Negotiating Committee for Equality Plans

How the Equality Plan Negotiating Committee is formed

in accordance with Article 5 of Royal Decree 901/2020, of 13 October, which regulates equality plans and their registration, and amends Royal Decree 713/2010, of 28 May, on the registration and filing of collective agreements and collective labour accords, a Equality Plan Negotiating Committee must be established. In doing so, account must also be taken of the provisions of the collective bargaining agreement and Articles 45 and 46 of Organic Law 3/2007, of 22 March, on the effective equality of women and men.

Written by Josep Conesa

Employment and insolvency lawyer

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HOW TO ESTABLISH THE EQUALITY PLAN NEGOTIATING COMMITTEE

Article 45 of Organic Law 3/2007, of 22 March, on the effective equality of women and men provides that the company must negotiate, or where applicable reach agreement, with the employees' legal representatives in the manner set out in employment legislation.

In some cases, companies have no employee representatives. One might assume it would be possible to rely on the provisions of Article 41.1 of the Workers' Statute to appoint members of the Negotiating Committee. However, the ruling of the Supreme Court of 26 January 2021 (case 50/2020) has established that it is not possible to create an ad hoc commission (set up specifically for that purpose) to negotiate an Equality Plan. This ruling confirms an earlier finding by the National Court of 10 December 2019 (case 163/2019), which declared an equality plan null and void on the grounds that a commission constituted under Article 41 had no standing to negotiate an Equality Plan.

Contact us to find out how to organise employee representative elections in your company:

Composition of the Equality Plan Negotiating Committee

The Equality Plan Committee must be composed on a parity basis, with equal representation from the company and the employees. On the employees' side, it must be made up of members of the works council, staff delegates where applicable, or trade union branches where they exist, provided that, taken together, they represent a majority of the works council members.

HOW TO CONSTITUTE THE EQUALITY PLAN NEGOTIATING COMMITTEE ACROSS MULTIPLE WORKPLACES

Article 5.3, second paragraph, of Royal Decree 901/2020 provides that, where some workplaces have the legal employee representation referred to in paragraph 2 and others do not, the employee side of the Equality Plan Negotiating Committee shall be made up of two components: on one hand, the legal representatives of employees at workplaces that have such representation, in accordance with the terms set out in paragraph 2, and, on the other hand, a trade union commission constituted in accordance with the provisions of that same article, representing employees at workplaces that do not have such representation.

Maximum number of members on the equality plan negotiating committee

In this case, the negotiating committee shall comprise a maximum of thirteen members on each side.

How to negotiate the equality plan when there are no employee representatives

Where the company has no employee representatives, the Equality Plan Committee must be made up:

• of the most representative trade unions and the representative trade unions of the sector to which the company belongs, provided they have standing to sit on the negotiating committee of the applicable collective bargaining agreement.
• that union committee shall be validly constituted by whichever organisation or organisations respond to the company's invitation within ten days.
  

How to negotiate the equality plan if no trade union responds to the company's invitation

In practice, it is now rare for trade unions not to respond to such an invitation, since companies with more than 50 employees are of considerable interest to unions (in terms of membership, visibility, sector-level bargaining, equality policies, and so on).

Nevertheless, it does happen — and quite frequently — that companies have no employee representatives at all. One might consider applying the procedure set out in Article 41.1 of the Workers' Statute to appoint members to the Negotiating Committee. There are even rulings such as STS 1535/2014, ECLI:ES:TS:2014:1535, from which it might be inferred by analogy that such a committee would be legitimate — however, more recent case law, including the ruling of the Supreme Court of 26 January 2021 (appeal 50/2020), has established that an equality plan is null and void if it has been negotiated by an ad hoc committee set up specifically for that purpose (confirming an earlier position taken by the National Court on 10 December 2019 (appeal 163/2019), which declared an equality plan null and void on the grounds that a committee constituted under Article 41 had no standing to negotiate an Equality Plan).

Publishing the equality plan without trade union representatives

The reality in Catalonia, however, is that when you attempt to register an equality plan, the labour authority will not accept it if it has not been negotiated with trade unions — requiring you to file an appeal and bring a claim before the court if you wish to proceed without the duly convened unions. This is the case paradoxically, despite the aforementioned ruling of the Supreme Court, and other rulings such as the High Court of Justice (TSJ) of Madrid, ruling 683/2023 or ruling 180/2023, of 25 January 2023.

