Spain's Labor Rights: Union Freedom, Strikes & Collective Bargaining as Fundamental - Prof, Apuntes de Derecho Laboral

¡Descarga Spain's Labor Rights: Union Freedom, Strikes & Collective Bargaining as Fundamental - Prof y más Apuntes en PDF de Derecho Laboral solo en Docsity! I. Collective rights: basic concepts and elements of the historical process Reference to Spanish material (only for section 2: Origins and development): Martín Valverde, A., and others, Derecho del Trabajo, Tecnos, (Chapter 2, Headings I, II, III, IV) Important: this handout does not contain an exhaustive view of the taught subject, and has to be completed with class notes, legal material, jurisprudence, and other materials that might be provided. 1. Basic concepts Collective Labour Law is a branch of law that regulates, as its name indicates, the collective aspects of the labour relationship, i.e., the legal relationship between a worker (or workers) and an employer (or employers). It does not regulate all productive relationships between two persons within a market economy, but mainly the personal work relationship between one person working for the account and under the direction of another person (natural or legal). The consideration of the contractual relationship (i.e. the element of its synallagmatic character) is the perception of a wage in exchange for the “selling of the first person’s labour power” to the other person. The product of the labour power, “activated” under the direction and control of the second person, becomes ownership of that second person, which sells the product (a service or a good) on the market and perceives the benefits (and, logically, bears the risks) of that transaction. The subjects of Labour Law are thus this particular kind of worker and employer (even if Labour Law as a discipline has expanded into other work relationships, like statutory civil servants relationships or even relations between economically dependent autonomous workers and some of their clients). In English, more than “worker”, it is the term “employee” which is used to refer to the person in this particular contractual relationship. The collective aspects of the labour relationship appear above all through the fact that workers can join their individual wills into a collective will, which can express itself through different institutions, like trade unions, works councils, workers´ assemblies or any type of grouping of workers, but also strikes and other forms of industrial action and negotiations between the grouping of workers and the employers to solve the discrepancies provoked by the conflicting interests of both parts to the labour relationship. This appears within the context of a lack of balance between the individual bargaining powers of both parties, with the employer having more power than the employee, for different reasons. Some of those reasons are dependent on the broader economic and legal context in which the relationship is embedded: the absolute necessity of a salary for the most important part of the population in an industrialized market economy, the greater or smaller “reserve army” of unemployed workers with the consequent competition between workers, the level of legal protection of workers in the contract against decisions of the employer which can be negative for the workers. All those conditions affect the bargaining power of the worker in negotiating the conditions of his contract and in asking for the effective application of those conditions throughout the duration of the relationship. Through history this lack of balance of bargaining power has been factually compensated by collective action of the workers to put pressure on the employer, with the ultimate (non-violent) threat of holding back their labour power collectively, so as to difficult the realization of benefits by the employer, holder of the capital invested in the productive activity. The main, and original, object of Collective Labour Law is to regulate those particular, collective, aspects of the labour relationship (organization of workers, representation of workers, negotiation and industrial action) mainly with two objectives: compensating the lack of bargaining power of the individual worker through the recognition of the right to organize, to put collective pressure on the employer and to negotiate collectively instead of individually (so as to avoid exploitation) and to integrate the conflict which necessarily exists within the labour relationship because of the divergence of interests between both parts (the worker – or collectively considered: labour - aspiring to better working and living conditions and the employer aspiring to lower costs and higher control of the workforce so as to maximize return on capital). The first, and the most important, of those collective aspects is the self-organization of workers, which from a normative point of view has been translated into the institution of “freedom of [trade union] association”. In most countries, workers are free to create formal or informal associations to defend their interests in front of their employers. Not only the creation, but also the activities of those organizations, generally called trade unions, are regulated, and generally protected against interference from State authorities or the employers. Another aspect (which conceptually became a part of the first institution, i.e. freedom of association) is the collective capacity to form agreements with the employer or groups of employers concerning the applicable working conditions, called collective bargaining. General Contract Law, which is based on an individual approach to legal relations, has been considered not to be adapted to the specificities of those agreements, so special legislation started to take form, regulating the conditions of creation of such agreements, their legal effects, and their relation with individual contracts. The third aspect, generally called industrial action (which, again, is tightly linked to the institution of freedom of association, but also a’to collective bargaining), is the tool used by workers, generally through their organizations, to put pressure on the employer so as to negotiate satisfactory working conditions. The most known institution is the strike, but other means of action exist, like boycotts, occupations, or other forms of protest, sometimes linked to the idea of freedom of expression. Those are forms of expression of the conflict existing in labour relations, which inevitably leads to the creation of procedures to transform the conflict in new settlements, which can happen through autonomous means (like collective bargaining), but can also involve the intervention of third parties (conciliation, mediation, arbitration). Given the collective character of labour relations, labour law also regulates the forms through which the different groups of workers (all the workers of a company, part of the workers of the company, workers of a certain industrial sector, workers of a certain territory,…) can be represented and given voice. This happens generally, but not exclusively, with the idea to facilitate collective bargaining as form of integration of the conflict between labour and capital and as a way to balance the bargaining power between both parts. Further Readings: - Davies, P. and Freedland, M., “Introduction to Kahn Freund’s Labour and the law”, on the relation between Collective Labour Law and the objectives of Labour Law. - Peck, J., “Making Workers. Control, Reproduction, Regulation”, in Work-place: the social regulation of Labour Markets, on the relationships between Labour Law and market theory. Prussia adopted similar laws from 1839 onwards, and those were generalized to other parts of Germany in 1869. In France, it was not before 1874, with the creation of the Labour Inspectorate, that similar laws, adopted before, started being enforced.5 The period between 1874 and the First World War saw a second wave of protecting legislation enacted in the UK (new child labour prohibitions, working time law for male workers and in all sectors, possibility to fix minimum salary in some industries), France (new child labour prohibitions, reinforcing state inspection, limitation of working time, free Sunday for all workers, prohibition of salary in kind) and Germany (new prohibitions on child labour, limitation of working time and free Sunday). That second wave corresponded with a first wave of protective legislation in Spain, which limited working time and child work, bettered working conditions, above all for women (Ley de la Silla, or “Law of the Chair” in 1912), imposed the first health and safety measures, regulated industrial accidents and created administrative commissions to monitor labour conditions and recommend legislation. At a collective level, irrespective of statutory intervention, the features of industrialization (above all, concentration of the workforce, in cities and in the fabrics, and separation between workers and the means of production and product of their work) also created class conscience which promoted the organization of workers in collectives so as to defend their interest against employers (and, in some cases, the State) as well as organize material solidarity between their members. The first organizations appeared within a general unfavourable legal context, which considered associationism in general bad for the economy, because it led towards the hampering of the free operation of the market. At a political level, the existence of powers inserting themselves between the citizen and the Nation was also considered with suspicion. Therefore, the trade unions as associations of workers first appeared in a context where any form of association which tried to influence on the system of fixation of prices (for example through strikes and/or collective bargaining), also referred to as “combination of workers”, was criminalized, but where associations of workers constituted to organize solidarity and assistance between workers (mutualisation) were tolerated. Prohibition of union activity also stemmed from the belief that it created social unrest and violence. In a second stage, the prohibition of combination was lifted, partly because of the lack of success of those prohibitions (they did not effectively impede unions, union activity or strikes) and the growth of the belief in “collective laissez-faire” (as opposed to “individual laissez-faire”) as a more efficient form of free market fixation of prices.6 However, the lifting of the ban on combination did not resolve all problems of repression of unions, due to their lack of legal recognition (for example, their decisions could not be enforced, they had no access to courts or they could not hold property). Therefore, in a third stage, legislation was passed to give them legal recognition. Moreover, even if strike in itself had been de-criminalized, acts needed to make a strike successful were severely hampered by vague definitions of prohibited acts accompanying strikes (like intimidation, 5 It is interesting to observe that in France and Germany, the reason behind those laws was above all to halt the negative influence which the working conditions of children had on their later physical condition as military recruits (see Gonzalez Muñiz, M.A., Historia Social del Trabajo, Ediciones Júcar, Madrid, 1989, 271-272) 6 Jacobs, A., “Collective Self-Regulation”, in Hepple, B. (ed.), The Making of Labour Law in Europe, London: Mansell, 1986, 202 and 205 violence, ...).7 Effectiveness of strikes was also greatly reduced by the intervention of police authorities. This third stage also coincided with the rise (however modest) of collective bargaining. Initially, collective agreements were not given legal effects (they could not be enforced in courts), even if the lift of the ban on combination inaugurated a period of tolerance