l8 expanded abit

definition

a statuatory collective agreeent is a collective agreement negotiated under title 3 et

• it has normative effectiveness meaning it creates binding legal rules

• it has general applicability meaning it binds all workers and emoloyers within its scope

  • even if they did not particpate in the negotiation

  • dont have to adhere/accept it like non stats

legitimacy refers to the legal authority to negotiate a stat agreement

• intial legitimacy= right to participate in negotiations

• full legitimacy= requirements for the valid creation of the neogitating comitee

• final legitimacy= requirements to validly approve the agreement ie take part in decision making

content

freedom of content= the parties may regulate any matter as long as they respect legal limits

• economic

• labour

• trade unions

• employement conditions

mandatory minimum content= every agreement must contain

1. identification of parties

2. personal/functional/terriorial/temporal scope

3. procedures for resolving opt out disputes

4. termination procedures and notice periods

5. regulation of the joint committee

consequences of ommission

• failure to regulate a mandatory matter may cause nullity

• exception= failure to regulate the opt out dispute procedures does not invalidate agreement

temporal scope

• entry into force= on the date agreed by the parties

• retroactivity= parties may give the agreement retroactive affect ie applies from the past

  • exception= unfavourable provisions or provisions restricting indidual rights cannot be applied retroactively

    • ie a salary increased signed in june may be made effective from jan 1= retroactive pay raise means an employee receives extra money for work they already performed at an older, lower rate. The updated pay is calculated back to a specific past date

    • ie wages cannot be retroactively reduced

right to participate in negotiations

every union or employers assocation that has legitimacy has the right to be a part of the negotiating committee

• failure to invite a legitimate union violates freedom of association and trade union freedom under the ce

• if there is a voluntary refusal to participate then no violation exists

  • applies the doctrine of ones own acts= a party than voluntarily refuses to participate cannot later complain about being excluded

distribution of seats

seats on the negotiating committee must be distributed proportionally to representativeness

• more representative unions recieve more seats but every union with legitimacy has the right to seat/participate

initial legtimacy supra company

the legal right to participate in negotiations of a stat agreement

• assessed indidually for each union or employers association wishing to negotiate

sectoral/supra company agreements= agreements covering a productive sector , multiple companies, a geogrpahical area , and indutry

• workers bench=

  • most representative unions at state level= automatically have neogtiating power throughout spain

    • includes affiliated/federated/confederated unions thorugh radiation (legitimacy is extended to associated unions`)

  • most reresentative unions at autonomous community level= may negotiate agreements limited to their autonomous communtiy

    • affiliated unions also benefit from raditation

  • sufficiently representative unions= must have at least 10% of members of work council/staff delegates within the relevant bargaining unit

    • only within the relevant geogrpahical scope/functional scope

• employers bench=

  • employers associations representing at least 10% of employers and employing at least 10% of affected workers

  • emloyers associations employing 15% of affected workers

    • EXCEPTION= if no sufficiently represented asociations exists it belongs to

      • national=associations representing at least 10% of companies or workers nationally

      • autonomous= associations representiing 15% of comoanies or workers regionally

i tial legitimacy in special case of group companies supra company

workers bench= for group companies or several linked companies rules are the same as for sectoral agrements

• most representative state level

• most representative regional

• sufficiently representatvie 10 % threshold

• afilliated unions also benefit from radiation

employers bench= representation is simply excercised by the affected companies themselves

• no special representativeness threshold apply

intial legiitmacy company/lower level agreements

workers bench=

• trade unions may neogitate if they

  • jointly decide to negotiate

  • represent an absolute majority of worker representatives

    • this may include an intre centre works council

• if these conditions are not met staff dels and work councils will negotiate

employers bench= negotiations carried out by the emoloyer directly

• no additional thresholds exist

comparison

Level	Workers' Bench	Employers' Bench
Sectoral	Most representative unions + sufficiently representative unions (10%)	Associations with 10% employers + 10% workers, or 15% workers
Group of Companies	Same rules as sectoral agreements	Affected companies themselves
Company Level	Unions with absolute majority of representatives; otherwise works councils/staff delegates	Employer directly

full legitimacy sectoral agreement

the requirements for the valid consiution of the neogtiating committee

• unlike initial legitimacy it assessed collectively looking at the entire workers and employers bench

workers bench=represent an absolute majority of work council members/staff delegates within the bargaining unit

• exception= if no worker representatives exist the requirement is satified by most representative state level unions or most rep regional unions

employers bench= the employers represented in the committee employ a majority of the affected workers

• exception= if no sufficiently represented associations exist national associations woth 10% threshold and regional with 15%

neogitatig committee

the neogtiating committe must be constituted within 1 month of receiving the negotiation notice

