Resolving Labor Disputes and Collective Bargaining in Spain

Posted on Dec 10, 2024 in Law & Jurisprudence

Managing Legal Conflicts and Promoting Positive Work Environments (Conflict of Interest)

9.1 Managing Individual Conflicts of Interest

Individual conflicts of interest, as we know, are controversies that pit two parties against each other, these parties being individual subjects. These conflicts can only be resolved through an agreement reached between the subjects, with the principle of autonomy of the parties governing the conflict resolution process.

This autonomy allows both parties to reach an agreement, if they deem it appropriate, which is then formalized in a contract. This contract will contain covenants that address the competing interests of both subjects. Once these individuals have signed such agreements, they become legally binding and must be respected in their own terms. At this point, any conflicts that arise regarding these covenants become legal disputes, the resolution of which is assigned to the courts.

9.2 Collective Management of Labor Disputes

Our legal system establishes the general principle for the settlement of labor disputes based on the principle of autonomy of interests or collective self-protection. The parties are to be provided with the means to reach a settlement. However, the law has an obligation to promote and guarantee these means (Articles 28 and 37 of the Spanish Constitution).

As we have seen, it is the legal system that promotes and arbitrates a series of guarantees to enable the parties to reach a settlement through the exercise of their collective autonomy. That is, it guarantees the right to collective bargaining.

Extra-Judicial Settlement of Collective Labor Disputes with Legal Origin

As we have seen, the means of extra-judicial settlement may originate either in a law or through a collective agreement. The quintessential extra-judicial settlement with legal origin is laid down in Article 17 of Royal Decree Law 17/1977 of March 4.

This administrative procedure, designed to resolve disputes affecting the general interests of workers, is structured as an alternative means to exercising the right to strike. This process is divided into three phases:

1. Introduction

Those entitled to initiate this process are, firstly, the representatives of workers within the scope of the conflict, either on their own initiative or at the request of their constituents, and secondly, employers or their legal representatives. The process begins with a written letter, which must express the requirements under Article 21 of RD 17/1977. This letter is submitted to the appropriate body of the Ministry of Labor or the Autonomous Communities that have transferred competencies. This procedure may be initiated to amend a collective agreement; therefore, it is applicable in other cases as well.

2. Development

Within 24 hours of receiving the written communication, labor authorities will send copies to the party against whom the dispute arises and convene both parties within 72 hours. From that moment, efforts will be made to reach a solution, either through conciliation or arbitration if the parties agree.

3. Termination

The completion of this proceeding may occur either when a settlement agreement is reached or when such an agreement is not reached. In the latter case, we must distinguish two situations:

  • 3.1 If the conflict is economic, there will be no solution. Parties can resort to other means or measures to achieve it.
  • 3.2 If the conflict is legal, the proceedings are referred to the social courts for resolution.

The provision contained in Articles 25 and 26 of RD 17/1977 on compulsory arbitration is deemed unconstitutional by the Constitutional Court ruling STC 11/1981 of April 8.

Extra-Judicial Settlement Systems within Collective Agreements

As we have emphasized, the subjects that make up the industrial relations system can create mechanisms for resolving collective labor disputes that arise between them. These mechanisms would have a collective origin, taking the scope determined by the parties involved.

Currently, we have two major systems of alternative dispute resolution originating in collective autonomy. One is a national agreement called the Extrajudicial Settlement of Labor Disputes (ASEC), and the other comprises various settlement schemes created at the regional level. In Andalusia, this system is called SERCLA (Extrajudicial System for Labor Conflict Resolution in Andalusia).

The national system currently applies the fourth version of the ASEC, published in the Official State Gazette on March 14, 2009. This agreement is signed by the most representative trade unions and business organizations at the national level, with the objective of maintaining and developing a system for resolving disputes arising between employers and employees.

The territorial scope of the ASEC is national in respect of disputes referred to in Article 4 of this agreement, which are:

  1. Collective conflicts over the interpretation and application of a rule.
  2. Collective conflicts arising during the negotiation of an agreement involving the blockade of this negotiation, for a period of 5 months after the negotiating table was constituted.
  3. Conflicts that result in a call for a strike or the determination of maintenance and security services.
  4. Conflicts arising during consultation periods provided for in Articles 40, 41, 47, and 51 of the Workers’ Statute (ET).
  5. Collective disputes that arise during the application or interpretation of an agreement, leading to a blockade of the agreement by the joint committee.

