Royal Decree
1362/2012 of 27 September regulates the composition, organisation and
functions of the National Consultation Committee for Collective
Bargaining Agreements (Comisión Consultiva Nacional de Convenios
Colectivos) and develops its decision-making role.
A company in breach
of an agreement with trade union branches to maintain employment levels
was held to have violated the union’s right to collective bargaining as
well as to have discredited the union. The company was ordered to pay
the union compensation for non-material damages.
The rules on
preferential application established by Royal Decree-Law 3/2012 apply to
all collective bargaining agreements, regardless of whether or not they
existed at the time of its enactment.
After the entry
into force of the labour market reform, the National Court approved a
collective redundancy carried out within a group of companies (for
labour purposes) on the grounds of economic losses which had been
evidenced. In the decision it was stated that judges should not consider
if and how the redundancies would contribute to the company’s future
viability.
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1.regulation
of the National Consultation Committee for Collective Bargaining
Agreements
Royal Decree
1362/2012 of 27 September on the National Consultation Committee for
Collective Bargaining Agreements
With this Royal
Decree, the government complies with the requirement imposed on it in
the Second Final Provision of the Consolidated Text of the Statute of
Workers (“SW”), as amended
by Royal Decree-Law 3/2012 (“RDL 3/2012”),
to regulate the composition, structure and organisation of the National
Consultation Committee for Collective Bargaining Agreements (“CCNCC”),
and the procedures and resources it has to perform the functions of the
Directorate-General for Employment of the Ministry of Employment and
Social Security.
The CCNCC is a
collective body that is composed of six representatives of each of the
following: the General State Administration, trade unions and employer
organisations. As with the members of the CCNCC, its chairperson is
appointed by the Ministry of Employment and Social Security from among
renowned professionals in the field of labour relations, after
consulting with the most representative trade unions and employer
organisations. In addition, a civil servant assigned to its
administrative service acts as secretary to the CCNCC.
This Royal Decree
aims to (i) unify and structure the regulation of the CCNCC’s
composition and functions; (ii) develop the new decision-making role the
CCNCC has under article 82.3 of the SW to resolve discrepancies arising
in procedures to dis-apply working conditions foreseen in collective
bargaining agreements (opting-out); and (iii) adapt the CCNCC’s
organisation and operation to this new decision-making role.
The CCNCC can only
be requested to decide on a discrepancy when: (i) the involvement of the
joint committee of the collective bargaining agreement has not been
requested or, if requested, the joint committee has not reached an
agreement (the involvement of the joint committee must be requested when
so established in the applicable collective bargaining agreement); and (ii)
the procedures established in State-wide inter-professional agreements (including
the prior commitment to submit disputes to binding arbitration) pursuant
to article 83 of the SW to resolve discrepancies arising during the
negotiation of the agreements referred to in article 82.3 of the SW, are
not applicable or have not resolved the discrepancy.
The CCNCC —itself
or through an arbitrator considered to be an independent and impartial
expert— will issue a decision within a maximum of twenty-five days as
from the filing of the request. The CCNCC’s decision will be as binding
as the agreements reached during the consultation period and can only be
challenged following the procedures and on the grounds established in
article 91 of the SW (application and interpretation of collective
bargaining agreements).
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2.Remedies for NON-MATERIAL damages RESULTING FROM THE breach of an
agreement with trade union BranchES
Judgment of the
National Court dated 27 July 2012
In the case under
consideration, a company, a successful bidder for contact centre
services, had agreed with trade union branches to maintain employment
levels during the life of the contract governing the awarded services,
while/although including an exception for disciplinary dismissals. The
company subsequently carried out 101 disciplinarily dismissals on the
basis that the workforce inherited from the previous contractor was
larger than necessary. The company argued that this was the reason no
reference was made to the fairness of the dismissals in connection with
the employment stability exception for disciplinary dismissals, given
that the intention of the parties to the agreement was to allow the
company to adjust its workforce to its specific needs through
disciplinary dismissals.
The National Court
held that the only valid interpretation of the agreement is that
disciplinary dismissal is only permitted when justified and not when
designed to mask a collective dismissal based on unproven causes.
The National Court
therefore decided that the company’s dismissal of 101 employees on
grounds not attributable to disciplinary reasons but based on the agreed
exception implied that the union acted collusively with the company.
