27

Apr

2022

Is it possible to choose the collective bargaining agreement applicable to a company?

Is it possible to choose the collective bargaining agreement applicable to a company?

It is a reiterated and peaceful criterion in case law that when the company’s activities may be included in several collective bargaining agreements, the one that corresponds to the preponderant activity of the company must be applied

If there is not a predominant activity, but several autonomous activities: each activity is subject to the agreement corresponding to its functional scope.

 

A company with registered office in Madrid issues a letter of disciplinary dismissal to a worker who provides services in the Marbella work center. 

The worker filed a claim for dismissal, but the labor court declared the dismissal to be justified on the grounds that the alleged facts constituted a very serious misconduct in accordance with the collective bargaining agreement for the Commerce sector in the province of Malaga. The Malaga Supreme Court partially reversed the judgment and declared that the applicable collective bargaining agreement was the Madrid trade agreement, since this was agreed in the contract. The employee appealed in cassation for the unification of doctrine.

The question that arises is to determine whether the collective labor agreement of Madrid, which is the one agreed in the employment contract, or the collective labor agreement of the province of Malaga, which is the place where the employee provides services, should be applied.

In the case analyzed, the company’s main activity is to market and intermediate as a distribution agent between the different telecommunications operators and end customers in order to make offers. As a secondary activity it is engaged in the sale of cell phone devices, tablets, smartwatches, headsets and complementary items and other services related to telephony.

When the company’s activities may be included in several collective bargaining agreements, the one corresponding to the preponderant activity of the company must be applied (SC 31-10-03, EDJ 187368; 1-12-15, EDJ 269999).

 

Criteria for determining the main activity:

a)economic figures of the different activities;
b)staff assigned to each activity;
c)purpose of the specific business;
d)subordination and dependence of some activities with respect to the main activity.

If there is not a predominant activity, but several autonomous activities: each activity is subject to the agreement corresponding to its functional scope (TSJ Asturias 4-3-11, EDJ 73287).

The SC concludes that the main activity of the company is not subsumed in any of the disputed collective bargaining agreements. Although the activity of selling terminals could be subsumed in the collective bargaining agreement for commerce in general in Malaga, because its functional scope includes companies dedicated to the sale of computer equipment and machines, this agreement does not include companies that sell telecommunications operators. Nor is this activity included in the functional scope of the collective bargaining agreement of the Community of Madrid.

 

Consequently, there being no applicable agreement, nothing prevents the parties from freely agreeing on the application of one of these agreements. This agreement has a lawful purpose since, as no agreement is applicable, less favorable conditions or conditions contrary to legal or conventional provisions cannot be established.

 

For further information, please contact Labor Consulting.