the past 10 years our country has increased the indiscriminate use of fixed-term labor contract, by of SME's, and more recently by the Public Administration bodies, as a means or subterfuge to avoid fraudulent as the stringency of regulations governing job security decreed an ongoing, continuous from the National Executive 2001. Although this measure addresses the need for protection of the masses of lower-income workers that make up the workforce of our country, it is equally true that the measure is given, also abuse by some workers covered by the State knowing, incurring repeated fouls against their employers, in which case, the employer is forced to pass through a legal path cumbersome, costly and time consuming (Qualification of Dismissal), when, and even with justification, be without the services of a worker. Without fixing a position for or against one party or another, and regardless of my personal opinion about it, the undeniable fact is that every day, more employers are turning to the figure of the Labor Contract Determined Time when hire employees. Now, approaching the problem from a strictly legal and valid is the tautology, "THE LAW IS THE LAW", n ur legislation employment contract provides for the existence of fixed-term labor and it sets the LOT in Article 72 when you set: "The employment contract may be held indefinitely, for a fixed or a given work. " However should be clarified that under the constitutional provisions that protect the social reality of working as a special protection and supervision by the state, including: ü
Article 87 (CNRBV ) : Everyone has the right to work and duty
working ... ü Article 89 (CNRBV) : Work is a social and enjoy the protection of the state.
1 .- No law shall establish provisions that affect the sanctity and progressiveness of the rights and benefits. In labor relations, reality shall prevail over forms or appearances.
ü Article 93 (CNRBV) : The law shall guarantee stability in the work provisions as appropriate to limit any form of unjustified dismissal. ...
Ratified by the provisions enshrined in Article 60 to Lit and of the LOT in accordance with Art 8 Lit c and d of the Regulations.
ü Article 60 (LOT): addition to the constitutional and legal provisions are imperative for the resolution of a particular case will apply, in order:
e) The principles universally accepted by the Labour Law;
ü Section 8 (Rgl.LOT): The principles referred to in subparagraph e) Article 60 of the Labor Law will, inter alia and without prejudice to the express provision in the labor law, the following:
.
c) Primacy of reality or the facts, face shape or appearance of acts arising from the legal employment relationship.
d) Conservation of employment:
i) Presumption of continuity of the employment relationship by virtue of which in case of doubt on the extinction or not it should be resolved in favor of subsistence .
ii) Preference of employment contracts indefinitely, in response to which should be attributed to exceptional cases of term contracts authorized under Article 77 of the Labor Law.
and limitations established by law the use of contracts Laborales a Tiempo Determinado :
ü Artículo 77 (LOT): "El contrato de trabajo podrá celebrarse por tiempo determinado únicamente en los siguientes casos:
a) Cuando lo exija la naturaleza del servicio.
b) Cuando tenga por objeto sustituir provisional y lícitamente a un trabajador; y
c) En el caso previsto en el artículo 78 de esta Ley."
c) En el caso previsto en el artículo 78 de esta Ley."
Podemos concluir la existencia de una presumption of law means that the employment contract by its nature and purpose, is a legal relationship agreed indefinitely, and is supported only by way of exception, given time, when checking any of the cases provided for in Art 77 of the LOT.
And so it is clear from our own legislation:
ü Article 74 (LOT): The fixed term contract completed by the expiry of the agreed term and will not lose your specific condition when the subject was an extension.
If two (2) or more extensions, the contract is considered indefinitely , unless there are special reasons that justify such extensions, and exclude the alleged intention of continuing the relationship. Ü
Article 73 (LOT): The employment contract shall be concluded for an indefinite period when there appears expressed the will of the parties, unequivocally , to link only during a particular work or time. Ü
Article 75 (LOT): The contract for a given work should state very clearly the work to be performed by the worker.
If in the month following the termination of an employment contract for a particular work, the parties enters into a new contract for the performance of another work, be deemed to have wanted to be bound, since the beginning of the relationship, indefinitely.
ü Section 8 (Rgl.LOT): The principles referred to in subparagraph e) of Article 60 of Labor Law will, inter alia and without prejudice to the express provision in the labor law, the following:
d) Conservation of employment:
ii) Preference work contracts indefinitely , in response to which should be attributed to exceptional instances of approval forward contracts provided for in Article 77 of the Labor Law.
Finally:
USE OF fixed-term contracts ORDER TO SIMULATE OR IN ANY WAY disguise LEGAL RELATIONSHIP AND WORK AND DEFEAT THE STABILITY AND / OR THE TENURE OF THEIR EMPLOYMENT IS CONSIDERED BY OUR TRABAJAORES LAW AS "FRAUD THE LAW "
SEE FIRST COURT JUDGEMENT EXTRACT OF FIRST INSTANCE OF THE WORK OF THE DIVISION OF STATE JUDICIAL MIRANDA. THE TEQUES. 193 º and 144 º. File No. 04587. (21/04/2003)
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