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Workplace Representation

Elected works councils are the main channel of workplace representation for employees in Spain, although the law also gives a specific role to the unions at the workplace and in larger workplaces the trade union delegate may be the key figure. The works councils themselves are dominated by the unions and, as well as having information and consultation rights, they also bargain on pay and conditions at company level.

Workplace representation in Spain has a clear legal framework, provided in the main by the 1980 Workers’ Statute (Estatuto de los Trabajadores, Articles 61-76) and the 1985 Law on Trade Union Freedom (Ley Orgánica de Libertad Sindical). As well as workplace union structures, the law provides for elected representatives of the whole workforce in all but the smallest companies, with  comparable structures in public administration provided in the (Law of the Basic Statute of the Public Employee (Ley del Estatuto Básico del Empleado Público Articles 39-46).

 

Formally the workplace representation structure of elected employee delegates and works councils does not depend on union involvement, but, in practice, the unions play a central role. The vast majority of elected representatives are proposed by the unions and around three quarters of them come from the CCOO and the UGT.

 

Spanish trade unions also have separate legally recognised structures within the workplace with a range of legal rights. These trade union sections bring together all the members of a particular union in the workplace.

 

In addition, in larger workplaces union members can elect a trade union delegate who also has specific rights.

 

A high proportion of workplaces appear to exercise their right to elect employee representatives. A survey, based on workplace elections in the four years to the end of 2015, found that while only 21.2% of workplaces with six or more employees – the threshold for employee elections – had employee representation, the companies with representation employed 63.7% of the workers in companies of this size.[1] The same study also found that participation in the elections is also substantial – of the 6.56 million entitled to vote, 3.73 million did so (64%)

 

Another indication of the relatively high level of employee representation at the workplace is provided by the results of Eurofound’s 2013 and 2019 European Company Surveys. These show that, in 2013, 57% of establishments in Spain with at least 10 employees had some form of official employee representation – a workplace union organisation, a works council or a comparable body in public administration or an employee delegate. This was well above the EU28 average of 32%.[2]

 

The comparable figure for 2019 is lower at 40% in Spain, but this may partially reflect differences in how the information was collected, and, again, Spain is above the EU27 average of 29%.[3] As elsewhere in Europe, larger organisations are more likely to have such a structure than smaller ones. The 2019 survey shows that 86% of establishments with more than 250 employees had representation, and that in those with between 50 and 249 employees, the percentage of workplaces with representation was 57%. In smaller workplaces in Spain, those with between 10 and 49 employees, the survey indicates that just over a third (36%) had employee representation.

 

Numbers and structure

 

The right to elect employee representatives begins in workplaces with more than 10 employees and they can be elected in workplaces with as few as six people if a majority of employees want this. Where there are fewer than 50 employees, the representatives are called employee delegates (delegados de personal). If there are 50 or more employees, then the representatives are elected as members of a works council ((comité de empresa). There is no difference in terms of rights and duties between the employee delegates and the works council.

 

The calculation of number of workers needed to access these rights is done on a headcount basis. In other words, part-time workers count the same as full-time workers. Specific rules apply to workers on temporary contracts (found widely in Spain). Temporary workers who have been with the company for more than a year count in full, in the same way as those on permanent contracts. For those with shorter periods of service the numbers are calculated by counting the total number of employee days worked by these temporary employees, with each 200 days or part thereof considered as an additional employee. Members of senior management and agency workers are not included in the calculations.

 

Employees in several workplaces in a single company, which together have more than 50 employees but separately have fewer, can set up a joint works council, provided the workplaces are in a single province or in neighbouring municipalities.

 

Number employed

Number of representatives

Name of representative

6-30

1

employee delegates

______________________

31-49

50-100

5

 

 works council members

101-250

9

251-500

13

501-750

17

751-1000

21

 

Thereafter the number of representatives increases by two for every additional 1,000 employees up to a maximum of 75.

 

The provisions covering the number pf employees and the number of employee representatives is exactly the same in public administration. However, in public administration the body equivalent to the works council is called a personnel board (junta de personal).

 

The works council (like the personnel board in public administration) is a purely employee body. There are no members representing the employer. It is elected in at least two groups, one by the manual and the other by the non‑manual workers, and it is legally possible to set up an unspecified third group for separate election if laid down in the collective agreements.

