Final Questionnaire for EIRO CAR on “The effect of the Information and Consultation Directive on Industrial Relations in the EU Member States five years after its transposition

  • Observatory: EurWORK
  • Topic:
  • Participation at work,
  • Labour and social regulation,
  • Industrial relations,
  • Published on: 18 January 2011



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Spain
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Disclaimer: This information is made available as a service to the public but has not been edited by the European Foundation for the Improvement of Living and Working Conditions. The content is the responsibility of the authors.

In Spain, the transposition of the Information and Consultation (I&C) Directive has not brought about any significant changes in legislation. Information and consultation rights were already integrated into the unitary employee representative bodies: workers’ committees and workers’ delegates. Moreover, Spanish legislation does not provide for a minimum staff threshold that determines the demands of information and consultation rights. Nonetheless, the massive job losses caused by the economic crisis calls into question the effectiveness of employee representative mechanisms in companies when it comes to negotiating socially-sustainable solutions to the economic crisis.

Question 1: Trends in the incidence of undertaking- and/or establishment-level information and consultation bodies

There are no I&C bodies in Spain. These functions are integrated into the unitary employee representative bodies: workers’ committees and workers’ delegates.

(a) Using official statistics where possible, please provide annual data for the years 2005-2009 (inclusive) on the number and proportion (%) of undertakings and/or establishments which have an information and consultation (I&C) body or equivalent.

According to the Working and living conditions survey (ECVT) carried out by the Ministry of Labour and Immigration (MTES) in 2008 57.5% of all undertakings had workers’ delegates or workers’ committees in comparison with 52% in 2004.

(b) Where possible, please provide data to show trends in the uptake of I&C bodies by:

(i) size of undertakings/establishments in terms of employment levels (i.e. under 50 employees, 50-99 employees, 100-199 employees; 200-499 employees, 500 or more employees or other appropriate size bands used in national statistics)

Size of undertakings/establishments in terms of employment levels (2008)

2008

 

Size of undertaking/establishment

%Yes (Yes+No)

Under 11

16%

Between 11 and 50

48.5%

Between 51 and 250

70.2%

More than 250

83%

Total

57.5%

Size of undertakings/establishments in terms of employment levels (2004)
   

2004

 

Size of undertaking/establishment

%Yes (Yes+No)

Under 11

13.4%

Between 11 and 50

44.9%

Between 51 and 250

75.9%

More than 250

89.2%

DK/NA

67.3%

Total

51.9%

Source: Working and living conditions survey (ECVT)

These figures are estimates made by crossing data obtained from the Working and living conditions survey (ECVT) carried out by the Ministry of Labour and Immigration (MTES) regarding the answers to two questions:

  1. Could you tell me if the company or organisation you work for has a structure that enables collective bargaining, i.e., if it has a workers’ delegate, a workers’ committee or similar?
  2. Number of employees in your company

It must be taken into account that in question 1, a high percentage of workers replied that they were unaware of any existing workers’ delegates and workers’ committees (approximately 50% in 2004 and 43% in 2008). As a result, the data given only includes affirmative and negative answers, ruling out those who claimed to be unaware of the existence of workers’ committees. Nonetheless, the fact that this percentage is considerably higher in undertakings with up to 50 employees would suggest that this ignorance of existing legal representatives points to a weak implementation of employee representative bodies in small businesses.

(ii) sector (broadly defined, i.e. industry/manufacturing, private services, public services).

N.A.

(c) Please provide information on the extent of I&C arrangements in:

(i) smaller undertakings (those with fewer than 50 employees)

In Spain, company obligations with regard to I&C are not determined by the staff of an undertaking or workplace. This means that the thresholds specified in article 3 of the Directive (exemption of I&C rights from being applied to undertakings with fewer than 50 employees and workplaces with fewer than 20) are not applied in Spain. However, as described in question 1.b. i, worker’s legal representation is only present in a small share of undertakings with up to 50 employees.

(ii) public administration.

There are no workers’ committees or workers’ delegates in public administration. Public employees are involved in industrial relations by means of negotiating tables made up of members of representative trade union organisations and representatives from the public administration.

(d) What factors explain any increase/decrease in the incidence of I&C bodies (e.g. economic climate, legislative change, other)?

With the statistical information available, it is not possible to make an assessment of the evolution of workers’ committees or workers’ delegates. In this respect, the data pertaining to 2004 and 2008 do not reflect any substantial changes.

However, bearing in mind the different factors that may contribute to the establishment of employee representative bodies in companies, studies on the industrial relations system in Spain often refer to the low trade union membership of employees working for small enterprises as an explanatory factor. One indicator that is frequently used to justify this hypothesis is the trade union membership rate according to size of undertaking, which in Spain can be estimated as follows:

SIZE OF UNDERTAKING / ESTABLISHMENT and Union membership rate

SIZE OF UNDERTAKING / ESTABLISHMENT

Union membership rate

Under 11 employees

6.4

Between 11 and 50 employees

13.8

Between 51 and 250 employees

18.6

More than 250 employees

29.6

Statistics on Income and Living Conditions ( Encuesta de Condiciones de Vida) 2009

Taking into account the link between trade union membership and the existence of unitary employee representative bodies, the low trade union membership of employees in small enterprises can partly explain the scarce establishment of workers’ delegates and workers’ committees in this kind of establishments.

Question 2: Procedures for establishing I&C bodies

(a) What are the procedures for establishing I&C bodies in your country? For example, are I&C bodies mandatory (i.e. employers are obliged by law to establish them), or is their establishment dependent on employees/trade unions triggering statutory procedures? In the latter case, who can initiate the procedure? Is there a specified level of employee support required?

