacete, pp 127–146 Magnani M (2018) The role of collective bargaining in Italian labour law. E J Int Comp Labour Stud 7(2):3. www.ejcls.adapt.it Magnani M (2020) Diritto Sindacale Europeu e Comparato, 3rd edn. G. Giappichelli Editore, Torino Magnon X (2017) Le Point de Vue du Constitutionnaliste: Quel(s) sens de l’alinéa 7 du Préambule de la Constitution du 27 octobre 1946? In: Crouzatier-Durand F, Kada N (eds) AAVV, Grève et Droit Public, 70 ans de Reconnaissance, Actes de colloques de l’IFR. Presses de l’Université Toulouse. Lextenso, Paris, pp 39–58

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Mancini F (1963) Libertà Sindacale e Contratto Collettivo «Erga Omnes». Riv Trimest Dirit Proced Civ:570–596 Martín Valverde A (1972) Huelga Ilicita y Despido en el Derecho del Trabajo Aleman. Rev Polít Soc 96:33–69 Martínez Girón J (1993) Notas sobre el Proceso y la Huelga como Formas de Lucha Ritual. Revista de la Facultad de Derecho de la Universidad Complutense de Madrid 17:125–127 Martínez Girón J (1999) Reflexiones sobre el Cierre Patronal y la Huelga como formas de Lucha Ritual. Anuario da Facultade de Dereito da Universidade da Coruña 3:759–766 Martínez Girón J (2008) La Publicidad del Convenio Colectivo en el Derecho del Trabajo Alemán. Rev Derecho Soc 42:183–193 Martínez Girón J, Arufe Varela A, Carril Vázquez XM (2006) Derecho del Trabajo, 2nd edn. Netbiblo, Coruña Martinez PR (2022) Direito do Trabalho, 10th edn. Almedina, Coimbra Martinez PR, Monteiro LM, Vasconcelos J, Brito PM, Dray GM, Silva LG (2022) Código do Trabalho Anotado, 13th edn. Almedina, Coimbra Martinez PS (1978) Comentários à Constituição Portuguesa de 1976. Verbo, Lisboa Martín-Retortilho RM (2013) La Publicidade del Convenio Colectivo. Un Estudio de Derecho Comparado, «Atelier Laboral». Atelier, Barcelona Martins AD (2003) As Constituições Espanhola de 1978 e Portuguesa de 1976: o Actual Denominador Constitucional Comum no Espaço Ibérico. In: The Spanish Constitution in the European Constitutional Context. La Constitución Española en el Contexto Constitucional Europeo. Dykinson, Madrid Martins PF (2001) Convenção Colectiva Vertical e Mudança de Actividade da Empresa. In: AAVV, Trabalho e Relações Laborais, «Cadernos Sociedade e Trabalho», vol 1. Celta Editora, Oeiras, pp 273–297 Mazzoni G (1967) Italie. Revue Internationale de Droit Comparé 19(1):61–74 Mazzota O (2017) Diritto Sindacale, 4th edn. G. Giappichelli, Torino Mella Méndez L (2022) The Spanish labor reform of 2021: a model to follow due to its origin and objectives. Comp Labor Law Policy J 41:535. https://cllpj.law.illinois.edu. Accessed 30 Sept 2022 Miranda J (2006) Os Juízes têm Direito à Greve. In: AAVV, Homenagem ao Prof. Doutor André Gonçalves Pereira. Coimbra Editora, Coimbra, pp 287–299 Miranda J (2020) Direitos Fundamentais, 3rd edn. Almedina, Coimbra Miranda J, Medeiros R (2006) Constituição Portuguesa Anotada, Tomo II (artigos 80.° a 201.°). Coimbra Editora, Coimbra Miranda J, Medeiros R (2010) Constituição Portuguesa Anotada, Tomo I (artigos 1.° a 79.°), 2nd edn. Coimbra Editora, Coimbra Molina Navarrete C (2022) Retorno Normativo a la Ultraactividad Indefinida: ¿Cambio que bien merece una Reforma o Valor Simbólico? Temas Laborales 161:387–406 Monereo Pérez JL (1987) La Intervención de la Administración Laboral en la Tramitación y en el Control de Legalidad de los Convenios Colectivos «Erga Omnes». Revista Española de Derecho del Trabajo 32:519–565 Monereo Pérez JL (2016a) La Mayor Representatividad Sindical como Eje del Sistema de Relaciones Laborales en España (I). Trabajo y Derecho 16:13–29 Monereo Pérez JL (2016b) La Mayor Representatividad Sindical como Eje del Sistema de Relaciones Laborales en España (II). Trabajo y Derecho 17:14–31 Monereo Pérez JL, Ortega Lozano PG (2019) El Derecho de Huelga: Configuración y Régimen jurídico. Aranzadi, Pamplona Monereo Pérez JL, Molina Navarrete C, Moreno Vida MN, Vila Tierno F (2022) Manual de Derecho del Trabajo, 20th edn. Granada, Editorial Comares Montoya Melgar A (1986) El Sindicato más Representativo en la LOLS e y la Sentencia del Tribunal Constitucional 98/1985. Actualidad Laboral 10:473–486

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Montoya Melgar A (1993) Ejercicio del Derecho de Huelga: el Caso Español. In: Revista de la Facultad de Derecho de la Universidad Complutense de Madrid 17:89–95 Montoya Melgar A (2022) Derecho del Trabajo, 43rd edn. Tecnos, Madrid Neves AC (1990) Considerações a Propósito do Direito à Greve. In: AAVV, Temas de Direito do Trabalho  - Direito do Trabalho na Crise, Poder Empresarial, Greves Atípicas, IV Jornadas Luso-Hispano-Brasileiras de Direito do Trabalho. Coimbra Editora, Coimbra, pp 449–452 Nicolini G (2004) A Contratação Coletiva no Ordenamento Italiano. In: Frediani Y, Zainaghi S (eds) Relações de Direito Coletivo Brasil-Itália. LTr, São Paulo, pp 75–86 Nikisch A (1959) Arbeitsrecht, II volume, 2nd edn. J. C. B. Mohr, Tübingen Nipperdey HC (1954) Evolución del Derecho Laboral en la República Federal de Alemania desde 1945: I. Revista Internacional del Trabajo, Ginebra L(1):29–48 Nogler L (2008) Pacta sunt servanda e «Contratti» Collettivi. In: AAVV, Studi in Onore di Edoardo Ghera, vol II. Cacucci, Bari, pp 771–783 Odoul-Asorey I (2013) Négociation Collective et Droit Constitutionnel. Contribution à l’Étude de la Constitutionnalisation des Branches du Droit, «Bibliothèque de Droit Social tome 59». LGDJ, Paris Oetker H (2019) Geschichte des Tarifvertragsgesetzes. In: Herbert W (ed) AAVV, Tarifvertragsgesetz, «Beck’sche Kommentare zum Arbeitsrecht», 8th edn. C. H. Beck, München, pp 7–73 Ogier-Bernaud V (2003) Les Droits Constitutionnels des Travailleus. Economica, Paris Pagotto M (1998) Il Lavoro Parasubordinato nella Repubblica Federale Tedesca. Diritto delle Relazioni Industriali 2:229–241 Palomeque López MC (1993) El Derecho Constitucional de Huelga y su Regulación en España. Revista de la Facultad de Derecho de la Universidad Complutense de Madrid 17:51–57 Pascucci P (2011) Dalla Giurisprudenza Costituzionale alla Legge sullo Sciopero. In: Lunardon F (ed) AAVV, Trattato di Diritto del Lavoro, volume 3, Conflitto, Concertazione e Partecipazione. Cedam, Padova, pp 217–275 Pera G (2007) Sulla Teoria dell’Ordinamento Intersindacale, 1991, publicado em Scritti di Giuseppe Pera, II, Diritto Sindacale. Giuffrè, Milano Perone G (2004) A Liberdade Sindical na Itália. In: Relações de Direito Coletivo Brasil-Itália, Yone Frediani and Sávio Zainaghi. LTr, São Paulo, pp 39–46 Persiani M (1972) Saggio sull’Autonomia Collettiva. Cedam, Padova Persiani M (2010) Osservazioni sulla Dottrina Giuslavoristica nel Trentennio dopo la Costituzione. Argomenti di Diritto del Lavoro 2:325–352 Petit F (2022) L’Essentiel du Droit du Travail: les relations collectives, 2nd edn. Lextenso, Paris Pilati A (2011) Il Campo di Applicazione della Legge e i Requisiti di Legitimità delle Astensioni Collettive. In: Lunardon F (ed) AAVV, Trattato di Diritto del Lavoro, volume 3, Conflitto, Concertazione e Partecipazione. Cedam, Padova, pp 277–354 Pileggi A (2011) La Serrata. In: Lunardon F (ed) AAVV, Trattato di Diritto del Lavoro, volume 3, Conflitto, Concertazione e Partecipazione. Cedam, Padova, pp 605–643 Pinto M (1996) Direito do Trabalho, Introdução e Relações Colectivas de Trabalho. Lisboa, Universidade Católica Editora Punta R (2022) Diritto del lavoro, 14th edn. Giuffrè, Milão Quintanilla Navarro RY (2016) La Comisión Consultiva Nacional de Convenios Colectivos. Revista del Ministerio de Empleo y Seguridad Social 123:157–187 Ramalho RP (2009) Negociação Colectiva Atípica. Almedina, Coimbra Ramalho RP (2020) Tratado de Direito do Trabalho, Parte III – Situações Laborais Colectivas, 3rd edn. Almedina, Coimbra Ray JE (2014) La Place de la Négociation Collective en Droit Constitutionnel. Nouveaux Cahiers du Conseil Constitutionnel 45:21. www.conseil-­constitutionnel.fr Ray JE (2020) Droit du Travail «Droit Vivant», 28th edn. Wolters Kluwer, Paris Reis J (2018) A Caducidade e a Uniformização das Convenções Colectivas, a Arbitragem Obrigatória e a Constituição. Questões Laborais 22:155–211

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Reis J (2003) A Caducidade e a Uniformização das Convenções Colectivas, a Arbitragem Obrigatória e a Constituição. In: Questões Laborais 22:155–211 Remy P (2007) El Sistema de Negociación Colectiva en Alemania. In: AAVV, Experiencias de Negociación Colectiva en Europa y sus Puntos Críticos, XVIII Jornadas de Estudio sobre Negociación Colectiva, «Informes y Estudios, serie Relaciones Laborales», vol 80. Ministerio de Trabajo y Asuntos Sociales, pp 27–53 Richard R, Bayreuther F (2019) Kollektives Arbeitsrecht, 4th edn. Franz Vahlen, München Richardi R (2018) BetrVG/Richardi BetrVG § 77. In: Reinhard R (ed) AAVV, Betriebsverfassungsgesetz: BetrVG mit Wahlordnung, «Kommentare zum Arbeitsrecht», 16th edn. C. H. Beck, München Romagnoli U (1979) Art. 40. In: Branca G (ed) AAVV, Commentario della Costituzione, Rapporti Economici, Tomo I, Art. 35–40. Zanichelli e Roma Società Editrice del Foro Italiano, Bologna, pp 289–325 Romagnoli U (2017) Sindacato e Costituzione: la Lunga Attesa della Quaterna. Riv Trimest Dirit Proced Civ 71(2):649 Romano S (1945) L’Ordinamento Giuridico, 2nd edn. Sansoni, Firenze Rönnau T (2011) Grundwissen – Strafrecht: Sozialadäquanz. Jus 4:311–313 Sáez Lara C (2022) Concurrencia entre Convenios Colectivos y Modernización de la Negociación Colectiva. Temas Laborales 161:335–359 Sala Franco T (2017) Derecho Sindical, 2nd edn. Tirant lo Blanch, Valencia Sandri LRL (1959) Appunti di Diritto del Lavoro, Il Diritto del Lavoro in Generale, L’Ordinamento Sindacale. Giuffrè, Milano Sanseverino L (1962) Contratto Collettivo di Lavoro. In: Calasso F (ed) Enciclopedia del Diritto, X (contratto-cor). Giuffrè, Milano, pp 55–77 Santoro-Passarelli G (2013) Diritto del Lavori. Diritti Sindacale e Rapporti di Lavoro. Giappicheli Editore, Torino Santoro-Passarelli G (2020) L’Evoluzione delle Relazioni Industriali tra Conflitto e Partecipazione. La Commissione di Garanzia. Diritto delle Relazioni Industriali 2:407 et seq Schaub G (2019) Arbeitsrechts-Handbuch, 18th edn. C. H. Beck, Nuremberga Silva LG (2001) Notas sobre a Eficácia Normativa das Convenções Colectivas. In: Cadernos Laborais, vol 1. Instituto de Direito do Trabalho da Faculdade de Direito de Lisboa. Almedina, Coimbra Silva LG (2003) Sujeitos Colectivos. In: Martinez R (ed) AAVV, Estudos do Instituto de Direito do Trabalho, vol III. Almedina, Coimbra, pp 287–388 Silva LG (2022) Da Eficácia da Convenção Colectiva, vol I and II. Imprensa FDUL, Lisboa Spielberger M (2017) Arbeitskampfmaßnahmen; Suspendierung der Arbeitsverhältnisse. Neue Juristische Wochenschrift (NJW) 42:3103–3104 Spinner G (2020) § 611a Arbeitsvertrag. In: Säcker J, Rixecker R, Oetker H, Limperg B (eds) Münchener Kommentar zum Bürgerlichen Gesetzbuch, vol 5, 8th edn. C. H. Beck, München Stamer K (2010) Die Relativität der Friedenspflicht. Arbeitsrecht Aktuell (ArbRAktuell) 26:646–648 Tamajo RL (2018) Incertezze e Contraddizioni del Diritto Sindacale Italiano: è Tempo di Regolamentazione Legislativa. Rivista Italiana di Diritto del Lavoro 1:273 et seq Tarello G (1972) Teorie e Ideologie nel Diritto Sindacale. L’Esperienza dopo la Constituzione, 2nd edn. Edizione di Comunità, Milano Terradillos Ormaetxea E (2016) La Evolución de las Estructuras de Participación de los Trabajadores en España a Consecuencia de la Crisis: Sobre su Consonancia (o Disonancia) com la Normativa Internacional. Revista Internacional y Comparada de Relaciones Laborales y Derecho del Empleo 4(1):1–31. www.adapt.it Teyssié B (2018) Droit du Travail. Relations collectives, 11th edn. LexisNexis, Paris Treu T (2019) Regole e Procedure nelle Relazioni Industriali: Retaggi Storici e Criticità da Affrontare. WP C.S.D.L.E. “Massimo D’Antona”. IT – 396/2019, csdle.lex.unict.it, pp 1–28