These conflicts will be resolved by ASEC when arising in the following areas:

  1. Sector or subsector exceeding one Autonomous Community.
  2. Workplaces located in different Autonomous Communities.
  3. Companies or establishments located in one Autonomous Community when a national sectoral collective agreement is applied, and the settlement of the conflict may have consequences for companies or establishments located in other Autonomous Communities.

The following conflicts are not resolved by ASEC:

  1. Individual disputes.
  2. Conflicts involving the State, Autonomous Communities, local autonomous bodies, or entities dependent on them.
  3. Collective disputes that fall under Social Security, except for supplementary Social Security.

Regarding the duration of this agreement, its implementation is foreseen until December 31, 2012, and it will be extended for periods of 5 years in the absence of formal objections.

To implement this system, the business sector affected by the conflict and the parties with standing to sign an agreement in this area must accede to the ASEC through a specific agreement.

The ASEC establishes a joint institution called the Interconfederal Service for Mediation and Arbitration (SIMA), which handles mediation and arbitration for the resolution of conflicts included within the scope of application of ASEC. This service prepares a list of mediators and arbitrators proposed by the parties that signed the ASEC and facilitates the parties in conflict in choosing a mediator or arbitrator to resolve the dispute.

These mediation or arbitration proceedings are governed by the principles of freedom, speed, equality of arms, hearing of the parties, adversarial proceedings, and impartiality.

For a conflict to be resolved by mediation, it is stipulated that when one party requests it, the mediation process is mandatory. This mediation replaces the pre-litigation settlement demand under the law on termination of employment.

However, if the conflict is to be resolved by arbitration, this can only happen if both parties request it in writing by mutual agreement.

For solutions achieved through mediation or arbitration to have general effects or apply to third parties, the individuals who have applied must meet the requirements for standing under statutory collective bargaining agreements (Articles 87, 88, 89.3, and 91 of the ET). Failure to meet these requirements will limit the impact of these solutions to employers and employees directly represented by the unions and business organizations that have signed the agreement.

Extra-Judicial Settlement of Collective Labor Disputes at Regional Level (SERCLA)

At the regional level, as mentioned earlier, the establishment of dispute settlement procedures has been driven, with a scope restricted to the territory of the Autonomous Communities. Today, all Autonomous Communities have their own system. In Andalusia, this system is called SERCLA, originating from the trade agreement signed on April 3, 1996, by the most representative trade unions and business organizations.

This system is functionally ascribed to a body based in the Andalusian Council of Labor Relations. It provides two procedures for conflict resolution: mediation and arbitration. Its scope is as follows:

  • From a territorial point of view: all workers and companies that develop their activity in the community of Andalusia.
  • From a functional point of view: all collective and individual disputes arising in this area, with the exceptions provided for in the agreement establishing SERCLA.

The Special Process for Collective Disputes

As a means of resolving legal disputes, the Labor Procedure Act establishes a special process called collective disputes, under Articles 151 to 160 of the LPL. This process is resolved in the judicial sphere by the competent court.

9.3 Management Procedures for Collective Pressure

Strike

The right to strike is recognized as a fundamental right in Article 28.2 of the Spanish Constitution, entailing all the guarantees and protections that are constitutionally recognized for fundamental rights. Its legal development today is carried out by Royal Decree Law 17/1977 of March 4, which was reviewed by Constitutional Court decision 11/1981 of April 8.

Regarding the ownership of the right to strike, three issues have been raised:

1. Is this right exclusive to employees, or does it also apply to self-employed individuals, since Article 28.2 of the EC only mentions “workers”?

In this regard, constitutional jurisprudence states that this right only applies to employees, specifically those subject to labor legislation, regardless of whether they work in the public or private sphere and whether they have a regular or special employment relationship. Foreigners are also granted the right to strike. However, some groups of employees have special arrangements, such as convicts in prison or civilian personnel dependent on military establishments.

2. Is the right to strike also recognizable to public officials, since Article 28.2 of the EC does not clarify this?

Different interpretations have been raised on this matter. However, this group is now explicitly recognized as having the right to strike (Article 15c of the Evaluation Committee). Nevertheless, for this group, there are modulations in the exercise of this right due to the particular characteristics of the institution where they serve. It is anticipated, however, that certain groups of officials are excluded from exercising this right, including judges, magistrates, prosecutors, members of the armed forces, the civil guard, the national police, and military personnel of the national intelligence service.