• the parties must agree on a negotiation calander and schedule of meetings

seats are disitrbuted proportionally according to representativeness

• sectoral agreements- maximum of 15 seats per bench

• company/groups of companies= maximum of 13 seats per bench

improper consitution= if a legitimate union is excluded or proprtio ality is not respected on the workers bench

• trade union freedom is violated

• may cause the agreement to loos stat nature and become a non stat agreement

  • only binds the partes no general application

paid leave for neogtiators

• worker negotiators are entitled to paid leave when their company is affected by the agreement being neogtiated

secretary= mandatory

• chosen jointly by the parties

• drafts minutes of the meetings

  • must be signed by representatives, secretary and the predient if there is one

advisors= each party may appoint an advisor

• they may speak and pariticpate in negotiations

• they may not vote on agreement

• lawyers and labour law experts

president= optional

• chosen jointly by the parties

• they may speak and partiicpate

  • moderate sessions

  • ensure proper negotiations

  • resolve technical or legal issues

• they may not vote

full legiitmacy company agreement

workers bench=

• union sections when they jointly represent the absolute majority of workers

• works council/delegates if the above condition is not met

employers bench=employer directly

• no additional requirements beyond intial legitimacy eist

easy memory trick

• intial legiitmacy= right to negotiate= who can enter the room= must check indidually

• full legit=valid consitution of negotiating committee= is there enough representation in the room= check collectively

final/decision making legitimacy

requirement for validly approving a ca within the neogitating committee

• the agreement is approved only if it recieves the favourable vote of the majority from each bench

  • majority of workers AND majority of emlooyers bench

• company agreements negotiated by worker representatives ie work councils staff dels votes are counted personally

  • one member on bench = one vote

• sectoral and union negotiated company agreements are countd proportionally to representativeness

  • voting powers depend on representativeness not simply on the number of persons present on the bench

negotiation procedure

• negoitating intiiative= one party must forallu propose starting collective bargaining negotiations

• obligation to negotiate= the other party must neogitate in good faith once legally requested

• consitution of committee= the negotiaing parties from the bargaining comittee with their representaties

• devlopment of negotiations= parties discuss and negotiate the terms of the agreement

• adoption of agreement= negotiated text is approved and signed by required majority

• registration and publication= registered with the authority and officially oublished making it enforceable and generally applicable within its scope

negotiating inititative

any party with intitial legitimacy may start negotioatoons

• must be written communication to the other party

  • includes basis of ligitmacy, scope of the agreement, matters to be neogitated ie demand platform

• if neogitations follow the termination of an existing agreement the notice of termination and new intitiative must occur simulatenously

• a copy must be sent to the labour authority

obligation to neogitate

the recieiving paarty must reply in writing and generally must neogitate

• negotiation may be refused if

  • legal or conventional reasons exist ie lack of legitimacy

  • the proposal seeks to revise and agreement still in force

    • differs from non stat where there is no olbigation to negotiate

• the duty to neogitate does not mean the duty to reach a agreement= only requires genuine good faith participation

• the existence of a sectoral agreement does not eleiminate the duty to negotiate a company agreement

• the existence of a nan stat is not a valid reason to refuse negotiation

consitution of the committee

requires full compliance with rules on

• intial legitimacy

• full leigitmacy

  • risks being reduced to a nan stat agreement if failure to comply

devlopment of neogitations

principle of good faith= parties must geninley try to reach an agreement

• avoiding

  • deception

  • intimiadtion

  • fraud

  • violence= if violence occurs negotiations are immieditely suspended until it disappears

• cannot

  • sudden drastic change of position

  • rejecting all proposals without consideration

consequences of bad faith include

• violation of trade union freedom

• annulment of the agreement by the courts

mediation

• to resolve disputes the parties may agree at anytime to involve a mediator

• can propose but non impose solutions

• neutral third party (active)

adoption

approval

• requires majority approval from both benches

• the agreement must be in writing otherwose it is null

• the agreement must contain the legally required minimum content

submission to labour authority

• within 15 days of singing the agreement must be submitted to the competent labour authority

• the authority checks legality and harmfulness

• if compliant the agreement is registered, depositied and officially published

registration and publication

• registration occurs through regcon

• publication must pccur within the corresponding pffical journal within 20 days

  • before registration the agreement only has the effect of a non stat= between parties

  • after the agreement aquires full statuatory effect ie erga omnes binding everyone within its scope

duration

the parties are free to determine the duration of the agreement

• usually 3-4 years

• different parts may have different durations

  • agreement lasts 4 years but salary claused reviewed every year

they are temporary norms

• economic codnitions change

• productive conditions evolve

• rengotiation becomes necessary

revision during validity

• an agreement may be modified before it expires provided the parties making the revision meet the legitimacy requirements and the revision is approved by the legally required majorities

automatic extension= unless parties agree otherwose the agreement automatically extends year by year