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Chapter 5

Individual Labour Law

5.1 Job Security 5.1.1 Italy Article 4.1 of the Italian Constitution lays down that “the Republic shall recognise the right of all citizens to work and shall promote such conditions as shall render this right effective”. Further on, in Article 35.1, the Fundamental Law lays down that the Republic protects labour in all its forms and applications. This provision, strategically positioned1 at the start of Title III of the Fundamental Law, dealing with Economic Relations, functions as an elaboration on the provisions of Article 4. However, these articles make no provision for concrete forms of protecting labour, serving instead as a standard to inspire and guide the interpretation of the constitutional provisions that follow and of the legislation in this area. Article 35 of the Italian Constitution concerns protection of the worker, as the party to the employment relationship needing that protection, in view of the social inferiority attached to his position in this context. The “labour” or economic activity carried on by the employer lies outside the scope of this protection. As the Corte Costituzionale has ruled, “the subject of this constitutional provision is the worker and not the employer, whose freedom of enterprise and action is guaranteed, at a different level and subject to very different rules, in Article 41 of the Constitution”.2 The protection conferred by this provision is not however enjoyed exclusively by employees. The Corte Costituzionale has ruled several times that the protection  Martelloni (2020).  Judgment of the Corte Costituzionale no. 141/1967, of 15 December, https://www.giurcost.org.

1 2

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Gonçalves da Silva, S. Leitão, Constitutional Framework of European Labour Law in Italy, France, Germany, Portugal and Spain, https://doi.org/10.1007/978-3-031-45717-3_5

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conferred by this norm extends to the self-employed, in consideration of their position of greater fragility and not so much of their position of subordination.3 In Italy there is no express constitutional provision guaranteeing job security or conferring on workers the right not to be dismissed unfairly.4 The Italian Civil Code does not even establish dismissal as a separate concept, referring indiscriminately to the position of both parties in the employment relationship. For this reason, through the elaboration on Articles 2118 and 2119 of the Civil Code in case law and legal theory, the structural issues raised by dismissal have been resolved over time.5 Article 2118 of the Civil Code provides for free termination of a permanent employment contract by either of the parties, subject to prior notice.6 Article 2119.1 provides for the possibility of termination of a fixed-term employment contract prior to the expiry of its term, or without prior notice, in the case of a permanent contract, if a cause arises preventing its continuation, even if only provisionally. Under the Italian Civil Code, fair grounds functions only to justify deviation from the general rule, which is that of compliance with a prior notice for cessation of contract (Article 2118). This will vary depending on the collective regulations applicable, which normally determine the prior notice period on the basis of the worker’s length of service.7 In the mid-1960s, the system of absolute freedom of dismissal was found to be incompatible with the Welfare State. At that time, the Corte Costituzionale was called on to pronounce on the constitutionality of Article 2118 of the Civil Code.8 The question was raised from the perspective of the compatibility of the system of free dismissal with the fundamental principle of the right to work, enshrined in Article 4.1 of the Constitution, and with the system of guarantees conferred on workers by the Fundamental Law, in particular, the position of labour as the foundation of the Republican State (Article 1), the subordination of the entire legal system to social rights, as the guarantor of the freedom and independence of the person (Article 2), the duty to eliminate

 Cfr., to this effect, Judgments of the Corte Costituzionale no. 180/1984, of 27 June, no. 880/1988, of 26 July, and no. 28/1995, of 19 January, https://www.giurcost.org. As Tiziano Treu has pointed out, the different meanings with which the term labour is used in the Constitution reflects the indetermination of the material position reserved by the authors of the Constitution for the different manifestations of labour activity and, therefore, for the subjects, both individual and collective, who express them (Treu et al. 1979, Comment to Article 35, p. 1). 4  Punta (2022), p. 676. 5  Mazzotta (2019), pp. 646–647. 6  Article 2118.1 lays down that “Each of the parties may terminate a permanent employment contract, giving the prior notice and as established in the corporative rules, usage or on the basis of equity”. 7  Mazzotta (2019), p. 650. 8  Cfr. Judgment of the Corte Costituzionale no. 45/1965, of 9 June, https://www.giurcost.org. 3

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o­ bstacles to the freedom and equality of citizens and promotion of full personal development (Article 3.2) and the manifestations of the rules protecting labour, contained in Articles 35–41, 43 and 46 of the Constitution. The Court ruled however that Article 4 of the Constitution does not result in a right to obtain or to keep employment, which would find its “logical and necessary prerequisite in the former”.9 In any case, the Court acknowledged that the rules on dismissal cannot ignore Article 4 of the Constitution entirely and that, within the framework of that provision, the legislator should adapt the rules so as to ensure continued employment. The right to work was therefore understood as a fundamental right of the freedom of the person, expressed in the choice and form of exercise of their labour activity. It therefore requires the State to reject or deny that freedom, directly or indirectly, as a “constitutional affirmation of the social importance of labour which, without creating perfect legal relationships, offers an invitation to the legislator to allow full advantage to be derived from free activities in economic relations”.10 In view of the absence of a constitutional limitation to this effect, Italian legal scholars have pointed to Article 30 of the Charter of Fundamental Rights of the European Union11 as protection for workers against unfair dismissal, which article prevails over the provisions of internal law.12 Implementing this requirement, the system has placed significant limits over time on the power to terminate employment contracts on the employer’s initiative, in order to to guarantee, as far as possible, the stability of employment.13 Conversely, no limit was placed on the possibility of workers releasing themselves from their contracts, which as a rule is subject only to prior notice (Article 2118 of the Codice Civile), unless the worker has fair grounds for immediate cessation. A significant factor here is the weaker position of the worker in relation to termination of contract, in view of the greater facility enjoyed by the employer in finding a substitute for the departing worker. In any case, until 1966, Italian law permitted dismissal without fair grounds, merely obliging the employer to give the required prior notice. This state of affairs was altered by Law 604/1966, of 15 July, under which the requirements for lawful dismissal were expanded to include, in addition to the prior

 Cfr. Judgment of the Corte Costituzionale no. 45/1965, of 9 June, https://www.giurcost.org.  Cfr., to this effect, Judgment of the Corte Costituzionale no. 3/1957, of 26 January, https://www. giurcost.org. 11  Article 30 of the Charter of Fundamental Rights of the European Union states that “Every worker has the right to protection against unjustified dismissal, in accordance with Community law and national laws and practices”. As pointed out by João Leal Amado, protection against unfair dismissal falls within the “social policy matters on which the European Union has powers of harmonisation”, in order to achieve the aims of European social policy established in Article 151 TFEU (Silveira and Canotilho 2013, p. 366). On this provision, see also Mélanie Schmitt, “Article 30 – Protection in the Event of Unjustified Dismissal”, Schmitt (2019), pp. 505 et seq. 12  Luca (2013). 13  Mazzotta (2019), p. 641. 9

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notice period, requirements of form and the existence of grounds. Dismissal could take place on the basis of fair grounds (giusta causa), under the terms of Article 2119 of the Italian Civil Code, or else of a justified reason (giustificato motivo)— cfr. Article 1 of the law. Dismissal for subjective reasons, i.e. related to the person of the worker, can occur on the basis of subjective fair grounds, in which case it will be immediate, or for a subjective justified reason, in which case it is subject to prior notice. Subjective justified reasons may relate to a significant breach of the workers’ contractual obligations or reasons relating to production operations, the organisation of labour or its smooth functioning. (Article 3 of Law 604/1966). Such breach must be “significant from the point of view of the objective seriousness of the act or omission, because proportionality (Article 2106 of the Codice Civile) will determine the need for disciplinary penalties when the grounds are insufficient justification for dismissal.14 The difference between fair grounds and subjective justified reason is one of seriousness. Fair grounds is on the same scale of subjective justified causes, but at a higher level of seriousness.15 A worker may also be dismissed for objective or economic reasons relating to the employer’s decisions on the scale and organisation of production and labour (Article 3 of Law 604/1966, in fine).16 Under the protective wing of free enterprise, these decisions by the employer are not subject to judicial control.17 Notice of dismissal must be given in writing, setting out the underlying reason.18 When the reason (whether considered to be fair grounds or justified reason) is disciplinary in nature, the procedure will be that established in Article 7 of the Statuto dei lavoratori.19 Collective dismissal—defined as dismissal for reasons related to cessation or conversion of the business activity or work, occurring in companies with no less than 15 workers that terminate no less than five employment contracts in a period of 120 days, in each production unit, or at several production units within the same province (Article 24.1 of Law 223/1991, of 23 July)—is subject to a specific  Cfr. to this effect, Judgment of the Corte di Cassazione no. 2336, of 15 February 2003, https:// dejure.it, ruling that there were no grounds to apply the penalty of dismissal in the case of pilfering of goods of modest value by a worker without disciplinary antecedents and whose employment relationship did not presuppose a special level of trust, because of the ordinary nature of his duties (warehouse operative). 15  Punta (2022), pp. 689–690. 16  Punta (2022), p. 691. 17  Cfr., to this effect, Judgment of the Corte di Cassazione no. 25201, of 7 December 2016, https:// dejure.it. 18  The requirement of serving notice is intended to ensure that the worker can know the reasons for the dismissal and to “crystallise” those reasons; only the grounds stated in the notice can be invoked in a dispute—cfr., to this effect, Judgment of the Corte di Cassazione no. 1597, of 13 February 1987, https://dejure.it. 19  Application of these rules to disciplinary dismissal has been contested—on the debate, with references to legal theory and case law, Mazzotta (2019), pp. 670 et seq. 14

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procedure. It starts with a written communication to the body representing the workers collectively, containing information relevant to the dismissal, including the grounds for dismissal, the number of surplus workers and their profiles (Article 4, paras. 2 and 3 of Law 223/1991), followed by a consultation phase (Article 4.5), when this information is examined jointly. Failing agreement between the parties, the director of the Ufficio provinciale del lavoro (provincial labour office) invites the parties to negotiations (Article 4.7), followed by a decision by the employer, who may terminate the contracts after complying with the applicable prior notice period (Article 4.9). Article 18 of the Statuto dei Lavoratori—on protection of workers in the event of unfair dismissal, guaranteeing their reinstatement in certain cases—has provided ample scope for debate in legal theory and case law. As a rule, if the dismissal is voided, for example, on the grounds of discrimination, or due to being made verbally, the judge will order reinstatement, irrespective of the grounds formally stated and the number of workers in the undertaking, notwithstanding payment of compensation to the worker (Article 18.1). In cases where there are found to be no grounds for dismissal, because the alleged fact is false or the worker’s conduct invoked calls for application of a disciplinary penalty, the judge voids the dismissal and orders reinstatement, notwithstanding payment of compensation to the worker (Article 18.4). However, this rule only applies in the case of dismissal by employers with more than 15 workers (or 5, in the farming sector) in units in the same municipality, or with more than 60 workers in the country as a whole (Article 18.8). In all other cases, the employer may choose between reinstating the worker within 3 days or payment of compensation of between 2.5 and 6, 10 or 14 times the last monthly remuneration paid, taking into account the number of workers and size of the undertaking, the worker’s length of service, their behaviour and the condition of the parties (Article 8 of Law 604/1966).20

5.1.2 Germany Germany’s Basic Law (Grundgesetz für die Bundesrepublik Deutschland) makes no express provision for job security, nor indeed, expressly, for the right to work. However, the right to work functions as a manifestation of human dignity, guaranteed by Article 1 of the Basic Law, and of free development of personality, also protected by the Constitution in Article 2.1.21 The right to work and recognition that exercise of a trade contributes to free development of the personality have contributed to moving beyond the traditional

 With an assessment of the rules at constitutional level, cfr. Grandi (2013), Luca (2013), Cannati (2013). 21  Weiss (2005), p. 189. 20

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understanding whereby the employer’s obligations were sufficiently discharged on payment of remuneration, as a more immediate reading of Article 611 BGB might suggest.22,23 The law does not, in fact, impose on the employer a duty to allow the worker to exercise his or her trade, and so, on the face of it, payment of remuneration would suffice for strict performance of its contractual obligations. However, this merely literal reading of the obligations of parties to employment contracts has led to situations where, although remuneration is paid, the employer did not permit work to be done. It was therefore gradually recognised that these situations were incompatible with Articles 1 and 2 of the German Constitution, and the Federal Labour Court (Bundesarbeitsgericht) recognised the existence of a right to work and not merely to remuneration, it being possible for the employer to prevent the worker from working in only very limited cases (for example, in the event of serious misconduct by the worker).24 Article 12.1 of the Basic Law protects private autonomy in the formation, content and cessation of employment contracts, limited, however, by the principle of the Welfare State, under which the State must ensure a fair social order.25 The basic right to free choice of occupation or profession (Article 12.1 of the Basic Law) and the fundamental freedom from forced labour (Article 12, paras. 2 and 3, of the Basic Law) have implications for the freedom of cessation of employment contracts. The right of free choice of occupation or profession also includes the right to maintain, cease and change employment,26 the right to a job being recognised as a fundamental right. This right is therefore a manifestation of the right to work and demands legal rules on dismissal that ensure the worker is protected against redundancy. In ordinary law, recognition of this right means that the worker must not lose his job against his will, without objective, fair and reasonable reasons.27 So on the one hand we have the employer’s freedom to maintain in its service only those workers who satisfy its expectations, and on the other the worker’s right to preservation of his or her employment, both assured by Article 12 of the Basic Law. The aim of the legislator will therefore be to balance the conflicting interests of the parties, both arising from fundamental rights recognised and guaranteed by the Basic Law.28  Weiss (2005), p. 189.  Article 611 of the BGB lays down that “By means of a service contract, a person who promises service is obliged to perform the services promised, and the other party is obliged to grant the agreed remuneration”. 24  Weiss (2005), pp. 189–190. 25  Dörner and Wildschütz (2018), p. 59. 26  Badura (1973), p. 21. 27  Badura (1973), pp. 22–23. 28  Däubler et al. (2017), p. 1967. 22 23

