Employee Representation and Collective Bargaining in the Workplace

Posted on Jun 5, 2024 in Law & Jurisprudence

Share of Employees in Company

Employee representation, as a collective, unified representation, involves delegates, union empresa.colectiva committees (the unions), and works councils. The right of participation of workers in the company is acknowledged in Article 129.2 of the Constitution and 4.1 g) of the Statute of Trabajadore. To exercise their right of participation, workers have the right to meet in assembly, in the workplace. Entrepreneurs act on their own, are associated, and are represented by business organizations.

Guarantees of Workers’ Representatives

• Priority spent in the company, not being fired or punished during their term. If fined, a record must be opened contradictorily, meaning they will be heard.
• Non-discrimination.
• Freedom of expression.
• A given number of hours per month of paid time off, called credit hours.

The Unitary Group Representation

Delegates of staff: The group of employees of a company is entitled to be represented, regardless of their affiliation or not to a union, through staff delegates or a works council.

Staff Delegates

• When a company has fewer than 50 employees:
  • 6 to 10 employees: Voluntary (not mandatory).
  • 11 to 30 employees: Required presence of a delegate.
  • 31 to 49 employees: 3 delegates.

The Works Council

• 50 to 100 employees: 5 members; act as a body, make decisions by majority vote, and may exercise administrative and judicial actions.
• 101 to 205 employees: 9 members.
• 206 to 250 employees: 13 members.
• 251 to 500 employees: 17 members.
• 501 to 750 employees: 21 members.
• 751 to 1000 employees: 23 members.
• From 1,001 onwards: 2 members per 1,000 employees up to 75,000, then 1 member per additional 1,000 employees.

In some cases, the following committees may form:

• Joint Enterprise Committee: Companies that have two or more sites, without reaching 50 employees in each center, but adding, overall, 50 or more.
• Works council: Where there are several companies, councils may agree, by collective agreement, to have up to 13 members.

Competencies of Representatives

• To receive information on:
  • The economic situation of the company.
  • Employment outlooks.
  • Company accounts.
  • Sanctions imposed.
  • Rates of accidents.
  • Regular or special studies in the working environment.
• With respect to contracts:
  • Get the basic copy.
  • Know the model contracts.
• Issue a report by the employer to implement its decisions on:
  • Dismissals or suspensions.
  • Contractual reductions in working hours.
  • Training plans.
  • Review implementation or organizational systems.
  • Study times, when the company is going to pursue a merger.
• Monitor the enforcement of existing labor rules.
• Monitor and control the safety and hygiene.
• Participate, as determined by collective agreement.
• Collaborate with the direction of the company.
• Inform their constituents.

Elections

The delegates and committee members will be chosen in the company, among the workers of the company:

• Over 18 years of age.
• With a length of service of at least 6 months.

Who can vote?

• Workers over 16 years of age.
• With a seniority of at least one month.
• Foreign, permanent, discontinuous, and temporary contract workers may also vote.

The Union Collective Representation

Unions are associations, non-profit organizations of employees whose main aim is to achieve economic and social progress of its members, by maintaining or improving their working conditions. They are permanent; they are maintained, but their partners vary.

Organic Law on Freedom of Association

Rights which include the right to freedom of association, to form trade unions, or not to join a union, each member to freely elect their representatives, and lawful union activity.

Who can join a union?

• Employed persons.
• Unemployed persons.
• Public workers.
• Disabled persons.
• Administration.
• Self-employed persons.
• Retirees.

Excluding the right to join a union:

• Members of the armed forces and the judiciary.
• Tax officials.
• Members of the Corps and state forces shall be governed by its rules.

The Internal Organization of Unions

Unions group workers by occupational activities or branches called sindicales. Federations affiliated to the same union working in the same company are entitled to join trade union branches in its company. Companies over 250 employees are represented by union representatives. Stewards have rights to access the same information as the employer provides to the committee, attend meetings, and be heard by the company.

The Level of Representativeness of Trade Unions

• At a statewide level: Credited with 10% or more representation.
• At the Autonomous Community level: Credited with 15% or more representation.
• In a territory: Credited with 10% or more representation.

Trade unions have the following capabilities:

• Represent institutionally.
• Participate as partners in the negotiation colectiva.
• Participate in non-judicial systems.
• Promote elections for staff representatives.
• Possibility that the government will cede the use of in-furniture públicos.
• Any representative function established.

The Collective Agreement

A collective agreement is an agreement freely entered into between representatives of workers and employers to regulate the conditions of work.

Application areas:

• Functional: Can be applied on a lower or higher level than the company.
• Territorial: Geographical area in which the agreement produces its effects.
• Staff: Who can sign the agreement.
• Temporal: The negotiating parties shall specify the length of the agreements. The date of entry into force of the agreement will be agreed by the parties.

The Collective Conflicts

Conflicts in the workplace include:

• Individual: Faced with a worker and an employer, applies only to both.
• Collective: A group of workers, an employer, or a group affects the entire workforce. Pressure to strike.

The Strike

A strike is a measure of pressure and advocacy of trabajadores. It consists of the temporary termination of service provision. The right to strike is recognized individually, but collectively exercised:

• Individual recognition: The worker joins and decides freely whether or not to strike.
• Collective exercise: An employee may not strike alone. The strike is decided collectively by workers through their representatives.

Illegal strikes:

• Strikes held for political reasons of solidarity or support.
• Strikes that attempt to alter what was agreed in a collective agreement.
• Rotary, go-slow, or regulation strikes.

Effects of the strike:

• Work contracts are suspended.
• Those days are not paid.
• Suspension of the obligation to contribute to Social Security.
• The employer cannot replace the striking workers.
• Strike days should not be discounted from holidays.

The Lockout

A lockout is the collective suspension of work and closure of the workplace by the employer’s initiative.

Circumstances:

• Danger.
• Notorious violence.
• Illegal occupation of the workplace.
• A volume of absence that would prevent the normal production process.

The closure is limited to the time required and has the same effects as a strike.

Extrajudicial Conflict Resolution Methods

Trade unions and business associations have signed agreements for the Settlement of Collective Labour Dispute Settlement (ASEC) to promote conflict resolution and promote independent mediation or arbitration.

• Reconciliation: The parties try to reach an agreement before an impartial third party, the conciliator, that simply indicates they are encouraged to reach an agreement, or resolve or propose a solution.
• Mediation: The mediator presents information and suggested solutions, providing non-binding negotiation and decision-making.
• Arbitration: The parties in conflict voluntarily agree to submit their disputes to the decision of a neutral third party and agree in advance that they will abide by the solution, called the arbitration award, which is enforceable.