In this article written by Albert Perez, employment lawyer, we examine the main grounds for nullity in the collective bargaining of Equality Plans. Contact our specialist if you need assistance with the drafting of an Equality Plan:
Written by Albert Perez
Employment law adviser
CAN EMPLOYERS AVOID NEGOTIATING EQUALITY PLANS WITH EMPLOYEE REPRESENTATIVES?
Failure to negotiate an Equality Plan with the company's works council is a ground for nullity, regardless of the circumstances — including situations where there are no employee representatives. In such cases, the obligation is to negotiate with the most representative trade unions at national level.
This has been established by the courts in rulings such as the following:
• Supreme Court, Fourth Chamber (Social Division), ruling 303/2022 of 5 April 2022, Appeal No. 99/2020
In this ruling, the Supreme Court declared an Equality Plan null and void on the grounds that the company had failed to take into account the majority trade union, had not negotiated with it, and had adopted the plan unilaterally. The case is particularly noteworthy because collective bargaining did in fact take place — however, it involved a group of companies, some of which had no trade union representation. The court held that the plan could not be approved on this basis, since even though negotiations had occurred, certain companies lacked representation. The court reasoned as follows:
"3.- In this regard, since collective bargaining is an indispensable part of the process of drawing up an equality plan, there is no doubt that it constitutes a form of trade union activity that must be regarded as fundamental and decisive in shaping measures of all kinds aimed at achieving the objective of genuine equality between women and men that is inherent in the plan. It is therefore clear that such trade union bargaining activity forms part of the essential content of the right to trade union freedom, as defined in Article 6.3.b) of the Trade Union Freedom Act (LOLS), since collective bargaining is the primary and basic instrument of trade union activity. Collective bargaining encompasses not only the strictly subjective dimension of trade union freedom in relation to the union concerned — insofar as any unjustified interference with, deprivation of, or restriction on that freedom constrains or limits the union's means of action — but also extends to the union in its capacity as an institutional representative body which is constitutionally recognised as defender of certain interests (Constitutional Court rulings 3/81, 70/82, 75/92, 18/94 and 107/00, among others). There can therefore be no doubt that the right to trade union freedom, in its dimension as the right to collective bargaining, of the claimant union was violated by the respondent entities, which unilaterally implemented the Equality Plan, bypassing negotiation with the claimant union."
Negotiating an equality plan without employee representatives present:
RULINGS THAT DO ALLOW AN EQUALITY PLAN WITHOUT THE PARTICIPATION OF EMPLOYEE REPRESENTATIVES
Although as a general rule the absence of employee representatives constitutes grounds for nullity, there are also rulings that reach the opposite conclusion — namely, that an Equality Plan may be adopted without being negotiated with employee representatives.
This is the position taken in the ruling of the High Court of Justice of Madrid (Social Chamber) in a ruling handed down on 24 February (178/2023).
This ruling concerns a case in which a company had no employee representatives and consequently reached out to the most representative trade unions in Spain — UGT and CCOO. The company demonstrated that it had made repeated and persistent attempts to contact both unions. UGT did not respond, while CCOO stated that it would be unable to attend the negotiations due to prior commitments. Having established this clear intention to engage, the court found that no further steps could reasonably be required of the company, and permitted it to adopt the equality plan:
"it is clear that the company is powerless to constitute the negotiating committee for its equality plan, given that it has no legal employee representation and that those called upon to substitute them for this purpose, in accordance with Article 5.3 of Royal Decree 901/2020 — namely, the most representative trade unions and the sector-level representative unions with standing to form part of the negotiating committee of the applicable collective bargaining agreement — have declined to join that committee. The company cannot therefore be required to remove obstacles that are not within its power to eliminate, and there is nothing further it can do to bring about the constitution of that Committee."
What happens when an equality plan is not negotiated with the appropriate committee?
This ruling of the Supreme Court, Fourth Chamber (Employment Division), 403/2017 of 9 May 2017, Appeal 85/2016, is an interesting case in that it declared an equality plan null and void even though it had been negotiated with the company's works committee — because that committee was not the only one in existence.
The equality plan had been negotiated at a company with more than 1,250 employees, but 35 employees at a Barcelona workplace were not represented in the negotiations, as the negotiating committee represented the entire company with the exception of those 35 employees, who had their own separate committee. The court held that, since not all employees were represented in the negotiations, the equality plan was invalid.
Find out how the equality plan negotiating committee is formed
Can a trade union challenge an equality plan if it has no connection with the company?
Yes, it can:
• Supreme Court, Fourth Chamber (Employment Division), ruling 303/2022 of 5 Apr. 2022, Appeal 99/2020
• Supreme Court, Third Chamber (Administrative Division), Section 3, ruling 383/2022 of 28 Mar. 2022, Appeal 359/2020
The Supreme Court has recently addressed this issue, establishing that, under Article 17.2 of the Law Regulating Social Jurisdiction, trade unions are recognised as having the right to challenge an already-approved equality plan, as they are entitled to bring collective dispute proceedings in defence of the right to equality and equal treatment between women and men.
Can THE MOST REPRESENTATIVE TRADE UNIONS participate in collective bargaining even if they have no direct link to the company?
Yes, they can, as established by the following rulings:
• Supreme Court, Fourth Chamber (Social), ruling 303/2022 of 5 April 2022, Appeal 99/2020
• Supreme Court, Third Chamber (Administrative), Section 3, ruling 383/2022 of 28 March 2022, Appeal 359/2020
Does THE PARTICIPATION OF THE MOST REPRESENTATIVE TRADE UNIONS breach employees' data protection rights?
Supreme Court, Third Chamber (Administrative), Section 3, ruling 383/2022 of 28 March 2022, Appeal 359/2020 held that no breach of data protection rights occurs, even where the members of the negotiating commission are the most representative trade unions. The court took the view that granting access to potentially sensitive personal data is a direct consequence of the legal framework established by Organic Law 3/2007, since it is impossible to develop an equality plan aimed at changing an existing situation without first understanding what that situation actually is within the company.
In this regard, the Supreme Court stated the following:
"But, aside from these reasons, and even if one were to consider that the composition of the commission indirectly contributes to the infringement alleged — insofar as it would allow its members to obtain personal data without sufficient legal basis — this ground would be intrinsically linked to the question of the commission's proper composition. For if it is considered lawful for the most representative trade unions to form part of that negotiating commission, then the disclosure of the documentation necessary for them to fulfil their assigned function — namely, the diagnosis of the situation and the drawing up of the equality plan — is a direct consequence of the legal provision set out in Article 46.2 of Organic Law 3/2007 of 22 March on the effective equality of women and men, which provides that "The diagnosis shall be drawn up within the Equality Plan Negotiating Commission, for which purpose the management of the company shall provide all data and information necessary to prepare it in relation to the matters listed in this section, as well as the data from the Register regulated in Article 28, paragraph 2 of the Workers' Statute". This legal provision is developed by the contested Royal Decree, pursuant to the delegation expressly made for that purpose by Article 46.6 of Law 3/2007 ("the diagnosis, content, subject matter, pay audits, and monitoring and evaluation systems of equality plans shall be developed by regulation [...]")."
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