Term of extended validity and absence of a broader collective bargaining agreement
As we mentioned here, one of the features of the 2012 labor reform was the new system of collective bargaining agreement extended validity. We (and many others) also highlighted the fact that the change in legislation would bring about a number of legal interpretation issues that would ultimately have to be resolved by the Supreme Court.
The Supreme Court judgment of December 22, 2014 (made public on January 23, 2015) deals with one of such issues: how to determine the legal regime applicable to the labor relations governed by the agreement after a term of extended validity, in the absence of a broader collective bargaining agreement.
This is the issue analyzed by the Supreme Court and none other. Specifically, the judgment neither upholds nor overrules the doctrine of the National Court (judgments dated June 23 and November 19, 2013), which states that the provisions of collective bargaining agreements prior to the labor reform stating that they shall remain in force until a new agreement is signed are the same as agreements to the contrary regulated by article 86.3 of the Workers’ Statute (“WS”) to extend the term of validity (also discussed here).
The conclusion reached by the Supreme Court in relation to the issue analyzed by the judgment and discussed below is so original that it was worthy of the following reproach, amongst others, by one of the dissenting judges (with which four judges agreed): “what is unacceptable is to build a case ad casum to reach the desired solution, at the expense of the law itself”.
The (majority) decision reached by the Court in the case of the expiry of extended validity in the absence of a broader collective bargaining agreement was:
- The individual contractual link of the workers subject to a collective bargaining agreement whose extended term of validity has expired will continue to include the rights and duties established therein. This is not because they are contractualized from the collective bargaining agreement as a result of the expiry of the extension, but rather because they form part of the labor relationship from the very beginning, as mutually agreed by the parties, notwithstanding the changes that may have taken place in the agreement, based on the unbroken chain and the role of collective bargaining agreements in upholding the law.
- The kept contractual conditions may be amended pursuant to the provisions of article 41 WS (and not article 82.3 WS).
- Newly hired workers do not (cannot) be subject to the provisions of a collective bargaining agreed that has expired.
The new doubts as to interpretation resulting from the judgment are easy to predict. The following are just a few: Can regressive collective bargaining agreements be signed? Can individual contractual amendments be made to the detriment of the provisions set forth in a collective bargaining agreement (contractualized at source)?
Finally, we should also highlight the effect that this thesis will presumably have on collective bargaining strategy.
Garrigues Labor and Employment Law Department