In the present article, we will be concerned with the analysis of the advantages
and disadvantages of having Internal Regulations in companies.
As its name suggests, these Regulations will only apply within the organization
established by the entrepreneur, agreed with the employees to the extent
appropriate. Given the multiple possibilities of internal order and the situations
to be regulated, we will not dwell on any particular aspect of the making of the
regulations, but on the advantages that, in our opinion —supported by this
Firm’s extensive experience in the field of Labor Law —, they have.
The Employment Contract Act (LCT) empowers the employer to organize,
manage and modify working methods and modalities and to impose disciplinary
measures. These are precisely the main issues that are often included in such
regulations.
Internal Regulations are considered as an integral part of labor legislation and
should be taken into account in conflict situations. Therefore, they cannot affect
the rights previously acquired by the worker through the LCT or the
corresponding Collective Bargaining Agreement. It should be borne in mind that
the legal principle which applies to Labor Law is that the most favorable
legislation to the worker must prevail, regardless of their rank of importance. For
instance, if the internal regulation gives a better benefit than the LCT, judges
will apply it in case of conflict, as it happens with Collective Bargaining
Agreements and hierarchically superior laws. For this reason, it is
recommended to respect and grant the maximum amount of agreed benefits in
order to minimize the risk of conflict. It is worth emphasizing that any right must
be respected by the company, exposing it by having assumed such
commitments, which may be a disadvantage if the Regulation is not well
drafted.
Since these regulations establish the company’s organization and order, it is
intended to have clear rules, which are immensely helpful for solving conflicts
that may arise in the daily life. These regulations well drafted by an attorney,
including relevant topics for the client, shows us that it facilitates the
coexistence with problems that may arise and, above all, its solution. For
instance, if a certain disciplinary measure is to be taken, there will be no
misunderstandings.
We assume the workers must be previously informed through delivery of the
relevant copy. The employer must keep another signed copy in each
employee’s file as evidence of acknowledgement of receipt.
For all these reasons and since each internal regulation has to be individual for
each employer, in order to better meet their requirements, we advise our clients
and friends to consult an attorney and draft internal regulations for their
businesses if necessary.
In this regard, the following Sections of the Employment Contract Act may be of
interest:
Section 64. — Power of Organization.
The employer has sufficient powers to organize the company, holding or
establishment economically and technically.
Section 65. — Power of Management.
The management powers of the employer shall be exercised in a
functional manner, in accordance with the company’s objectives,
production demands, and without prejudice to the preservation and
improvement of employee’s personal and patrimonial rights.
Section 66. — Power to modify working methods and modalities.
The employer is empowered to make any changes relating to the working
methods and modalities, as long as these changes do not result in the
unreasonable exercise of that power, alter essential modalities of the
contract, or cause material or moral damage to the employer.
In cases where the employer stipulates measures prohibited by this
Section, the employee will be able to choose to be considered dismissed
without cause or seek the restoration of the modified conditions. In the
latter case, the action will be dealt with in accordance with the Summary
Procedure. Thus, it will not be possible to innovate in the terms and
conditions of employment, unless these are general for the establishment
or section, until delivery of the final judgment.
(Section substituted by Section 1 of Act No. 26.088, B.O. 04/24/2006.)
Section 67. — Disciplinary Powers. Limitation.
The employer may apply disciplinary measures proportionate to the
employee’s misconduct or omissions. Within thirty (30) calendar days
from the serving of notice of the measure, the employee may question its
origin and the type or extent of it, so that it is o that it is deleted,
substituted or limited as the case may be. The disciplinary sanction will be
considered as consented upon expiration of this term.
Section 68. — Modalities of its exercise.
In all cases, the employer shall exercise the powers conferred in previous
sections, such as imposing suspensions for economic reasons, within the
limits and under the conditions laid down by law, professional statutes,
collective agreements, work councils and, if any, internal regulations they
enacted. Always ensure to meet the demands of the organization of work
in the company and maintain respect due to the dignity of workers and
their rights, excluding all forms of abuse of rights.
Section 69. — Modification of Employment Contract – Exclusion as a
disciplinary sanction.
No disciplinary sanctions may be applied to constitute an amendment of
the employment contract.
Section 70. — Personal controls.
Systems intended for employee personal controls to protect the assets of
the employer must always safeguard the dignity of workers and must be
practiced with discretion and shall be by means of automatic selection for
the entire staff.
Female staff controls must be reserved exclusively for people of the same
sex.
Section 71. — Knowledge.
The Enforcement Authority must be informed of all the systems used, in
all cases.