The priority given to regional agreements does not require a new negotiating unit to be set up
The Supreme Court concludes that Article 84.3 of the Workers’ Statute permits the negotiation of regional collective agreements with priority in application, but does not require the employer to open a new bargaining unit whilst negotiations on the national collective agreement are still ongoing. The employers’ refusal, in these circumstances, is justified and does not infringe freedom of association in relation to collective bargaining.
The judgement addresses the refusal by employers’ organisations in the chemical sector to set up a negotiating committee for a collective agreement for the chemical industry in the Basque Country. ELA and LAB brought proceedings to protect fundamental rights, arguing that this refusal infringed their freedom of association and their right to collective bargaining. They sought an order to cease the conduct and compensation of 7,501 euros for each trade union for non-pecuniary damage.
The request to open up the regional scope was initially made whilst the 20th General Collective Agreement for the chemical industry was in force and was reiterated on 3 July 2024, following the amendment to Article 84.3 of the Workers’ Statute (ET) introduced by Royal Decree-Law 2/2024. The employers’ organisations rejected the initiative on the grounds that an active national bargaining unit already existed, the 21st General Collective Agreement was under negotiation, and the sectoral collective agreement contained commitments regarding the bargaining structure and the non-establishment of new lower-level bargaining units.
The High Court of Justice of the Basque Country dismissed the claim, although it held that the new wording of Article 84.3 of the Workers’ Statute left open the possibility of establishing a regional negotiating committee. Both the trade unions and several employers’ organisations appealed against the judgement; the latter were keen to correct a legal reasoning that could affect their future negotiating position. The Supreme Court recognised their standing to appeal because that interpretation did not constitute a merely incidental consideration, but could cause them actual legal prejudice.
As regards the substance of the case, the Chamber notes that Article 84(3) of the Workers’ Statute (ET) allows recognised trade unions and employers’ organisations to negotiate regional collective agreements which take precedence over national ones, provided that they achieve the required majorities and establish more favourable terms for workers. However, the use of the term ‘may’ constitutes a right, not an obligation, to create a new bargaining unit or to participate simultaneously in different territorial spheres.
The Court emphasises that the national bargaining unit remained active and continuous. The 20th General Collective Agreement remained in force during the negotiation of its replacement, and negotiations on the 21st General Collective Agreement proceeded actively until its signing, without any abandonment, inactivity or gap in negotiations. In accordance with established case law, a previously established bargaining unit remains protected against interference from other units whilst serious bargaining activity aimed at its renewal continues.
Nor did the 2024 reform alter the duty to negotiate laid down in Article 89.1 of the Workers’ Statute. This duty is not absolute and is deemed to have been fulfilled when the party required to negotiate is already negotiating within an existing unit with legitimate parties. The validity of the state-level unit, the active negotiation of the new collective agreement and the optional nature of regional-level negotiation therefore constituted justifiable grounds for rejecting the establishment of the new negotiating committee. The employer’s refusal was neither arbitrary, unlawful nor without justification and, consequently, did not infringe trade union freedom.
The Supreme Court dismisses the appeals lodged by ELA and LAB and upholds the acquittal on partially different grounds. However, it expressly limits its ruling to the case in question and refrains from ruling on future scenarios involving a breakdown, inactivity or abandonment of the national unit, or an agreement between the parties to open up the regional sphere.