In our view, an equality plan that has not been negotiated in the manner prescribed by law could ultimately be declared null and void — but when reality leaves no other option: "qui dies passa anys empeny" (roughly: time waits for no one), as we say in Catalonia. The consequence of nullity is that, sooner or later, the plan will have to be renegotiated with the legitimately entitled representatives. In the meantime, however, the company does at least have an equality plan negotiated with its employees.

That said, having to negotiate an equality plan twice is never a welcome outcome.

Get in touch if you need assistance with proceedings before the Negotiating Committee of the collective bargaining agreement in your company:

How many members can the equality plan committee have?

In this scenario, the committee shall be composed of a maximum of 6 members representing the company, and a maximum of 6 members representing the employees (including representatives from all legitimately entitled trade unions).

Where some workplaces have employee representation and others do not, the Equality Committee shall be composed of a maximum of 13 members on each side. The employees' side shall include representatives from the company at the workplaces that have them, together with the trade unions legitimately entitled under the collective bargaining agreement for those workplaces without representation.

POWERS OF THE EQUALITY PLAN NEGOTIATING COMMITTEE

1. Negotiating and drawing up the  diagnostic assessment, as well as negotiating the  measures to be included in the plan.
2. Preparation of the diagnostic results report.
3. Identification of priority measures, in the light of the diagnostic findings, their scope of application, the material and human resources required for their implementation, the individuals or bodies responsible, and a timetable for action.
4. Driving the implementation of the equality plan within the company.
5. Defining the measurement indicators and information-gathering tools needed to monitor and evaluate the degree of compliance with the equality plan measures implemented.
6. Any other functions that may be assigned by applicable legislation or the collective bargaining agreement, or agreed upon by the committee itself, including submission of the approved equality plan to the competent labour authority for registration, deposit and publication.
7. Promoting the first staff awareness and sensitisation actions.
8. The committee may adopt its own internal rules of procedure.

Obligations of the Equality Plan Committee

• During the negotiation process, it is mandatory to keep minutes of each meeting, which must be approved and signed, with each party's statements recorded where necessary.
• The parties must negotiate in good faith.
• They must seek to reach an agreement, which will require approval by the company and by a majority of the members of the Equality Plan Committee.
• Any agreement reached must be formalised in writing and signed by the negotiating parties.
• The minutes recording the equality plan agreement must be submitted to the competent authority for registration, deposit and publication.
• Members of the Equality Committee have the right to receive the necessary information from the company, subject to the confidentiality obligations established under the Workers' Statute.
• Members of the negotiating committee shall have the same rights and obligations as those who negotiate collective bargaining agreements.

How to choose company representatives for an equality plan

For companies with 50 or more employees, representation is through a works council of 5 members, in accordance with Article 62 of the Workers' Statute. 

Find full information on trade union elections at this link

Template minutes for the establishment of the negotiating committee for the company equality plan

Like many Negotiating Committees, this one may adopt internal rules to govern its proceedings. Download, free of charge, a template set of Rules of Procedure for an Equality Plan Negotiating Committee, in case it proves useful:

How to create an equality plan

We provide you with all the information you may need to draw up a company equality plan, along with possible measures to implement.

company equality plan link

NEGOTIATION of the equality plan with the negotiating committee

• Both the diagnostic assessment and the equality plan must be negotiated with the workers' representatives.
• The Negotiating Committee must be constituted on a parity basis.
• Where no workers' representation exists, a committee must be formed comprising the company's representatives and the most representative trade unions in the sector, on a proportional basis or from those unions that respond within 10 days, with a maximum of 6 members on each side of the table, or 13 where the company has workplaces both with and without workers' representatives.
• The negotiating committee may receive support and external advice from specialists in gender equality in the workplace, who may participate with speaking rights but without voting rights.
• The committee must be composed of a balanced representation of women and men, with training or experience in workplace equality matters. One option is to train them as equality agents.
• Minutes shall be drawn up for each meeting.
• The agreement must be approved by the company's representatives and a majority of the workers' representatives, and must be registered with the Labour Authority.
• If no agreement is reached, the matter must be referred to the Joint Committee of the collective bargaining agreement, or to the autonomous dispute resolution body (the Labour Tribunal in Catalonia).
• Committee members shall be entitled to access all information and documents necessary for the implementation of the equality plan, and shall be subject to the same duty of confidentiality as is required of workers' representatives.