It is clear from various regulations approved over the last few years, that the role of labor unions in collective bargaining has been given a significant boost. Indeed, when addressing the subject of representative committees during consultation periods, legislation has given the most representative unions in the sector to which the company belongs a leading role.
In this regard, article 23 of Royal Decree-Law 8/2020, of March 17, 2020, on extraordinary urgent measures to confront the economic and social impact of COVID-19 stated that if there are no workers’ statutory representatives at the workplace, the representative committees that will negotiate the consultation period will be comprised of one person from each of the most representative labor unions in the company’s sector, with standing to form part of the negotiating committee of the applicable collective labor agreement. Thus, only in those scenarios in which the committee cannot be assembled with those representatives, it will be made up of three workers from the company, chosen according to the provisions of article 41.4 of the Workers’ Statute.
A similar reference is made in subsequent laws, such as Royal Decree-Law 10/2020 of March 29, 2020 and ensuing Law 10/2020, of March 29, 2020 regulating recoverable paid leave for employees that do not provide essential services, aimed at reducing the mobility of the population in the context of the fight against COVID-19. Specifically, article 3 of this law, again requires companies to give priority to the most representative unions in the sector if they do not have works committees or workers’ delegates.
In this blog we published a post in which we reviewed the Supreme Court judgment of January 26, 2021 which declared invalid the equality plan that had been registered with a committee made up of five workers appointed by the company. Said article referred to the provisions of Royal Decree 901/2020, of October 13, 2020 regulating equality plans and their registration, which establishes the same legal solution when it comes to setting up the negotiating companies at companies that do not have workers’ statutory representatives.
As can be seen, provisions regarding the need to set up a committee with the most representative labor unions in the sector are practically identical in all the laws we have referred to.
Businesses therefore face a scenario in which not having workers’ statutory representatives makes it difficult to create the negotiating committee in certain collective processes and opens direct negotiations with labor union organizations. In addition, the absence of workers’ representatives at the company can become a trap, since it causes it to become unionized in certain circumstances.
In any event, we must bear in mind that companies are not authorized to call elections to choose workers delegates and members of works councils, since only the most representative union organizations can do this, those with a minimum of 10% of representatives in the company and by majority vote of the workers at the relevant work center.