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German law provides for two types of dismissal: (i) ordinary dismissal, subject to prior notice, and (ii) extraordinary dismissal, justified by fair grounds, taking immediate effect. Extraordinary dismissal, with fair grounds, causes the contract to cease immediately, without being subject to prior notice, and will occur in the light of facts that cannot reasonably permit the employer to keep the worker in its service during the prior notice period.29 In this case, notice of termination must be given within 2 weeks of learning of the facts (§ 626 BGB). In contrast, ordinary dismissal is subject to a minimum prior notice period of between 4 weeks and 7 months, depending on the worker’s length of service.30 Under § 623 BGB, notice of dismissal must in all cases be served in writing. However, prior notice is not the only requirement that ordinary dismissal must meet. Under § 1, para. 1, of the Kündigungsschutzgesetz (KSchG, Employment Protection Law), it must be “socially justified” in companies with more than 10 workers and when the worker has worked in the same company for more than 6 months (§ 23 KSchG).31 Under § 1, para. 2, KSchG, a contrario, dismissal will be socially justified when justified by grounds relating to (i) the person of the worker (in particular, situations of ill health), (ii) the worker’s behaviour (corresponding to breach of his employment duties) or (iii) pressing operational requirements that prevent him from continuing to work in the undertaking (vulgo, reasons of an economic order).32 In terms of procedure, § 102, para. 1, of the Betriebsverfassungsgesetz (BetrVG, Works Constitution Act), lays down that the works council (Betriebsrat) must be consulted prior to any dismissal, on pain of it being void, and must be provided with all the information needed to confirm the lawfulness of the dismissal. Lastly, under § 17 KSchG, the employer must follow a specific procedure when the dismissal involves more than one worker, the numerical requirement varying in accordance with the size of the undertaking,33 within a period of 30 days.

 Specifically, competition with the employer or aggressive or insulting behaviour to the employer or co-workers. On this concept, with abundant references to case law, cfr. Hromadka and Maschmann (2023), pp. 459 et seq. 30  Under § 622, paras. 1 and 2, of the BGB, the minimum period will be 4  weeks, extended to 1 month when the workers has more than 2 years’ length of service, 2 months when he has more than 5 years, 3 months when more than 8 years, 4 months when more than 10 years, 5 months when more than 12 years, 6 months when more than 15 and 7 months when more than 20. 31  Arguing, in any case, that the minimum protection required by the constitution against redundancy in small companies is assured by the general rules of civil law against arbitrary exercise of the right to terminate the agreement, Däubler et al. (2017), p. 1970. 32  On the concept of “social justification”, within the meaning of KSchG § 1., cfr. Weiss et  al. (2020), pp. 134 et seq. 33  In companies with more than 20 and less than 60 workers, dismissal of more than five; in companies with more than 60 and less than 500, 10% or more than 25 workers; in companies with no less than 500 workers, 30 or more. 29

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The employer must notify the Agentur für Arbeit, as well as the works council (Betriebsrat), providing it with information relevant to an assessment of the dismissal. This is followed by a negotiation phase with a view to avoiding or limiting the dismissals and mitigating their consequences, and notification of the Agentur für Arbeit, on which the works council may again pronounce. Under § 18, the Agentur für Arbeit may delay the dismissals by up to 2 months after receipt of notification, but not prevent them. The guarantee of employment stability has repercussions on the consequences of unlawful dismissal, enshrining the right of the worker to reinstatement in his or her job. Under German law, therefore, reinstatement of an unfairly dismissed worker is the rule, although, in certain circumstances, the employer may obtain dissolution of the contract, preventing the worker from returning. This will be possible upon payment of compensation to the worker and if it shown that future cooperation between the parties can no longer be expected (§ 9 KSchG).34

5.1.3 France In item 5, the Preamble to the French Constitution of 1946, incorporated in the Constitution of 1958, proclaims, as principles “particularly necessary to our time”, that everyone has the duty to work and the right to obtain employment (“le droit d’obtenir un emploi”), thereby enshrining the right to work or employment (“droit à l’emploi”). Elaborating on these guarantees, Article 34 of the 1958 Constitution lays down that statute law shall determine “basic principles Employment law, Trade Union law and Social Security”. This law does not establish a fundamental freedom, but rather a “right-claim” (“droit-créance”) on the part of the worker, which must be conciliated with other constitutional rights and principles, in particular, with the freedom of enterprise, which is the basis for the employer’s right freely to hire and dismiss workers. The legislator is required to set this balance, subject to oversight by the Conseil Constitutionnelle, and workers are not able to rely directly on this right.35  The question has also been raised of whether a worker is entitled to remain in his job while judicial proceedings to assess his dismissal are pending, in view of the time taken by court proceedings, and the Bundesarbeitsgericht has ruled that, in view of the uncertainty as to how the court will decide on the lawfulness of dismissal, the workers is not entitled to remain in the company’s service. However, if it is found at first instance that dismissal was unlawful, the worker shall return to the company’s service until a final decision is reached—cfr. BAG, 19.02.1985—GS 1/84, https://dejure.org, ruling that the existence of a judicial decision declaring the dismissal to be invalid precludes the possibility of invoking the uncertainty of the outcome as grounds for the employer’s overriding interest in maintaining cessation of the contract. 35  Cfr. Judgment of the Cour de Cassation no. 1964, of 21.09.2017, ruling that the conversion of a temporary employment relationship into a permanent contract could not determine that the worker remains in his job (http://courdecassation.fr). 34

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Traditionally, the “right to obtain employment” is associated with access to employment, as the basis of public employment policies. However, it has gradually been given a broader dimension, relating to continued employment.36 Accordingly, the right to employment (“droit à l’emploi”), broadening the right to obtain employment, as literally guaranteed by item 5 of the preamble to the 1946 Constitution, to be given concrete form in statute law, must be conciliated with the freedom of enterprise, both of which help shape the legal rules on dismissal. The semantic shift from the right to obtain employment to a true right to employment makes it possible, in particular, for this right to form the basis of a right to preservation of or continued employment, requiring the legislative authorities to fill out its content.37 In practice, this right would operate in two ways: firstly, requiring grounds for dismissal, secondly, pointing to the consequences of unlawful dismissal. In its Judgment of 12.01.2002, the Conseil Constitutionnel was called on to pronounce on the constitutionality of the Social Modernisation Law (loi de modernisation sociale), which restricted the grounds that could justify dismissal for economic reasons.38 Specifically, this law limited dismissal for economic reasons to the causes it enunciated, admitting this form of dismissal in cases where reorganisation is essential (and not merely necessary) to safeguard the company’s business, and in the face of serious economic difficulties which cannot be overcome in any other way. The Conseil Constitutionnel considered that the rules would amount to an inadmissible restriction on the freedom of enterprise (enshrined in Article 4 of the Constitution), that it would only be admissible if those restrictions were based on constitutional requirements or on the general interest, provided they did not lead to “distortion” of that freedom and provided the limitation was proportional to the objective proposed. The Court considered that the rule failed to comply with the proportionality principle because, in typifying the situations where the use of dismissal on economic grounds was admissible, the law restricted the situations in which the courts themselves admitted recourse to this form of termination of employment contracts.39 In the understanding of the Conseil Constitutionnel, by thereby restricting the possibilities of redundancies, the law disproportionately breached the freedom of

 Baugard (2014), p. 333.  Baugard (2014), p. 336. 38  Decision of the Conseil Constituionnel no. 2001-455 DC, of 12.01.2002 (https://www.conseil-­ constitutionnel.fr). 39  This was the case of reorganisation to ensure the competitiveness of the company (admitted as grounds for dismissal for economic reasons by Judgment of the Cour de Cassation of 04.04.1995, Appeal no. 93-42690, https://www.legifrance.gouv.fr) and of discontinuation of the company’s business for reasons not attributable to the employer (also admitted as grounds for economic dismissal by Judgment of the Cour de Cassation of 16.01.2001, Appeal no. 98-44647, https://www. legifrance.gouv.fr). 36 37

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enterprise and also the actual right to employment, as it would delay inevitable restructuring operations, at a higher price in terms of other workers’ jobs.40 Years later, the Conseil Constitutionnel was again called on to pronounce on extension of the right to obtain employment to that of continued employment, assessing the constitutionality of the legal rules that would allow an employer with more than 20 workers to hire a young person on what is called a “first employment contract” (“contrat première embauche”), which could be terminated without invoking any grounds.41 The Court ruled that the legislator’s intention with these rules was to help young people into work, and it may be inferred from the decision that item 5 of the preamble to the 1946 Constitution does not require scrutiny of the grounds for dismissal, consenting at least to the absence of such oversight during a limited period of time.42 Scrutiny would only be required for situations of abuse of right and discrimination. In Title III, addressing termination of permanent employment contracts, the Code du Travail lays down the terms on which an employment relationship may be brought to an end. Chapter II deals with dismissal for personal reasons and Chap. III with dismissal for economic reasons. The grounds for dismissal must always be a “real and serious cause” (“cause réelle et sérieuse”) (Articles 1232-1 and 1233-2); this requirement substituted scrutiny a posteriori of abuse of right in termination of employment on the employer’s initiative.43 The genuine or “real” character of the cause requires that the facts invoked be objective, truthful and verifiable. For the cause to be serious, it must meet a substantive condition, to be assessed by the judge when considering the dismissal decision.44 The absence of a definition of what should be understood by “real and serious cause” and the exercise of scrutiny of its existence allowed the Cour de Cassation considerable freedom in filling out the concept and assessing the grounds invoked. Dismissal for personal reasons must be justified by a “real and serious cause” (Article 1232-2 of the Code du Travail), which may relate to a culpable act or omission by the worker or a circumstance beyond their control (such as their unsuitability or absence). The judge must assess whether the grounds invoked actually make it impossible for employment to continue without causing harm to the employer.45

 Cfr. Decision of the Conseil Constituionnel no. 2001-455  DC, of 12.01.2002 (https://www. conseil-­constitutionnel.fr). 41  Decision of the Conseil Constituionnel no. 2006-535 DC, of 30.03.2006 (https://www.conseil-­ constitutionnel.fr). 42  Baugard (2014), p. 337. 43  Favennec-Héry and Verkindt (2020), p. 576. 44  Duquesne (2022), p. 123. 45  On the concept of real and serious cause, cfr. Auzero et al. (2020), pp. 571 et seq. 40

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This type of dismissal must comply with the procedure established in law, which starts with a preliminary interview, in which the employer must present the reasons for its decision and give the worker the chance to set out his or her position (Article 1234-4). Notice of the decision is then served, by registered letter with recorded delivery (Article 1232-6). Dismissal for economic reasons, provided for in Articles 1233-2 et sequitur, is also based on a “real and serious cause” (Article 1233-2), relating to reasons extrinsic to the person of the worker, as a result of their job ceasing to exist or being transferred elsewhere, or else of alteration of an essential element of the contract, rejected by the worker46 (Article 1233-3). Such redundancies may be individual or collective. French case law has argued that only long-term economic difficulties, emperilling the sustainability of the undertaking, can form grounds for dismissal for economic reasons.47 A reduction in turnover in a 6-month period, or even over a year, might not be enough to constitute a “real and serious cause” for redundancies.48 In 2016, in order to offer “legal certainty” in assessment of the grounds for economic redundancies, em 2016, the legislator inserted in Article 1233-3 of the Code du Travail reference to a series of economic indicators, which would make it possible to define what is understood by “economic difficulties” (Law 2016-1088, of 08.08.2016). The setting of these criteria, in L1233-3 of the Code du Travail, appears to have contributed to “automatic” recognition of a cause for economic redundancy when orders or turnover have declined over several quarters.49 Dismissal for economic reasons can only take place when all avenues for retraining and adapting the worker have been exhausted and it is not possible to move the worker to one of the jobs available within national territory in the company or other companies in the group to which the company belongs (Article L1233-4). Collective lay-off of between 2 and 10 workers for a period of 30 must be preceded by consultation of the body collectively representing the workers (Article L1233-8). As with dismissal for personal reasons, here too each worker is called to an interview (Article L1233-11), where the employer indicates the reasons for the expected decision and hears what the worker has to say (Article L1233-12).

