New Labour Law: The Use of Labour Mediation
The use of Labour Mediation has always been made compulsory by number 1, Article 184 of Law 23/2007, of 1rst August (the former Labour Law), which states that "except in the case of injunctions, all disputes must be referred to mediation before being submitted to arbitration or the labour courts".
Although the purpose of this obligation was to seek an out-of-court settlement between the parties to the conflict, it jeopardised the right of access to the courts (which is constitutionally protected), because the party that was injured in the legal-labour relationship could not in any way submit the dispute to the Labour Court or to arbitration without first complying with the condition imposed by the law.
This situation leads to a plea of unconstitutionality of that rule by a law enforcer with legal standing to do so, and the consequent suspension and referral of the case to the Constitutional Council, with a view to a concrete review of its constitutionality, as well as of the dilatory exception in the event of its omission.
However, with the entry into force of Law number 13/2023, of 25th August (the new Labour Law), the scenario has changed - prior recourse to Employment Mediation is no longer compulsory, as shown by the wording of article 189, which states that,
"Disputes arising from labour relations may be submitted to labour conciliation and mediation before being referred to arbitration or the labour courts, except in the case of precautionary measures."
This gives more freedom to the party who believes he or she has been wronged in the employment relationship to submit the dispute to the Labour Court, without first resorting to Labour Mediation.
But also, by eliminating the compulsory nature of prior recourse to the Labour Law, the new law gives the parties, in addition to removing the obstacle of access to the Labour Courts, the possibility, through a kind of arbitration clause or commitment, to determine prior recourse to Labour Mediation, within the scope of their contractual freedom.
