Third agreement signed on resolving labour disputes out of court

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In March 2005, the Spanish social partners renewed for the second time a national agreement on resolving labour disputes out of court, first signed in 1996. The procedures laid down by the agreement cover 7 million workers, or 70% of all workers covered by collective agreements. The Intersectoral Mediation and Arbitration Service, based on the agreement, is becoming increasingly important in the resolution of labour disputes.

On 30 March 2005, the social partners signed a new 'Agreement for resolving disputes out of court' (Acuerdo para la Resolución Extrajudicial de Conflictos, ASEC) - the third such accord, following those concluded in 1996 (ES9705107F) and 2001 (ES0104238N). The ASECs are bipartite agreements, signed by the Spanish Confederation of Employers' Organisations (Confederación Española de Organizaciones Empresariales, CEOE), the Spanish Confederation of Small and Medium-Sized Enterprises (Confederación Española de la Pequeña y Mediana Empresa, CEPYME), the Trade Union Confederation of Workers’ Commissions (Comisiones Obreras, CC.OO) and the General Workers’ Confederation (Unión General de Trabajadores, UGT), and registered and published by the Directorate-General of Employment (Dirección General de Trabajo) at the Ministry of Labour and Social Affairs (Ministerio de Trabajo y Asuntos Sociales). By registering the agreement, the government agrees to support the tasks and functions laid down in the ASEC. The agreement aims to help resolve sectoral and subsectoral disputes that go beyond the regional level, or company disputes that affect workplaces located across more than one region, thus preventing them from being referred to the courts. In order to implement the agreement and its accompanying regulations, in April 1998 an Intersectoral Mediation and Arbitration Service (Servicio Interconfederal de Mediación y Arbitraje, SIMA) was established (ES9809181F). Each region (autonomous community) also has its own agreement for resolving disputes, and a regional mediation, arbitration and reconciliation organisation.

Adherence to the ASEC is voluntary, and must be agreed by the parties to collective bargaining at sectoral and company level. At the end of 2004, the sectors and companies covered by the agreement represented 7 million workers, 70% of all workers covered by collective bargaining.

Main points of 'ASEC III'

The third ASEC (ASEC III) adheres to the provisions of Article 83.3 in relation to Article 90, Sections 2 and 3, of Legislative Royal Decree 1/1995 of 24 March 1995, approving the reformulated text of the Workers' Statute Law (Ley del Estatuto de los Trabajadores), and Royal Decree 1040/1981 of 22 May 1981 on the registration and archiving of collective agreements. The aim of the ASEC is to maintain and develop a system for resolving collective disputes arising between employers and workers or their respective organisations. It excludes intervention in disputes over state social security matters. However, the ASEC does cover disputes on complementary social security, such as occupational pensions, or disputes to which the state, regions and local authorities are a party, in accordance with Article 69 of the reformulated text of the Labour Procedure Law (Ley de Procedimiento Laboral). ASEC III will be in force until 31 December 2008.

The types of disputes in which the ASEC intervenes are those:

• arising from the interpretation and application of the collective agreement in accordance with Article 151 of the Labour Procedure Law;

• arising during the negotiation of a collective agreement that involve a deadlock in the bargaining or the corresponding agreement;

• leading to the calling of strikes or involving the establishment of safety and maintenance services during strikes;

• arising from discrepancies during the period of consultation required by Articles 40, 41, 47 and 51 of the reformulated text of the Workers' Statute Law; and

• arising (collectively) over the application and interpretation of a collective agreement, due to the existence of substantial differences leading to a deadlock in the joint commission (Comisión Paritaria) that oversees the agreement.

The formula for resolving disputes is normally mediation, whereby one or more mediators propose solutions to the parties, which they are free to accept or reject. When arbitration is used, however, the decisions are binding. The mediation procedure established in the ASEC replaces the conciliation procedure laid down in Article 154.1 of the reformulated text of the Labour Procedure Law, within the area of application to which the dispute refers. This means that submission to mediation is a prerequisite for presenting collective disputes to the labour courts by either party. It is also a prerequisite for calling a strike. While the mediation procedure continues, the parties may not carry out strikes and lock-outs, court action or administrative action, or any other action aimed at resolving the dispute.

The parties to the ASEC have set up a foundation to manage the Intersectoral Mediation and Arbitration Service (SIMA). This is a joint institution with its own legal personality and capacity to act. The SIMA is a legally autonomous institution but is under the supervision of the Ministry of Labour and Social Affairs. It has public funding and use of its services is free of charge. Its mediators and arbitrators are proposed by the signatories to ASEC III. The parties to each dispute choose the mediator(s) or arbitrator(s) from the list provided by the SIMA.

Assessment of ASEC I and II

The number of disputes dealt with by the SIMA (the body that applies the ASEC) has increased, which is indicative of the importance of this body in preventing labour disputes from reaching the courts. In 1998, the number of disputes dealt with was 49 and in 2003 it was 182 - see the table below. In other words, the annual increase in the number of cases referred to mediation and arbitration by the SIMA has averaged approximately 20%. This does not result from a general increase in labour conflict: quite the opposite, because industrial conflict has decreased in recent years.

Of the disputes dealt with in 2003, 95% (172 cases) were at company level, up from 84% (41 cases) in 1998. Disputes at sectoral level, on the other hand, represented only 5% (10 cases) and covered 21,477 workers in 2003, down from 16% (eight cases) in 1998. The lesser importance of sectoral disputes is due, among other reasons, to the fact that the banking and savings banks sectors have not adhered to the ASEC. By sectors of activity, the greatest number of disputes over 1998-2003 was in the chemicals sector, the electrical industry, metalworking, department stores, food, drinks and tobacco and telemarketing. As for the types of dispute, those arising from the interpretation and application of collective agreements represented 80% of the total in 1998 and 81% in 2003. This is due to the reference to the SIMA of more inter-regional company disputes. The next most important subjects of disputes are strikes, which have also remained stable: in 1998 they represented 16% of the disputes dealt with by the SIMA and in 2003 they represented 15%. Disputes over deadlocks in collective bargaining represented only 4% in 1998 and 3% in 2003. However, in 2003 there was an increase in the number of disputes over bargaining deadlocks, which can be attributed to the guidelines laid down by the intersectoral agreement providing a framework for lower-level collective bargaining (Acuerdo para la Negociación Colectiva) for 2003 (ES0302204F).