 

Once elected the works council sets its own rules of procedure, for its meetings and actions. But the works council must elect from its members a secretary and a chair. Normally the chair comes from the union with the largest number of members on the works council and the secretary from the next biggest union. The works council must also meet at least once every two months and works council decisions should be taken by a majority of its members not simply the majority of those present at its meetings. The works council can also set up sub-committees on a range of issues.

 

The trade union section (sección sindical) consist of all the members of that particular union in the workplace. Their internal procedures and activities are governed by the rules of the unions. For example, the rules of the CCOO state that trade union sections should "function democratically and reach decisions on a majority basis".

 

In addition, in workplaces with more than 250 employees, members of each union which has seats on the works council have a legal right to elect a trade union delegate. Generally, there is only one trade union delegate per union but in the largest workplaces there can be more. In addition, because there is normally more than one union in a workplace, there will normally be more than one union delegate in workplaces with more than 250 employees.

 

Tasks and rights

 

The tasks and rights of the works council cover information and consultation, the monitoring of the application of certain labour regulations, and, in some cases, the control of social facilities at the workplace. However, it has no powers to prevent management acting as it wishes in the final instance. In addition, unlike works councils in some other European states, works councils in Spain are directly involved in collective bargaining, if it takes place at company level. Employee delegates, acting jointly, have the same rights as the works council

 

The works council has a general right to be informed and consulted by the employer on those issues that may affect the workers, as well as on the company’s and developments relating to employment in the company. Being informed means being given information by the employer in a way that allows the works council to examine the issue concerned, while being consulted means an exchange of opinions and the opening of a dialogue and, in some cases the works council producing a report on the issue. The works council and employer should act in “a spirit of cooperation”, considering both the “interests of the company and those of the workers”.

 

The works council has the right to be informed every three months:

 

  • on the general evolution of the economic sector in which the company is operating;
  • on the economic situation of the company and the recent and likely development of its activities, including environmental actions that have a direct impact on employment, as well as on production and sales, including the production programme;
  • about the employer's forecasts for the appointment of new staff, including the type of employment contracts to be used, possible additional hours for those working part time and information on subcontracting; and
  • on the rate of absenteeism and its causes, accidents at work and occupational diseases and their consequences, accident rates, studies on the environment at work and the hazard prevention mechanisms in use.

 

It also has the right to annual information on the position of women and men in the company in relation to equal treatment and equal opportunities This includes:

  • access to the pay register with information on all aspects of pay, broken down by sex;
  • the pay audit that companies with more than 50 employees must now carry out;
  • data on the proportion of women and men at different grades;
  • the measures that have been adopted to promote equality between women and men in the company; and,
  • if there is an equality plan, how it has been implemented.

 

The works council must also, at the appropriate time:

 

  • be provided with details of the company’s balance sheet, income statement and annual report, plus, where the company has shareholders or partners, receive the documents that shareholders or partners are given;
  • be made aware of the types of employment contract the company uses as well as the documents relating to dismissals;
  • be informed of all penalties imposed for gross misconduct.

 

The works council also has a right to receive copies of employment contracts as well as notification of the extensions and terminations within 10 days of their taking place.

 

The works council has the right to be informed and consulted on the situation and structure of employment in the company or in the workplace, as well as to be informed quarterly about the likely changes in employment, with consultation when changes are expected.

 

It has the right to be informed and consulted on all company decisions that might result in changes in the way work is organised and employment contracts. It also has the right to be informed and consulted on any potential counter measures, especially if there is a risk to employment.

 

There are six specific issues where the works council has a right to produce a report prior to the employer implementing the proposal. The works council must be given appropriate information on the issue and, if it wishes to produce a report in response to the employer’s proposals, it must do so within 15 days. There should be an opportunity for the employer and works council to meet and, if possible, reach agreement. The issues covered by this obligation are:

  • workforce restructuring, and the total or partial dismissal of the workforce, whether temporary or permanent;
  • reductions in working hours;
  • the total or partial transfer of facilities;
  • mergers, acquisitions, or changes in the legal status of the company that might affect employment levels;
  • the company’s occupational training plans; and
  • the implementation and revision of systems relating to work organisation and monitoring, time and motion studies, setting up bonus and incentive schemes, and job evaluation.