of those agreements. It is only after World War I that collective agreements are generally given legal effects (applying to the members of the employers’ or workers’ organizations which signed), and, in Germany, even the possibility for their having normative effect (i.e. applying to workers which are not members of the unions who signed the agreement). In France, employers’ and workers’ associations were forbidden in 1794 (Loi Le Chapelier, which abolished the French guild or corporations system), and the Napoleonic Criminal Code submitted the creation of associations of more than 20 persons to governmental authorization and severely punished the coalition of workers with the objective to cease work (strikes were forbidden) or modify salary conditions. In 1864, combination and strikes were decriminalized, but the latter could still be seen as a breach of the employment contract (it is only in 1946 that a full right to strike was recognized). This also led to the tolerance of workers’ and employers’ organizations, which were finally totally recognized and legalized in 1884. Collective bargaining (however already existing before) was recognized and given an institutional framework in 1919. The UK saw in 1799 and 1800 the explicit prohibition of workers’ organisations with as objective the altering of working conditions or organization of strikes (also called “combination of workmen”). Those prohibitions were not successful in suppressing unions, also due to the fact that the ban did not concern “friendly societies” or organization of workers with cultural, religious, or solidarity purposes. The prohibition of combination was repealed in 1824, but following various strikes, reintroduced with the 1825 Combinations of Workmen Act, which did not criminalize unions as such (as the reunion of workers with the objective to negotiate better working conditions) but severely restricted their activity, above all in matters of strike.8 In 1855, organizations of workers with benefit purposes were legally recognized, but under common law, organizations with the objective to restrict trade would still be considered illegal (which does not mean that they would be prohibited: the consequence of the illegality is the lack of legal effects and absence of any protection). Therefore, the 1871 Trade Union Act finalized the legalization process by granting unions immunity to the legal consequences of their being organization whose objectives might restrict trade.9 Contrary to France and Germany, collective bargaining was not fully recognized. They were generally recognized as “gentlemen’s agreement” with almost no enforceability. However, common law considered the possibility of implied incorporation of the provision of a collective agreement in the individual contract. But with the absence of any normative force of the collective agreement, the individual contract of employment could always include different (and thus worse) conditions. However, even if those collective agreement lacked any legal effect, employers would generally respect them.10 In Spain, the system of tolerance of association was finally formalized in 1887, after a period dominated by prior administrative control of the creation of organizations. However, traditional 7 See examples in Jacobs, A., “Collective Self-Regulation”, in Hepple, B. (ed.), The Making of Labour Law in Europe,London: Mansell, 1986, 212-213 8 Jacobs, A., “Collective Self-Regulation”, in Hepple, B. (ed.), The Making of Labour Law in Europe,London: Mansell, 1986, 202 9 Ibidem, 207-208 10 Ibidem, 236 union activity oriented towards influencing the definition of working conditions with repercussion on the costs of production was still criminalized (“coligaciones”).11 This first phase was followed with a period of decriminalization of union activity. In Spain, this was materialized through the approbation of the Ley de huelgas y coligaciones of 1909, which recognized the divergence of interests between workers and employers, and decriminalized the “association with the objective of increasing or decreasing the price of work or labour conditions”, but without affecting the rights and obligations arising out of the existing contracts. This created a system of freedom of association conceptualized as a freedom (as opposed to its conceptualization as a right). The State stopped to intervene in questions related to unions, their membership and their activities. This meant that unions and their activities were not repressed any more, but also that the civil (contractual) consequences of those questions were not specifically regulated. Therefore, workers engaged into union activities were not protected against retaliation of employers within the framework of their contractual freedom, expressed mainly by the termination of the contracts of union activists. During this first phase, collective agreements were not regulated by law, and, in some cases, were recognized only as “gentlemen’s agreements”, without possibility to be enforced by courts, or obeying to the general rules of civil contracts in terms of their applicability (only those who signed or adhered to the contracts benefitted from their conditions, and in some cases also the workers and employers affiliated to organizations who signed those agreements). It is in the context of this system of tolerance (or freedom of collective rights, i.e. formation of unions, activities of unions, strike, collective bargaining), that Labour Law as such was formed. During the dictatorship of Primo de Rivera, the year 1926 saw the apparition of the first Spanish Código del Trabajo, regulating mainly the individual aspects of the employment contract, but only applicable to workers in the industrial sector. Collective rights were recognized and regulated in the Decreto-ley de 26 de noviembre de 1926 sobre la organización corporativa nacional, which instituted a system of organization of collective labour relationships based on a tripartite system, where employers, workers and the state were represented in hierarchically structured commissions charged with collective bargaining of employment conditions and solution of collective conflicts. In 1931, the Constitution of the Ist Republic, which recognized the workers as a category as “subjects” of the Republic, instated freedom of association and a constitutional program of labour law and social security. The 1931 Ley del Contrato de trabajo, regulating the individual aspects of the labour relation, applied to all workers, and protected them against the consequences of the strike (e.g., protection against dismissal), conceptualizing the latter not as a freedom, but as a right. The 1931 Ley de Jurados Mixtos instituted paritary commissions of workers and employers for the management of their conflicts of interests, and the 1932 Ley sobre asociaciones profesionales regulated unions and employers’ associations, instituting a system of voluntary and autonomous collective bargaining and solution of collective conflicts, as opposed to the obligatory, State-controlled system of the Primo de Rivera dictatorship. Under Francoism, regulation of labour relations reverted to a system of criminalization, state- control, and negation of the conflict of interests between workers and employers. The 1938 Fuero del Trabajo, the 1944 Ley del contrato de trabajo and other laws prohibited associations 11 sections 211 and 212 of the Código Penal of 1850 and section 556 of the Código Penal of 1870. II. Transnational regulation of collective rights No references to materials in Spanish Disclaimer: this handout does not contain an exhaustive view of the taught subject, and has to be completed with class notes, the Law and the other materials that will be provided. 1. International norms and collective labour rights National legal systems do not develop in isolation from other legal systems. Moreover, when talking about legal systems of other levels (EU level, regional level or international level) there are clear legal connections between those systems that makes that when adjudicating rights in a national context, account has to be taken of how those right are regulated at the other levels, in different forms. Within the Spanish context, section 96.1 of the Constitution provides that international treaties, when validly concluded and ratified, shall be part of the internal legal system, and can only be repealed or amended according to those treaties (this means that a posterior internal law cannot amend what is provided in a ratified international treaty). Moreover, section 10.2 of the Constitution states that fundamental rights shall be interpreted in accordance with international human rights treaties. This means that in applying the right to strike or the right to freedom of association, for example, account has to be given to the international and European legal provisions on the matter. Therefore, rights in general, and collective labour rights in particular, have to be applied and interpreted in a multilevel perspective, i.e. they have to be “read” in conjunction with, or in light of the applicable international instruments (and their interpretation by the organs competent for that task). Another aspect to be taken into account when reading rights in a multilevel perspective is the increased complexity of the instruments of regulation. Next to the “traditional” treaties and legal instruments, conferring subjective rights which can generally be enforced in courts, also called hard law, new, soft law instruments have appeared. The latter can generally not be directly enforced, but this does not mean that they lack any efficacy. Those instruments, with several designations, like recommendations, declarations, etc., can be used to influence the interpretation of hard law instruments. Moreover, pressures of a more political, academic or even media character promote their application by national or international organs. Finally, some instruments have a hybrid, partly soft law, partly hard law character. Therefore, even if their enforceability is different, both hard law and soft law instruments are still to be considered as legal instruments, with all the consequences this entails. So, when adjudicating rights in a multilevel perspective, this complexity has to be taken into account. a) Instruments of the International Labour Organization The ILO is an autonomous agency of the United Nations that pre-existed the latter, as it was created in 1919, with the idea that international peace could only be guaranteed if it was based also on social justice (cfr. Constitution of the ILO). Other fundamental principles on which the organization is based are the fact that work cannot be considered as a commodity, and a strong emphasis on the importance of freedom of association and implication of social partners and democratic principles in the discussion and resolution of problems related to working and living conditions (Declaration of Philadelphia, 1944). The ILO has a tripartite composition. This means that it is composed of representatives of the member states, of unions and of employers’ associations. One of its tasks is the drafting of international conventions on minimum standards of Labour Law and Social Security. In this context, the most important conventions related to collective labour rights are: - Convention nº 87 on Freedom of Association and Protection of the Right to Organize (1948). This Convention contains the main principles applicable to the right to union freedom of association, as well as the freedom of association for employers. Amongst them are the right of unions to organize themselves without interference from the state, the right of affiliation (of workers and unions), and prohibition of dissolution by administrative authorities. - Convention nº 98 on the Right to Organize and Collective Bargaining (1949). This Convention obliges the states