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Work Contract: Administrative Rights
First first of all we must point out in general that the employment contract is an agreement where two parts or more make a willing agreement between the worker and the employer for the provision of a personal and subordinate service, what does this mean? It means that it is a legal agreement in which a worker provides personal services on behalf of an employer, in a subordination relationship in exchange for remuneration (in exchange for a salary) this can be done either informally or formally, throughA contract or either with the simple agreement to work with the person there is already a working relationship.
We can also define that the employment contract is one that aims to provide private services and economic (remunerative), by which one of the parties gives a remuneration or reward in exchange for enjoying or serving, under itsdependence or direction is another more specific way to say that there is the employment relationship depending on its presence together to define it, otherwise it will be another type of legal relationship, but not work. The work provision of services, subordination and remuneration are the essential elements that define a employment contract.
The administrative career is a social institution that allows citizens to exercise the right and duty to provide their services. Based on merits and grades in the good performance of their functions and within a uniform structure of occupational groups and levels. We can define how the set of principles, norms and processes that regulate entry The rights and duties that correspond to public servants provide permanent services in the public administration.
The State will act as an employer since it hires personnel, under subordination and also dependence, under different regulatory regimes, as well as with different rights, to perform the same permanent function in the same public sphere and nevertheless its unique and indivisible character asLegal and political organization of the society to which said personnel belonged. It should be noted that not all contracts made by the public sector (the State) are administrative, but there are also more branches to which we can direct these can also be civil, commercial, labor and stock market.
We must also know how to differentiate or know howWe define that one of the contractors is part of the public administration, so as with the naked eye we deal with the public administration this is of a nature of ” administrative contract ”, we cannot say that it is the same as a contract so to speak normalAmong individuals because here we already deal with the public administration, they are different does not mean that all contracts are administrative when we deal with this area may exist other type of private contracts, a contract can be administrative according to how its clauses are defined, this does notcan overcome ordinary right what does this mean? That we cannot grant more than the ordinary to the individual we hire, for example to grant powers, or different faculties with third parties, impossible to confer according to private law.
It can also be considered that it has an exorbitant clause because in order to perform the area in the public administration, different clauses must be made according to laws and regulations to achieve those effects, the public nature of a contract will be administrative because it will havecertain purposes, which are very different from those of a private contract, such as the achievement of objectives for the benefit of public utility, public services or public interest.
The rights that can be given to the personnel subject to the administrative contract, according to the law they can be the following:
- Receive remuneration payment not less than legally established minimal remuneration.
- Maximum 8 -hour day daily with a top of 48 hours of service provision per week.
- Use of food time.
- Perceive bonus.
- Permissions with enjoyment for maternity, paternity and other permits to which the workers of general labor regimes are entitled.
- The enjoyment of other permits by the staff: in addition to the aforementioned permits, it is possible that the personnel subject to the special employment contract can use in their favor, the permits applicable to the general labor regimes.
- The permissions due to illness, due to the death of the spouse, children or brothers;with remunerative enjoyment.
- There will also be permissions without remuneration are equally applicable to personnel, such as those applicable for particular reasons or by unofficial training.
- In the same way, it can be benefited by the permits on account of the holiday period, that is, of marriage permits, due to serious disease of the spouse, father and children, in the same way of use by the personnel at the service of the subject subject to thisSpecial employment contract.
- Enjoyment of the rights regulated in the Social Security Law.
It should be noted that the worker works or not for the interest of the public sector always retains rights even if it voluntarily deprives one or more, that is, the rights recognized by the workers are inalienable, this principle is protected “the inalienable nature of the rights of the rightsrecognized by the Constitution and the Law ”and every pact to the contrary to this principle is also void.
In this regard, the worker with interest in the public sector can only have labor rights, but which happens with labor rights that are not available for workers but of course if they are contemplated for private activity workers such as: compensationFor time of services, family assignment, bonuses, schooling bonus, job stability, protection against arbitrary dismissal enjoying rights to compensation or replacement;That means that the State as an employer excludes those recognized and inalienable rights that in principle of reality be recognized by those that the Administration (State) has omitted to de fact or law in this legal relationship to workers.
The administrative contract is configured by a series of elements, objectives, subjective and formal, which must be in due form for the contract to be valid is composed of non -essential elements, which are very important. These two types of elements will be developed below:
The subjects on the one hand, the individual and on the other, the public administration that their objective is to enter into a contract if they are legal persons, their representatives must prove their due personality.