 As Lobo Xavier has pointed out, “redundancy resulting from non-acceptance by the worker of a substantial alteration of the contract, requested by the employer and arising from an economic cause, is deemed equivalent to termination by the employer” (Xavier 2000, p. 216). 47  Cfr., to this effect, decisions of the Cour de Cassation, of 08.12.2004 (Appeal no. 02-46.293) and 28.01.2014 (Appeal no. 12-23.206) (https://www.legifrance.gouv.fr). 48  Cfr., to this effect, judgmen of the Cour de Cassation, of 12.12.2013 (Appeal no. 12-23.079), assessing the dismissal for economic reasons of a worker at the start of 2009 on the grounds of the financial difficulties experienced in 2008 (https://www.legifrance.gouv.fr). 49  Critical of this regime, Tarasewicz et al. (2016), passim. 46

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This is followed by the sending of the final decision (Article L1233-15) and notification of the administrative authority (Article L1233-19). In collective redundancies of more than 10 workers, the first stage is consultation of the workers’ representatives, providing them with all relevant information on the redundancies, including the underlying reasons and details of the workers affected (Article L1233-31 et seq.). This is followed by notification of redundancy (Article L1233-39). The other area where the right to continued employment, as a manifestation or broadening of the right to obtain employment, has an impact is that of the consequences of unlawful dismissal. In its Judgment of 13 January 2005, the Conseil Constitutionnel had been asked about the constitutionality of a law which, altering the Code du Travail, provided for examples of cases where it was impossible to reinstate a worker after a dismissal declared null and void that would not result in the material and absolute impossibility of the employment relationship continuing, specifically, following on from closure of the establishment or in the event of the lack of available work permitting the worker to be reinstated. Recognising that this change in the law greatly expanded the possibilities of excluding reinstatement, only permitted by the case law of the Cour de Cassation in extreme cases,50 of absolute and material impossibility, the Conseil Constitutionnel ruled that this change legitimately conciliated the right to obtain employment, in its dimension of the right to continued employment, freedom of enterprise and the right to obtain employment of the unemployed, which would be reduced if legislative or case law solutions highly protective of existing workers were to undermine a decision to hire new workers. The Court recalls that the “right to obtain employment”, proclaimed by the preamble to the 1946 Constitution, is not a subjective right, but rather an objective right with constitutional status that must be pursued in the domain of labour relations.51 Article L1235-3 of the Code du Travail lays down that, if dismissal is not based on a real and serious cause, the judge may propose reinstatement of the worker in the company, retaining his acquired rights. If either of the parties rejects reinstatement, the worker will be entitled to compensation, payable by the employer, set at between the lower and upper limits

 By way of example, the Cour de Cassation ruled that the exclusion of reinstatement was not admissible in the case where a company had practically discontinued its business at the worker’s place of work and that there was no job opening corresponding to the worker’s skill set (Judgment of the Cour de Cassation, of 13.12.1994, Appeal no. 92-42.454, https://www.legifrance.gouv.fr) and in the case where the undertaking was in a crisis situation, not permitting reinstatement at a location different from where the job had been eliminated (Judgment of the Cour de Cassation, of 24.06.1998, Appeal no. 95-44.757, https://www.legifrance.gouv.fr). 51  Cfr. Decision of the Conseil Constitutionnel no. 2004-509 DC, of 13.01.2005, and the respective Commentary (https://www.conseil-constitutionnel.fr). 50

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determined by law, on the basis of the worker’s length of service and the value of their monthly remuneration.52 If the dismissal is voided on the grounds of violation of a fundamental right or of acts of harassment or discrimination, or in the event of dismissal of protected workers, the employer cannot refuse to reinstate them (Article L1235-3-1). Reinstatement can only be excluded, in these cases, when the worker so requests of when it proves impossible, in which case the worker will be entitled to compensation of no less than the salaries for the past 6 months.53

5.1.4 Portugal Article 53 of the Portuguese Constitution of 1976 lays down that “Workers are guaranteed job security, and dismissal without fair grounds or for political or ideological reasons is prohibited”. The constitutional provision assuring job security is a peculiarity of the Portuguese system54 and was introduced by the 1976 Constitution, as an incumbency on the State, which is responsible “for ensuring the right to work, through application of economic and social policy plans, ensuring: […] b) job security, dismissal without fair grounds is prohibited” (Article 52 b), of the Constitution, in its original version). The First Constitutional Review (Law 1/82) of 30 September 1982 enshrined the right to job security on an autonomous basis, in Article 53 of the Fundamental Law, in Chap. III (Rights, freedoms and guarantees of workers) of Title II (Rights, freedoms and guarantees). This is the formulation that remains in force today and removed it from the category of social rights, elevating it to the class of rights, freedoms and guarantees.55 At the head of a separate chapter devoted to the rights, freedoms and guarantees of workers, job security was no longer regarded as merely an

 Estes limites foram introduzidos pela Ordonnance no. 2017-1387 of 22 September 2017, which introduced the “Macron Scale”. Recently, on two decisions enacted on 11 May 2022, the Cour de Cassation has confirmed that these limits comply with ILO Convention no. 158, deciding that the sums in question are such as to permit the payment of adequate compensation or reparation considered adequate within the meaning of Article 10 of ILO Convention No 158 (see Appeal no. 21-14.490 and 21-15.247). 53  Article L1235-3-1 lays down that “Article L. 1235-3 is not applicable when the judge finds that dismissal is vitiated by one of the nullities provided for in the second sub-paragraph of this article. In this case, if the worker does not request continued performance of his employment contract or if reinstatement is impossible, the judge shall grant him compensation, payable by the employer, of no less than the salaries for the past 6 months”. 54  Martinez (2022), p. 907. 55  On the distinction between rights of freedom and social rights, which may be regarded as the “main divide within fundamental rights” (Andrade 2019, p.  167), cfr., in particular, Miranda (2020), pp. 115 et seq., Andrade (2019), pp. 167 et seq. 52

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obligation incumbent on the State, and received constitutional recognition as a true right.56 This provision enshrines the guarantee of job security, as a “direct expression of the right to work”,57 presenting itself as a guarantee in the service of this social right, enshrined in Article 58.1 of the Constitution, as a manifestation of the “interconnection of social freedoms and rights”.58 Job security encompasses both contractual stability and prohibition of unfair dismissal,59 directly influencing the course of labour relations between private parties. The principle of job security and of the prohibition of unfair dismissal is one of the specific constitutional principles addressed to employees and has been of the greatest importance in shaping some of the most significant rules of Labour Law. It operates in two dimensions, positive and negative, guaranteeing job security whilst at the same time prohibiting unfair dismissal or dismissal on political or ideological grounds.60 Belonging to the category of rights, freedoms and guarantees, Article 53 of the Constitution is directly applicable and is binding on public and private entities, in accordance with the provisions of Article 18. It has likewise been understood as a preceptive norm (as opposed to a norm with programmatic content), in view of its formulation. The relevance of this provision can be seen in the way that labour legislation developed in the period subsequent to its enshrinement. Job security and the prohibition of unfair dismissal have underpinned important judgments on questions of unconstitutionality by the Constitutional Court, which have left a deep imprint on the evolution of Labour Law. We may point here to the important rulings of the Constitutional Court on the Labour Code of 2003 (Judgment 306/2003, of 25 June61), the Labour Code of 2009 (Judgment 338/2010, of 22 September62) and the amendments of 2012, introduced

 Maduro and Cabral (1991), p. 50.  Judgment of the Constitutional Court 148/87, of 6 May 1987, https://tribunalconstitucional.pt, stating that its most important dimension is the prohibition of unfair dismissal (‘without fair grounds’). 58  Miranda (2020), p. 133. 59  Rebelo (2018), p. 103. 60  Ramalho (2023a), p. 895. The author stresses that the precept is redundant, because dismissal on political or ideological grounds necessarily amounts to unfair dismissal. 61  Which did not deem unconstitutional the norm resulting from combined interpretation of paras. 2, 3 and 4 of Article 438 of the Labour Code, allowing the non-reinstatement of a worker in a micro-enterprise or worker in a management or administrative position, whose dismissal has been declared unlawful by the courts, if their return to their position is seriously prejudicial and disruptive to pursuit of the business activity (https://tribunalconstitucional.pt). 62  Which declared unconstitutional, with general mandatory force, the rule contained in Article 356.1, of the Labour Code, approved by Law 7/2009, of 12 February, due to breach of Article 32.10, combined with Article 53, of the Constitution (https://tribunalconstitucional.pt). 56 57

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during the period of financial assistance to Portugal (Judgment 602/2013, of 20 September).63 From the point of view of regulation of termination of the employment contract, this principle imposes unequal rules on the two parties in the employment relationship, justifying this precisely by the weaker position occupied by the worker, requiring, in essence, restoration of a balance which, by definition, does not exist between the parties in an employment relationship.64 Legal theory nonetheless highlights the need for this principle to work in tandem with other principles of structural importance in the Portuguese legal system, specifically with free enterprise, which requires that the employer be able to terminate employment on the grounds of culpable breach of contract by the worker (dismissal with subjective fair grounds), but also for objective, related to management of the company or to the worker himself (dismissal with objective fair grounds).65 It is today uncontroversial that the concept of fair grounds enshrined in Article 53 of the Constitution also includes situations of objective fair grounds, not related to the worker’s behaviour.66 In ordinary law, the principle of prohibition of unfair dismissal is reiterated in Article 338 of the Labour Code. As a result, the modes of termination of employment contracts, typified in Article 340 of the Code and regulated by the law in what tend to be imperative terms (Article 339), comprise only dismissal with disciplinary (subjective) or objective fair grounds, subject to detailed procedural rules. Dismissal due to a fact attributable to the worker is regulated in Articles 351 et seq. of the Labour Code, which offers a definition of the concept of fair grounds (“culpable behaviour of the employee which, because of its seriousness and consequences, immediately and practically renders impossible the continued existence of the employment relationship”), which is followed by enumeration of examples of

 Which declared unconstitutional, with general mandatory force, the alterations made by Law 23/2012, of 25 June, to the rules contained in Article 368, paras. 2 and 4 of the Labour Code, and the norm in Article 9.2 of that law, in the part repealing sub-para. d) of Article 375.1 of the Labour Code, due to breach of the prohibition of unfair dismissal enshrined in Article 53 of the Constitution (https://tribunalconstitucional.pt). 64  As Rosário Palma Ramalho has pointed out, “the fact that the most relevant interests here are those of the worker explains why the system for termination of employment contracts is unbalanced for the two parties, making it difficult for the employer (who needs no special protection here) to terminate, whilst not imposing any particular restrictions on termination of contract by the worker. The imbalance in the system is formal in nature, as it seeks to eliminate a situation which is, in principle, disadvantageous to one of the parties” (Ramalho 2023a, p. 898). 65  Ramalho (2023a), pp. 900–901. 66  Cfr. Judgment of the Constitutional Court 64/91, of 4 April, https://tribunalconstitucional.pt. The recognition that the concept of fair grounds has this wider scope was not arrived at overnight, and the Constitutional Court rejected that possibility for years, limiting the concept of fair grounds to that of disciplinary fair grounds (cfr. Judgment of the Constitutional Court 107/88, of 31 May, https://tribunalconstitucional.pt). 63

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behaviour that can fall within that concept (Article 351, paras.1 and 2, of the Labour Code). Also on the assessment of fair grounds, Article 351.3 lays down that “in assessing fair grounds, attention must be paid, in the context of the undertaking’s management, to the degree of injury to the employer’s interest, to the character of the relations between the parties or between the worker and his co-workers and to other circumstances that may be relevant in the case”. These factors are again referred to in Article 357.4. Disciplinary procedure leading to dismissal is regulated in the following articles, comprising one stage applicable in some cases (preliminary investigation, provided for in Article 352) and four mandatory stages—accusation (Article 353), defence (Article 355), finding of facts (Article 356) and final decision (Article 357). Articles 359–366 of the Labour Code deal with collective redundancy, corresponding to the termination of a plurality of employment contracts, determined by the closure of one or more sections of the undertaking (or equivalent structure) or by reduction in the number of workers due to market, structural or technological reasons.67 The procedure starts with notification of the bodies representing the workers or, in the absence of these, the workers themselves, accompanied by the information needed to understand the reasons for and scale of the redundancies, including, in particular, the grounds invoked, the selection criteria adopted and the number of workers to be laid off (Article 260 of the Labour Code). This is followed by a phase in which information is provided and negotiations conducted with the workers’ collective representation body (Article 361 of the Labour Code), seeking to reach an agreement on reducing the scope of the redundancies.68 Staff from the Ministry of Labour are involved in these negotiations, in order to ensure “compliance with the information and procedural requirements and conciliation of the parties’ interests” (Article 362 of the Labour Code). Lastly, a decision is taken and communicated to the workers involved, to the collective representation body and to the relevant office of the Ministry of Labour (Article 363 of the Labour Code). As well as collective redundancy, the Code also provides rules on ‘dismissal due to elimination of employment position’ (individual redundancy), with the same grounds, but different scope69 (Articles 367–372). The procedure starts with notification of the worker in question and to the collective representation body (Article 369), followed by a phase of consultation, during

 The collective redundancy procedure will apply whenever employment contracts are terminated simultaneously or successively within a period of 3 months, encompassing no less than two or five workers, depending on whether the employer is a micro-enterprise or a small enterprise, on the one hand, or a medium-sized or large company, on the other. 68  Martinez (2022), p. 1005. 69  As explained by Martinez (2022), p. 1008, “dismissal due to elimination of employment position is equivalent to collective redundancy, except that it refers to an individual”. 67

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which the recipients of the initial notification may issue a reasoned opinion (Article 370), followed by decision by the employer (Article 371). In both cases, termination of contract is subject to prior notice of between 15 and 75 days, depending on the worker’s length of service.70 Lastly, the law also provides for dismissal due to unsuitability, in Articles 373–380 of the Labour Code. This mode of termination is designed to allow the employer to put an end to the contract when it finds that the worker lacks the capacity to perform his or her duties, making it impossible, in practice, for the contract to continue, associated with “supervening and relative impossibility of correct performance of duties”,71 traditionally as a result of changes being made to how the job is done.72 This is also subject to a structure, which starts with notification of the worker and the workers’ collective representation body of the intended termination (Article 376),73 followed by the possibility of objection by the worker and the issuing of an opinion by the workers’ body (Article 377), leading lastly to a decision by the employer (Article 378). Job security also plays an important role in determining the consequences of unlawful dismissal. Seeking to provide an effective guarantee for the stability of employment, Article 53 of the Constitution requires that reinstatement of the worker be “the necessary consequence of a given dismissal being ruled unlawful”.74 This principle was adopted in the Labour Code and so Article 389.1 b) lays down that “when dismissal is ruled to be unlawful, the employer is ordered to reinstate the worker in the same establishment of the undertaking, without prejudice to his category and length of service, except in the cases provided for in Articles 391 and 392”. Article 391 then allows the worker to opt instead for compensation, to be set by the court at between 15 and 45 days’ basic pay and seniority payments for each year of service.

