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Protective principle in labor law

What is the protective principle in labor law?

The protective principle is the essential basis of labor law. It seeks to balance the relationship between the worker and the employer, protecting the former by considering himself the weaker party.

It comes from of a series of rules:

  • Most favorable norm rule

Example, two rules that regulate the minimum wage of workers: a national law that establishes 950 euros per month and a collective agreement that establishes 1000 euros per month. According to this rule, the rule that is most favorable to the worker must be applied.

  • Most beneficial condition rule

Example, a worker has a contract with 35 vacation days a year and a law is subsequently approved that reduces vacations to 30 days a year. Thus, the worker’s situation cannot be worsened with a new regulation, so his individual contract must be respected, which grants him 35 days of vacation per year.

  • In dubio pro operator rule

For example, there is a rule that says that workers are entitled to severance pay of 20 days per year worked, but it does not specify whether full or fractional years should be counted. The rule must be interpreted in the way that most favors the worker, that is, counting the split years to calculate the severance pay.

  • Inalienability of rights rule

Example, a worker cannot waive his minimum wage, his severance pay or his right to social security.

  • Primacy of reality: attention must be paid to what happens in practice and not to what the documents say.

Example, a person works as a delivery person for a food delivery company, but his contract says that he is a self-employed worker who provides services to the company. However, in reality, the delivery person has to comply with a fixed schedule, follow the instructions of the company, use the uniform and the vehicle provided by the company. In this case, there is a discrepancy between what the contract says and what happens in practice.

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