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SUBSTANTIAL MODIFICATION OF TERMS OF CONTRACT: REGULAR OR SPECIAL PROCEDURE

TS is unified doctrine, Fourth Chamber of the social (STS 18/07/1997, 07/04/1998, 08/04/1998, 05/11/1999) that process particularly in Art. 138 LPL "takes for granted the actual existence of substantial changes to work as designed in Article 41 of the ET." So when not fulfilled by the employer with the formal requirements of the provision: opening of the consultation period arrangement for most workers' representatives and notification to them of the measure passed with a minimum of 30 days the date of its effectiveness, in the case of collective amendments, or notification of the workers and their legal representatives that deadline when it comes to individual patches, "Can not be understood that the measure complies with the provisions of art. 41 of ET, which would be the ordinary procedure appropriate to claim against the measure and not the special art. 138 LPI, the way of collective if is challenging the business practices of that channel, but in this case without being subject to forfeiture. "

is, the employer's decision may be regarded as substantial change in working conditions to procedural and substantive effects, only to the extent that it may be recognizable or identifiable as such, have been adopted to satisfy the requirements of a Art. 41 ET. So if it's required his challenge to the procedural mode of art. 138 LPL, and even the action is subject to the limitation period fixed by that provision and the art. 59.4 ET and the lack of system resources. Otherwise, the action must follow the course of the regular procedure, or the collective action if you exercise like this and neither is subject to forfeiture, "or governs the lack of action.

PROBLEMS

1. The arrest pursuant to section 138 of the LPL is a preferential and summary procedure, ie the court will issue the maximum celeidad for signaling and resolution (above) to determine whether considered justified or not the decision
company

• The normal procedure would have a time limit for bringing proceedings for a year, ie we have more time to demanding but the biggest handicap we find when we bring to the trial date will be much later than if you start the procedure by way special.
• Ultimately we find that companies make changes to the contract without fulfilling the legal requirements that will mark the art. 41 of the LPL, thus avoiding the resolution of litigation quickly, may pass within a year and a half from amending the employment contract until a judge decides sentence. As the end is in the hands of the company with a procedure which in any case affect the integrity the employee by establishing a different day or different time, because we must remember that until the sentencing judge must abide by the worker or part-time schedule imposed by the company.

As the humble opnion of the Counsel if we understand clearly that there is a substantial change in working conditions should not be conditional on the case: whether ordinary or special to the company met the appropriate legal procedures and that in case the injured worker would be doomed to a long procedure with the consequences of continued compliance with the amendments imposed by the company until the judge Check otherwise.