to ensure that workers enjoy adequate protection against anti-union acts consisting in discriminating them in respect of their employment. It also obliges states to take the appropriate measure to establish instruments for voluntary negotiation of collective agreements between unions and employers, and to promote their use. - Convention nº 135 concerning Protection and Facilities to be Afforded to Workers' Representatives in the Undertaking (1971) This Convention guarantees the protection of workers’ representatives against acts of the employer which could affect their work of representation, or because they participate in union activities. It also provides that the task of representation should be facilitated by adequate means, and states that the presence of non-union representation in the company cannot be used to undermine representation of the workers by unions. - Convention nº 151 concerning Protection of the Right to Organise and Procedures for Determining Conditions of Employment in the Public Service (1978) This Convention extends some principles of the previous conventions to civil servants and other employees in Public Services The ILO has also adopted Recommendations on some of those conventions, like Recommendation 143 concerning Protection and Facilities to be Afforded to Workers' Representatives in the Undertaking, interpreting Convention 135 on the same subject, or Recommendation 159 concerning Procedures for Determining Conditions of Employment in the Public Service, interpreting Convention 151. Although they are not considered as hard law instruments, they are still considered to be valuable and authoritative aid to the interpretation of the correspondent Conventions. Another important aspect of the ILO concerning collective labour rights is its Committee on Freedom of Association. This tripartite committee functions as an informal tribunal, pronouncing itself on complaints brought forward by national unions and employers’ organisations alleging violation of ILO Conventions related to freedom of association. The recommendation of the Committee, although considered as soft law, carries great authority in the interpretation by national courts of the provisions of the concerned ILO Convention.14 The ILO Conventions and their interpretation by the Committee have also been crucial for the construction of collective labour rights by the Spanish Constitutional Court during the years between the approval of the Constitution of 1978 and the adoption by the Parliament of legislation regulating those matters. Other relevant, and more recent ILO instruments, are the Declaration on Fundamental Rights and Principles at Work (1998), which commits the states who ratify it to respect and promote principles and rights in four categories, whether or not they have ratified the relevant Conventions: freedom of association and the effective recognition of the right to collective bargaining, the elimination of forced or compulsory labour, the abolition of child labour and the elimination of discrimination in respect of employment and occupation, as well as the Tripartite declaration of principles concerning multinational enterprises and social policy (2006), a soft law instrument promoting, amongst other principles, the respect by transnational companies of local standards in terms of employment and social security (e.g. not undermining local norms by practising social dumping) as well as the right to freedom of association, collective bargaining and solution of labour conflicts by appropriate conflict solving procedures. b) The European Social Charter (Regional instrument) This instrument of the Council of Europe, ratified by Spain in 1980, also recognizes collective labour rights, like the right to collective bargaining or the right to freedom of association. The European Committee on Social Rights is the organ charged with the interpretation and supervision of the Charter, through yearly reports on the respect by the signatory states of several of its provisions. There is also a system of collective complaints, through which unions, employers’ associations and NGO registered with the Council of Europe can bring complaints against alleged violations of the charter (this procedure has not been ratified by Spain). This has permitted the Committee to develop an abundant “jurisprudence” on social rights, making the European Social charter a dynamic and developed instrument. Even if the European Committee on Social Rights cannot enforce the Charter in the same way the European Court of Human Rights can, making it in this sense a soft law instrument, the fact that it has been ratified in Spain, means that its provisions, as interpreted by the Committee, have legal value in the internal legal system. Within the context of the Council of Europe, it is also important to remember that Article 11 of the European Convention on the protection of Human Rights (an instrument corresponding more 14 See, for example, the judgment of the Spanish Constitutional Court on the unconstitutionality of the exclusion of foreign workers without working permit from the exercise of the right to freedom of association by section 11 of the Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su integración social. (STC 236/2007 of 7 November), which drew on the decision of the Committee on Freedom of Association about the same law. 3. Forms of worker participation in the European Union Concerning non-union channels of representation, one of the most important instruments is Directive 2009/38 of the European Parliament and the Council of 6 May 2009 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees, which derogated Directive 94/45/CE on the same subject. Those Directives have been transposed in Spain by the Ley 10/1997, de 24 de abril, sobre derechos de información y consulta de los trabajadores en las empresas y grupos de empresas de dimensión comunitaria, as modified by the Ley 10/2011, de 19 de mayo. This Directive aims at guaranteeing employees transnational information and consultation rights. It provides for the establishment of a European Works Council or a procedure for informing and consulting employees in companies and groups of companies of a European dimension, i.e., those employing at least 1000 workers within the EU, and at least 150 workers in two different states. The European Works Council will have the right to be informed and consulted on matters related to the company which are of a transnational nature. Another important instrument in terms of information and consultation, however not related to worker participation at EU level, but rather at national level, is the EU Directive 2002/15/EC establishing a general framework for informing and consulting employees, which is at the origin of the current version of section 64 of the Estatuto de los Trabajadores, and the definitions of “consultation” and “information” it contains (see Handout V). According to the Directive workers will have the right to be informed and consulted about the following main items: - Recent and probable development of the activities of the company and its economic situation - Situation, structure and probable development of employment and any anticipatory measures envisaged, in particular where there is a threat to employment - Decisions likely to lead to substantial changes in work organization or in contractual relations. Concerning union channels of representation, the European Trade Union Confederation, which is also recognized by the EU institutions in the framework of the EU social dialogue, is the main European federation of the different trade unions or trade union confederations of the member states. It is formed by 83 national trade union confederations (like CC.OO or UGT for Spain) from 36 countries, as well as 12 European-wide industry federations (metal industry,…). There are also other trade union structures such as EUROCADRES (European professional and managerial staff) of the European Federation of Retired and Elderly Persons, which operate under the auspices of the ETUC. ETUC also coordinates the activities of Interregional Trade Union Councils, which organise cross-border trade union cooperation. The activities of ETUC are of a regulatory character (participation in political processes, for example through the EU Social and Economic Committee, participation in EU social dialogue in application of article 152 TFUE, and negotiating “EU collective agreements” with European federations of employers), and of a non regulatory character (organizing strikes and boycotts against policies or other strategies to influence EU social and economic policies, like lobbying). 4. Sources of regulation of labour in the European Union: Council Directive Agreements and autonomous agreements Within the context of the EU social dialogue, in application of article 155 TFUE, ETUC and European employers’ association conclude agreements on certain matters related to employment and working conditions, generally called Framework Agreements. In application of article 155.2 TFUE, those agreements are implemented in the member states through their respective national procedures of collective bargaining, by the national unions and employers’ associations themselves. Those agreements are then also referred to as Autonomous Agreements. Some examples are the 2002 Framework Agreement on tele-work, the 2004 Framework agreement on work-related stress, the 2007 framework Agreement on harassment and violence at work or the 2010 Framework Agreement on inclusive labour markets. But the same article 155.2 TFUE provides also for a procedure to incorporate those Framework Agreements in legal EU instruments (decisions of the Council). This has always been done by means of Directives. The implementation of the Framework Agreement is thus executed according to the general rules applicable to the implementation (transposition) of EU Directives by the Member States. Some of those Directives have been important for the recognition of workers’ right in the Spanish context. Amongst them are Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave, Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work (imposing the voluntary character of part-time work and the principle of proportionality in terms of access to social rights of part-time workers, compared to full-time workers) and Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work (imposing the principle of non-discrimination between fixed-term workers and workers with open-ended contracts, and the obligation to provide for effective mechanism against abuse of fixed-term contracts). 5. Conflict and activism in the European Union: euro-strikes Finally, it also important to point out the fact that ETUC is also calling and coordinating Euro- strikes, which are days of collective action (including strike) against specific European Union policies. The last Eurostrikes was called on the 14th of November 2012 and was directed against the austerity measures applied within the EU, date at which the Spanish unions also called a national strike against the national reforms in the context of austerity. But ETUC combines those types of collective actions with other strategies, like the drafting of recommendations as well as entering into negotiations, in a complementary and programmed way, for example before EU summits or important moments of the EU agenda, so as to influence EU policy. III. The Spanish Constitutional model of collective rights There is no reference to Spanish manuals for this chapter, other than the work of García de Enterría on the Spanish Constitution as a norm. Disclaimer: this handout does not contain an exhaustive view of the taught subject, and has to be completed with class notes, the Law and the other materials that will be provided. 