The Supreme Court has held, in a judgment of January 26, 2021, that the equality plan negotiated with a committee of five workers appointed by the employer itself is null and void.

In the case analyzed, the Labor Chamber of the Supreme Court affirms in a cassation appeal the ruling of the Central High Court which, upholding the claim filed by a labor union, declared void the equality plan unilaterally drawn up by the employer and obliged the company to commence immediately the negotiation of a new plan.

The employer argued that there was an equality plan drawn up in 2010 to avoid the negotiation of a new one, attempting to offer as justification the fact that the plan had been made with an ad hoc committee since it had not been possible to negotiate it with the employee representatives.

The Supreme Court considers that the negotiation of equality plans must be necessarily undertaken by persons authorized to negotiate collective agreements at company level, and it is not possible to unilaterally impose or replace employee or labor union representatives with an ad hoc committee. Negotiation through this type of committees is permitted by Parliament, when there are no elected employee representatives, for certain internal and external flexibility measures (geographical mobility, collective substantial modification of employment conditions, suspension of contracts, reduction of working hours, collective layoff and nonapplication of collective agreement), but such ad hoc representation cannot be used for the negotiation of collective agreements.

Furthermore, in the case at hand, the employer signed the equality plan with a committee of five workers appointed by the employer’s own human resources management. Therefore, it could not even be considered an ad hoc committee, since for this purpose it should have been elected by the workers of the centers without representation, and in this case it was appointed by the employer itself, clearly showing that it never had any intention to negotiate the plan, but rather to impose it unilaterally, which contravenes the provisions of Law 3/2007, of March 22, for the effective equality of women and men and justifies the declaration of nullity of the equality plan.

In any event, we must mention that the recent Royal Decree 901/2020, of October 13, regulating equality plans and the registration thereof, has expressly specified that, for the negotiation of equality plans at companies where there are no elected employee representatives, a negotiating committee must be created consisting of, on the one hand, the employer’s representatives and, on the other hand, representation of the workers, formed by the most representative labor unions and by labor unions representing the sector to which the company belongs that are entitled to form part of the negotiating committee of the applicable collective agreement.

However, the new legislation contains no provision regarding what happens if, when the labor unions have been invited, they fail to accept that invitation and refuse to negotiate.

Would it be possible, in that case, to engage in negotiations with an ad hoc committee?

In the absence of a new statutory provision addressing this scenario, it will be the labor courts that will rule again on the feasibility of these ad hoc committees under the new equality legislation.