Regarding the boundaries of the Trade Unions to monopolize labor dialogue in companies.
At the beginning of this summer, the Spanish National Court (Audiencia Nacional) has issued an interesting Judgment that even been possible to be revised by the Supreme Court, I consider should not go unnoticed because it clarifies, up to a point, the boundaries of trade union rights to be the sole and only actor negotiating labor conditions in companies (and economic sectors).
In short, it makes it possible to make progress in clarifying in which cases the employer’s dialogue with the workers of his company must, imperatively, be carried out in an exclusive regime with the unitary representation (works councils or staff delegates) or unions (trade union sections, most representative unions) and when, in the exercise of freedom of enterprise, assembly, and expression, it can be done directly with the collective of workers.
A quite controversial issue in a legal framework, the Spanish one, where the competencies of the most representative unions in the field of company-worker dialogue have been expanded historically by court rulings.
This is not the case of the ruling of the Social Chamber of the Spanish National Court (Audiencia Nacional) we are now referring to. In this case, the claim filed by UGT against the home delivery company Glovo and two managers of the company for having met twice with the riders in November 2020 to explain to them its positions regarding the consideration of these riders as self-employed and non-labor workers was fully dismissed.
In the lawsuit filed by UGT, the Union considers that the meetings held between the CEO of Glovo and another manager with the riders (about 400), took place when there was already a ruling of the Supreme Court in favor of the labor relationship of the riders with the company and once opened the social dialogue before the law passed in may 2021 establishing the presumption of labor relationship of riders. Thus, the Trade Union pledges that, with these precedents of labor relationship consideration and with a negotiating table on the way, the meetings should be considered acts against the law and the rights of the Union.
On the other hand, the company objected, acknowledging the reality of these meetings, that their aim was just to inform of the situation referring to the existing debates on the relationship between these companies and the distributors, expressing, in the exercise of their freedom, their opinion on the matter.
It is important to insist on the fact that the meetings happened before the entrance into force in May 2021 of Law establishing the presumption of labor relationship of the riders in this type of company.
The position of the Spanish National Court is conclusive in stating that no legal norm prevents the employer from meeting with his employees, mainly voluntarily -none of them was forced to attend- not being any law that prevents those meetings. Thus, the court concludes that this type of company-worker meetings without the intervention of legal or trade union representation “have a legal shelter in the right of assembly, article 21.1 of the Constitution and as an expression of the right of freedom of expression (article 20.1.a)”, and straight reject the pledge that this conduct implies any expression of anti-union will.
There are three relevant conclusions, in my opinion, to draw from this court ruling:
That the company-worker dialogue so that the former can inform the latter about their particular opinion or approach to an issue related to their labor relationship, even promoting a position on the issue, is fully legitime, does not go against the rights of the Unions and does not necessarily require being carried out through unitary Unions in the company.
That this ruling of the National High Court, moreover, is not based at all on the fact that, at the time the meetings are held, they were not formally linked to the company on a labor basis, since the reasons of the court to reach its conclusion refer to the company-worker relationship, so it can be inferred that the same solution would have occurred if the labor relationship were out of the discussion.
That the company-legal/union representation dialogue in the company is not always an imposed and exclusive relationship. The right of workers to dialogue through their representatives and unions and that of the trade unions themselves to the exercise of their constitutional and legal powers does not prevent, according to this ruling, the direct dialogue between company and workers. In short, the right to trade union dialogue in collective bargaining does not imply, imperatively, a right of exclusivity in the company-worker dialogue. Different is the case, of course, of the negotiations carried out in the field of collective bargaining in which it is undoubtedly forbidden to ignore in the dialogue trade union and legal representatives of the workers.
What it comes to be said is certainly controversial considering the jurisprudential tradition of the rights of Unions in Spain, but I really do not consider it necessary that something that actually works, the model of company-unions dialogue, as a mechanism for negotiating labor conditions must be protected by legal imposition. In other words: practically speaking – that is my experience – it is much better to bargaining through representatives and Unions than on an immediate basis directly with workers. Therefore, the imposition by the law of the exclusivity of the dialogue, sometimes, can act more as a limitation than as a guarantee of success in collective bargaining, and that imposition can be, in some cases considered, according to the Spanish National Court ruling, a violation of the rights of assembly and freedom of expression of the company representatives.
I also believe that it is a mistake, referring to the substance of the case of the ruling, to skip the opportunity to seek agreements between companies and workers to impose a legal solution to a problem, such as to consider or not the relationship between riders and home service platforms as a labor one, before the deadline that the European Commission itself had given to the parties involved (companies and riders)to reach an agreement that, ideally, should be homogeneous throughout the scope of our European Union. This would avoid imposed legal solutions that could go against this homogeneity in regulation in Europe. However, the Spanish legislator opted for legal imposition, and doing that damaged the credibility of the European Union’s capability to establish homogeneous market criteria in its geographical area. But this is another question.
Enrique Hevia. Legal counselor and economist.