1. The Spanish Constitution as a legal norm15 The different provisions of the Spanish Constitution are not recognized the same force, or level of protection. Some sections are said to contain rights (some of them considered as fundamental rights), some are containing mandates to the legislator, and others are enshrining what is sometimes referred to as values. Nevertheless, account has to be taken of the fact that the Preliminary Part of the Constitution, even if it contains almost only “values” or “principles”, reproduces and introduces the whole constitutional model and the different parts of the Constitution can be considered as the development of that model. This means that all the provisions cannot be read independently of the others, and, above all, independently of the Preliminary Title: the Constitution is a holistic norm. One of the application of this principle is section 9.1 of the Constitution, which states that “all public authorities are bound by the Constitution”, and which means that even if a rule contained in the Constitution is not directly applicable (i.e. does not contain a subjective right which can be autonomously invoked before a public authority, like a court), it is still binding on that public authority. Fundamental rights, “simple” constitutional rights, constitutional mandates or constitutional values and principles might be different in terms of their enforceability, but they all bind public authorities, without distinction. In this sense, a court is not only bound by constitutional rights (whether they being fundamental or not) but also by constitutional values, like those of section 1 of the Constitution. This means that, when adjudicating rights (whether those being constitutional or not), judges (and, logically, other public authorities) have to interpret them in accordance with the Constitution as a whole, and the rights and values it contains. Moreover, while interpreting and enforcing those rights, judges (and other public authorities), are bound by section 9.2 of the Constitution, which commands them to “promote conditions ensuring that freedom and equality of individuals and of the groups to which they belong are real and effective”. This means that in applying the Constitution, they have to go further than guaranteeing formal equality, and interpret and enforce rights in such a manner that material, or real, equality is attained, which also involves the correction of the adverse consequences of factual inequality. This is also an expression of the configuration of the Spanish state by section 1.1 of the Constitution as a social and democratic state, “which advocates freedom, justice, equality and political pluralism as highest values of the system”. This is also another important principle, which conditions interpretation and application of constitutional provisions. Taking into account collective rights, section 7 (“trade unions and employers associations contribute to the defense and promotion of the economic and social interests which they represent”) is also an important principle conditioning their constitutional configuration, as it recognizes the role played by unions in the conquest of the features of what is to be qualified as a social and democratic state. Section 7 has also to be 15 See García de Enterría, E., La Constitución como norma y el Tribunal Constitucional, Madrid, Civitas, 1991, 3d. ed. exercise of those faculties of workers and union included in the essential content. They cannot realize any act that would affect the free exercise of those faculties. Finally it has to be said that, before the approval of the Ley Orgánica de Libertad Sindical in 1985, ILO Conventions 87 and 98 have been key to regulate, through jurisprudence, in application of section 10.2 of the Constitution, the right to union freedom of association. 4. Keys to the identification of the constitutional content of collective bargaining Section 37.1 of the Constitution (“The law shall guarantee the right to collective labour bargaining between workers and employers’ representatives, as well as the binding force of the agreements”) is not considered as a fundamental right in terms of section 53 of the Constitution. However, insofar as it can be part of union activity, it will be considered as part of the essential content of section 28.1 of the Constitution, and be protected as a fundamental right. The keys to the identification of the essential content of the right (which, again, has to be read specifically, but not exclusively, in conjunction with section 9.2 and 7) are the following: 1. subjective scope: Are entitled to the right, the employers or employers’ associations, as well as the workers’ representation and trade unions. 2. object of protection: The constitutional right to collective bargaining has a promotional dimension (“the law has to guarantee”, cfr. also ILO Convention 98 on the promotion of voluntary collective bargaining) and a freedom dimension. The promotional dimension implies that the legislator has to put in place a system of collective bargaining favouring the negotiation and conclusion of agreements. Concerning the content of collective bargaining, the law has to guarantee those who are entitled to it to negotiate working and employment conditions (section 37.1), concept that has to be read in the light of the reference of section 7 to the economic and social interests of workers and employers, which justifies also its role as instrument to promote social peace and material equality. The reference to employers and workers as promoters of their own interests also configures collective bargaining as involving the autonomy of employers and workers when they negotiate those employment conditions. This would be the freedom dimension of the right. The latter principle implies that third parties (mainly, public authorities) should refrain to impose results in the negotiation of the conflict which is inherent to labour relations, and the integration of which collective bargaining also is. It also involves that public authorities have to preserve a certain space of regulation for collective bargaining, refrain to intervene in all aspects of the regulation of working conditions and industrial relations. Finally, the constitution also commands the law to guarantee the binding force of the agreements. In absence of a clear stance of the Constitutional Court on the matter, two main positions have appeared in the doctrine.18 For some authors, this involves that the law has to provide the means for the result of collective bargaining (i.e. collective bargaining agreements) to have not only contractual value, but also normative value, including erga omnes effects (i.e. the law has to give the possibility for those agreements to apply also to workers and employers who did not negotiate the agreement, directly or through representation). But other authors argue that the reference only involves that those agreements should have some stronger binding effect than contracts, without reaching normative value. Therefore, the essential content would include that collective agreements should have at least “contractual value with real effectiveness”, which, considering the inequality of bargaining power between individual worker and employer, would involve the automaticity of application of the provision of the collective agreement on the individual relation (i.e. without need of explicit reference in the individual contract) and the prohibition of “in peius derogation” of those provision by the individual contract. 5. Keys to the identification of the rights underpinning the strike 1. subjective scope The right is recognized to subordinated workers (employees), including civil servants. It is an individual right, which has to be exercised collectively (through unions, workers’ representatives, or groups of workers). 2. objective scope The objective of the strike is the defence and promotion of the economic and social interests of the workers, considered as a category (section 28.2 read in conjunction with section 7 of the Constitution). It implies the cessation of work (recognisability approach), and as a right, it involves that workers are protected against any interference from third parties (i.e. through sanctions or other actions) which would affect its effectiveness, considering its finality (defence and promotion of interests of workers) (functionality approach). The Constitution however defines a limit to the right to strike, which is the guarantee of essential community services. This means that the right to strike cannot affect those essential community services, or, in other words, that the strike cannot limit community services further than a certain minimum. 18 A third, minor current of thought argues that this only means that collective agreements cannot be considered as “gentlemen’s agreement”, but should be enforceable by the courts. IV. Union Freedom of Association under the Ley Orgánica de Libertad Sindical Reference to Spanish material: Martín Valverde, A., and others, Derecho del Trabajo, 25th edition, Tecnos, 2016, (Chapter 7. Sindicatos y asociaciones empresariales, sections III to VI) Disclaimer: this handout does not contain an exhaustive view of the taught subject, and has to be completed with class notes, the Law and the other materials that are provided. 1. Subjects of freedom of association under the LOLS. Even though section 28.1 of the Spanish Constitution recognizes the right to freedom of association to “all”, section 1 LOLS19, in a legislative interpretation of the concept of “union freedom of association” combining section 28.1, 28.2, 7 and 37.1 of the Constitution (the latter sections speaking about “workers” rather than “all”), refines the constitutional definition, stating that it will apply to “all workers”. Moreover, when referring to “workers”, the LOLS is implying subordinated workers, whether in contractual employment in the private or public sector or in employment of a statutory character, i.e. civil servants working under a statute of administrative character (section 2 LOLS). Employers are thus not entitled to protection under section 28.1 of the Constitution, although they retain associational rights under section 22 of the Constitution. This also involves that autonomous workers, unemployed and pensioners, as they are not subordinated workers, are not entitled to the full extent of rights conferred by section 28.1 and the LOLS, but are nevertheless allowed to join already constituted unions (section 3.1 LOLS). Like employers, they will have to resort to the other rights the constitution confers to organize the defence of their own interests, even if they can join the defence of their interests as members of labour as a social class by joining unions and participating in union activities. The members of the Armed forces and Armed Institutions of military character (Guardia Civil) are excluded from the exercise of the right to union freedom of association (section 28.1 Constitution and section 3 LOLS), while the exercise of the right by the police and armed institutions of a non-military character is excluded from the scope of the LOLS, and will be regulated by the specific regulation which apply to them (section 5 LOLS). Concerning workers of the public sector (“statutory” civil servants or public employees), the exercise of their rights under article 28.1 and the LOLS are subjected to specificities (“peculiaridades”)20 regulated in their respective regulations. Those specificities relate mainly to the exercise of the right to collective bargaining, given the application of the principle of legality of the decisions of the Public Administration, reducing in some aspects the scope of freedom and autonomy conferred by the Constitution to employers and workers in the private sector (see 19 Ley Orgánica 11/1985, de 2 de agosto, de Libertad Sindical 20 See for example Judgment of the Constitutional Court, STC 69/1989, of 20 April b) Activity Rights Here, the