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All workers have the right to join trade unions freely, in order to promote and defend their economic and social interests. They also have the right to participate in the company through the representative bodies regulated under the Workers' Statute.
Written by Josep Conesa
Employment and insolvency lawyer
Through a collective bargaining agreement and via the role of the Personnel Delegate, workers and employers may negotiate working conditions and productivity standards, as well as regulate industrial peace through the obligations they agree upon.
ELECTION OF REPRESENTATIVES:
The following parties are entitled to call elections within the company:
· The most representative Trade Union Organisations.
· Those holding at least 10% of Personnel Representatives.
· The workers at the workplace, by majority agreement.
All workers, whether nationals or foreign nationals, employed at the workplace may participate in the elections; however, different requirements apply depending on whether the employee is acting as a voter or as a candidate.
The following workers are entitled to vote for Personnel Delegates or members of the company Committee:
· Workers aged 16 or over.
· With more than one month's seniority with the company.
Workers who may stand for election as representatives must meet the following criteria:
· Aged 18 or over.
· With at least six months' seniority with the company.
· Nominated by one of the most representative Trade Unions, or by a number of eligible voters at their workplace equal to at least three times the number of positions to be filled.
The term of office shall be four years, and may be extended if no new elections are called upon its expiry.
A workers' assembly, convened by at least one third of those who elected the representatives, may revoke their mandate by an absolute majority vote in favour.
In the event of an increase in headcount, a partial election may be called to adjust the number of representatives accordingly. Conversely, in the event of a reduction in headcount, the elected representatives retain their rights until the end of their term.
EMPLOYEE REPRESENTATION WITHIN THE company:
The number of trade union representatives depends on the number of employees, so it is necessary to assess the workforce size at the relevant workplace at the time the electoral process begins.
The following employees are counted, based on their contract type:
· Standard permanent contract
· Permanent seasonal contract
· Fixed-term contract of more than one year
The number of representatives within the company is determined as follows:
| NO. OF EMPLOYEES | NO. OF REPRESENTATIVES |
| 6 to 10 | 1 Delegate (optional) |
| 11 to 30 | 1 Delegate |
| 31 to 49 | 3 Delegates |
| company Works Council | |
| 50 to 100 | 5 Council members |
| 101 to 250 | 9 Council members |
| 251 to 500 | 13 Council members |
| 501 to 750 | 17 Council members |
| 751 to 1,000 | 21 Council members |
| Over 1,000 | 21 members plus 2 additional members per 1,000 employees. (maximum 75 representatives) |
RIGHTS OF EMPLOYEE REPRESENTATIVES:
The powers and rights are identical for both employee representation bodies, Personnel Delegates and Works Council members:
· They shall be entitled to the corresponding allocation of paid hours to carry out their representative functions.
· They may not be dismissed, disciplined, or discriminated against in their economic or professional advancement if the disciplinary action or dismissal is based on their representative role.
· They shall have priority of retention within the company over other employees in the event of contract terminations on organisational or economic grounds.
· They must receive information at least quarterly on: the conclusion of new contracts; the general performance of the economic sector to which the company belongs; and the entity's production and sales figures.
· They shall receive information on all disciplinary sanctions imposed for serious misconduct.
· They shall negotiate with the company's management any proposed modifications to working hours set out in the applicable agreement, as well as agreeing the month in which the summer extra payments is paid.
· They shall have 15 working days to issue a report, prior to implementation by the company, on decisions adopted regarding: workforce restructuring; reductions in working hours; relocation of premises; the introduction of incentive schemes; and the company's vocational training plans.
· They shall monitor compliance with current legislation on employment, Social Security, and labour matters, and where appropriate take such legal action as may be required before the employer and the competent courts.
· They shall oversee health and safety conditions in the workplace. They may require the company to adopt safety measures where they identify a serious and imminent risk of accident arising from non-compliance with applicable legislation.
· Representatives may report the company if it fails to comply with the required safety measures within 4 days. Alternatively, they may order a work stoppage where the risk is imminent.
EMPLOYEE REPRESENTATIVES IN THE CONTEXT OF COLLECTIVE BARGAINING AGREEMENTS:
collective bargaining agreements are the expression of agreements freely reached by employee representatives and employers, by virtue of their collective autonomy, for the purpose of regulating working conditions and productivity. For the duration of their validity, they are binding on all employees and employers within their scope of application.
Certain matters are subject to mandatory regulation and must always be included by the parties concluding the Agreement:
1.- Personal scope of application; that is, the categories of workers covered by the Agreement.
2.- Functional scope; referring to the company or productive sector affected.
3.- Territorial scope; national, inter-provincial, autonomous community, provincial or lower level.
4.- Temporal scope; that is, the period for which it is agreed and the date of entry into force.
To be valid, collective bargaining agreements must be formalised in writing, failing which they shall be null and void.
Where they are not bound by another Agreement, the parties entitled to negotiate may, by mutual consent, accede in full to an existing collective bargaining agreement. The Ministry of Labour and Social Affairs may extend a collective bargaining agreement in force to companies and workers where there is particular difficulty in negotiating, or where social or economic circumstances of notable significance arise.
Entitlement to negotiate:
* Agreements at company level or below:
These may be negotiated by employers or their representatives together with the Works Council, Staff Delegates or trade union representatives, where they exist. (Where the Agreement covers all workers in the company, trade union representatives must collectively hold a majority of the seats on the Works Council.)
* Agreements covering a scope wider than a single company:
Trade unions recognised as most representative at national level, within their respective scopes.
For agreements whose scope does not exceed that of an Autonomous Community (Spain's regional tier of government), trade unions recognised as most representative at the level of that Community.
Trade unions holding a minimum of 10% of the seats on the Works Council or among Staff Delegates within the geographical or functional scope of the Agreement.
Employers' associations representing a minimum of 10% of employers within the geographical and functional scope of the Agreement.
