ANALISIS DE INGRESOS PROVENIENTES DEL FONCOMUN CON

Most of the agreements that needed to be renegotiated before the end of the transitional period granted by the reform – summer of 2013 – were concluded, but only at the very last moment. Indeed, collective bargaining was reportedly very difficult until an inter-confederal agreement on ultra-

actividad was concluded on 23 May 2013.164 _{Another transitory solution} was to extend the duration of existing agreements, in many cases up to December 2013.165 _{In fact, by May 2013 the number of workers covered} by CBAs registered was approximately 1.7 million, but the number reached about five million by December 2013.166 _{It seems that the termination of}

Chapter 4 Building recovery through social dialogue and collective bargaining 164

SPAin: Growth with JoBS

ultra-actividad and social partner response through the May 2013 inter-

confederal agreement may indeed have provided increased dynamism in collective bargaining negotiations, as in most cases both employers and workers want to make sure that collective agreements do not expire without a replacement.

There are individual cases, however, where a CBA has expired without any higher-level agreement being in place and where the provisions of labour law have subsequently been applied by the employer. The situation has been challenged in court and case law on the matter has produced divergent results – either maintaining employer decision as legally correct, or reject- ing it as contrary to the law.167 _{The matter has not yet been handled by the} Supreme Court, whose decisions have jurisprudential value and will thereby guide future case law on the matter.168

The limitation of ultra-actividad has in fact put more emphasis on the social partners and bipartite negotiations. In that context, there is a potential danger that one of the bargaining parties adopts a non-negotiating position if the CBA is not its preferred option. As discussed above, a similar phe- nomenon existed during the period of unlimited ultra-actividad, yet with different premises and with a safeguard against deterioration of working conditions. A potential non-negotiating strategy is, in principle, mitigated through the requirement to negotiate in good faith;169 _{however, in practice}

167 _{See for example the case of Zeta Espacial SA in the confectionary sector, Ruling 360/2013, 11 October} Labour Court 2 of Terrassa. The judgment, while not considered to set any judicial precedence, maintained that the labour law enters into application after the expiry of the one-year period of ultra-actividad, and thus did not accept the counter-argument that the previous CBA’s provisions would “contractualize” into individual employment contracts. Importantly, however, a different approach was taken in the decision of País Vasco High Court; 20/2/2014, Proc. 66/2013: the court ruled that while the previous collective agreement is no longer in force and cannot be reinstated, the employer cannot thereby unilaterally change working conditions by a simple communication to the workers. Instead, the employer should follow the procedure established in Article 41 ET for unilateral modification of working conditions. Such a decision can therefore also be challenged by workers through the recourse available under Article 41 ET (Gabinete de Estudios Jurídicos, 2014). If a higher-level collective agreement exists, but does not cover all work- ing conditions, prior working conditions under the expired CBA are maintained, unless modified by the employer through the procedure under Art. 41 ET. Decisions of País Vasco High Court, 19/11/2013, Rec. 37/2013 and 26/11/2013, Rec. 43/2013.

168 _{Another legal debate concerned the effects of ultra-actividad clauses in CBAs concluded before the} adoption of the reform. According to the judgment in the Air Nostrum case, the “automatic extension” clause in the CBA in question, agreed before the reform, remained enforceable. An appeal process concerns the same case. However, other cases seem to point towards a doctrine of maintaining in force all conditions of agreements which existed prior to the entry into force of Law 3/2012 (Gabinete de Estudios Jurídicos, 2014).

169 _{The requirement to negotiate in good faith is expressed in article 89.1 of the Estatuto de los Trabajadores.} See more about the requirement to negotiate in good faith and the fundamental right of freedom of associa- tion in Goerlich Peset (2013).

it may be difficult to demonstrate presence or absence of good faith in col- lective bargaining negotiations. Indeed, the reform process has reportedly led to some diverse views among social partners regarding the collective bargaining process (see box 4.2).170

Looking at new CBAs, the parties have in many cases chosen to include a clause on ultra-actividad at their own initiative.171 _{A study on agreements} registered since the launch of the reform up to April 2014 shows that about 46 per cent of the total 4,294 CBAs studied provided for ultra-actividad of one year, i.e. aligning with the Estatuto de los Trabajadores (figure 4.1). On the other hand, 41 per cent of agreements opted for the traditional concept of ultra-actividad (validity until replacement by a new agreement). Another rather popular option was to provide for ultra-actividad between 12 and 36 months, which was the case in 9 per cent of agreements studied.

... and opting out from CBAs clauses has increased,