law clearly states that the collective aspect of the fundamental right to union activity (essential content) comprises at the least, collective bargaining, the exercise of the right to strike, the right to participate in individual21 and collective conflicts, the right to present candidacies for the elections of non-union organs of representation of workers in the company (see Handout V). This category is not a closed category, as recognized by the Constitutional Court, as it could include other legal activities which a union would deem adequate for the fulfilment of the objectives assigned to them by the Constitution, for example the use as an instrument of union activity of the right to freedom of expression and information.22 3. Unions and representativeness. Sections 6 and 7 LOLS configure a system of promotion of union freedom of association based on the recognition of additional rights to a limited number of unions, in function of their importance. Confronted with constitutional challenges against that system presented by smaller unions, on the basis that it infringes the right to freedom of association (section 28.1 Constitution) read in conjunction with the prohibition of discrimination (section 14 Constitution), the Constitutional Court nevertheless upheld it.23 The Court argued that such a system of promotion of the most important unions, as long as the differentiation is based on reasonable and objective criteria, permits avoiding the risks that possible atomization of unions present for the effective defence of the interests of workers. Therefore, as sections 6 and 7 LOLS guarantee a more effective system of promotion and defence of workers’ interests, role conferred to unions by the Constitution itself in its section 7, without restricting the essential content of the right to freedom of association of smaller unions, the Court found no violation of section 28.1 of the Constitution. The system introduced by the LOLS is based on the “representativeness” of the most important unions. It is important to stress that representativeness is not measured in terms of number of members the unions have, as would seem to be the most straightforward criterion, but rather on the number of workers’ representatives those unions have (i.e., members of Works Councils and Workers’ Delegates elected on the lists presented by the unions) in the different companies pertaining to the scope for which representativeness is measured. This introduces a strong connection between the system of non-union representation within the company, and union activity outside of the company, because the means of actions of the union in the latter case depend on their strength in the works councils and amongst the workers’ delegates within the company. There are three categories of representative unions. First, the Most Representative Unions at national level are those unions, union federations or union confederations which count with at least 10% of all worker representatives in the whole 21 this means that they have a right to participate in legal procedures initiated by individual workers against the employer, which has been translated in special possibilities of intervention of unions in those court proceedings; see Ley 36/2011, de 10 de octubre, reguladora de la jurisdicción social 22 Constitutional Court, STC 281/2005, legal ground nº 6 23 Constitutional Court, STC 98/1985 Spanish State. Next to this criterion of “direct representativeness”, there is also one of “representativeness by irradiation”, which means that unions which are affiliated or confederated with a Most Representative Union at national level, will also be considered as “Most Representative at national level”, and therefore enjoy the same additional rights (section 6 LOLS)24 Those rights, listed in section 6 LOLS are: the right to exercise institutional representation before the public administration or other agencies of national or regional character (for example, the Social and Economic Council), undertake collective bargaining in the terms provided for by the Estatuto de los Trabajadores (for example, they are entitled to participate to the negotiation of collective agreements at industry or inter-industrial level), participate in the non-jurisdictional systems of resolution of work conflicts (for example arbitration or mediation systems), promote elections for workers’ representatives in the company (even if they have no presence within the affected company), obtain temporary cession of the use of public property, and, finally, any other additional representative function that might be established in an applicable norm. Second, some unions can acquire the qualification of Most Representative at Autonomous Community level. They need at least 15% of the worker representatives of the corresponding Autonomous Community, and this percentage has to correspond to at least 1500 representatives, or they have to be federated or confederated with such a union. Unions which are federated or confederated with Most Representative Unions at national level are excluded (which is logical, as they already enjoy the condition of Most Representative at national level “by irradiation”). Those unions will enjoy the same rights as the MRU at national level, but within the scope of the Autonomous Community.25 Third, any union which counts with at least 10% of the worker representatives of a given functional or territorial scope (which means, a particular branch of industry, or a territory which is not the Autonomous Community or the State, like the province, or a single city) will be considered as (simply) “Representative”. Those unions, within the corresponding scope, will enjoy the following rights: collective bargaining, participating in non-jurisdictional systems of conflict resolution, promotion of elections, other representative functions that may be established. 4. Promotion and protection of freedom of association. Union representation in the workplace: union section and union representatives. Guarantees. Competencies. As already said in Heading 2, some freedom of association rights are recognized by the LOLS as a way to facilitate or promote union activity and representation by unions, mainly within the scope of the workplace (sections 8 and 9 LOLS). One of the most important is the right for the members of a union to create a union section within the company or the workplace, with as sole and only 24 For example, UGT Catalunya, which is a union in se, enjoys the consideration of “most representative at national level” (with effects however only in the ambit of Catalonia), because it is confederated with UGT España, a union which is considered as most representative at national level (with effects at the level of the state and lower territorial divisions in which it is present) because it can count with at least 10% of the non-union representatives of all the companies of the State. 25 The three existing unions pertaining to that category are ELA-STV and LAB in the Basque Country and CIG in Galicia. condition the respect of the bylaws of their union (this is an expression of the right to free organization of unions and their members). Those union sections have the right to collective bargaining, within the conditions set forth by the Estatuto de los Trabajadores. Moreover, section 10 LOLS grants additional rights to the representatives of those union sections, when there are at least 250 workers within the company or the workplace,26 and the union section in question has at least one representative in the works council (section 10.1 LOLS). The union sections whose list had at least 10% of the votes in the last works council election, will be accorded more than one representative, in function of the number workers within the ambit of reference (work centre or company - section 10.2 LOLS). It is important to stress the following point. In application of their freedom to organize, union sections are free to designate their representatives, according to their own (democratic) rules. Those representatives will have the functions attributed by the bylaws of the concerned union (for example, act as spokespersons of the section). However, it is only when the conditions of section 10.1 LOLS are fulfilled that those “union delegates” will acquire the rights and protections accorded by section 10 of the LOLS (or, possibly, by collective agreements, or unilateral acts of the employer). Those “LOLS union delegates” (thus not the union section representatives, also sometimes called delegates, when the conditions of section 10.1 LOLS are not fulfilled), when they are not sitting on the works council, will benefit from the same rights section 68 ET recognizes to the members of the works council (see Handout V for more details). Moreover, they will have the right to assist to the meetings of the Works Council, with voice, but without vote, as well as the right to be heard prior to the adoption of collective measures affecting the workers, or termination of contracts and sanctions against the members of their unions. Finally, the LOLS confirms the right of those union delegates to information from the employer in the same terms as non-union representatives (section 10.3 LOLS). 5. Judicial and administrative protection. Violations of the provision of the LOLS, or the right to union freedom of association in general, can be denounced as serious or very serious offences to the Labour Authority (Public Administration), which, in application of the Ley de Infracciones y Sanciones en el Orden Social (LISOS) can impose administrative sanctions (fines). As already indicated in Handout III, all the rights contained in the LOLS, whether part of the essential or the additional content of the right to freedom of association are part of the fundamental right to freedom of association of section 28.1 of the Constitution. Therefore, their violation by the legislator can be challenged through a challenge of constitutionality brought before the Constitutional Court or by a question of constitutionality brought before the same Court by a 26 Until 2014 the application of the scope depended on how non-union representation was organized. If there was a works council for the work centre, the threshold of 250 workers would be calculated within the work centre, and if there was only one works council for the entire company, the threshold would be calculated taking into account the whole company. However, the Tribunal Supremo, in a judgment of 18 July 2014 (Rec. Cass. nº 91/2013), ruled that the reference to be taken into account to calculate the threshold (work centre or company) had to correspond to the own organization of the union sections in the company. This means that if the union section is constituted at the level of the company, rather than each work centre, all the workers of the company have to be taken into account for the calculation of the threshold. have a legally recognized union delegate according to section 10 LOLS) depends on the actual ambit of organization of the non-union representation in the company. 7. Works Council. Functions. Guarantees. Composition A Works Council can be constituted in work centres of at least 50 workers (section 63.1 ET). If in the same province, or in bordering municipalities, there are several work centres with each less than 50 workers, but which jointly count 50 workers or more, a works council can be constituted, but it will have to include all those centres (section 63.2 ET). Finally, in case of multiple works council within the company, an Inter-centre Works Council (13 members from the different works councils) can be constituted, but only through a collective bargaining agreement, which will have to expressly detail its functions. According to section 66, the number of members of the Works Council will vary in function of the number of workers in its ambit of constitution (see section 72.2 ET on how fixed-term workers are taken into account): From 50 to 100 workers.