In this new blog post we will address the most outstanding points concerning the constitution of union sections and the role of union delegates in order to provide some basic notions about union representation in the company.
HOW UNION SECTIONS ARE ESTABLISHED
To begin with, article 8.1 of the Organic Law on Freedom of Association, whose content is as follows:
“Workers affiliated to a trade union may, within the scope of the company or work center: a) constitute Trade Union Sections in accordance with the provisions of the Union’s Bylaws“.
Within this context, and following an analysis of the LOLS, the following question arises:
A) How Many Workers Must The Center/Company Have In Order To Constitute The Union Section?
There is no minimum, and there may be as many union sections as there are unions in the company or work center. In this sense, neither the number of workers in the workforce nor the number of workers affiliated to a union is decisive.
B) In Which Cases Should The Union Section Be Formed At The Work Center And In The Company?
The union section is an organ of internal structure that is governed by the Statutes (also known as Bylaws), therefore, it is that rule which establishes all the requirements and conditions that regulate such union sections.
It is worth making reference in this section to the doctrine and jurisprudence regarding such autonomy, with the high court understanding that the union is free to choose, in accordance with its own bylaws, not only between work center or company, but also to opt for a different grouping of work centers, such as, for instance, the province.
Thus, among others, the Judgment of the Social Chamber of the Supreme Court, dated June 21, 2016 (no. 541/2016) states the following:
“(…) when Article 10.1 LOLS refers to “work centers” it must be understood that it includes the possibility of taking into consideration the same individually considered but also several of them, in a grouped manner; at least when such grouping is carried out for objective reasons and without involving abuse of rights or consequences contrary to the economic and social interests of the workers whose defense is entrusted to the union ( art. 7 CE ). The interpretation accepted by the Chamber of the Galician Court, which we now confirm, leads us to consider that the option, conferred on the union as holder of the right to freedom of association, to organize its structure (sections, delegates) at the company level (understood in global terms), autonomous work centers (for example, central services) or grouped work centers in terms parallel to those established for the constitution of joint works councils (each of the provinces affected by the conflict), is in accordance with the provisions of the article of the Organic Law on Freedom of Association”.
C) Can Trade Union Sections Of The Group Of Companies Be Incorporated?
On the assumption that the LOLS does not refer explicitly in its articles to the group of companies, insofar as it only speaks of a work center or company, in any case, a distinction should be made between the commercial group of companies or the so-called pathological or labor group of companies. Nevertheless, this is a controversial issue among the jurisprudence, so there is no certain statement. In the case of the group of companies for labor purposes, the case law has come to understand that union sections could be established because theoretically, for labor purposes only, it can be considered a single company.
D) What Rights And Powers Do The Union Sections Have?
Among the most important for all union sections: to hold meetings after notifying the employer, collect dues and distribute union information (outside working hours).
In the case of the union sections of the most representative unions and those represented in the Works Committee: the right to collective bargaining (according to the ET), to have a bulletin board or to have adequate premises for the development of their functions (in those companies or work centers with more than 250 workers).
ELECTION OF UNION DELEGATES
Regarding union delegates
“In companies or, as the case may be, in workplaces employing more than 250 workers, whatever the type of their contract, the Union Sections that may be formed by workers affiliated to the unions with a presence in the works committees or in the representative bodies established in the Public Administrations shall be represented, for all purposes, by union delegates elected by and among their affiliates in the company or in the work center.”
Union delegates must be elected by union members in the corresponding company or work center, and direct designation by the union itself is not valid.
A) How Many Union Delegates Can Be Appointed?
The number of union delegates that may be appointed is fixed according to the % of votes casted in the works council elections of each union section, in accordance with the following table:
B) What Are The Competencies Of The Union Delegates?
These include: to have access to the same information and documentation that the company makes available to the works council, with the union delegates being obliged to maintain professional secrecy in those matters in which it is legally appropriate; to attend the meetings of the works councils and of the company’s internal bodies in matters of health and safety or of the representative bodies that are established in the Public Administrations, with voice but without vote; and to be heard by the company prior to the adoption of collective measures affecting workers in general and union members in particular, and especially in the dismissals and sanctions of the latter.
With these basic notions, we intend to provide the basic characteristics of the company’s union representation, which, together with the unitary representation, make up the legal representation of the workers.
At Ceca Magán we are experts in any issue related to the company and amongst them, the legal representation of workers. You can contact our labor lawyers here.