The shielding of the autonomous agreements will benefit the workers, but predicts legal insecurity and
Since last Tuesday, Regional collective agreements are protected from state agreements. This has been decreed by the Government, which agreed with the PNV to give priority to these agreements over those of national scope to invest Sánchez. This is a technical change in labor regulations that has gone somewhat unnoticed, but has the potential to define the working conditions of almost 12 million workers. In principle, the change should be beneficial for workers. The wording of the decree makes it clear that priority will only be given to regional regulations when state regulations improve. However, The norm raises doubts among jurists and unionswho see clear problems of interpretation and predict more labor conflict.
The rule It will hardly have short-term effects on the daily lives of employees., agree the experts consulted by this newspaper. Before the change, sectoral, regional and provincial agreements already coexisted in some communities. “It does not represent a change in conditions from yesterday to today,” says Ana de la Puebla, professor of Labor Law and Social Security at the Autonomous University of Madrid (UAM), in conversation with 20 minutes. “It is not a drastic alteration of the system in force until now”adds, for his part, José Manuel Mateo, partner of Labor at Garrigues.
Another element that suggests that the benefits will be limited is that the Ministry of Labor has left certain matters outside the protection of the regional agreements. Agreements at this level they cannot touch crucial issues such as the length of the working day, trial periods or types of contracts that apply in the sector. Furthermore, it must be taken into account company agreements continue to have priority with respect to sectoral ones, except in matters such as salary, as long as that of the sector is better.
The effects will begin to be seen more in the medium and long term, when unions and employers begin to wonder which agreement to refer to when agreements of different levels overlap. And defining it does not seem like an easy task. Spanish labor legislation has a devilish hierarchy when it comes to deciding which agreement must be applied, which is now becoming more complicated.
When there is no company agreement (this is the case in 88% of cases), the one that applies is the sectoral one. The situation may arise that, for the same sector, there is a provincial agreement, another regional agreement and another state agreement.. In this case, the regional agreement would be applied over the state agreement whenever it is more favorable. However, there is also the possibility that a provincial agreement (the most common) has priority over a state one, as long as it is defined in agreements at the regional level.
But, in addition, the paradox could arise that a provincial agreement that is less favorable than a regional agreement is applied above it. A convoluted system that refers to that “the contracting party of the first party”, of the famous sketch of the Marx Brothers.
More visits to the courts
To make matters worse, another difficulty is added to this complicated hierarchical order. How is it decided that one agreement is more favorable for the worker than another? There are two options: you can compare each agreement article by article and apply only the most favorable ones or you can make a complete interpretation of each text. This issue will have to be resolved in court, but the jurists consulted by this newspaper lean towards the second option, much more subjective.
José Manuel Mateo, from Garrigues, predicts that when there are overlaps “Interpretive conflicts will occur in cases in which the collective agreement ‘improves’ certain conditions of the state agreement but, however, worsens others.” Pedro Llorente, Labor advisor of Cuatrecasas, agrees with this vision, who believes that the Government decree “can lead to an increase in judicial procedures to determine the applicability of one agreement or another”.
“I predict much more litigation, conflict and more legal uncertainty”For his part, Fernando Luján, deputy general secretary of union politics at UGT, points out to this newspaper. For Luján, the standard is “technically deficient” something that he attributes to the fact that unions and employers have not been consulted, which has generated significant discomfort in their ranks. The union’s position is not contrary to the existence of regional or provincial agreements, Luján clarifies, but
Towards an autonomous negotiation?
The consequences will be seen as regional and provincial agreements proliferate after having been shielded from national ones. The incentives for collective bargaining to move at the regional level increasewhich especially benefits communities in which regional unions are the majority, as is the case of the Basque Country or Galicia.
“There are autonomous communities that have the possibility of negotiating better agreements and others that do not.” They can negotiate agreements because they do not have legitimate subjects or they do not have it so easy,” says Ana de la Puebla, professor at the UAM. This could cause the autonomous gap that exists in the working conditions of workers to widen, which would be better in communities where regional unions are most powerful.
The paradox can also arise that two workers from the same company and with the same position, but who carry out their work in workplaces in different communities, have different working conditions (better salaries, more vacations…). This would make human resources management and the application of labor policies become more difficult for companies, adds Llorente, from Cuatrecasas.
Likewise, the priority that has just been given to regional agreements has potential to put the focus of collective bargaining on the autonomous community or the province. “It could happen – we’ll see if it comes true – that business associations consider gradually abandoning the negotiation of national agreements and focus on regional agreements,” concludes José Manuel Mateo, from Garrigues.
