A recent judgment clears the way for employers to carry out the equality plan process without needing to negotiate it with the workers’ representatives where no response has been received from the union in the specified period.
Since January 13, 2021, employers have been required to fully comply with the new equality obligations, following the entry into force of Royal Decree 901/2020, on equality plans and their registration.
Among these obligations is the need to have an equality plan that has come out of negotiations with the workers’ legal representatives. To do this, without precluding the provisions in the collective labor agreement, a negotiating committee has to be set up which has to have an equal number of members from the employer’s and the workers’ representatives.
In the specific case where the employer has statutory workers’ representatives, this does not pose any doubts. Otherwise, however, the legislation itself requires the participation of branches of the most representative unions in the industry.
Having reached this point, a number of doubts have been arising in cases where, after notification by the employer of its intention to negotiate an equality plan, no response to this is received from the union.
Until now, we had the supreme court judgment of January 26, 2021, which rendered null and void an equality plan negotiated with a committee formed with five workers appointed by the employer itself. In this specific case, the Supreme Court determined that the negotiation of equality plans must necessarily be undertaken by the parties with standing to negotiate company-wide collective labor agreements, and that neither unilateral imposition nor replacing individual or union workers’ representatives with an ad hoc committee were allowed.
However, in spite of the existence of that decision, the truth is that the doubt remains as to how to carry out those negotiations where the parties with standing to do so are the unions and they do not respond to the employer’s notification to start negotiations.
That uncertainty appears to have started to be dispelled following the recent judgment delivered by Andalucía High Court on January 25, 2023, in which it clarifies whether, after a request has been made by the employer to the unions with standing to negotiate the equality plan no response is received by the employer within the ten-day period specified in article 5.2 of Royal Decree 901/2020, the employer may continue with the process of preparing the equality plan or it is required to obtain that response before being able to perform its legal obligation.
That judgment determines that, in the absence of a response from the union, the employer could continue with the specified legal process for approval of the equality plan without having to send successive requests until they agree to sit on the negotiating committee since, from one angle, what the law requires is for the unions to be given the chance to participate in the negotiations for the plan and, from another, any interpretation to the contrary would mean making the performance of an employer’s obligation (the need to prepare and implement an equality plan) subject to a third party’s decision; in other words, it would make it necessary to conclude that the absence of a response from the unions is sufficient to prevent performance of the employer’s obligation, with the consequences that this may have for the employer.
While this court decision has to be borne in mind, it also has to be taken into account that it will probably be one of many that will be delivered on this subject, in view of the absence of clear regulations in this respect.
Garrigues Labor and Employment Law Department