There is the consent that is the manifestation of the total agreement of two people in order to be forced each to one benefit from the other. We must also remember that these have the ability to be an active or liability subject of legal relations interests us a little more to know the capacity of the administration, the competence of the administration is the set of powers that have been attributed to it;It is the competence for public administration that the capacity is for individuals. This is explained because state entities cannot contract freely, but within what is indicated by administrative laws. Every contract requires an objective on which the will can fall, the object is the purpose of the parties to generate the rights and obligations in administrative contracts, the idea of cause or determining reason is more important than in private law contracts, because it presupposes that the public interest or objective of the institution referred to is these contracts.
Administrative contracting obeys this diametrically opposed principles to those governing civil matters, in these following the Roman tradition, in which the obligation or contract was valid, that they were made in any way that seems that some wanted to force each otherWith another to make a contract with him.
Special legal regime is the one that is subject to a regime of strict public law, only by exception must be sent to private law. It is through the regulatory clauses, as the law ensures the maintenance of the general interest, which cannot be left at the discretion of individuals.
The term is determined in accordance with the nature of the contract that is concluded commutability. This element is the proportion that must exist between the benefits that occur in the contract, it is the proportion that must exist in the public procurement processes;It is considered that it follows from the principles of equality and justice is also the non -transferability that is when the administration ensures that its contractor is suitable, which is why in principle it is forbidden to transfer these contracts, there will be a section wherespecify your guarantees since it is a means to ensure compliance with the obligations assumed as well as sanctions because it is used as a penalty or repression. It is the law that orders a penalty against those who violate it;At another important point is the penalty that is agreed by the breach of the contract and not only with administrative contracts this will be applicable to any type of contract. Here is where we can observe the sanctioning power of the State, since before the breach of the contractual clauses or the contract itself, the Administration has the power to unilaterally have sanctions to the detriment of the one that breaches the contract.
There are public works contracts in this block, we can define public works such as the work done on real estate for public interest purposes we can also use supplies contracts which are concluded with some individual so that it can be provided continuouslyCertain goods or services that the administrative entity requires for its daily tasks so to speak as a supplier class through this contract, this contract is made to obtain certain goods of current use or frequent use of the administration, such as stationery, desktop articles, spare parts, furniture among others.
Now speaking of concession contracts these are those that grant public administration in favor of individuals or large companies, either for appropriations, enjoyment or private uses in the public domain. Concession contracts can be:
- public works;
- public service;
- of natural resources and subsoil
The furniture lease contract: the doctrine does not develop this type of contract, since it includes it in the supply contracts, this for those who consider that the contract is within administrative law, others place it within the sphere of lawPrivate there are different forms of contracting of the public administration an example is when the State as any contractingof seriousness in its realization or execution. The public tender: we define it as ‘an administrative procedure’ of preparation of the contractual will, for which a public entity in the exercise of the administrative function invites those interested so that, according to the bases set in the established conditions, they formulate proposalsfrom which the most convenient is selected.
As can be seen, there are no obstacles for the administration to celebrate any type of contracts or agreements, including the subjects to private law, it is important to know all those points that must contain this type of contract since we are in Mexico and is aplace full of opportunities, in which they attend these types of contracts and of course, we will see perhaps very frequently to their own characteristics;In addition to the specific contracts that we will see, we think that the bodies of the public administration, in the name and on behalf of the Federation, can enter into all kind of contract as any legal entity that is why due to the evolution of administrative law, it is necessary to concludethat there are administrative contracts, which can be defined as those that the administration concludes in order to comply with a public purpose, or that by whose means it is intended to meet a public need. More precisely, it is the State as a legal entity that hires.
It is much that administrative law can do for the good of the citizen. It is the basis of the regulation of the special sectors and more than anything what it is of knowing about electricity, water, telecommunications, transport, among others, if the norms of administrative acts (especially, motivation) are not taken into account, motivation),Of public contracts, the legality of the regulations, among others in a few words we must go more thoroughly than everything we hear and not only believe in what he mentions, I know that several have heard from the contracts but perhaps they did not hearThat it was an administrative contract, so it is importantNamely, we may not work under such a contract, but one day we will have to do it for it, it is important to know the topic thoroughly.
- Güechá Medina, C. N. (2008). A proposal for the disappearance of contractual action, in the control of administrative contracts. Legal opinion, 7 (13), 55–74.
- Borja Colon de Carvajal Fibla. (2010). The collaboration contract between the public and private sector: a legal, political and emotional perspective. BUBOK PUBLISHING SL.
- Zavala van Oordt, L. J. (2018). Should the law rule prevail over the labor legal principle? Analysis of the Administrative Contract of Services. Vox Juris Magazine, 36 (2), 171–201.
- Keumurdji, m. F. . V. (2016). Administrative Law Sources of Law, Public Legal Persons, Public and Private Domain, Contracts and Administrative Law, Prescription, State Responsibility and its Agents, Extinction of State Obligations, Public Instruments, Precautionary Measures. Hammurabi.