 

The works council also has a duty to monitor

  • that the employer is complying with employment and social security legislation;
  • conditions in relation to health and safety; and
  • the application or the principle of equal treatment between men and women, particularly in the area of pay.

 

Works councils also participate in the control of social facilities at the workplace, such as canteens or social clubs, where this is provided for in collective agreements.

 

The works council is also called on to work with the management to improve productivity to promote conciliation measures and to inform those it represents of issues which might affect industrial relations.

 

In addition to these points, which are set out in Article 64 of the Workers’ Statute, employee representatives also have a right

  • to receive a copy of the standard employment contract (Article 8);
  • to be consulted on transfers to other locations, when a significant percentage of the workforce is affected (normally 10% or 30 workers, whichever is smaller) (Article 40);
  • to be consulted when the employer plans major changes in working conditions and significant percentage of the workforce is affected (normally 10% or 30 workers, whichever is smaller) (Article 41);
  • to be informed on plans to subcontract services and work (Article 42);
  • to be informed about any transfer of ownership and to be consulted if this transfer may have an impact on the workforce (Article 44);
  • to be consulted about any temporary suspension of work or reduction in working time caused by short-term technical or economic difficulties (Article 45);
  • to be consulted about large‑scale redundancies (normally 10% of the workforce or 30 workers, whichever is smaller) (Article 51).

 

In addition, a worker may request the presence of an employee representative when signing a document stating that an employment contract is officially ended (Article 49).

 

However, for many works councils, their most important power is that they can negotiate binding collective agreements covering pay and conditions in their company, or part of their company (see section on collective bargaining). The composition of the works councils is also crucial in determining who has the right to reach collective agreements at industry level.

 

The rights of employee representatives in public administration are similar but much more limited.

 

The trade union sections have a role both within the workplace and outside it. Inside they are a forum for discussing and promoting union policies in the workplace, as well as ensuring the payment of union subscriptions and their rights include holding meetings, collecting contributions and distributing trade union material. Outside the workplace the union sections play a part in the decision‑making structures of the union.

 

A key task for the trade union section is to back its union's candidates in the works council elections and discuss the policies the works council should pursue.

 

In smaller workplaces the key union figures will be elected members of the works council. In larger workplaces – those with more than 250 employees – the key union influence on the works council may come through the trade union delegate. He or she represents the trade union directly with speaking but not voting rights on the works council. He or she also has rights to receive the same information as works council members.

 

Trade union delegates also have the right to be heard by the employer before action is taken against workers in general and their own union members in particular, especially where there is a possibility that union members may be dismissed. They are thus in a stronger position than the works council as the employer is only required to inform it after the event.

 

Trade union delegates can also conduct collective bargaining provided they have a majority on the works council. Overall, the relationship between the trade union sections and the works council varies depending on the strength of the union in the workplace.

 

Election and term of office

 

Nominations are made on the basis of lists for all members of the works council, either by the unions or by groups of individual employees provided that the number supporting a list is three times larger than the number of places to be filled. Candidates must be employees of the company (so excluding agency workers), be aged over 18 and have at least six months’ service. Members of senior management cannot stand for election to the works council

 

The works council is elected on the proportion of votes which each list receives, eliminating those getting less than 5% of the votes.  All employees (again not agency workers), other than senior management, can vote, provided they have at least one’ month’s service. There is a detailed procedure for monitoring the results of the elections with disputes, in the end, being referred to the labour courts.

 

The 2016 study into employee representation, referred to above, found that, despite a long-term increase in the number of women elected, a clear majority (59.9%) of employee representatives elected in the four years to the end of 2015 were men, and that almost half (45.8%) the representatives were aged 35 to 49, with 29.6% aged 50 or over and 11.1% younger than 34.[4]

 

The study also shows that almost all (97.5%) of the representatives are nominated by unions, although the individuals concerned may not always be always be union members.

 

Elections for works councils and employee delegates take place every four years.

 

Trade union delegates are elected by the trade union members in the company in line with the rules of the union.

