Article 84.1 of the Workers’ Statute establishes that: “while a collective labor agreement is in force, unless agreed otherwise, it cannot be affected by the provisions of collective labor agreements with a different scope of application”. This provision essentially prohibits encroachment by collective labor agreements. Therefore, while a collective labor agreement is in force, it will not be possible to establish another agreement that may coincide in scope with it, not even partially, which is commonly known as concurrent conflict.
In practice this can mean that when a sectoral collective labor agreement is very broad and covers various subsectors, they cannot be broken away from the broader industry while the collective labor agreement regulating it is in force.
This leads to a considerable practical problem. Think, for example, of economic industries which are sufficiently important and mature as to constitute their own scope of bargaining, but which have traditionally fallen within much broader sectors, comprising other subsectors with which they have little in common. Let us recall, for example, the large economic industries with sectoral collective agreements such as construction, metal, the chemical industry, farming, etc. According to this rule, the subsectors included in those sectors cannot break away and form their own entity as long as the broader sectoral agreement is in force.
However, before the 2012 labor reform, this prohibition had an exception that permitted a degree of dynamism in collective bargaining and required those broader units to make their bargaining more flexible, given that, during the extended validity, the agreements did not have an ordinary validity and, therefore, other sectoral agreements with concurrent conflict could be bargained. In essence, the Supreme Court considered that during extended validity, the validity of the agreement was limited, in the absence of agreement, to the validity of the substantive clauses, not to the contractual clauses, so this validity could not limit the right to bargain of other partially concurrent scopes, while no agreement was reached in the broader scope.
However, this approach has changed in light of the current wording of article 86.3 of the Workers’ Statute. In effect, the extended validity regime has not only changed as regards the limitation on its duration save for an agreement to the contrary, but also as regards the nature of the validity of the agreement during the bargaining period.
In this respect, article 86.3 provides that, during the bargaining to renew a collective agreement, in the absence of agreement, it will remain valid, without distinguishing between contractual and substantive clauses.
This new wording has meant, as first understood by the National Appellate Court in is judgment of March 6, 2014 and subsequently by the Supreme Court in its judgment of December 30, 2015, ratifying the former, that, with the reform of this article, the validity of collective agreements during extended validity is ordinary and, therefore, not even agreements with coinciding concurrent scopes can be established in such period, even if the parties signing the lesser scope agreement have signed a collective agreement that is considered to be a Workers’ Statute-based collective agreement.
This was acknowledged by the National Appellate Court in its recent judgment of April 24, 2017, when it stated, echoing the above-mentioned post-labor reform approach, that while a superior bargaining scope remains in place, other subsectors cannot spin off from it without the consent of the broader bargaining unit that was originally created.
In practice, this implies a petrification of the traditional bargaining sectors, which can veto the generation of new more specific bargaining sectors at their sole discretion, given that if the former decide to equip themselves with an extended validity that is broader than the one limited to one year by the Statute, it will be really difficult in practice to set up those specialized bargaining units as long as the original one remains in place, even if the bargaining in such unit is reduced to agreeing on extensions of the agreement, without no greater bargaining substance.
Garrigues Labor and Employment Law Department
