Employment gains importance in company-level bargaining

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Employment is gaining importance in collective bargaining at company level in Spain. A significant number of collective agreements deal with this question and they do so in greater scope and complexity than in the past. These are among the findings of a recent study on this topic, issued in April 2000.

At the end of April 2000, in the framework of the Territorial Employment Pact for the Vallès Occidental area, a study drawn up by the CIREM Foundation on the treatment of employment in Spanish collective bargaining at company level was made public. It makes a thorough analysis of the content of the company agreements published in 1998 in the official state journal (BOE) - a total of almost 3,000 agreements, of which 80% are collective agreements and the rest are agreements of other types (additions to and modifications or extensions of collective agreements, wage revisions, and adoption of agreements concluded in other bargaining units). The objective of the study was to identify the clauses dealing with the improvement of employment – both clauses of a quantitative type that regulate job preservation or creation, and clauses that seek a qualitative improvement of employment, for example by regulating the conversion of temporary jobs into permanent ones or limiting the use of temporary agency work. The main results and conclusions are set out below.

More clauses on employment

The first fact to highlight is that the number of clauses on employment is high: 37% of the agreements examined contain clauses on employment and the percentage is higher among collective agreements (45%). It is true that in many cases the clauses merely reproduce the prevailing legislation and do not lead to a significant quantitative or qualitative improvement in employment, but significant employment clauses are found in 20% of the agreements – clearly a high percentage.

The specific content of employment clauses varies greatly, but a significant number deal with employment stability. They do this in two ways: by avoiding dismissals through clauses that regulate job preservation (7% of agreements) or that limit the employer's ability to terminate contracts (1%); and by reinforcing permanent recruitment through clauses that regulate the conversion of temporary jobs into permanent ones (11%) or that establish quantitative (4%) or qualitative (1%) limitations on temporary recruitment. With a similar aim of improving employment conditions, a large number of clauses regulate the use of temporary agency work (5%). However, there are practically no clauses that limit subcontracting.

Content of employment clauses

There is already a certain tradition of including clauses on job preservation in collective bargaining at company level. Their content varies: in some cases, the company agrees to make no dismissals during the period of validity of the agreement, except for disciplinary reasons; in other cases, the company agrees only to maintain a certain number of existing permanent contracts, without limiting the possibility of terminating contracts if the workers are replaced.

The clauses on recruitment offer greater novelty. Although some of these clauses are not very significant (merely referring to the prevailing legislation), many agreements establish specific commitments to convert temporary contracts into permanent ones, in some cases by establishing the number or percentage of temporary contracts that will become permanent and in other cases by establishing a maximum period for the duration of temporary contracts. There are also many clauses that limit the use of temporary recruitment quantitatively, establishing a maximum number or percentage of temporary contracts in the total workforce.

In the agreements analysed , however, there are no clauses which specify reasons for the use of temporary recruitment - ie a qualitative limit. In many cases, the clauses regulate the tasks to be carried out under work and service contracts, but in doing so most of the agreements make an excessive subdivision of the activities of the company, or fail to deal with essential production requirements. There is a similar lack of definition regarding temporary contracts: the tasks that can be carried out are not defined and no qualitative limit is established. A similar problem is detected regarding training contracts, the training aspect of which is hardly regulated.

Most employment clauses establish quantitative limits on the use of temporary agency work. In the most extreme cases, the use of such work is prohibited; in other cases its use is limited by establishing a maximum percentage of the workforce or by limiting the duration of the contract, usually to a very short period. At times these limits are reinforced with qualitative limits on the activities that can be carried out through temporary agency work or the rights of intervention of the worker' representatives. Some agreements also regulate the working conditions of the employees on temporary agency work; most of them, anticipating the 1999 reform of the law on temporary agency work (ES9907140F), bring these workers' wages totally or partially in line with those of the user companies. Other aspects, such as health and safety, are hardly dealt with in the agreements.

The legal effect of employment clauses

A more thorough analysis of the treatment of employment in collective bargaining requires examination of the legal effect of the clauses that regulate this question. In Spain, the clauses of a collective agreement can have different degrees of legal force. In other words, if one of the parties infringes the agreement, the other party does not always have the same mechanisms for demanding fulfilment. This is an essential point in the analysis of employment clauses, because their legal force is often less than it might seem at first sight.

Depending on their legal effect, clauses of collective agreements can be "substantive" or "obligational". Substantive clauses regulate the relationships between the workers and the employers in the area of application of the collective agreement. The workers who benefit from this type of clause can be identified clearly and can demand fulfilment individually. However, in obligational clauses the commitment that is made is general, and only the social partner organisations concerned can demand fulfilment. There is also a third type of clause, which has no legal effect but merely expresses a declaration of intent and may reflect "good bargaining practices".

The analysis shows that very few employment clauses have a substantive content: most are obligational and a large number are only declarations of intent. In some cases, the clause is obligational because it is wrongly worded, but in other cases it is because it makes reference to third parties (as for clauses on temporary agency work) or to a general commitment (for example, job creation). As a general criterion, if the clause is obligational the most appropriate way to ensure fulfilment is to establish in the agreement a penalty clause linking the application of certain parts of the agreement to the effective fulfilment of the employment clause. However, this bargaining technique is not widespread.

Commentary

The CIREM analysis shows the emergence of new topics and approaches in dealing with employment. Clauses on job preservation, converting temporary jobs into permanent ones, limiting temporary recruitment and regulating the use of temporary agency work are particularly significant. These clauses are now fairly common and contain new aspects, painting a very different picture to that of the early 1990s, when clauses on early retirement and overtime were predominant.

It is evident that the treatment of employment can and must be improved from a technical and legal point of view, to increase its legal force. It is also clear that there are many aspects of employment that have yet to be dealt with, such as subcontracting or termination of contracts. However, the analysis shows clearly that collective bargaining at company level is dealing with the problem of employment in an increasingly complex way.

The trade union strategies of reinforcing the central importance of employment seem to be showing certain results. However, other factors must be taken into account to explain this development, such as the existence of an agreement to promote employment stability between the trade unions and the employers' associations at intersectoral level (ES9706211F), and an employment policy that is coherent with this objective. At the present time, there seems to be little consensus on this matter. Consultations are starting over a new labour reform (ES0004180N) with objectives that are not clearly defined, while employment policy has made drastic cuts to the incentives for stable employment, perhaps without taking into account that they were an important stimulus to the broaching of this topic in collective bargaining.

Collective bargaining at company level plays a central role in the qualitative improvement of employment. However, change at company level is slow: both management and workers' committees must reconsider their strategy in relation to employment. It seems clear that promoting this change should continue to be a priority and that it is necessary to maintain and reinforce policies that support it (María Caprile, CIREM Foundation).

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