 

Protection against dismissal

 

Works council members and employee delegates have priority in keeping their jobs where employees are being dismissed for economic or technical reasons, and for remaining on site when workers are being transferred.  They cannot be dismissed as a result of exercising their rights as a works council member; and they cannot be punished for allegedly serious misconduct without the works council having a right to make its case to the employer.

 

Trade union delegates have the same employment protection as members of the works council if they are not themselves members.

 

Time off and other resources

 

Works council members and employee delegates are legally entitled to paid time off for their duties. The law lays down the following scale for each member of the works council / employee delegate:

 

Number of employees

Paid time-off a month (hours)

Up to 100

 15

101 to 250

 20

251 to 500

 30

501 to 750

  35

above 750

  40

 

The rules are exactly the same for employee representatives in public administration.  

 

These amounts can also be improved in collective agreements and their distribution between various members of the works council can also be altered. In 2018, agreements, covering almost half (46%) of all employees, whose deals were signed in that year, included provisions for employee representatives that were superior to the legal minimum levels, and agreements covering 79% of employees allowed a redistribution of time off.[5]

 

In practice in large workplaces, these time-off rights are often used to allow key members of the union to devote themselves entirely to union matters off site. Many of the leading figures in union structures at both regional and local level are still company employees.

 

In addition, the employer is obliged to provide the works council with an adequate room as well as notice boards for its use. In most cases the union locally also has the right to have a notice board and, if the workplace employs more than 250, an adequate room for its activities. Collective agreements can improve on these basic provisions.

 

Trade union delegates have a right to paid time off on the same basis as works council members.

 

Training rights

 

Employee representatives have no statutory right to time off for training. However, part of their overall paid time-off can be used for training, and there are examples of agreements which include rights to a specific period of additional time-off to attend union courses.[6]

Representation at group level

 

A group works council (comité intercentros), bringing together several works councils in the same company is possible but only where this is provided for in collective agreements. The maximum number of members of this group works council is 13 and distribution of its membership between the unions must match the results of the elections in the works councils involved, taken as a whole. Its powers are those laid down by the collective agreement and it may not exceed them. The existence of a group works council does not remove the necessity for setting up individual works councils in every workplace with at least 50 employees.

 

Group works councils are relatively common in larger companies. There were only 58 company-level agreements signed in 2018, which provided for a group works council, but they covered 66,600 workers, a quarter (25%) of all workers covered by company-level agreements, signed in that year.[7]

[1] La representación sindical en España: cobertura y límites by Pere Jódar, Ramon Alós, Pere Beneyto and Sergi Vidal, in Cuadernos de Relaciones Laborales 36(1), 2018 https://cedproves.uab.cat/wp-content/uploads/2018/06/Cuadernos-de-Relaciones-Laborales_2018_36_1_Jodar_Vidal-et-al.pdf (Accessed 04.11.2020)

[2] Eurofound (2015), Third European Company Survey – Overview report: Workplace practices – Patterns, performance and well-being, Figures for Table 44

[3] European Company Survey 2019, Workplace practices unlocking employee potential, Eurofound and CEDEFOP, 2020 Figures for Figure 72

[4] La representación sindical en España: cobertura y límites by Pere Jódar, Ramon Alós, Pere Beneyto and Sergi Vidal, in Cuadernos de Relaciones Laborales 36(1), 2018

[5] Estadística de Convenios Colectivos de Trabajo: 2018 Datos Definitivos CCT-I-3-1 http://www.empleo.gob.es/estadisticas/cct/welcome.htm (Accessed 04.11.2020)

[6] Cláusulas de formación en la negociación colectiva, CCOO, 2020 https://escuelasindical.ccoo.es/29f53f397776a56c5921e68e9f38bc35000001.pdf (Accessed 04.11.2020)

[7] Estadística de Convenios Colectivos de Trabajo: 2018 Datos Definitivos CCT-I-3-2 http://www.empleo.gob.es/estadisticas/cct/welcome.htm (Accessed 04.11.2020)

L. Fulton (2021) National Industrial Relations, an update (2019-2021). Labour Research Department and ETUI (online publication). Online publication available at http://www.worker-participation.eu/National-Industrial-Relations.