 The notice period is 15 days for workers with less than a year’s length of service, 30 days for workers with length of service greater than or equal to 1 year but less than five, 60 days for workers with length of service greater than or equal to 5 years and less than 10 and 75 days for workers with length of service greater than or equal to 10 years (Articles 363 and 371 of the Labour Code). 71  Martinez (2022), p. 1013. 72  However, the changes in 2012 created a new type of unsuitability, relating to a substantial alteration in the worker’s performance irrespective of changes made to the employment position (Article 375.2, amended by Law 23/2012, of 25 June). 73  In this new type of unsuitability, prior to informing the worker of the intention to terminate, the worker must be provided with a detailed description of the facts pointing to a substantial change in their performance, and the worker has the opportunity to pronounce on this (Article 375.2 (b) of the Labour Code). The employer must then issue appropriate instructions in order to correct the failings identified (Article 375.2, (c), of the Labour Code), and only then is the procedure described above put into effect, if those failings persist. 74  Cfr. Judgment of the Constitutional Court 583/2000, of 20 December (https://www.tribunalconstitucional.pt). To the same effect, but pointing out that it is “doubtful whether the principle thereby affirmed may be converted so readily into a definitive and absolute rule”, Rui Medeiros in Miranda and Medeiros (2010), p. 1059. 70

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Under Article 392, in the case of a micro-enterprise or a worker in an administrative or management position, the employer may petition the court for reinstatement to be set aside, “on the grounds of facts and circumstances that render the worker’s reinstatement seriously prejudicial and disruptive to the undertaking’s functioning”. If that request is accepted, the employer is ordered to pay compensation, to be set by the judge at between 30 and 60 days’ basic pay and seniority payments for each year of service, and no less than the value corresponding to 6  months’ basic pay and seniority payments.75 The increased rigidity of the system for terminating employment contracts has led to “evasion of Labour Law”, with employers seeking alternatives to the “traditional” employment contract, through fixed term hiring and self-employment. This tendency was observed as soon as limitations on dismissal without due cause were introduced by Decree-Law 372-A/75, of 16 July, even before the principle was expressly enshrined in the Constitution of 1976. With the introduction of rules making it difficult for employers to terminate employment contracts, fixed-term employment, previously intended to meet “temporary material needs”,76 started to be used as a way of preserving the economic freedom of business and, specifically, of avoiding contracts becoming “eternal”. Since then, the statute law has sought to limit the use of fixed-term employment contracts, in an ongoing endeavour most recently exemplified by Law 93/2019, of 4 September.77 As a result, the rules in Portuguese law on fixed-term contracts are highly restrictive, and as a rule only permit these contracts in response to temporary needs “objectively defined by the employer and only for the period strictly necessary to satisfy those needs” (Article 140.1 of the Labour Code). The code then sets out examples of situations which might amount to a temporary need for this purpose (Article 140.2). As exceptions to the temporary needs requirement, the law presents two cases where fixed-term hiring is admissible, in order to “encourage economic […] and social enterprise”:78 (i) launch of a new business of uncertain duration, and the start­up of a venture or establishment belonging to an undertaking with less than 250 workers, in the 2  years subsequent to either of these events, and (ii) hiring of a worker in a situation of very long-term unemployment79 (Article 140.4). Fixed-term contracts are also subject to strict requirements of form: under Article 141 they must be drawn up in writing and contain a series of mandatory indications,  The possibility of the employer seeking to have reinstatement set aside was admitted for the first time by the 2003 Code. The constitutionality of this provision was examined by the Constitutional Court in Judgment 306/2003, of 25 June (https://www.tribunalconstitucional.pt). On these rules, cfr. Martinez (2007), cit. 76  Cordeiro (2019), p. 610. 77  On some of the changes made by this law, cfr. Leitão (2019). 78  Ramalho (2023b), p. 80. 79  Defined as an unemployed workers aged 45 years or more and registered with the Instituto do Emprego e Formação Profissional, I. P., for the past 25 months or longer (Article 4.1 c) of Decree-­ Law 72/2017, of 21 June)—cfr., to this effect, Ramalho (2023b), pp. 88–89, note 63. 75

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in particular “stipulation of the term and the grounds for establishing a fixed term” (Article 141.1, in particular, sub-para. (e)). The grounds must be stated through “express reference to the facts involved, establishing the relationship between the grounds invoked and the term stipulated” (Article 141.3). The use of fixed-term contracts (i) with the purpose of evading the provisions regulating permanent contracts, (ii) other than in the cases provided for in Article 140, or (iii) without being in writing, identifying and signed by the parties or, simultaneously, the date of conclusion and the starting date for work, or containing no or insufficient reference to the term and the respective grounds, has the consequence of the contract being deemed entered into on a permanent basis (Article 147.1). Fixed-term contracts are also subject to upper limits on duration and renewals (Articles 148 and 149), and breach of these rules causes the contract to be converted to a permanent contract (Article 147.2).

5.1.5 Spain The Spanish Constitution of 1978 does not expressly recognise the principle of stability in employment, although it is accepted by general consensus in legal theory and constitutional case law, recognising that the continuity of employment relationships constitutes an essential material condition for the exercise of certain fundamental rights to be possible.80 The constitutional principle of stability in employment is derived from Article 35 of the Constitution. This provision, which refers to labour law, lays down in para. 1 that “All Spaniards have the duty to work and the right to employment, to free choice of profession or trade, to advancement through their work, and to sufficient remuneration for the satisfaction of their needs and those of their families; moreover, under no circumstances may they be discriminated against on account of their sex”. This provision is included in Sect. 2 (“Rights and duties of citizens”), of Chap. II (“Rights and freedoms”) of Part I (“Fundamental rights and duties”) of the Constitution. The Spanish Constitutional Court has developed this principle over time and recognises two dimensions to the right to work: collective and individual. In its collective dimension, the right to work imposes a mandate on public authorities to pursue a policy of full employment. In its individual dimension, the right to work divides further into (i) the equal right of all to a given employment position and (ii) the right to continued or stable employment, materialised in the right not to be dismissed without due or fair grounds.81  Heredia Ruiz (2008), p. 37. The author offers the examples of the right of citizens to participate in political life (Article 9.2) and the right to strike (Article 28.2). 81  As explained in Judgment 22/1981, of 2 July, “The right to work means more than the freedom to work; it also supposes the right to an employment position and as such presents a dual aspect: 80

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This understanding has led the Constitutional Court to find, in the essential content of the right to work, specifically, to stable employment, the need for protection against dismissal,82,83 recognising that the absence of an appropriate reaction against dismissal “would dangerously weaken the consistency of the right to work” and deprive Labour Law of its “protective” function, within the scope of welfare as an essential characteristic of the Rule of Law, recognised by Article 1.1 of the Spanish Constitution, which seeks to compensate for the inequality existing between employer and worker when they establish the content of the employment relationship.84,85 The principle of stability in employment points to the need for limits on the employer’s powers of dismissal, looking at this not from a purely contractual perspective, but rather in the light of the social issues also involved.86 In this regards, Montoya Melgar regards the principle of stability in employment as informed by welfare issues, relating to the worker’s interest in keeping his or her job, in view of the importance of employment in assuring their livelihood, as well as by economic and industrial concerns, relating to the employer’s interest in adjusting the volume and duration of labour the the production and organisations needs of the undertaking.87 Albeit without ignoring that the employer may also have an interest in continued employment, the legislator takes into account the weaker position of the worker, limiting the powers of the employer in this matter.88 With regard to the preservation of employment, we may identify the following as manifestations of stability in employment: (i) the requirement of grounds for temporary contracts and (ii) effective protection against possible decisions to terminate employment contracts.

individual and collective, both recognised in Articles 35.1 and 40.1 of the Spanish Constitution, respectively. In its individual aspect, it takes the form of the equal right of all to a given employment position if they meet the necessary qualification requirements, and the right to continued and stable employment, in other words, not to be dismissed without due or fair grounds. In its collective dimension, the right to work also imposes a mandate on the public authorities to pursue a policy of full employment, because otherwise exercise of the right to work by part of the population entails the negation of the same time for another part.” 82  Guamán Hernández and Sánchez Ocaña (2017), pp. 203–204. 83  Understood as a unilateral and constitutive act, subject to acceptance, whereby the employer extinguishes the legal employment relationship (Montoya Melgar 2022, p. 511). 84  Cfr. Decision 20/1994, of 27 January. 85  The compensation of this inequality is also seen as a manifestation of the principle of equality as a higher value of the legal system, guaranteed by Article 9.2 of the Spanish Constitution, which must inform the actions of the public authorities and which justified the protective character of these rules and the additional protection for workers (Guamán Hernández and Sánchez Ocaña 2017, p. 204). 86  Montoya Melgar (2022), p. 512. 87  Montoya Melgar (2001), p. 61. 88  Cruz Villalón (2019), p. 398.

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The required grounds for temporary contracts means that fixed-term contracts can only be used to meet the temporary needs of undertakings. The absence of any time limit on employment contracts is held to be a guarantee of stability in employment, because, in these cases, termination by the employer is conditional on occurrence of one of the grounds for dismissal permitted by law.89 This explains the legislator’s preference for this type of contract and the existence of restrictions on the admissibility of fixed-term contracts.90 Fixed-term contracts are regulated in Spain by the Estatuto de los Trabajadores (ET) and also by Real Decreto 2720/1998, of 18 December. Article 15 ET lays down that employment contracts are presumed to have been entered into for an indefinite period of time,91 expressing a preference for a contract of indefinite duration.92 Exceptionally, fixed term contracts may be entered into on the basis of “circumstances of production or for replacement of a worker”.93 However, under the terms of the said rule, in order for a justifying cause of temporality to be considered to exist, it will be necessary for the contract to describe precisely the “qualifying cause of the temporary contracting, the concrete circumstances justifying it and its connection with the duration envisaged”. As regards the grounds that allow the use of fixed-term contracts, the law refers, as mentioned, to (i) production circumstances or (ii) replacement of a worker, describing what is meant by each of these grounds. Under the terms of Article 15.2 ET, “production circumstances” means occasional and unforeseeable increases in activity and fluctuations which, although part of the normal activity of the company, lead to a temporal mismatch between

 Cruz Villalón (2019), p. 174.  Montoya Melgar (2022), p. 359. 91  This wording was introduced by RDL 32/2021, of 28 December, which established urgent measures for labour reform, the guarantee of job stability and the transformation of the labour market. In the previous wording, the article provided that the employment contract could be concluded for an indefinite or fixed term. The possibility of concluding fixed-term contracts remains, with limitations, but the general rule is now that the employment contract is presumed to have been concluded for an indefinite period. On the amendment, see, among others, with a critical view, Martínez Girón and Arufe Varela (2022), pp. 9–29. 92  Monereo Pérez et al. (2022), p. 366. 93  There are some exceptional cases where fixed-term contracts are permitted without meeting the requirement for grounds. For example, the law allows for the parties to enter into term contracts for training, under certain circumstances (Article 11 ET), with disabled workers (permitting fixed-­ term hiring of persons with a disability of more than 33%—Law 43/2006, of 29 December), certain forms of employment with special features (such as for professional sportspersons—Royal Decree 1006/1985, of 26 June), special schemes for public research or university teaching (Law 14/2011, of 1 June, and Ley Orgánica 6/2001, of 21 December) and the hiring of persons at risk of social exclusion by social integration enterprises (Law 44/2007, of 13 December). On these cases, Cruz Villalón (2019), pp. 187–189; Palomeque López and Álvarez de la Rosa (2022), pp. 557 et seq. 89 90

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available stable employment and that required, provided that they do not correspond to the assumptions of the fixed-discontinuous contracts of Article 16 ET.94 In this case, the contract may not exceed 6 months (which may be extended by collective agreement of sectoral scope, in which case it may not exceed 1 year), and may be concluded for a shorter period, which may be extended, for a single time, until it reaches that duration. Up to a maximum discontinuous period of 90 days, this type of contract may be used to meet occasional, foreseeable situations of a reduced and limited duration. The law further establishes, in another innovation introduced by RDL 32/2021, that this type of contract cannot be used on the basis of the performance of activities under contracts, subcontracts or administrative concessions for services that constitute the company’s habitual or ordinary activity. On the other hand, fixed-term contracts may be concluded for the replacement of an employee entitled to job reservation, provided that “the contract specifies the name of the replaced person and the cause of the replacement” (Article 15.3 ET). The law expressly provides for the possibility that the activity of the replaced worker may begin before the beginning of the absence of the replaced worker, and both will remain in office for the period of time necessary to ensure the adequate performance of the activity, up to a maximum of 15 days. It is also possible to enter into fixed-term contracts to supplement the working hours of another worker with a reduction of the working period based on legally established causes, or to temporarily fill a job during the selection process for its permanent filling through a permanent contract, in which case the duration may not exceed 3 months (or a shorter period resulting from a collective agreement), and a new contract with the same purpose cannot be entered into after reaching its maximum duration. Workers who, within a period of 24 months, have been employed by the same company or group of companies for the same or different jobs, either directly or through temporary employment agencies, for more than 18 months, either continuously or not, on the basis of circumstances of production, shall acquire the status of permanent workers. Likewise, workers who occupy a position that has been occupied, with or without continuity, through contracts based on circumstances of production, for more than 18 months in a period of 24 months, including through temporary work, will also acquire the status of permanent workers (article 15.5 ET). The law protects workers against dismissal by firstly defining dismissal as subject to causes (and not free), requiring grounds of a disciplinary nature or else relating to economic or industrial factors, and secondly by subjecting dismissal to requirements of form or procedure, in order to guarantee the rights of workers. It should be noted that Spain was one of the first countries to require grounds for dismissal, in 1931, by means of the Law of 22 November approving the Ley de Contrato de Trabajo (Employment Contract Law), which definitively recognised  Fixed-discontinuous contracts are intended for the admission of workers to perform work of a seasonal nature or those that, not having this nature, are of intermittent provision, with periods of execution that are certain, determined or undetermined (Article 16.1 ET). 94

