The Supreme Court has dismissed the appeal that the Spanish Confederation of Business Organizations (CEOE) had filed against the royal decree in which equality plans are regulated, and considers that in those companies where there is no union representation, the interlocutors with whom must agree on these plans will be the most representative unions of their activity. Businessmen do not like this formula, since they consider that it unionizes small businesses and borders on commissions ad hoc formed by workers outside the unions.
In its ruling, the High Court considers that none of the articles that make up the standard establishes criteria that differ neither with the content of the Workers’ Statute, nor with the most recent jurisprudence on labor matters. It also establishes that the formation of mixed negotiating commissions for the negotiation of plans, that is, those made up of delegates from the company and from the most representative unions in the sector when there are no union representatives within the company, does not imply an alteration in the definition of the parties that are entitled to participate in collective bargaining, as demanded by the employers’ body.
In the ruling, to which EL PAÍS has had access, the Supreme Court invalidates the main premise of the CEOE to nullify article 5.3 of Royal Decree 901/2020, of October 13, which regulates equality plans and its registration, as it is understood that collective bargaining must be carried out by the employer and the union with representation within the company. In addition, together with this, it argues that if this principle is violated, and taking into consideration a mixed negotiation commission, the entry of personal data would not be possible, without first requesting a report from the Spanish Agency for Data Protection.
Given these two arguments, the Supreme Court ruling is firm: with respect to the representativeness of this type of committee, it states that despite the fact that article 41.4 of the Workers’ Statute provides that in the event that the there is no legal representation of the workers, they may choose to attribute their representation for the negotiation of the agreement “to a commission of a maximum of three members made up of workers from the company itself” (the aforementioned commissions ad hoc), or “to a commission of the same number of components designated, according to their representativeness, by the most representative and representative unions of the sector to which the company belongs”. In the reform that was introduced in 2013 “the existence of hybrid or mixed commissions is contemplated in relation to the modification of the substantial working conditions”, recalls the sentence.
As far as data protection is concerned, the High Court concludes that article 5.7 of the Royal Decree “establishes that the negotiating commission has been constituted and for the purposes of preparing the diagnosis of the situation, the people who make it up will have the right to access as much documentation and information is necessary for the intended purposes, data and documents that in relation to the preparation of the diagnosis are specified in the Annex to the Royal Decree, a provision that has not been challenged. In this way, it is necessary that they have this information to correctly carry out their function.
He knows in depth all the sides of the coin.
With the approval of the equality plan, the Government, in tune with the unions and faced with the rejection of the employers, intended to confront the salary opacity in many companies, to prevent women from being discriminated against by receiving lower remuneration within the same position. than a partner. According to a study that UGT carried out at the time, this difference could reach up to 6,000 euros less per year.
The program contemplates, in the first place, the obligation of equal pay and the implementation of these plans in companies with more than 50 workers as of March 7 (until now, it only required companies with 150 employees); and determines that these salary records must include the average values of salaries, salary supplements and non-salary payments of the workforce disaggregated by sex and distributed in accordance with the provisions of article 28.2 of the Workers’ Statute. In addition, the arithmetic mean and median of what is actually received for each of these concepts in each professional group, professional category, level, position or any other applicable classification system must also be established, broken down by sex. In turn, it imposes the need to carry out remuneration audits indicating this record.
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