3. Is the right to strike an individual or a collective right?

Article 28.2 of the EC recognizes this right to employees, suggesting individual ownership. However, a strike is, by definition, a collectively exercised right. Therefore, this right is recognized as having a collective character. That is, it is a right of individual ownership but collective exercise, making both strikes convened at the initiative of an association and those convened directly by workers admissible.

Content of the Right to Strike

As for the content of the right to strike and its scope, Article 28.2 of the EC only alludes to the purpose of the strike, which is to defend the interests of workers. Therefore, this rule does not specify the content of the right to strike. However, a minimum set of powers and guarantees, both individual and collective, should be recognized, including:

1. Powers

These include the right of workers and their collective representations to call a strike and to choose its scope, form, and objectives. The right to strike is also served by carrying out acts of support, assistance, or backing of the strike. These acts are all linked to the exercise of the right to strike and the rights afforded to it. Examples include meetings, advertising the strike, fundraising, etc.

Other powers entailed by the right to strike, from an individual standpoint, include the worker’s right to temporarily cease providing services without terminating the employment relationship. Additionally, this right prevents the employer from replacing striking workers by hiring other workers, recruiting labor through temporary employment agencies (ETT), using contracts and subcontracts, or mobilizing workers in higher grades, as long as the intention is to undermine the purpose of the strike. This prohibition does not apply when maintenance, safety, or minimum services are required.

2. Guarantees

The primary guarantee is the prohibition of the waiver of this right by the employee (Article 2 of RD 17/77). However, the involvement of workers’ representatives in not striking during a certain period is permitted, which is done through so-called labor peace provisions (included in collective agreements).

Similarly, workers or anyone who feels their right to strike has been violated may exercise legal actions. In particular, they can use the special labor process for enforcing fundamental rights and even initiate criminal proceedings for infringement of the right to strike, as provided for in Article 315 of the Penal Code.

Limits on the Right to Strike

The right to strike must be balanced with other rights and legally protected assets. Therefore, a series of limits are imposed on its exercise, including:

1. The maintenance of essential services and the establishment of minimum services.

This is imposed in Article 28.2 of the EC when it comes to ensuring the maintenance of essential community services. Essential services refer to those that seek to satisfy constitutionally protected rights or assets. However, they should not be confused with public services or with the maintenance and security services that must be established during any strike. Generally, essential services are provided through a public service, but they can also be provided through private initiative. Similarly, maintenance and security services differ from essential services, as the former only seek to preserve corporate assets and personnel safety.

In our legal system, essential services are the responsibility of public authorities, which have to protect them. Thus, Article 10.2 of RD 17/77 establishes the obligation for the governing authority to take necessary measures to ensure the functioning of essential services, which is done through the establishment of minimum services. These minimum services should initially be fixed by agreement with the interested parties, but if an agreement is not reached, they will be fixed by the governing authority, which has competence in the organization and operation of the public service. This authority must be impartial, setting minimum services in a reasonable and proportionate manner. Article 10.1 of RD 17/77 allows, in exceptional cases, for the government, at the proposal of the Ministry of Labor, to establish compulsory arbitration to end the strike, taking into account its duration, consequences, scope, the positions of the parties, and the serious harm to the national economy.

2. The order and security of the State

Organic Law 4/1981 on states of alert, emergency, and siege determines that during states of emergency and siege, strikes and any collective conflict measures may be prohibited. Similarly, Law 1/1992 on Public Safety grants powers to the competent authorities that may affect the development of the right to strike.

3. Prohibition of abuse and coercion

Actions that restrict the right to join or not join a strike are prohibited. Such actions may result in criminal and administrative penalties if carried out by the employer and criminal and labor penalties if carried out by the worker.

Procedure for a Strike

This procedure is provided by RD 17/77, establishing the following phases:

Phase 1: Preparation and Declaration

This phase usually begins with preparatory acts that attempt to report on the strike and the efforts being made to resolve it. Those authorized to call a strike may be the workers or their representatives, requiring a minimal correspondence between the conveners and the scope of the strike.

The call for a strike must be made in writing and communicated to the employer(s) concerned and the competent employment authorities. This communication should reflect the objectives of the strike, the efforts made to resolve the conflict, the composition of the strike committee, and the names of those involved. Five calendar days’ notice is required before the beginning of the strike, or ten days if it affects companies responsible for providing essential services. However, in cases of force majeure, the notice requirement may be waived.

