The Constitutional Court Gives The Motives Why The Ministry Of Labour Cannot, Through Administrative Means, Assume Functions That Correspond To Legislators

• Published date: 01 August 2023
• Subject Matter: Employment and HR, Government, Public Sector, Employment Litigation/ Tribunals, Constitutional & Administrative Law
• Law Firm: L&E Global
• Author: Ms Angelina Salegna Bacó (S'nchez & Salegna)

On 28 June 2023, the Constitutional Court, through the Judgment TC/0402/23, give the reasons why it declared unconstitutional Resolution no. 14-2022, on the adoption and harmonization of measures related to the improvement of compliance with Convention 189 of the International Labour Organization (ILO), issued by the Ministry of Labour on 25 August 2022, on domestic work.

In this regard, the Constitutional Court verified that the impugned resolution regulates aspects such as working hours, vacations, forms of payment, and contracts, as well as special regulations for the work of domestic workers. In other words, it is not a resolution that improves the provisions established in the special law. But fundamental modifications to the regime established in Title IV relative to the work of domestics, articles 258 to 265 of the Labour Code. In this sense, the resolution mentioned above invades the fields that the constituent has established with reservation of law, following the provisions of article 62, numeral 7 of the Constitution.

On this point, the Constitutional Court indicated that the regulations and resolutions are subordinated to the law, that is, that the power of the Minister of Labour is subordinated to the legal regulations adopted and established by the legislator, that the power that assists it is limited to issuing residual and subordinate provisions.

Likewise, the regulations established through the resolution in question modified critical aspects of the stipulations made by the legislator. This issue cannot be done through this type of regulation. The regulatory norms, since they do not have...