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the unequal bargaining power of the employer and worker; this was also visible in the rules on termination of employment. The rules on dismissal ceased to be linked to the duration of the contract, and instead only one type of dismissal was recognised, subject to the existence of fair grounds, applicable to all employment contracts, irrespective of duration, At present, the causes of termination of employment contracts are established in Article 49 ET, which identifies disciplinary dismissal, dismissal on objective grounds and collective redundancy.95 Disciplinary dismissal, regulated in Articles 54 and 55 ET, is a type of dismissal for which the grounds are serious and culpable breach of employment duties by the worker. This has the nature of a penalty,96 as stressed by the reference in the law to the “disciplinary” grounds for it, based on serious and culpable non-performance by the worker (Article 54.1 ET) and serving as the most severe disciplinary penalty. In Article 54.2 ET, the Spanish legislator typified in law the forms of worker behaviour able to form grounds for disciplinary dismissal; this relationship must be understood in the light of the principles of legality and conformity to type, by way of guarantee of legal certainty.97,98 As regards form, disciplinary dismissal takes place by means of written notice addressed to the worker. Stating the facts forming the grounds for dismissal and the date on which it takes effect (Article 55.1 ET), which is necessary for the worker to know what breach is attributed to him and requires the communication to contain a description of that breach, it not being sufficient to merely invoke the legal provision on which the employer’s intention is based.99 Adversarial procedure is required whenever the worker is the legal representative of the workers or the shop steward.100  In identifying the forms of termination of employment contracts, the provisions appears to restrict the concept of “dismissal” to disciplinary dismissal, by making separate provision, in sub-­ paragraph k), for “dismissal of worker”, as distinct from “collective dismissal” (al. i) and termination due to “legally admissible objective grounds” (sub-para. l). However, it is accepted that disciplinary dismissal is only one mode of dismissal. Criticising the distinction made by the ET, which is deemed to legally baseless, Montoya Melgar (2022), p. 513. 96  Montoya Melgar (2022), p. 514. 97  Montoya Melgar (2022), p. 515. 98  This conformity to type, in contrast with the open-ended nature of the “fair grounds” which, under Article 50.1 ET, can lead to termination of contract on the worker’s initiative, is mitigated by the breadth of some of those causes, such as, in particular, indiscipline or disobedience on the part of the worker (sub-para. (b)) or breach of good faith (sub-para. (d)). On the permitted disciplinary grounds for dismissal, cfr., in particular, Montoya Melgar (2022), pp. 514 et seq., Cruz Villalón (2019), pp. 422 et seq., and Monereo Pérez et al. (2022), pp. 610 et seq. 99  To this effect, cfr. judgment of the Supreme Court, of 13.06.1988 (STS 4494/1988), in which it ruled that “A letter of dismissal achieves its end if it contains sufficient description of the facts imputed for the dismissed worker to be able to martial his defence and if it offers no doubts that the effective date of dismissal is that of service of notice”. 100  With ratification of ILO Convention no. 158, requiring that the worker be able to defend himself against the allegations made about his behaviour or his work (Article 7 of the Convention), it has been asked whether changes might be needed to ordinary legislation, to which legal doctrine and case law have replied in the negative, considering that the worker is afforded sufficient opportunity for defence by the notice of dismissal (Montoya Melgar 2022, p. 522). 95

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Dismissal on objective grounds, regulated in Articles 52 and 53 ET, can be on the basis of the worker’s unsuitability, his failure to adapt to technical changes in his job, or to economic, technical, organisations or production-related causes, when they affect a smaller number of workers than envisaged for collective redundancy (Article 52 ET).101,102 Written notice must be given, stating the grounds, 15  days in advance of the termination date; this type of dismissal entails payment of compensation corresponding to 20 days for each year of service (Article 53.1 ET). Collective redundancy, regulated by Article 51 ET and in Real Decreto 1483/2012, of 29 October, must be justified by economic, technical, organisational or production-related grounds,103 and is based on a quantitative criterion, taking into account the minimum number of workers affected.104 The procedure starts with notification by the employer, followed by a period of consultation with the workers’ re-existing representation bodies or else others set up for this purpose, which the employer must formally initiate by means of a further notice, containing a description of the causes of the redundancy and other information required by law (Article 51.2 ET). The consultation and negotiation period, in which the administrative authorities may take part, is intended to arrive at an agreement, so as to avoid or reduce the number of redundancies and to mitigate their consequences, through social welfare measures, such as finding other jobs or training (Article 7 of Real Decreto 1483/2012). Failing an agreement, the employer must decide within 15 days, on pain of the procedure being shelved. The flipside of the protection of stable employment, which as we have seen limits the employer’s powers to terminate employment, is a principle of personal freedom, entailing full liberty to terminate the employment contract on the worker’s initiative, for which no justifying grounds can be demanded.105

 On these grounds, cfr., in particular, Montoya Melgar (2022), pp.  529 et  seq., Cruz Villalón (2019), pp. 437 et seq., and Monereo Pérez et al. (2022), pp. 619 et seq. 102  Dismissal on subjective grounds may also occur in permanent employment contracts concluded by non-profit organisations for the execution of specific plans or programs, without stable funding and financed by the public administrative authorities, due to the funds allocated being insufficient to maintain the employee (Article 52 (e) ET). 103  On these grounds, cfr., in particular, Montoya Melgar (2022), pp.  535 et  seq., Cruz Villalón (2019), pp. 444 et seq., and Monereo Pérez et al. (2022), pp. 592–593. 104  In order to qualify as a collective redundancy under Article 51.1 ET, the termination must affect no less than (i) 10 workers, if the undertaking has less than 100 workers; (ii) 10% of the workforce, if the undertaking has between 100 and 300 workers; or 30 workers, if the undertaking has more than 300 workers. 105  Cruz Villalón (2019), p. 398. 101

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5.2 Right to Remuneration 5.2.1 Italy Article 36 of the Italian Constitution provides for the right of workers to remuneration commensurate to the quantity and quality of their work and such as to ensure them and their families a free and dignified existence. In this particular, the provision allows us to identify remuneration as an essential element of the employment relationship, distinct from the “generic” consideration in contractual dealings.106 This right refers to the worker as a person; this arises not from his human condition, but from the fact of being party to an employment relationship.107 The constitutional provision in question therefore incorporates two distinct perspectives on pay. The first links remuneration to the quantity and quality of work, based on the idea of the commensurate salary, and the second, which alludes to the satisfaction of the worker’s personal and family needs, is a manifestation of the sufficiency which must be a characteristic of remuneration.108 The reference to the worker’s family needs is due to the fact that, when the constitutional text was approved, the prevailing idea was that of protection of the personality of the worker as an individual, in his or her family setting.109 The constitutional reference is here an instruction to the legislator, requiring it to guarantee implementation, not allowing differentiation in pay on the basis of the differing family responsibilities of workers.110 There was debate on the usefulness of including an express reference in the Constitution to a legal minimum wage. However, the authors of the constitution opted to establish a more generic requirement that remuneration be commensurate and sufficient, rather than a concrete reference to a minimum wage set by law.111 In any case, by setting minimum pay scales, collective bargaining has played a highly important role in setting levels of remuneration.112 As pointed out by Mazzotta, there is a “close connection between the determination of (fair) remuneration and collective worker action”.113 This system corresponds to what some legal theorists have called the “Italian way” of ensuring a minimum wage, which, in contrast to what happens in other legal systems, does not involve legislative or administrative intervention in setting  Treu et al. (1979), p. 72.  Morte (2018), p. 242. 108  Mazzotta (2019), p. 571. 109  Morte (2018), p. 243. 110  Mazzotta (2019), p. 576. 111  The position taken by trade unions appears to have contributed to this, as they regarded the regulation of a minimum wage through legislation or administrative means as an encroachment on the scope of collective autonomy (Mazzotta 2019, p. 575). 112  Morte (2018), p. 243. 113  Mazzotta (2019), p. 572. 106 107

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minimum levels, but rather the work of labour organisations and judicial authorities.114 The sufficiency of pay relates to the effective guarantee of a minimum wage, to be assessed in view of the actual historico-social setting, understood as the “minimum and ineluctable parameter for remuneratory compensation”.115 The sufficiency of pay is therefore assessed by weighing up various factors of relevance to the specific case, considering the nature and quality of the work, based on the teachings of common experience.116 The sufficiency of pay likewise requires the extension to all workers of the remuneration clauses contained in collective agreements, through recourse by the courts to the values provided for in these to determine the amount corresponding to the “sufficient remuneration” demanded by Article 36, even if limited to only the basic salary.117 Collective agreements are therefore applicable erga omnes, at least as regards the minimum wages they establish.118 The absence of a national minimum wage set by legislative or administrative makes it possible to question whether lower salary levels may be set in certain geographical areas, as a way of promoting employment in particular regions. The have been called “wage cages” (“gabbie salariali”). In principle, rules of this nature appear to clash with the protective core and universal character of the guarantee of sufficient pay, to which the place of work is of no relevance. However, it appears to be admissible to vary application at company level, so that the payroll can be adjusted to the company’s situation, and this has been done through what are called “realignment agreements” (“accordi di riallineamento”), providing for lower wages than envisaged nationally, in return for a gradual shift by the company towards the normal standards of pay.119 The idea of commensurate pay has to do with the connection between pay and the quality of the work done. Article 2099 of the Italian Civil Code, constituting the “central” provision in the system of sources on remuneration, lays down that the worker’s pay may be set on

 Mazzotta (2019), p. 574.  Mazzotta (2019), p. 576. 116  Cfr., to this effect, Judgment of the Corte di Cassazione no. 896, of 17 January 2011, https:// dejure.it. 117  Punta (2022), p. 582. 118  Morte (2018), p. 244. Article 2099.2 of the Italian Civil Code, which lays down that, failing agreement between the parties, the value of remuneration is set by the judge, permits the judge to void clauses in employment contracts which breach Article 36 of the Constitution, using the values set in collective agreements or equity to fill any lacuna concerning the setting of pay levels. However, the use of this power has gradually declined, and instead the “immediate and direct application of Article 36” in the employment relationship has been admitted (Morte 2018, p. 244). 119  Mazzotta (2019), p. 577. 114 115

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the bass of time, or by “piece”, and is determined through collective bargaining120 or agreement between the parties. It is the courts that have the power to apply these indicators in practice, and are responsible for implementation of the article and for assessing compliance with the constitutional rules on remuneration in individual cases.121 Legal theorists and the consolidated case law agree that Article 36 should be regarded as binding on private parties, and so a worker who feels that the pay he earns is economically inadequate may directly invoke Article 36 of the Constitution, seeking to have it adjusted by the courts.122

5.2.2 Germany Unlike in other legal systems, German’s Basic Law makes no provision for any right of workers to minimum levels of pay or a living wage. As a result, wage levels were long beyond the reach of State intervention, and left entirely to the autonomy of the parties in the employment relationship. However, with the decline of application of collective labour regulations and the realisation that collective regulations were not enough to ensure a minimum living wage for workers, the legislator acknowledged the need to intervene in setting a national minimum wage. This gap was filled on 1 January 2015 when the law regulating the national minimum wage took effect in Germany.123 Prior to the approval of the Gesetz zur Regelung eines allgemeinen Mindestlohns, there were only three pieces of legislation in Germany providing for the possibility of setting sectoral and general minimum wages, applicable to all employees and workers in their respective sectors: the Collective Agreements Law (Tarifvertragsgesetz—TVG), of 1949, the Temporary Employment Law (Gesetz zur Regelung der Arbeitnehmerüberlassung—AÜG), of 1972, amended in 2011, and the Law on mandatory terms of employment for workers on cross-border secondments (Gesetz über zwingende Arbeitsbedingungen für grenzüberschreitend entsandte und für regelmäßig im Inland beschäftigte Arbeitnehmer und Arbeitnehmerinnen—AEntG), of 2009.124 These laws remain in force, and the new  This is how the reference in the article to “corporative norms” (“norme corporative”) should be read (Punta 2022, p. 575). 121  Treu et al. (1979), p. 78. 122  Mazzotta (2019), p. 573. 123  In June 2022, the German Parliament increased the minimum hourly wage to 12.00 Euros per hour as of October 2022. 124  These laws admitted extension of the rules setting minimum wages to subjects not initially covered by them. The prime example is the TVG, which allows the Federal Ministry of Labour and Social Security to declare collective agreements to be generally effective, as an exception to their limited effectiveness (cfr. § 5). 120