Phase 2: Development

This phase establishes a number of duties to be fulfilled by the parties. Failure to comply with these duties renders the strike unlawful. These duties include:

  • Setting up a strike committee to manage the strike and attempt negotiation and conflict resolution. Committee members are designated by the workers or the conveners of the strike.
  • Ensuring the provision of maintenance and security services. Workers providing these services are designated by agreement between the employer and the strike committee. If an agreement cannot be reached and the strike is imminent, the employer may designate these workers, and this designation can be judicially reviewed.

Phase 3: Conclusion

The end of the strike can occur in various ways, including:

  • Abandonment or neglect.
  • Agreement between the parties.
  • Expiration of the stipulated period.
  • Exceptionally, through binding arbitration.

The call for termination corresponds to the conveners and does not require any specific formality.

Rating the Strike

Article 28.2 of the EC grants the legislature a wide margin to determine the permissible means of strike action. This is carried out by RD 17/77, which establishes two categories of unlawful strikes:

  1. Illegal strikes: Those that contravene the law.
  2. Abusive strikes: Those that are disproportionate and abusive.

As for illegal strikes, Article 11 of RD 17/77 incorporates several assumptions, including:

  1. Strikes for political or non-professional reasons.
  2. Solidarity strikes or strikes in support of other workers.
  3. Strikes aimed at altering an existing collective agreement.
  4. Strikes that violate legal requirements or those agreed upon in a collective agreement for their call.

Regarding abusive strikes, Article 7.2 of RD 17/77 determines that rotating strikes, strategic strikes, and intermittent strikes will be considered as such, unless proven otherwise.

Effects of a Strike

The effects of a strike vary depending on its rating. If the strike is legal, the legal effects are:

  1. Suspension of the employment contract.
  2. Deduction of wages for the duration of the strike. The salary deducted includes the wages for the days not worked, the proportional share of weekly rest days, profit sharing, bonuses, and overtime premiums for assistance.
  3. The absence due to a legal strike is not counted as missed workdays.
  4. The strike does not affect the duration of leave or additional breaks under the collective agreement.
  5. The striking worker is placed in a special high-purpose social security situation, which has the following effects:
  • The obligation to pay contributions continues.
  • The worker remains protected by the system, except for temporary disability and unemployment benefits.
  • The lack of contributions during the strike days does not affect their working life, i.e., the total count of their contributions. This is because, for unemployment benefits, these days are considered as contributed, and for other benefits, the technique known as “parentheses” is applied.

If the strike is classified as illegal or unlawful, the effects are different, as participation in it is punishable. Absences are considered as such and may even lead to dismissal if the breach is serious (Section 54 of the ET).

These absences are creditable for the purposes of dismissal for objective absenteeism (Section 52d of the ET). They also affect the pro-rata holiday entitlement and other complementary breaks. Regarding Social Security, the worker will not be in a special situation. Finally, financial liability may be required from workers who joined the strike to repair any damages caused.

The Lockout

This is a collective measure taken by employers, as contemplated in Article 37.2 of the EC when referring to other collective action measures. However, this lockout is not considered equivalent to the right to strike, nor is it a fundamental right. It is only admissible if it has a defensive nature, meaning it is used by the employer to preserve the assets of the productive activity, persons, and/or business premises. Therefore, it cannot be used as a means of pressure against workers.

Article 12.1 of RD 17/77 establishes three scenarios in which a lockout is permissible:

  1. When there is a clear danger of violence to persons or serious damage to property.
  2. When there is an illegal occupation of the workplace or a danger of this occurring, including cases of illegal eviction from the center.
  3. When the volume of absences or irregularities in work seriously impedes the normal production process. This assumption is interpreted strictly.

RD 17/77 provides that the lockout may affect a workplace, a part thereof, or the entire company. It must be adopted by the person with management powers, who must notify the labor authorities within 12 hours of its adoption.

The duration of the lockout will be for the time required to remove the causes that motivated it. The employer is obliged to reopen the center when these causes disappear. Failure to do so will result in administrative liability for the employer.

The effects of a legal lockout are the same as those of a legal strike. If the lockout is illegal, the employee retains the right to be paid and to be registered with Social Security.

Other Pressure Procedures

Article 37.2 of the EC grants the legislature a wide margin to cover other collective action measures. Thus, RD 17/77 addresses these further measures, in many cases declaring them unfair. Examples include “work-to-rule” strikes or collective changes in working arrangements to avoid a strike (Article 7.2 of RD 17/77).

This presumption is to be interpreted restrictively, as workers can prove otherwise. Finally, pickets, in cases of conflict, are covered within the right to strike, provided they have advertising purposes and are peaceful.