These actions constituted a violation of the freedom of association,
specifically a violation of the union’s right to collective bargaining.
That circumstance was considered to have affected the union’s reputation
as it compromised one of the union’s main activities (collective
bargaining) and the company was ordered to compensate the union for EUR
12,000, instead of the EUR 100,000 it had initially sought.
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3.APPLICATION
OF THE NEW ARTICLE 84.2 OF THE STATUTE OF WORKERS TO collective
barganaing agreements
Judgment of the
National Court dated 10 September 2012
In this judgment
the National Court (the “Court”)
declared null certain provisions of the fifth collective bargaining
agreement for the cement products sector, which was adopted on 21
February 2012. The Court considered that they infringed article 84.2 of
the SW, as amended by RDL 3/2012, which stipulates that preference
should be given in certain matters to the application of company
collective bargaining agreements over sector-specific national, regional
and local collective bargaining agreements.
The Court
considered that, according to the hierarchy of norms and the principle
of legality, since its entry into force, RDL 3/2012 must apply to all
collective bargaining agreements, regardless of whether or not they
existed prior to its enactment. That said, this application does not
have retroactive effects.
The Court
highlighted the differences between (i) absolute retroactivity, when the
new law applies to a previous situation and all the effects derived from
it; (ii) medium-level retroactivity, when the new law applies to a prior
situation, regulating the effects that arose while the repealed law was
in force but only when executed after the new law is in force; and (iii)
minimum-level retroactivity, when the new law only applies to the
previous situation’s effects that emerge and are executed after the new
law is in force. Therefore, despite the absolute non-retroactivity of
RDL 3/2012, it nevertheless applies to all collective bargaining
agreements since its entry into force, including those negotiated before
that date. Regardless of the date on which a collective bargaining
agreement is enacted, the new wording of article 84.2 SW applies, but
only to those effects that arise on or after 12 February 2012 (the date
that RDL 3/2012 entered into force), as it does not have absolute
retroactivity
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4.approval
of a collective REDUNDANCY carried ouT by a group of companies FOLLOWING
THE ENTRY INTO FORCE OF the labour MARKET reform
Judgment of the
National Court dated 28 September 2012
In this case, in
which a collective redundancy had been challenged by a union, the
National Court addressed the issue as to whether a group of companies
that is deemed as such for labour purposes may carry out collective
redundancies; an issue that has not been expressly regulated by law.
In its decision,
the National Court stated that according to case law the existence of a
group of companies for labour purposes implies the presence of a single
employer who may carry out a collective redundancy. If a group of
companies has shared capital resources and can present evidence of
financial losses as required by law, so too can a company of the group.
In this case, the corporate veil has to be lifted to determine the
economic performance of a company of the group. Therefore, in order to
assess whether there are valid reasons which justify the termination of
employment within a group of companies, all the companies which make up
the group should be analysed. This is because the actual employer is the
entire group and not the specific company within the group whose
workforce the employee belongs to.
The National Court
held that negotiations on a group-wide basis provide more guarantees as
they allow each individual company to be analysed together with an
overall analysis of the group’s situation. This avoids unduly disparate
situations and increases the information available.
In this case the
company had submitted a collective redundancy application in a specific
region and upon its subsequent rejection, it submitted a nationwide
collective dismissal application pursuant to RDL 3/2012. The union
alleged that this should be considered illegal on the basis that it was
an attempt to avoid the effects of the first rejection, without
evidencing additional grounds. Furthermore, the union argued that the
company’s viability was at risk due to the reduction in the number of
employees after the collective redundancy.
The National Court
held that the company’s actions were not illegal as the labour authority
had rejected the collective redundancy application on the grounds that
it was disproportionate and the conditions in the industry worsened
progressively since the time of the application. It stated that it would
have ruled otherwise if the company had withdrawn its application with a
view to re-applying under the new legislation, or if the rejection had
been based on a lack of grounds.
With regard to the
viability of the company, the National Court stated that under RDL
3/2012 a dismissal is justified on the basis of current circumstances
and that its contribution to the future viability of the company is a
matter expressly excluded from judicial consideration (as indicated in
the preamble of RDL 3/2012).
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