El cambio funcional entre categorías equivalentesla reasignación de funciones por el empresario

Zusammenfassung

The aim of this thesis was to study one type of functional mobility in detail, that is to say, to focus on the notion of changing functions between 'equivalent professional categories '. Mobility concerns the object of work or the functions assigned to an employee. It is shown to be either vertical or horizontal, depending on whether or not it implies a change of equivalent occupational category or mobility within the same professional group. Horizontal mobility implies a change of professional categories. This type of functional mobility is described as belonging to an employer’s managerial authority. The powers attributed to the employer are to specify and organize the work to be performed in an enterprise. According to some aspects of Spanish labour law, this authority is primarily rooted in the contract of employment although to a lesser extent, the law is also an expression of the notion of free enterprise enshrined in Article 33 of the Spanish Constitution. The research shows that after Law 11/1994, the employer's prerogative and power to control and direct his employees was extended to give employers even greater powers to achieve 'flexibility'. The 'discretion' of an employer, in the context of horizontal mobility, has become expressed in Article 39(1) of the Spanish Workers Statute. Employers are almost completely free to change an employee's tasks, a power limited only by the fact that they must observe the obligations arising from the contract of employment, the academic or professional requirements of the job, and the tasks and duties which are appropriate to the worker's professional grouping. The limitation of the employer's power by statute, and general principles of civil law, is also limited by the wording of the collective agreement, for the collective agreements define the professional groupings and provide the limitations and guarantees in the event of an employer requiring worker mobility. In order to study the equivalent categories, it was first necessary to know which categories were to serve as comparators and to know of their relative proximity to each other. Occupational categories are grouped by either tasks or jobs with uniform characteristics (the same occupational group). The numbers and names of the categories within a given enterprise are normally laid down in industry wide provisions. Assignment by an employer to an occupational category also determines the specific content of the work to be performed and the appropriate level of responsibility. The level of the wage is also set according to occupational category. Against this background, the comparators for functional mobility between equivalent categories are set down in Article 22(3) of the Spanish Workers Statute after being amended by Law 11/1994. That statutory provision looks at the level of qualification of the worker to be moved, and the level of qualification that would be required in the new position. Moving from one professional category to another within the same level of qualification can still involve a change of activity (and even an internal job transfer), but requires work of the same type of professional category because otherwise there will not be an equivalent qualification for the other type of work. What is striking is that this latter aspect is a legal development that has occurred through case law and legal commentary, because the wording of the Spanish statute was actually silent on the matter. The law of equivalence required that both categories cover the same professional skills - an assessment involving an element of objective comparison, and a subjective of comparison. The employer must draw a comparison of knowledge, experience and technical ability which equips an initial professional category, and a worker’s occupational skill contract, for exercising a new professional category. Only if all these elements concur will there be said to be permitted functional mobility between equivalent professional categories. Ability is traditionally among the decisive factors in so far as occupational classification is concerned and this is also taken as a criterion for distinguishing between skilled and unskilled workers. Article 39 of the Spanish Workers Statute as amended by Law 11/1994 states that changes of activity must be between the equivalent professional category which have the same form as within that professional group. It also permits functional mobility for carrying out functions not related to the professional group or equivalent grades but this will be possible only if there are technical or organizational reasons that justify this. In the event of lower duties entrusted to the employee this must be justified by the peremptory or unpredictable needs of the enterprise. The employer must communicate this situation to the workers' representatives. That (no giving information to the workers) do not means that the technical or organizational ground das not exits in the company. They exit in all the functional mobility between equivalents categories, otherwise the employer's managerial authority could be arbitrary use. The requirement of giving information to workers does not mean that the technical or organizational ground for occupational mobility does not exist; it is simply a statutory requirement designed to prevent the employer from exercising the managerial authority in an arbitrary way. This research also finds that in practice, an employee is likely to waive their rights at the start of the employment relationship. This happens when the terms and conditions of employment are being imposed under the guise of the employer's managerial authority, and also when there are discussions surrounding the categories of equivalents for the tasks neither belong to the same functional professional area nor constitute a really horizontal functional mobility.