l7 reduced not finished

conitutional recognition

• collective bargaining is recognised consitutionally in spain

• the main roovision is article 37.1 spanish consitution

• recgonises the right to collective bargaining between workers rep and employers reps

• recognises the binding fce o collective agreements

this means collective agreements are legally enforceable and must be repected

is it. fundamental right

• collective bargaining has consitutional recgonition but it is not classified as a fundamental right

  • it can be devloped through ordinary legislation

  • it does not recieve the highest consitutional protection

• the consitutional protection of bargaining is estbalished through article 53.1ce= the government cannot eliminate/empty the right

  • all public auhtorities are bound by it

  • it may only be regulated by law

  • its essntil content must always e respected

• this is different from fundamental rights which require

  • stronger consotitona guanrantee snad

  • stricter protection mechanisms

relationship etween cb and trade union freedom

• collective abrgaining is considered a manifestation of collective autonomy

• when trade unions excercise collective bargaining they are excercising part of the consitutional right to trade union freedomunder art 28.

• this means unions negoitate as part of their constitutional role

• collective argaining is closely linked to freedom of assocation and union act

cba

a cba is

• a writtrn agreement

• negotiated between workers reps and employers/employers associations

• created to regulate working conditions within a certain scope

its main purposes are

• regulat labour conditions collectively

  • instead of every worker negotiating indovidually there conditions

• balacning bargaining power

  • workers indidually are weeker than employers so collective negotiations improves equality

• improve labour stanards

  • cbas often improve conditions beyond the statuatory minimums ie minimum wage

• avoid constant indidual negotiation

  • creates standard rules for everyone

• creates stability and predictability

  • employers and workers know the applicable rules in advance

• adapt state law rules

  • allow conditions to be adapted to specific sectors, specific professions, specific companie

strucuture

cbas are decentralised and dispersed

• thris creates more bargaining units

• overlaping bargaining levels

• a dense network of agreements

horizontal divisions= different sectors negotiate seperately

• hospitality v banking v transport v construction

vertical divisons= different terriroial/organisational levels

• national v regional v provincal v company level

manifestations

the workers sttaute regulates one importan form of collective bargaining

• statuatory collective agreements under title 3 et

but collective bagining also appears through

• non stat collect agreement

• mandatory negotiated documents (work place plans an ssytems required by law )

stat agreements

a stat agreement is

• a written agreement

• negotiated according to the et title 3

• intended to regulate working conditions generally within a certain scope

it is considered an autonomois source of law with professional origin=

• the rules are created by social partners themselves (workers and employers reps) not directly imposed by the state

• autonomous= the parties regulate themselves

• professional origin= rules come from the professional/labour spehere

power in stat agreements

statagreements give regulatory powers to workers and employers

• dispersed power

  • bargaining occurs in many units

  • there is no single central authority

• shared power

  • neither sode can impose rules unilaterally

  • rules must be jointly agreed upon for creation

• negotiated power

  • the agreement is based on exchanges compromise and trade offs

  • deadlocks can occur because both sides must cooperate

dual nature of stat

stat agreement have a dual nature= a norm with the appareance of a contract and the soul of law

• contractual nature= negotiated agreements between parties

  • normally contracts only bind the parties who sign them

• legal/normative nature= function like legal rules and bind third parties

  • bind all workers and employers within their scope

  • not just affecting signatories like contracts

• therefore stat agreements are both contracts and legal norms= dual nature

relevant articles of the et

82.1 et= created by neogtiation

• collective agreements come from neogtiation

• parties create their own labour rules

• workers + employers (collective autonomy )

82.2et= what they regulate

• regulate working conditions

• regulate productivity issues

82.3et= bidning force

• everyone isnide the scope must obey

  • all works and employers

• applies during its valdiity period

85.1et= what is included

• everything affecting employement

  • economic

  • labour

  • trade union

  • employement relations

main subjects regulated in cbas

working conditions

• schedules

• hours

• breaks

• holidays

salary matters

• wages

• overtime pay

• bonuses

employement conditions

• hiring

• promotion

collective relations

• union leave

• union delegates

• conflict resolution systems

employer powers

• disciplinary systems

• sanctions

supplemnetary social protection

• additional protections beyond state ss

sources of labour law vs sources of the emoloyement relationship

sources of labour law are the real legal rules that apply generally and have binding force for everyone within there scope= everyone must follow

• consitution

• law and regulations

• international law

• stat collective agreements

• customs

• principles of law

• case law= helps interpret and complete the legal system

sources of the employement relationship only affect the specific parties involved ie employer and worker = do not create labour law for everyone only particular relationships

• they are not true legal norms but they create rights and olbigations between those parties

  • employement contracts

  • non statuatory collective agreements

non stauatory collective agreements

these are agreements

• not negotiated under title 3 et

• with limited legal effect

  • if only the ugt union section signs a non stat agreement it binds the employer ugt and workers affiliated with ugt; it not bind all workers in the cmoany generally

• without general applicability

• they are only a source of the employement relationship and not a source of labour law

they bind only

• signatories

• represented persons

• later adherents

  • they do nit automatically bind everyone within the scope

the parties themselves decide the duration of the agreement

• after expiry the agreement simply ends unless newed

• unlike statuatory agreements expired non stats do not conintue automatcially ie no ultra activity

key characteristics

freedom of negotiation= there is no strict legal rules on bargaining legitimacy; the company freely chooses negotiating partners

• freely choose with whom to negotiate with

  • title 3 et rules do not apply

no duty to negotiate= freely choose whether to negotiate

• parties may accept or reject negotiations

no ultra actvity= when the agreeement expires it ends comletely; it does not continue automatically until replaced

• differs from stat agreements where expired agreements may temporarily continue

no automatic beneficial condition= workers cannot claim the benefits became permanently acquired rights

• the temporary nature of the agreement was known from the beggining

limited effectiveness= no general sector wide effect

• applies to represented workers

• represented companies

• later adherents to join

subordination to higher nroms= cannot contraict laws or statuatory agreements

• any contrary clauses are null and void

legiitmacy to negotiate non stats

the law gives broad freedom regarding

• who neogitates

• who is recongised as a negotiation partner

  • there are no strict rules for representation

supreme court case= excluding a union from non stat bargaining does not automatically voitalte trade union freedom

• negotiation only occurs if both side recognise eachother as legitimate interlocutors

• non stat bargaining is voluntary

• just as unions have the freedom to neogitate; employers and other unions also have the freedom to decide whom they want to negotiate

• employers are not required to neogitate woth every union in a company

• Exception= there may be a violation if the exclusion is based on discrimination or bas faith

legal nature of non stat agreements

non stat agreements are legally considered as contract= governed under art 1091cc contract rules

• olbigations arising from contracts have the force of law between contracting parties

• however no force of law for third parties outside the agreement

commin oriign

• sometimes negotiations begin intending to create a statatroy agreement

• but if legal majority fails the result may become a non stat agreement instead