- 5 representatives. From 101 to 250 workers.- 9 representatives. From 251 to 500 workers.- 13 representatives. From 501 to 750 workers.- 17 representatives. From 751 to 1.000 workers.- 25 representatives. More than 1.000 workers: After the first 25 representatives for the first 1.000 workers, two additional representatives for each additional 1000 workers up to a limit of 75 representatives. Functions The functions of the Works Council are mainly and principally based on the realization of the rights of information and consultation (section 64 ET). The right to information involves that the latter consists in the transmission of data by the employer so as to allow its recipient (works council) to have adequate knowledge of a certain matter and to proceed to its examination. Its adequate character has also to be assessed taken into account the purpose of the information (for example, it has to be adequate for the works council to give its opinion on the matter in case of consultation; see section 64.6). The right to consultation involves that employer and works council exchange their opinions and open a dialogue on a certain topic, including, if applicable, the constitution by the works council of a report on the matter. The employer still can take its decision unilaterally, but has at least to give the workers representatives the occasion to explain their stance on the matter at hand. It also involves that the dialogue has to develop at an adequate level (i.e., with representatives of the employer which also are those who take part in the decisions on the matter), with a proper content, and with motivated answers of the employer to the possible report the representatives draw up, with the view, if possible, to reach an agreement on the object of the consultation (section 64.6 ET) The topics object of and the periodicity of the obligation of information (every three months, at least once a year or with appropriate periodicity) of the employer are listed at section 64.2, 64.3, 64.4 and 64.5 ET. The topics on which consultation is obligatory are listed at section 64.5 ET. Finally, section 64.7 gives additional functions to the Works Council, amongst which vigilance and monitoring of certain matters related to health and safety and application of the equality principle between men and women, participation in social and environmental actions of the company, in conciliation procedures, and generally informing workers about all the topics listed in section 64. Guarantees The law accords several guarantees to the members of the Works Council, so as to allow them to carry out their functions effectively and without possible interference from the employer (section 68 ET). Those guarantees are minimum rights, so that collective bargaining agreement can contain more favourable conditions. It is also important to remember that those guarantees are extended by article 10 LOLS to union delegates when the conditions of that article are fulfilled. - Priority of continuity and protection against dismissal or other acts of the employer Members of the works council will have to be the last workers affected in case of suspension or extinctions of contracts for economical and technological causes. This means that in implementing decisions of reorganization of the company involving dismissals or temporary suspension of contracts (assuming that the alleged causes of the reorganization are according to law) those measures will have to be applied first to other workers of the work centre or work centres affected. The principle of priority is not absolute and will be limited by the possibility to relocate the representatives within their ambit of representation (i.e. within the work centre or centres they represent), in accordance with their category and functions (section 68 b)). This means, on the one hand, that the application of that guarantee could lead to de dismissal of a worker not initially affected by the measure (he or she will be substituted by the representative), and on the other hand, that in absence of available job positions corresponding to the category and functions of the representative, the guarantee will not apply. In case the company alleges serious or very serious misconduct, a prior contradictory procedure has to be engaged and the worker and other members of the Works Council heard (section 68 b)). This involves that the same procedures has to be engaged when the company intents to dismiss the representative on grounds of his misconduct (“disciplinary dismissal”, according to sections 54 and 55 ET). The members of the works council are also explicitly protected against dismissal or sanctions based on acts carried out in the exercise of their representation (section 68 c)). In the absence of compliance by the company of the conditions of the protection, the sanctions will be declared null and void. In case of dismissal, if the latter does not respect the formal conditions (contradictory procedure) or the employer cannot prove the causes he alleges are being at the base of the dismissal, the latter will be declared unfair (improcedente). The member of the Works Council will then have the choice between being readmitted in his job or receive compensation (section 56.4 ET). If the formal conditions are respected, the dismissal is not related to the representation and the (legally defined) cause for dismissal is deemed to be proved by the employer, the dismissal will be considered valid (procedente). Finally, if the dismissal is related to the violation of the prohibition of discrimination or another of the Fundamental Rights of the worker (generally, it will be the right to freedom of association, given the fact that most worker representatives engage in union activity), the dismissal will be declared null and void, and reintegration will be compulsory (section 54.5 and 54.6 ET). Finally, a member of the Works Council cannot be discriminated in her economic and professional promotion for reasons related to her labour of representation. - Right to freedom of expression The members of the works council have the right to collegially express freely their opinion on the matters object of their functions, and distribute and communicate information related to labour or social matters to the workers, without hampering the normal development of production, and with communication to the employer. - Right to paid monthly hours for work related to representation According to section 68 e) ET, each member of the Works Council is entitled to a number of paid working hours, in function of the number of workers within the ambit of representation. The same section allows for a collective bargaining agreement to provide for a system of accumulation of the hours belonging to the different members by only one or more of them, with the ultimate possibility for the recipients to dedicate their entire working time to their function of representation, while paid by the company. The use given to those hours by the members of the Works Council will be presumed to be done in good faith (i.e. in defence of the interests of the workers and for tasks of representation), which means that they cannot be made subject to prior authorization of the company, which will have to prove any alleged misuse.31 - Right to adequate room and bulletin boards According to section 81 ET, the employer is obliged to provide the works council with an adequate space to develop its tasks and communicate with workers, as well as bulletin boards. 8. Worker delegates. Functions. Guarantees Worker delegates are the organ of non-union representation in work centres of between 6 and 50 workers. However, in workplaces of between 6 and 10 workers, their constitution has to be approved by the majority of workers in Assembly (section 62.1 ET). The number of worker delegates to be elected (from one to three) varies in function of the number of workers in the concerned work centre (section 62.1 ET). Worker delegates carry out the representation 31 Judgment of the Tribunal Supremo of 2 November 1989 (RJ 1989\7987) of consultation with the workers’ representatives or union sections will have to be opened, and an agreement found. If no agreement can be reached, and the procedures for solving conflicts between workers and employers established by collective agreements did not result in a solution, the case can be submitted to arbitration by the national commission of collective agreements (Commisión Consultiva Nacional de Convenios Colectivos) or by the corresponding organ of the autonomous communities, at the request of one of the parties (logically, the employer). The latter provision has been heavily questioned from the point of view of its constitutionality, given the fact that it goes against the principle of autonomy of collective bargaining. However, the Constitutional Court deemed the restriction to the constitutionally protected principle of autonomy as following a legitimate goal (guaranteeing competitiveness and viability of the company as mechanism to maintain employment) and respecting the principle of proportionality (the decision of the commission is subsidiary to other mechanisms of conflict solving, it does not affect the whole collective agreement, the commission pronounces itself on the adequacy of the measures proposed, and the effects of the decision are limited in time).33 Finally, the clauses of collective agreements are generally divided between normative clauses (clauses regulating employment conditions in a broad sense) and “obligational” clauses (generally referring to the interpretation of the agreement and the exercise of strike during the validity of the agreement, and which only binds workers’ representatives or the organization which negotiated the agreeement). 3. Bargaining units Section 83 ET establishes that collective agreements shall have the scope of application agreed upon by the parties. This means that it is the negotiators who have to decide which will be the functional (fringe – i.e. part of a work centre, work centre, company, group of companies, branch of activity, industry sector, inter-professional), personal (all the workers, some categories of workers,...) and territorial (city, province, provinces, autonomies, state) scope of the agreement they are negotiating. Some subjects of negotiation are however reserved to specific bargaining units. The structure of collective bargaining itself, i.e. what can be negotiated in which bargaining unit and the rules to resolve conflicts between collective agreements, can only be negotiated 1) at national or autonomous community level (territorial scope), and 2) in inter-professional or branch-level agreements (functional scope), by the unions with major representativeness in the case of inter-professional agreements and unions with the necessary legitimation in the case of branch-level agreements (section 83.2 ET). Those agreements are sometimes referred to as Framework Agreements (Acuerdos Marco). The latter unions and employers’ organization can also negotiate agreements regulating employment and working conditions, which are generally considered as establishing minimal or basic working conditions which can be bettered by lower- level agreements (section 83.3 ET). 