Sistema Regional de Información
en línea para Revistas Científicas de América Latina,
el Caribe, España y Portugal

Presentación del volumen 13, número 1, 2023.

Law is for Giovanni Tarello the set of legal rules that are obtained by legal operators from normative statements; it would not consist reductively in a simple set formed by such normative statements as a preconstituted formulation of positive law. With this approach he easily connects with the directions of realist thought on law (legal realism), which emphasize the role of the judiciary as the creator of legal rules. But Tarello emphasizes the role of legal doctrine, since he understands that judicial activity itself operates on the basis of the constructions of scientific legal doctrine. In the internal logic of American realism, legal science cognitively approaches the law by attending to the empirical analysis of judicial practice. Tarello wants to go further and points to the understanding of legal science as "metajurisprudence in general and, in particular, the history and sociology of "legal culture", understood as the set of perspectives, modes of expression and forms of argumentation proper to legal operators as a whole". Consistent with this approach, Tarello paid special attention to studies on legal culture and metajurisprudence, although he did so from a concrete-historical analysis of legal institutions and doctrines. This allows him to situate his approach to iusphilosophical metajurisprudence in the field of the historical-critical revision of legal categories. The theory of the inter-union order - which sought to justify, in a legal-statist culture such as the Italian one, the reception of extra-legislative materials in the body of trade union and labor law, apart from the more apparent attempt to systematize the process of consolidation of collective bargaining in Italy - made it possible to take up the process of political-constitutional integration of labor in coherence with the political form of the social State of Law. According to Tarello, there are two models that originally served as a basis for the elaboration of the theory of inter-union order: the Anglo-Saxon (especially the English) and German models. Beyond the specific analysis of Italian trade union law, it should be noted that his elaboration of trade union "normative models" has marked, to a large extent, the development of the constructions of labor jurists in trade union law in the legal systems of the most advanced European countries.

ERTEs have become a successful internal flexibility mechanism that, during the COVID-19 health crisis, helped prevent the destruction of millions of jobs. However, their origin dates back to 1980, and, although they were promoted during the 2008 financial crisis, their use at the time was very limited. Thus, a historical tour through the main regulatory changes of the figure will be made to try and understand why the regulatory measures adopted during the pandemic regarding ERTEs made a significant impact on their perception by businessmen as a solid alternative to collective dismissal. Finally, it will be exposed how the experience accumulated during the health crisis has been used during the 2021 labor reform to provide this figure with a new, more flexible and modern regulatory framework, as a crucial mechanism to face future economic crises.

This article informs about the steps that have been observed in the legislative and judicial sphere around the rights of trans people. Firstly, it reflects on the need to clarify the terminology related to sexual and gender identity and, subsequently, it contents an analysis of some measures favorable to the adaptation of the labor regulatory framework to the legal and social reality of the aforementioned group. To this end, the latest regulations aimed at the prevention and protection of victims of discrimination and sexual violence are specifically evaluated, briefly assessing some of the modifications provided for in the Proyecto de Ley para la igualdad real y efectiva de las personas trans y para la garantía de los derechos de las personas LGTBI.

The article analyzes the new legal regime of the fixed-discontinuous contract after the reform operated by RDL 32/2021. Thus, both the unification of the regulation of all fixed-discontinuous work and the extension of the scope of application of this contractual modality in the framework of contracts-subcontracts and ETT are studied. Likewise, the formal issues and the rights recognized to fixed-discontinuous people are analyzed.

The doctrine of the Supreme Court has been deciding on the time of availability to which the worker is obliged when on call, in accordance with the CJEU resolutions in application of European Union law. However, the same Supreme Court, taking under consideration the conventionality control, does not rule out the applicability of the European Social Charter -as it is binding for our country- in accordance with the doctrine issued by the European Committee of Social Rights (ECSR), but without this having reached the decisions of the aforementioned Court regarding on-call working time. Some judicial bodies, however, have already begun to decide based on this interpretation of the ECSR, thus proposing a true revolution that sooner or later will reach Cassation, but which has already reached the reality of our labor relations.

Climate change is an undeniable reality right now. International institutions have declared the current critical moment and the need to count on everyone's support to be able to face this emergency. One of the essential players are companies which are the main source of contamination and, therefore, one of the key players in reversing this situation. Since 2021, regulatory changes are being made to encourage business intervention in the ecological transition. The aim of this work is to study these changes in Spain to, later, analyse to what extent employees could contribute to this necessary objective in the fight against climate change. To do so, French law will be analysed due to its improvements in this matter. Finally, based on this analysis, two proposals for a new regulatory framework will be offered to increase the active contribution of employees in this task, one more conservative and the other one more progressive.

Among the legal changes of the Law 15/2022, 12th July, for equal treatment and non-discrimination, it must be highlighted the express inclusion of illness or health condition as a forbidden ground of discrimination in our legal system. From this premise, this paper deals with the impact of this law on the dismissals based on the fact that an employee is on sick leave. In order to do this, first of all, it is analysed the evolution of the case law of the CJEU, the Constitutional Court and the Supreme Court, as well as the judgements of the lower courts about this matter and, subsequently, it is studied the new regulation on discrimination on grounds of illness or health condition in the Law 15/2022. The main conclusion we can draw from this analysis is that, after this Law, the dismissals on grounds of illness must be declared null and void instead of unfair. However, it is not a case of objective nullity since the employee must give evidence of the violation of the right to non-discrimination.

The purpose of this study is to discern whether the role currently held by the labour authority as a residual body that oversees the legality of the file of the collective dismissal procedure, after the disappearance of the administrative authorization, has contributed to reduce or enhance the control judicial, in terms of the verification of the causes, and their concretion, and therefore, the legal certainty and the speed of the procedure to follow, since the majority of the judicial resolutions dictated in this matter, have focused on the negotiation in the consultation period, avoiding in a certain way, the accreditation of the causes alleged by the employer in the termination decision, especially when there has been an agreement in the consultation period. In this sense, one might wonder if certain deviations that have occurred after the disappearance of the administrative authorization have to be corrected, since the role that must be fulfilled in the consultation period, in my opinion, has been distorted, by granting it, a relevant role in the classification of collective dismissals, underestimating the concurrence of the cause and its consequences, and therefore, the exaltation of compliance with formal requirements, as the central axis of judicial control of collective dismissals, being the role of the labour authority in the collective dismissal procedure, merely instrumental.

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