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law has expressly safeguarded their applicable, provided that the minimum wage they set is higher than the national minimum wage now in force (cfr. § 1).125 This law applied to all employees126 and its rules are mandatory in nature, expressly voiding any agreements that set values below the new minimum level or that restrict or exclude its application (cfr. § 3). To avoid any doubt about the constitutionality of the law and its compatibility with the principle of collective autonomy, the Minimum Wage Law provides for intervention by the social partners through the Minimum Wage Board (Mindestlohnkommission), a new hybrid body, which decides on adjustments to the wage (§ 4)1)) every 2 years, by assessing the amount adequate to afford minimum protection for workers, and to ensure competitiveness, without jeopardising employment (§ 9 (2)).127 The minimum wage is designed to protect workers on unjustifiably low wages, seeking to compensate the feeble bargaining power of unions in certain sectors, and is supported by the constitutional guarantee of adequate terms of employment contained in Article 12, § 1 of the Basic Law. 128 The minimum wage is intended to ensure workers are paid enough to live on, as a means of guaranteeing human dignity as enshrined in Article 1 of the Basic Law and the general freedom of action and development of the worker’s personality in the welfare state, under the terms of Article 2.1,129 in combination with Article 20 of the Basic Law,130 as well as being relevant to ensuring fair conditions for the workings of competition.131 It is therefore accepted that the legislator limits private autonomy in the contractual determination of pay, through mandatory law, in order to counteract the social or economic imbalances built into a given legal relationship.132 Although individual freedom and private autonomy call for minimal intervention by the State in private relations, the social and economic conditions needed to balance the conflicting interests of the parties must not be neglected. The diminished bargaining power of one of the parties, reflecting the fragility of his position,  Because at the date when the Minimum Wage Law took effect there were sectoral wages lower than that now set, § 24 of the new law established a transitional period for adjustment, running up to 31.12.2017. 126  Exclusions from the scope of application of the law are established for trainee workers, in the cases envisaged in Article 22.1, young people who have not completed their vocational training and also the long term unemployed during the first 6 months of their contracts (Article 22 of the Gesetz zur Regelung eines allgemeinen Mindestlohns, on the personal scope of the new regime). On the personal scope of the law, cfr. Schaub (2019), pp. 714 et seq. 127  On this law, Martínez Girón (2015), passim. 128  Däubler et al. (2017), p. 2512. 129  General freedom of action acts as the full expression of the personal sphere of freedom, and is the starting point for all the subjective rights of defence of the citizen and the guarantee of his or her private autonomy (Däubler et al. 2017, p. 1827). 130  Däubler et al. (2017), p. 2512. 131  Däubler et al. (2017), p. 2513. 132  BVerfG, 23 October 2013, 1 BvR 1842/11, https://www.bundesverfassungsgericht.de/. 125

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requires legislative intervention in order to guarantee private autonomy, by supplying rules and mechanisms able to compensate that discrepancy.133 The minimum wage also follows from various international agreements by which Germany is bound. Attention is here drawn to Article 4 of the European Social Charter, requiring States to ensure effective exercise of the right to fair and sufficient remuneration, so as to guarantee an adequate standard of living for workers, and to ILO Convention no. 26, on minimum wage-fixing machinery, ratified by Germany.134 Although it has been debated whether the rules on the national minimum wage are consistent with collective autonomy, guaranteed by Article 9.3 of the Basic Law, it may be observed that the legislator continues to be called on to regulate working and economic conditions, when it deems this to be necessary, in particular, to guarantee the fundamental rights of workers.135 This wage fixing is constitutionally legitimised by the existence of low wages, insufficient for workers’ subsistence, and the rules on pay also fall within the scope of the protection under Article 12 of the Basic Law.136 Accordingly, the German Constitutional Court has already ruled that the freedom of association guaranteed by Article 9.3 of the Basic Law may be restricted by the guarantee of public interest, which allows the legislator to regulate issues which may be included in collective agreements, in particular to improve the situation of workers, protecting their freedom of occupation (Article 12.1 of the Basic Law).137 Under the provisions of § 611, no. 1, of the BGB, the employer is obliged to pay the worker the remuneration agreed or to be set in accordance with § 612, no. 2, this being its principal obligation in connection with the employment contract. Remuneration may be paid in money or kind138 and may be determined in different ways, namely, on the basis of the time worked or the results, on a piecework basis (principles of remuneration). The parties are free to establish the form of such determination, while respecting the guaranteed minimum remuneration.139 Remuneration must be paid after the services are performed, at the end of each agreed period (§ 614 of the BGB). Payment is therefore linked to the effective

 Däubler et al. (2017), pp. 1827–1828.  Däubler et al. (2017), p. 2513. 135  Däubler et al. (2017), p. 1973, who point out that, although collective subjects have the right to establish norms and, in casu, to fix wages, they do not have a monopoly on the definition of those conditions. 136  BVerfG, 30 March 1993, 1 BvR 1045/89, https://dejure.org. 137  BVerfG, 29 December 2004, 1 BvR 2283/03, https://www.bundesverfassungsgericht.de/. 138  On remuneration in kind, cfr. Schaub (2019), pp. 744 et seq. 139  Under the provisions of Article 87 § 1, nos. 10 and 11, of the BetrVG, all regulations issued by the employers on different aspects of remunerations, including the methods for fixing pay, are subject to co-determination, and the agreement of the Betriebsrat (works council) is required. On pay-fixing systems, cfr. Schaub (2019), pp. 663 et seq. 133 134

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performance of services, notwithstanding that, in some cases, remuneration is due even without the services having been performed.140 In order to avoid an entitlement to a given benefit being created within the legal sphere of the worker, employers are given the possibility of expressly declaring the voluntary character of certain benefits, reserving the right to revoke them or subjecting the respective value to their sole discretion.141

5.2.3 France Neither the Constitution of 1958 nor the Preamble to the Constitution of 1946 contain any express provision concerning the right to remuneration or wages. The Preamble to the 1946 Constitution limits itself to assuring individuals and families “the conditions necessary for their development” (paragraph 10). However, it is recognised that wages are a form of maintenance, and “perform a vital function for most of the population”, and must “ensure a decent living for workers and those dependent on them”.142 To this effect, although the text of the French Constitution make no express mention of the right to a wage that serves that purpose, legal theory has looked to the Universal Declaration of Human Rights and to the European Social Charter, which guarantee to all the right to remuneration, in Articles 23.3,143 and 4,144 respectively. The impact of wages on production costs and prices may however operate as a limiting factor in business and state wage policies, making wages the outcome of a given economic situation. Wages are understood as the consideration for the work done, the obligation to pay them arising from the employment contract, as a synallagmatic agreement binding the parties to the employment relationship and determining, in principle, the value, nature and form of their payment.145 But Labour Law has moved beyond this, treating as wages any amount or advantage granted in relation to work in the context of the undertaking, irrespective of

 This is the case of the payment of remuneration in holiday periods and under the rules established in § 615 and § 616 of the BGB.  On the payment of remuneration in the event of non-­ performance of services, cfr. Weiss and Schmidt (2008), pp. 119 et seq. 141  On this possibility, Kirchner et al. (2018), pp. 94 et seq. 142  Auzero et al. (2020), p. 1153. 143  Article 23.3 UDHR states that “Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection”. 144  Article 4 of the Revised European Social Charter lays down that “With a view to ensuring the effective exercise of the right to a fair remuneration, the Parties undertake: 1) to recognise the right of workers to a remuneration such as will give them and their families a decent standard of living”. 145  Auzero et al. (2020), p. 1152. 140

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whether it amounts to a mere liberality, whether it is granted by third parties, or whether it is collective in nature.146 This broad notion of wages therefore includes the base salary and supplements more or less relating to work, such as bonuses or other benefits.147 It is therefore possible to separate out a strict concept of wages, comprising the “price” for the work rendered, from a broad concept which, in addition to the base salary, also includes complementary elements and will correspond to the wider notion of “remuneration”.148 As regards the fixing of wages, it may be observed that, until recently, this matter was left to the law of supply and demand, allowing the principles of economic liberalism to be played out: wages were the outcome of free negotiation between the parties to the employment relationship. Trade unions have striventhrough negotiation and industrial action to reach collective agreements that would regulate wages, but this has proved insufficient to ensure minimum wages, and intervention by the State has been needed in the form of setting the ‘inter-professional minimum wage for growth’ (salaire minimum interprofessionnel de croissance—SMIC). It was therefore acknowledged that the State cannot ignore the level of wages, and must ensure that, from a welfare perspective, all workers are entitled to the minimum wage necessary to assure satisfaction of their basic needs, but not only these: the worker must be able to satisfy other needs understood as normal, in view of the level of development of the country and technical progress, the group to which the worker belongs and national income. This is accordingly a relative concept, that varies from country to country, and over time. The SMIC has accordingly had an undeniable economic impact on all wages and, consequently, on prices.149 The SMIC succeeded to the salaire minimum interprofessionnel garanti (SMIG), created by Law 50-205, of 11.02.1950, in the post-war context, in keeping with the principles set out in the Preamble to the Constitution of 1946.150 This law, dealing with collective bargaining and resolution procedures for industrial disputes, amended the Code du Travail, laying down that the Higher Collective Agreements Board would be tasked with studying the composition of a standard budget to determine the national minimum wage guaranteed across all occupations. Taking into account a reasoned opinion from this board and the general economic situation, the SMIG would be fixed by decree of the Council of Ministers (Article 31-x).

 Auzero et al. (2020), p. 1153, stating that “wages are not the strict price of labour”.  Duquesne (2022), p. 264. 148  Although the concepts of “wage” and “pay” are often used as synonyms (Auzero et al. 2020, p. 1152). 149  Auzero et al. (2020), p. 1173. 150  With an assessment and a brief historical overview of the law, and excerpts from the debates preceding its adoption, cfr. https://www.senat.fr/evenement/archives/smig.html. 146 147

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Law 70-7, of 02.01.1970, reformulated the SMIG and created the minimum inter-professional wage for growth (SMIC), to ensure participation in the country’s economic development (Article 31-xb., amended by Article 2 of the new law). At present, the SMIG is regulated by Articles L3231-1 to L3232-9 of the Code du Travail and is intended to serve as a minimum level the income of workers and to reduce pay inequality.151,152 The goal is to guarantee employees with lower salaries their purchasing power and their participation in the economic development of the nation (Article L3231-2). The SMIC benefits all workers, except for those on apprenticeship or vocational training contracts. Workers aged under 18 are entitled to the SMIC with a reduction of between 10% and 20% depending on their age. Wages are inherently related to the worker’s livelihood, and so enjoy special guarantees, set out in Articles L3251-1 to L3255-1 of the Code du Travail, under the heading of “Protection of wages”. Attention is here drawn to the prohibition of setting off debts against pay (Article L3251-1, with some exceptions, provided for in Article L3251-2), limits on wage attachments (Articles L3252-2 et seq.) and the privileges and guarantees established in Articles L3253-1 and L3253-23 in the event of the undertaking being wound up, including a welfare scheme guaranteeing unpaid wages, to be borne by a special association for this purpose (association pour la gestion du régime de garantie des créances des salariés—AGS).

5.2.4 Portugal The Constitution of 1976 guarantees all workers, irrespective of age, sex, race, citizenship, territory of origin, religion, political or incorporation convictions, the right to “remuneration of their work in accordance with its volume, nature and quality, with respect for the principle of equal pay for equal work and in such a way as to guarantee a proper living” (Article 59.1 (a)). Elaborating on this requirement, Article 59.2 (a) of the Constitution lays down that “Establishing and updating a national minimum wage which, among other factors, shall have regard to workers’ needs, increases in the cost of living, the level of development of the forces of production, the demands of economic and financial stability, and the accumulation of capital for development purposes”. Lastly, para. 3 of that article lays down that “Salaries shall enjoy special guarantees, as laid down by law”. The enshrinement of a fundamental right to fair remuneration is easy to understand, insofar as pay, as the consideration for the work provided to the employer, “is  Favennec-Héry and Verkindt (2020), p. 702. The authors also write that, in practice, the SMIC serves to promote low wages. 152  Article 2 of Arrêté of 26 April 2023 on the increase of the SMIC, set the hourly value of the salaire minimum de croissance at 11.52 Euros, as of 1 May 2023. 151

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closely connected to the person of the worker”, being, as a rule, their “sole or principal means of subsistence”.153 The right to remuneration is recognised as a right of a nature analogous to that of rights, freedoms and guarantees, and is “constitutionally determinable, its realisation not being subject to the availability of State funds or conditional on possibility”.154 The Constitutional Court has ruled to this effect on several occasions, asserting that the right to pay for work (as well as the right to an upper limit on daily working hours, the right to weekly rest and periodic holidays) possesses “an untouchable essential core which, in that dimension, is configured as a true guarantee”.155 Rightly described as the principal duty of the employer,156 the duty to “pay promptly the remuneration, which must be fair and appropriate to the work”, is established in Article 127.1 b), of the Labour Code. The Labour Code defines pay as the “the rendering to which, under the contract, the rules governing it or standard practice, the worker is entitled by way of consideration for his work” (Article 258.1, of the Labour Code). The legal standard for classification as pay is based on four criteria: (i) the regular intervals at which it is paid, (ii) it is economic in nature, (iii) it is mandatory for the employer and (iv) corresponds to the rendering of service.157 The Code then sets rules on compliance with the obligation of paying remuneration, defining the form of performance (Article 276), as well as the place (Article 277) and the time of performance (Article 278). In any case, the Constitutional Court has recognised that the legislator still has a margin of freedom in which the shape the right to pay, in particular by imposing limits on the accumulation of benefits in the public sector.158 It is also recognised that, in extreme cases, the law may even impose a temporary reduction in the pay of civil servants, as an exception to the principle that pay cannot be reduced.159

 Cfr. Judgment of the Constitutional Court 257/08, of 30 April, https://www.tribunalconstitucional.pt, which goes on to explain: “It is this personal and existential dimension that sets employment claims apart, justifying the additional constitutional protection they enjoy, in addition to that conferred, in general, on financial claims”. 154  Rui Medeiros, in Miranda and Medeiros (2010), p. 1150. 155  Cfr., to this effect, Judgments of the Constitutional Court 373/91, of 17 October, ruling that to define the concept and modes of pay is to encroach on the essential core of that right, which is a matter where the Assembly of the Republic has reserved powers, and 498/03, of 22 October, both available at https://www.tribunalconstitucional.pt. 156  Ramalho (2020), p. 480 157  Joana Vasconcelos, Annotation to Article 258, Martinez et al. (2020), p. 642. On the characteristics of pay in the strict sense, cfr. Martinez (2022), pp. 571 et seq. 158  Cfr. Judgments of the Constitutional Court 386/91, of 22 October, declaring constitutional a rule that sets limits on the accumulation of remuneration owing for the performance of other public duties by a former State servant, already in receipt of a retirement pension (or reserve), 258/02, of 18 June, and 271/09, of 27 May, all available at https://www.tribunalconstitucional.pt. 159  Rui Medeiros, in Miranda and Medeiros (2010), p. 1150. 153