33 STC 119/2014 of 16 July, fundamento de derecho 5º A); for a contrary view, see the Dissenting Opinion (Voto Particular) of Fernando Valdéz Dal-Ré, point II.B 4. Who is entitled to negotiate? At the level of the company or below, it is the works council or the workers’ delegates who have the right to negotiate. However, the employer will have to negotiate with the union sections which represent at least the majority of workers’ representatives, if those union sections agree to it (section 87.1 ET). In the latter case, if the collective bargaining process is not affecting all the workers of the scope in which the union sections are organised (company or work centre), the unions sections will have the right to negotiate if they are selected by the affected workers in assembly. Above the level of the company, will have the right to negotiate on behalf of the workers, the most representative unions at national or autonomous community level, as well as “simple” representative unions, i.e. the unions on whose lists at least 10% of the workers’ representatives of the bargaining unit - territorial and functional scope of the agreement to be negotiated – have been elected (section 87.2 ET). However, only most representative unions at national level and at autonomous community level will have the right to negotiate agreements which would apply to the entire autonomous community or to the entire national level (section 87.4 ET). On behalf of the employers, the right to participate in negotiations belongs to those employers’ organisations counting which have at least 10% of the employers AND employing at least 10% of the workers, in the bargaining unit, as well as the organisations which do not reach the 10% employers limit, but whose members employ at least 15% of the workers of the same scope. If there are no organisations of employers with sufficient representativeness in the bargaining unit, negotiations will be conducted by those organisations which have at least 10% of the companies or workers at national level, as well as the organisations of the autonomous communities which have at least 15% of the companies or workers (in the autonomous community) (section 82.3 ET). 5. The process of negotiation. Efficacy (extent of legal effects) of the agreement. Above company level, the Negotiation Committee will be formed by max. 15 persons appointed by the unions/workers’ representatives and the organisations of employers/employer. For the future agreement to have erga omnes and normative effects, the workers’ side will have to “represent” the absolute majority of the workers’ representatives of the bargaining unit, and the employers’ side will have to “represent” the employers totalling the absolute majority of the workers affected. In the company, the negotiation committee will be formed by maximum 13 members. In all cases, a chairman can be appointed, and advisors from both sides can take part to the meetings. Another condition for the collective agreement to have erga omnes and normative effects is that its final version has to be voted by the majority of the members of the negotiation committee on each side, expressed in terms of represented workers (section 89.3 ET). This means that a collective agreement can apply to all workers and employers of a given sector of the economy when those unions and employers’ organisations “representing” at least 25% of the workers agree to it (and the negotiating committee “represented” at least 50% of those workers). The duration (or “temporal” validity) of the collective agreement is also agreed upon by the negotiators (section 86.1 ET). They will have to establish also the conditions for the termination of the agreement and the period of prior notice that has to be given in case of termination (section 85.3 d) ET). In absence of agreement to the contrary, if no express termination is notified by one of the parties, or the prior notice is not respected, the temporal validity will be renewed with subsequent periods of one year (section 86.3 ET). Once notification of the expiration has been given, the “obligational clauses” decay, while the normative clauses keep being applicable. Before the 2012 reform, the normative content of the agreement kept being applicable until a new collective agreement had been negotiated. However, the new version of section 86 ET provides that that period, referred to as “ultra-activity” (also called “after-effects” in English), will end after a maximum period of one year counting from the notice of expiration, except agreement to the contrary. This means that, if the period of ultra- activity has not been regulated in the denounced collective agreement, after one year, the collective agreement will cease to apply, and it will be the collective agreement of a superior level which will apply. In absence of the latter, it could be understood that the minimal conditions of the Estatuto de los Trabajadores would be applicable. This would however create problems of voids of legislation, given that the ET does not regulate all the details of labour and employment conditions (for example, the definition of professional categories, or the categorization of offences). It would also greatly weaken the position of workers in the negotiation of a new agreement, and as such not be in line with the obligation of the state to promote voluntary negotiations. Therefore, recent jurisprudence nuanced the effect of the end of the application of expired collective agreements (“ultra-activity”), by judging that before the expiration of the agreement, its conditions have been incorporated in the individual contracts of the workers. Therefore, those conditions continue to apply as individual contractual conditions after the period of “ultra-activity”, even if the collective agreement has ceased to be applicable.34 6. (Formal) validity of the collective agreement All collective bargaining agreements have to be in writing. The process of negotiation is initiated (at the same time as the notice of termination of the previous agreement, if applicable) by providing notice to the other part and to the labour authority of the intent to start negotiating (as well as the intended scope) by the organisations or persons with legitimation to negotiate. The party invited to negotiate cannot refuse negotiations, - as long as the proposed bargaining unit is a “natural” one (sector at local, provincial, CC.AA. or national level, company, ...) or there is no proposed change in the bargaining unit - except legal cause (eg. the party requesting negotiation has no legimitation for it, pursuant section87 ET), conventional 34 Tribunal Supremo, sala social, Judgment of 22 December 2014, Rec. 264/2014 VII. Legal development of the Right to Strike Reference to Spanish material: Martín Valverde, A., and others, Derecho del Trabajo, 21st edition, Tecnos, 2012, 407- 434 (Chapter 10, headings II, III, IV, V) Disclaimer: this handout does not contain an exhaustive view of the taught subject, and has to be completed with class notes, the Law and the other materials that will be provided. 9. Legal framework and fundamental rights. The strike as freedom and the strike as a fundamental right. As already seen in Session 1 conflict, as an expression of diverging interests is a substantial part of labour relations. The opposition of interests of employers and workers are not only inherent in labour relations, but they also configure those relations, as well as the regulation of those relations. As such, labour law is a tool to integrate the conflict of interest, but also a product of that conflict. In this sense the conflict itself is a factor of transformation and creation of norms which could be said to be better adapted to the new context in which the conflict arose. Seen from this perspective, the expression of the conflict is not to be seen as pathological but is also a factor of change or improvement. Translated into legal terms, the labour conflict, as an expression of functions of the actors of the conflict recognized by article 7 of the Constitution, is itself recognized in sections 37.1 and 28.2 of the Constitution, and has to be seen as an “institution” which can promote effective (or material) equality, in the sense of section 9.2 of the Constitution. But the function of integration of the conflict attributed to (collective) labour law is also linked (but not only) to economic efficiency, as it helps the transformational function of the conflict. Within this context, negating the conflict, and letting it rot, can only lead to dysfunctions not only in terms of social wellbeing, but also in terms of economic efficiency. Strike is one of the most evident expressions of the conflict inherent in labour relations, and the different models of regulation of the strike also translate the visualization of the conflict from pathologic to transformative.35 Under francoism, strike was prohibited, as an expression of the negation and repression of the labour conflict. During the transition to democracy (i.e., before the Constitution of 1978), a system of strike as a freedom was instituted, which meant that strike was not criminalized or repressed, but workers still had to bear in some cases the civil consequences of suspending work. The state assumed a neutral role in relation to strikes. The Real Decreto-ley 17/1977, de 4 marzo sobre relaciones de trabajo, regulated the strike, protecting on the one hand the worker against sanctions of the employer in case of legal strike, but making it difficult on the other hand to call a strike in respect of the law, for which it did not significantly alter the system of “freedom of strike”. It is only with the Constitution of 1978 that a system of “right to strike”, contained in its section 28.2, was instituted. This means that “some means of pressure used by workers against employers are a right of those”36, and the state assumed a role of protection of that right, a role of protection of the workers against sanctions or intimidation from the employer related to the exercise of the right to strike. This also involves that the employer has to endure the consequences of the strike. 35 López, J., Chacartegui, C., Cantón, C., “From Conflict to Regulation: The Transformative Function of Labour Law”, in Langille, B. and Davidov, G., The Idea of Labour Law, Oxford, OUP, 2011 36 STC 11/1981 of 8 April, fundamento de derecho nr. 9 Nevertheless, as a fundamental right, it had to be developed by a Ley Orgánica, which never saw the light. Presented with a constitutional challenge against the Real Decreto-ley 17/1977, the Spanish Constitutional Court did not recognize its derogation by the Constitution of 1978, but annulled some of its disposition and reinterpreted others to bring it in conformity with section 28.2 of the Constitution. Therefore, the legal framework of the right to strike in Spain is composed of article 28.2 of the Constitution and the Real Decreto-ley 17/1977 as corrected and reinterpreted by Judgment 11/1981 of the 8th of April 1981 of the Constitutional Court. Finally, one cannot forget that the LOLS also forms part of the regulation of the right to strike, as its article 2, in application of the jurisprudence of the Constitutional Court, recognizes the right to strike as part of the right to union activity. This creates a problem of legislative coherence, as the Real Decreto-ley 17/1977 and Judgment 11/1981 actually regulate the content of the posterior LOLS, which has a higher legislative rank. Moreover, those constitutional and legislative developments, combined with interpretation of the right to strike by the Constitutional Court, has given form to a relatively closed system of expression of the collective conflict (referred to in section 37.2 of the Constitution), generally limited to the right to strike, and excluding, prima facie, other modes of industrial action,37 with the exception of the right to channel the conflict through dispute resolving procedures and the right of employers to lock out workers (cierre patronal). The Constitutional Court thus defined the essential content of section 28.2 of the Constitution as follows. Firstly, the right to strike is an individual right of all workers, in that they enjoy legal protection for taking part (or abstain to taking part) in a strike, but the exercise of which is to be collective. This means that the faculties of the right to strike (or the powers involved in the right), i.e., the call to strike, the establishment of claims, publicizing or promoting the strike, negotiating and ending the strike have to be agreed by the workers collectively, or by their representatives or the unions. Secondly, section 28.2 of the Constitution provides that the objective of the strike has to be the interests of the workers. This does not mean that the interests have to be related to employment conditions or to direct conflicts with the employer. What is meant is that the objective of the strike has to be the general interests of the workers as a category (not to use the word “class”). Therefore, more general “political” interests can also be included, as long as they relate to the interests of workers as a group, taking also into account the idea of solidarity between workers, inherent to their consideration as a category, and the strike as an exercise of union activity. Third, in defining the strike in its manifestation of conflict, the Constitutional Court has interpreted section 28.2 of the Constitution as referring to “the cessation of work in all its manifestations or modes”, excluding from the essential content other manifestations of the labour conflict. This means that modalities like working-to-rule, or collective action not consisting in suspending the provision of work (with the correlative suspension of the obligation of payment of salary) would not be included in the essential content of the right to strike. 