Member Article

To prevent abuses arising from employers´ coercion to force employees to accept unpaid leaves in the context of the Economic, Social and Ecological Emergency derived from Covid-19, the Ministry of Work recalls the content of judgment C-930 of 2009.

In this judgment, the Constitutional Court sets forth that in those situations in which the suspension of the employment contract is not due to causes under the employee or the employer ‘control, but to provisions of the legislator or circumstances of force majeure or fortuitous event, shifting the burden to the employee either economically making deductions to his/her salary or in personal work altering his/her rest, is against the Political Constitution. The foregoing, considering that wages and rest are inalienable and unwaivable fundamental rights. Therefore, assigning this responsibility to the employer is not an excessive or disproportionate burden that implies an excessive breakdown of the contractual balance.

Accordingly, the Ministry of Work establishes the following:

1. Article 25 of the Political Constitution sets that work is a right and a social obligation and as such is subject in all its forms to the special protection of the State.
2. The minimum vital and mobile wage and social security are rights related to work, which in turn are related to life and health rights of workers and their families.
3. The International Labor Organization (ILO) has called all governments worldwide to protect employees, stimulate the economy and employment, and sustain jobs and income during the crisis derived from Covid-1. Therefore, the Ministry calls again on employers to act under the protective and solidarity principle, by virtue of which the weakest part of the employment relationship prevails.
4. In consequence, it is not permitted to compel employees to request and accept unpaid leaves under the excuse of maintaining employment, since this is not only an illegal situation, but also a painfully one affecting the life of the employee and his/her family due to the lack of income to attend the crisis.
5. According to Article 333 of the Constitution, the company has a social duty that implies obligations such as the promotion of its employees'welfare.
6. In consequence, the possibility of requesting an unpaid leave shall come freely and voluntarily from the employee. The employer will determine whether to grant it or not, according to the provisions of numeral 4 of article 51 of the Labor Code.
   
   

Lastly, the Ministry informs that it will implement its inspection, surveillance and control duties to companies forcing their workers to accept unpaid leaves, as it is against labor rights and does not serve the intended legal purpose.

Click here to see judgement