• while the agreement remains extended it conitnue in force with no olbigation to neogitate

• at the end of each extension year notice of termination may be given again

notice of termination= a notice ifnomring the other party that the agreement will not be auto extended for another year

• must be express

• must respect the agreed notice period

• a notice to stop extension must be occir simulatenously with the negotiation itnitiaitve to start a new agreement

ultra actviity= when a ca expires and a new one has not yet been agreed the old agreement continues to apply

• protects workers from suddenly loosing rights ie salaries bonuses

  • agreement expires 31 december and negotiations continue throughtout the following year= even though agreement has epired workers contnue enjoyings its conditions until new agreement replaces it

• regulation=the agreement itself may establish specific rules on duration and conndtions

• partial agreement= during this period parties may conclude partial agreements ie agree on salary clauses now and contune negotiating the remaining issues later

overlapping agreements= generally 2 cas cnno simulatenously regulate the same matters

• during ultra this prohibtion does not apply because the expired agreement is only temp maintained until replacement

duration

negotiation deadlock= if one year passes without new agreement the parties must

• mediation

• arbitration= if both parties agree

• labour reform=

  • pre 2021 ultra activity ended after one year

  • currently it continues indefinitely until new agreemet replaces the old one

succession=

• a new ca replaces the previous agreement unless the new agreement expressly preserves clauses

• modernity= the newest agreement prevails over the older one

• succeive cas may lawfully reduce working conditions from the previous

  • principle of most favourable condition does not prevent this

  • agrement still cannot go below stat minimum level

joint committee

the body responsible for the intepretation and application of cas

• the regulation of the jc is a mandatory min content for cas= its omission may cause the agreement to be null

• interpretation and app= resolves disputes cornerning

  • meaning of clauses

  • application of agreement

• adaptation of agreement= may apply predetermined objective criteria for revisions

  • annual salary revision according to cpi

• opt out disputes= may intervene in disputes concerning the non application of agreement conditions

• the joint committe may interpret the agreement BUT IT CANNOT MODIFY THE AGREEMENT

  • if it goes beyond interpretation and effectively renegotiates the agreement the resolution is null

• the agreement may require parties to first submit disputes to the jc before going ti court

  • if prior intervention is required and ignored the judicial proceedings can be dismissed

• composition is determined by the parties but must respect

  • proportionality

  • representativeness existing at the time the agreement was signed

• resolutions have the same legal effect as the ca itself= erga normes applying to all

• dispites may be resolved via

  • judicial mechanisms= labour cpurts

  • adr= mediation and arbitration

opt put procedure

a temporary non application of certain conditions

• although cas are binding the law allows opt outs to provide internal felxibility to companies

• requirements

  • etop causes must exist

    • economic= negative economic situations ie current/expected losses

    • technical= changes in prodction, equipment and isntruments

    • organisational=changes in work systems and production

    • productive= cahnges in demand for products or services

  • only matters listed in the following closed list

    • working hours

    • schedule/disiturbution of time

    • shift work

    • salary/remunerations

    • work and performance systems

    • fuctiona mobility

    • voluntary ss improvements

• consultation period of 15 days max to discuss

  • good faith in negotiations required

  • content of discussion=

    • reasons

    • ways to avoid/reduce effects

    • measures to mitigate consequences

• agreement with workers reps is required= without the opt out is void

  • exceptions

    • jc authorisation

    • mediaition agreement

    • abritrial award

    • decision of the ccncc/regional equivalent

• must be communicated to the labour authoirty for deposit

challenges to cas

challengin the effectiveness or validity on grounds of

• illegality= defect in the agreement itself

  • procedural defect

  • lack of legitimacy

  • bad faith bargaining

  • unlawful content

• harmfullness= agreement causes serious unlawful harm to third parties

  • harmed person must not be a signatory

  • harmed person must not be a worker or employer covered by agreement

effect

• if a published agreement is annulled the judgement must also be officialy published

ex officio challenge= intiated by labour authroity

• no time limit during the agreement validity

• possible even after reg and pub

• prosecutor must always participate

direct challenge by an interested party= processed through the collective dispute procedure (judicial means in labour courts)

• active legitimiacy in illegality

  • trade unions, works reps, employers associations

  • public prosecutor

  • state or autonomous com admin

  • womens insitute for dsciminatory clauses based on sex

• active in harmfullness= any harmed third parties

• passive legitimacy= all reps who formed the comittee must be defendants