37 López, J., Chacartegui, C., Cantón, C., “From Conflict to Regulation: The Transformative Function of Labour Law”, in Langille, B. and Davidov, G., The Idea of Labour Law, Oxford, OUP, 2011 Finally, considering the functional perspective in the definition of the essential content of the right to strike, it has to be taken into account that a strike (and its effects) cannot be limited to the point of making it ineffective. The idea is that the protection which the essential content of the fundamental right provides, involves that the employer generally has to endure (or “accept”) the pressure the strike puts on his business.38 10. The fundamental right to strike as individual and collective right. The interpretation of section 28.2 of the Constitution conduces to establish that from the constitutional point of view, the right to strike is an individual right, the owners of which are workers under an employment contract. This excludes workers in a broader sense from its essential content, like autonomous workers. It seems that this would also exclude public servants. However, their right to strike derive from the fundamental right to freedom of association, given the general legal (national and international) view of the content of the latter. Anyway, article 15 of the Estatuto Básico del Empleado Público, recognizes them the right to strike in the same terms as the Constitution. Armed forces and Police and security forces are however excluded from the right by their respective regulation. The individual dimension of the right contains the right of individual workers to participate in the strike or its preparation, to adhere to the strike once it is taking place or to desist freely from the strike and go back to work. However, the Constitutional Court has also specified that, however being an individual right, the right to strike is to be exercised collectively.39 Therefore, the call to strike, the establishment of the claims behind the strike (its objective), external dissemination of the strike, negotiation and the decision to end the strike, i.e. the powers with respect to collective and concerted action correspond not only to the workers, but also to their representatives, and, given the content of the right to freedom of association, to unions, even if the RD-Ley 17/1977 does not talk about the latter. Finally, section 2 of the RDL 17/1977 provides that workers cannot waive their right to strike in individual contracts. This does not exclude the legality of peace clauses, which are those clauses, generally contained in collective agreements, through which the negotiating parties on behalf of the workers, waive, not their right to strike, but temporarily the exercise of that right. This means that for their duration (which generally stops at the expiration of the collective agreements) unions or worker representatives cannot call strikes, generally or on certain matters (section 8.1 RDL 17/1977 and 82.2 ET). 11. Calling a strike. The strike process. Strike committees 38 See for example STC 183/2006 39 STC 11/1981, f.j. 11 Government can impose that the question be submitted to arbitration, but cannot order the resumption of work in expectation of the decision (section 10 RD-Ley 17/1977 as interpreted by STC 11/1981). 12. Illegal strikes Sections 7 and 11 of RD-Ley 17/1977 contain a list of illegal strikes, which have been reinterpreted by the Constitutional Court, based on the definition of the right to strike in its essential content of “cessation of work, in all its manifestations or modalities”, understanding that the essential content also involves the right of the workers to choose the modalities which they think best fit their goals. Therefore, when the law regulates those modalities, the regulation has to be justified, cannot affect the essential content and has to leave sufficient modalities to complete the recognizable character and effectiveness of the right to strike. Therefore, the Court declared that the list of strikes which are considered abusive (section 7 of RD-Ley 17/1977) for the form they adopt (rotation strike, work-to-rule, strategic strikes,...) has to be construed as a rebuttable (iuris tantum) presumption, which gives the possibility to the workers to prove that in the concrete circumstances, the strike, even if it adopted one of those forms, cannot be considered as abusive. To assess the abusive character of a strike, the main criteria to be taken into account is the possible disproportionate effect it has on the employer or other persons affected, in comparison with the corresponding sacrifice of the workers, relatively speaking. This means that this sacrifice is generally considered based on the idea that worker lose salary for the time they are on strike, and this loss is compared with the effect on the losses of the company the absence of worked hours can have, taking into account that this absence has a multiplying effect on the losses of the company. Therefore, the comparison cannot be made between the sums of the total economic loss of the workers and the total economic loss of the workers, but between the proportional sacrifices of the workers and the employer(s).40 Moreover, in case of strike modalities which are not listed in section 7.2 RD-Ley 17/1977, it will be the employer which will have to prove their abusive character (for example, in case of intermittent strike). Section 11 contains a list of strikes which are considered illegal because of their objective. Here, the prohibition cannot be interpreted as a presumption, and the system of section 7 does not apply. Therefore, will be considered illegal, the strike which has as an objective the alteration of a collective agreement (which includes the violation of “labour peace clauses”, but does not include 40 It is important to specify that the comparison of sacrifices is not a numerical comparison of the losses on both side, but has to take into account the multiplying effect the sacrifices of the strikers (loss of salary) has on the sacrifices of the company (mainly, economical losses). For example, an absence of proportion might possibly be found if the percentage of salary losses (100% being the total possible loss of salary of all the workers of the company during the whole strike) is manifestly out of proportion with the corresponding loss of revenue from the company (100% being the loss of revenue in case of all the workers being on strike during the whole strike). Therefore, a strategic strike might be found abusive, because in that case, the strike of only a few workers (and thus a smaller sacrifice on the part of the workers) can halt the production of the whole company, with the conseqüent loss of the company being out of proportion compared to the minimal sacrifice of the workers. the adoption of a determined interpretation of a collective agreement)41, political interests which are not related in any way with the interests of the workers as a category, or strikes which are generally violating the law (including thus the formal requisites of the strike) or collective agreements. The consequences of the illegality of a strike is that those who suffered damages (generally, the employer) can claim compensation to those engaging their liability in organizing and promoting said strike (generally, the unions, the liability of which is regulated in section 5 LOLS). Participation of workers in an illegal strike can also lead to sanctions (and possible dismissal) imposed by the employer. However, it is generally considered that only those who were especially implicated in the strike or were protagonists in its development (e.g. the members of the strike committee) can be sanctioned, and that workers which had no knowledge of the illegal character of the strike did not breached their obligations towards the employer. This does not exclude sanctions for individual illegal acts of those workers at the occasion of the strike (e.g. in case of not performing the tasks related to maintenance and security services when appointed by agreement by the strike committee and the employer). 13. Strikes and essential services for the community Section 28.2 of the Constitution commands that in case of a strike the law has to guarantee the essential services for the community. Therefore, in application of section 10 RD-Ley 17/1977, most of the time, that guarantee is activated through the imposition of minimal services by the competent (and impartial) governing authority (ministry, conselleria of the government of the Autonomous Community, city mayor,...), in case of a strike in a public or private company which provides public services or services of a recognized utility and the provision of which cannot be postponed. The conditions for the establishment of minimal services are the following: - They have to guarantee the exercise of fundamental rights, public liberties and other constitutional goods (eg. freedom of movement, education, security, information, health,...)42; - The strike should possibly affect those constitutional goods more seriously in comparison with the damage the workers would experience if the pretensions for which they strike were not accepted ; - It is the competent, and impartial (i.e., defending the general interests of the citizens), governing authority which has to establish the minimal services in every concrete case, in a decision which motivates the “essentiality” of the concerned services, and based on the principle of proportionality, looking for a balance between the mutual sacrifices of the strikers and the citizens. - The level of minimal services cannot empty the right to strike of its content (which means that it cannot render the strike ineffective). Therefore, those minimal services have to provide a minimal coverage of the service, below their normal functioning or coverage. 41 STC 11/1981 of 8 April, legal ground 14 42 STC 26/1981 The employer will appoint the workers who shall provide those minimal services, based on reasonable grounds, without affecting more than necessary the freedom of the workers to strike.43 The designated workers will be obliged to provide the services. 43 STC 53/1986; for example, if a worker who wants to strike has been designated to provide the minimal services, and when starting the provision of those minimal services there are suficient other workers who do not want to strike and can provide those services, logically the worker in question can strike;