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Giving effect to Article 13 of the Constitution, Article 59 prohibits arbitrary differentiation in pay, laying down that wage differences cannot be established without “sufficient material justification and grounds”.160 What is prohibited is not “pay differentiation, but rather pay discrimination, in other words, unjustified differentiation, based, namely, on factors such as sex, race, nationality, religion, political convictions, etc.”.161 Devoting a subsection to equality and non-discrimination (Articles 23 et sequitur), the Labour Code deals specifically with equality and terms of employment in Article 31, laying down that “Workers are entitled to equal terms of employment, in particular as regards pay, and the elements determining pay must not contain any discrimination on grounds of sex” (para. 1). Paragraph 2 addresses the implications of the principle of equal pay for equal work, establishing that any mode of variable pay, namely piecework, be established on the basis of the same unit of measurement, and that pay calculated on the basis of time worked must be the same. However, paragraph 3 then clarifies that differences in pay do not constitute discrimination when based on objective criteria, equal for men and women, based on merit, productivity, regular attendance or length of service. The principle of equal pay for equal work is reiterated in Article 270. The Portuguese Constitution, unlike some others, expressly provides for the existence and adjustment of a “national minimum wage”, regarded as a “cornerstone of the policy of decommodification (desmercantilização) of labour because, in a certain way, it dislodges the law of supply and demand”.162 Satisfying an important demand in the wake of the 1974 revolution,163 the authors of the constitution sought in this way to ensure a “minimum level of pay”, considered the amount needed to met the basic needs of survival of the worker and his or her family, based on a principle of sufficient wages.164 The minimum wage, centred on the idea of a “fair wage and the need to ensure a decent living for the worker” 165 must apply nationally and across all occupations, taking account of several factors, examples of which are provided by Article 59.2 a)—“workers’ needs, increases in the cost of living, the level of development of the forces of production, the demands of economic and financial stability, and the accumulation of capital for development purposes”. The Labour Code contains regulations on the “guaranteed minimum monthly pay” in Articles 273 et sequitur. Paragraph 1 of this article reaffirms the guarantee of minimum monthly pay, the value of which is set annually by specific legislation, after consulting the Comissão Permanente de Concertação Social. In fixing its value, account is taken of “the

 Cfr. Judgment of the Constitutional Court 424/03, of 24 September, https://www.tribunalconstitucional.pt. 161  João Leal Amado, “Retribuição”, Amado et al. (2019), p. 786. 162  João Leal Amado, “Retribuição”, Amado et al. (2019), p. 784. 163  Cordeiro (2019), pp. 714 et seq. 164  Ramalho (2023a), p. 623. 165  Dray (2015), p. 655. 160

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needs of workers, the increased cost of living and productivity, with a view to fulfilling the requisites of the incomes and prices policy” (no. 2).166 For certain categories of workers, the value of the guarantee minimum monthly wage may be lower. Article 275.1 of the Labour Code provides for a reduction of 20% for apprentices, interns or trainees employed on a certified training basis, and a reduction corresponding to the difference between full capacity for work and the coefficient of effective capacity for the work in question of a worker with reduced capacity for work, if the difference is greater than 10%, subject to a limit of 50%. In view of the importance that the Constitution attaches to remuneration for work, paragraph 3 of Article 59 lays down that wages enjoy special guarantees, under the law, leaving it to the legislator to create the mechanisms to effectively protect workers’ pay. On the subject of guarantees of pay, the Labour Code contains a rule prohibiting employers from setting off any claim they have on the worker against their pay (Article 279),167 as well as limits on the assignment of pay entitlements (Article 280). In a section addressing guarantees for the worker’s entitlements, the Code also establishes the preferential character of employment claims (Article 333),168 as well as the joint and several liability of companies in the same group (Article 334)169 and the liabilities of partners, managers and directors (Article 335). The requirement of special protection for remuneration of work determined by the Fundamental Law is compatible with the setting of rules on the time-barring of employment claims, recognising that the constitutionally guaranteed right to pay must be conciliated with other values with constitutional status, “such as the certainty and security of legal relationships, justifying the time-bar on employment claims”.170 On the other hand, the special protection for pay while an employment relationship exists ceases to be justified upon termination of the employment contract, it being recognised that, “with the dissolution of the employment contract (through expiry, in the case in hand) the situation of legal and economic subordination justifying the inalienability of (certain) rights of the worker tends to dissipate”. 171

 Under the provisions of Article 3 of Decree-Law 85-A/2022 of 22 December, the value of the guaranteed minimum monthly wage is set at 760 Euros, with effect from 1 January 2023. 167  On the rules governing set-off of pay obligations, cfr. João Leal Amado, “Retribuição”, Amado et al. (2019), pp. 796 et seq. 168  On the preferential nature of employment claims, with plentiful references to case law, Joana Vasconcelos, Annotation to Article 333, in Martinez et al. (2020), pp. 786 et seq. 169  In relation to this rule, attention is drawn to the recent Judgment of the Constitutional Court 272/2021, of 5 May, declaring unconstitutional, with general mandatory force, the combined interpretation of the rules contained in Article 334 of the Labour Code and Article 481.2, first part, of the Companies Code, insofar as it prevents the joint and several liability of a company with registered office outside Portuguese territory, in relation to cross-, controlling or group holdings with a Portuguese company, for claims arising from an employment relationship established with such Portuguese territory, or from cessation thereof (https://www.tribunalconstitucional.pt). 170  Cfr. Judgment of the Constitutional Court 339/03, of 7 July, https://www.tribunalconstitucional.pt. 171  Cfr. Judgment of the Constitutional Court 280/06, of 2 May, https://www.tribunalconstitucional.pt. 166

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The rules on the time-barring of employment claims are established in Article 337.1 of the Labour Code, which lays down that “The claim of an employer or worker arising from an employment contract, or breach or cessation thereof, lapses 1 year after the day following that on which the employment contract ceased”. This rule has been interpreted as establishing a “special period for the time-­ barring of employment claims, which is counted from the day following that on which the employment contract ceased, running for a period of 1 year”.172 That the time-bar period does not run while the employment relationship subsists is justified by the fact that the worker may face “constraints” in bringing judicial proceedings against the employer to enforce his or her employment claims.173 On the other hand, the setting of a time-bar period of only 1 year as from cessation of contract seeks to ensure the worker brings an action “as quickly as possible”, after “cessation of the situation which held him back from enforcing employment claims” over the employer.174

5.2.5 Spain Article 35 of the Spanish Constitution, cited above, establishes in paragraph 1 the right of citizens to sufficient remuneration to meet their needs and those of their family, without the possibility of any discrimination on the grounds of sex.175 The right to work is therefore a “dynamic” right, which also includes the right to sufficient remuneration, ensuring satisfaction of the worker’s needs and those of his family. Article 26.1 ET defines wage as the sum of economic earnings of workers, in money or kind, in return for the rendering of their labour to an employer, which remunerates the actual work done or rest periods considered as periods of work. Alongside the legal function of remuneration or compensation for labour, wages here have the economic and social function of ensuring the worker’s subsistence, as the “political and social mission” assigned to them by the Constitution.176,177  Cfr. Judgment of the Supreme Court of Justice, of 9 November 2017, Case no. 32646/15.7T8LSB. L1.S1, http://www.dgsi.pt. Proposing a different interpretation, considering that the limitation period is counted while the employment relationship subsists, ending, in any case, 1 year after its cessation, Xavier (2000), pp. 613 et seq. Defending that this time-bar rule does not apply to non-­ pay obligations and to interest on employment claims, Martinez (2022), pp. 607–608. 173  Martinez (2022), p. 605. 174  Martinez (2022), p. 606. 175  We may recall the content of this provision: “All Spaniards have the duty to work and the right to employment, to free choice of profession or trade, to advancement through their work, and to sufficient remuneration for the satisfaction of their needs and those of their families; moreover, under no circumstances may they be discriminated against on account of their sex”. 176  Montoya Melgar (2022), p. 401. 177  The reference in the Spanish Constitution to the guarantee of the subsistence of the worker’s family has served as grounds for the idea of a “family wage”, which would be set in view not only 172

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We may note that, as regards the prohibition of discrimination, the fact that the constitutional provision refers only to the prohibition of discrimination on the grounds of sex does not permit the guarantee of equality to be limited to this factor. Article 14 of the Constitution holds sway here,178 guaranteeing the equality of Spaniards before the law, prohibiting any form of discrimination on grounds of birth, race, sex, religion, opinion or any other personal or social condition or circumstance. The Constitutional Court ruled to this effect in its Judgment of 7 March 1984, considering that the reference in Article 35.1 to discrimination only on the grounds of sex cannot point to a reduction or restriction of the formulation in Article 14.179 For its part, Article 14 does not seek to typify in such a way that excludes other factors of discrimination or permits use of those factors to promote unequal treatment, as is confirmed by the fact that this provision alludes to any other personal or social circumstance, which, in particular, should include age.180 In statute law, this right has been given effect through the existence of a minimum wage applicable to all workers, in all occupations.181 The institution of a minimum wage, in keeping with the constitutional right to remuneration, constitutes “coercive intervention” in labour relations, justified by protection of an interest deemed worthy and in need of attention from the State.182

of the work done, but also of the worker’s family expenses. However, the legal rules governing wages “wholly disregards the idea of a family wage” (Montoya Melgar 2022, p. 402). The connection between wages and the worker’s family needs arises similarly in other international texts, notably the Universal Declaration of Human Rights (Article 23.3 of which lays down that workers are entitled to remuneration “ensuring for himself and his family an existence worthy of human dignity”), the International Covenant on Economic, Social and Cultural Rights (which in Article 7 a) provides for the right of workers to remuneration that assures “a decent living for themselves and their families”) and the European Social Charter (Article 4 of which provides for the duty of the parties to recognise the right of workers to “a remuneration such as will give them and their families a decent standard of living”). 178  Article 14 of the Spanish Constitution lays down that “Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance”. 179  Judgment of the Constitutional Court 31/1984, of 7 March, asserting that “The fact that Article 35.1 of the Spanish Constitution, within a section located outside the context of rights enjoying constitutional protection does not specify, when proclaiming the right to sufficient remuneration, anything more than discrimination on the grounds of sex, must not lead us to the idea that in the particular field of labour relations the formulation in Article 14 of the Constitution is so drastically curtailed” (http://hj.tribunalconstitucional.es). 180  Cfr. Decision of the Constitutional Court no. 75/1983, of 3 August (http://hj.tribunalconstitucional.es). Article 4.1.c) ET enumerates in details the causes of discrimination in access to employment and in exercise of the employment relationship. 181  The existence of an “multi-sector” minimum wage (Escudero Rodríguez 2018, p. 734). 182  Cfr. Decision 31/1984, of 7 March, cited above.

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The provision of a minimum wage and the prohibition of any form of discrimination is therefore a constraint on the contractual freedom of the parties, which must be exercised so as to comply with the constitutional requirements described.183 Article 27.1 ET lays down that, after first consulting trade unions and employers’ organisations, the Government will fix the “minimum wage for all occupations”, taking into account the consumer price index, national productivity, labour’s growing share in national income and the general economic situation, clarifying in para. 2 that this minimum value is “non-attachable”, any (individual or collective) agreement to the contrary being null and void.184 The minimum wage is fixed annually, and may be reviewed every 6 months if consumer prices increase faster than forecast.185 Other important mechanisms established to guarantee the economic and social function of wages include the non-attachability rule, characterising wage entitlements as preferential claims, and the existence of a public fund to guarantee wages. On the issue of non-attachability, in addition to Article 27.2 ET cited above, Article 607.1 of the Ley de Enjuiciamiento Civil (LEC, or Civil Procedure Law, approved by Law 1/2000, of 7 January) contains an absolute prohibition of attachment of the minimum wage or equivalent compensation. In addition, payments in excess of the value of the minimum wage are also relatively non-attachable, and may only be attached in accordance with the scale referred to in Article 607.2 LEC.186 Wage claims enjoy preferential status, and under Article 32.1 ET a “super privilege” is established for the claim relating to the last 30 days of work, up to the value corresponding to twice the minimum wage. This claim enjoys preferential status over any other claim, including those secured by pledge or mortgage. Having general preferential status, this claim can be enforced against all the employer’s assets. Article 32.2 ET establishes a “general preferential claim over assets”, which can even be enforced against “objects” produced by workers and, in a broad interpretation, all the good produced by the undertaking, including immoveable property.187 Lastly, Article 32.3 establishes general ordinary preferential status enjoyed by the claims not guaranteed by the previous paragraphs, causing them to have preference over any others, provided they do not enjoy a preferential guarantee in rem, in accordance with the law (namely, mortgage and pledge188).

 It follows that to define professional categories on the basis of sex entails wage discrimination. Neutral criteria must therefore be used, and the relevant factor for any differentiation is the value of the work (cfr. Judgment of the Constitutional Court 286/1994, of 27 October). 184  Montoya Melgar (2022), p. 408. 185  Under the provisions of Article 1 of Real Decreto 99/2023, of 14 February, the minimum wage is fixed at 36 Euros per day or 1080.00 Euros per month, depending on whether set in days or months. 186  This varies between 30% and 90%, depending on the amount in excess of the minimum wage. 187  Montoya Melgar (2022), p. 421. 188  Montoya Melgar (2022), p. 421. 183

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Article 33 ET then provides for the existence of a Wage Guarantee Fund, created by Real Decreto 317/1977, of 4 March, intended to protect against the risk of workers not receiving the wages and compensation due to them due to the employer’s lack of funds, in particular in the event of its insolvency. The Fund is financed from contributions paid by employers, in conjunction with their social security contributions, and currently set at 0.2% of the wages serving as the basis for the contingencies of accidents at work, occupational diseases and unemployment. The procedure to be followed to seek compensation from this fund is regulated in Articles 14 et sequitur of Real Decreto 317/1977.

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