I&C rights are established by workers’ delegates and workers’ committees that are freely set up by employees. Once they have been established, employers are obliged to acknowledge them and respect the areas of competence specified in article 64 of the TRET (Revised Text of the Workers’ Statute – Official State Journal, 29th March 1995, no. 75/1995).

Elections for workers’ delegates and workers’ committee members can be called by the representative trade union organisations (Article 67, TRET). Those who call the elections must inform the company and the labour authorities of their intentions at least one month in advance. In addition, elections may be called at a more general level in one or several functional or territorial areas, subject to the agreement of the most representative trade unions.

Article 63 of the TRET specifies that workers’ delegates are responsible for representing workers in establishments and workplaces with between 50 and 10 employees. There may also be a workers’ delegate in undertakings with 6 to 10 employees, provided that it is a decision reached by the majority of employees. In undertakings with up to 30 employees, there may be one workers’ delegate, and three in the case of undertakings with between 31 and 49 employees.

Workers’ committees are employee representative bodies in workplaces with a staff of 50 or more workers. In the case of companies with two or more establishments in the same province or bordering municipalities with fewer than 50 employees in each workplace but with fifty or more employees as a whole, a joint workers’ committee may be established (article 64, TRET).

The number of workers’ committee members is distributed according to the following scale:

  • - Between 50 and 100 employees: 5
  • - Between 101 and 250 employees: 9
  • - Between 251 and 500 employees: 13
  • - Between 501 and 750 employees: 17
  • - Between 751 and 1000 employees: 21
  • - 1000 and more employees: 2 per 1000 or fraction thereof, with a maximum of 65

(Article 66, TRET)

(b) Please supply any available data on the extent to which I&C bodies have been:

(i) requested by employees

N.A.

(ii) requested by trade unions

N.A.

(iii) initiated unilaterally by employers.

N.A.

(c) Have the national government and/or the social partners in your country actively promoted the establishment of I&C bodies? If so, how have they done this?

As described in question 2.a., those who promote the creation of I&C bodies are employees in the workplace and trade unions.

(d) What explains the absence of I&C bodies in some undertakings/establishments in which I&C bodies are supposedly mandatory or the statutory right to trigger their introduction applies?

N.A.

Question 3: Constitutional provisions

(a) Are the structure, rights and functioning of I&C bodies in your country determined by:

(i) statutory requirements that apply to all establishments/undertakings

The structure, rights and functioning of I&C bodies is regulated by the Revised Text of the Workers’ Statute

(ii) organisation-specific agreements/arrangements that may differ from the statutory provisions, providing the scope for organisations to vary the design of the I&C body and the processes of information provision and consultation

(iii) a mixture of the two.

(b) To what extent can and do organisation-specific agreements/arrangements differ from national statutory requirements on I&C? What motivates the parties to introduce such agreements/arrangements? Please summarise any available data on the provisions of organisation-specific agreements/arrangements.(c) Are the terms of organisation-specific agreements/arrangements enforceable? What procedures – e.g. complaint to external administrative or judicial authorities (please specify which) – are available for this purpose?

Question 4: The main subjects for I&C

(a) What types of information are regularly provided by senior management to I&C bodies? Please give examples.

Workers’ delegates and workers’ committees have the following I&C rights:

1. To receive information made available at least every three months regarding the general development of the economic sector the enterprise belongs to, the company’s production and sales situation, its production schedule and likely evolution of employment, as well as its proprietor’s forecast with regard to new recruitments, indicating the number of recruitments, forms and types of contracts that will be utilised and subcontracting assumptions.

2. To receive a basic copy of contracts within ten days of their being concluded.

3. To be informed as to the company balance, the income statement account, the company report and, if the enterprise changes its corporative structure through shares or holdings, to be provided with the documents that are issued to the partners, in the same conditions.

4. To issue a report prior to any action taken by the enterprise owner regarding the following matters:

  • - Staff restructuring and total or partial, definitive or temporary dismissals of employees.
  • - Reduction of working hours as well as the total or partial relocation of company premises.
  • - Provision of professional training of the enterprise.
  • - Introduction or review of organisation and work control systems.
  • - Study of working hours, implementation of bonus or incentive schemes and assessment of employment positions.

5. To issue a report when the merger, takeover or modification of the legal status of the enterprise involves any repercussion that will affect the volume of employment.

6. To be to be informed as to the models of employment contracts used by the enterprise, as well as the documents pertaining to termination of employment.

7. To be informed of any sanction imposed due to serious misconduct.

8. To be informed, on a three-monthly basis at least, of the statistics concerning absenteeism rates and their causes, industrial accidents and occupational illnesses and their consequences, accident rates, periodic or special reports concerning the work environment and any preventive measures that are adopted.

(Article 64, TRET)

(b) What issues are typically the subject of consultation between management and employee representatives? Please give examples.

Workers’ delegates and workers’ committees are entitled to be consulted regarding every decision taken by the enterprise that may produce significant changes in work organisation and employment, as well as any preventive measures that are taken, especially when jobs are at risk.

Furthermore, workers’ delegates and workers’ committees are entitled to present reports within 15 days of being requested with regard to the following matters:

• Staff restructuring and total or partial, definitive or temporary dismissals of employees.

• Reduction of working hours.

• Total or partial relocation of company premises.

• Processes of merger, takeover or modification of the legal status of the enterprise that involves any incidence that may affect the volume of employment.

• Provision of professional training.

• Organisation and work control systems.

(c) What issues are typically raised by employee representatives themselves? Please give examples.

N.A

d) Since the onset of the recession, to what extent have I&C bodies been a vehicle for dialogue and consultation over management decisions concerning restructuring and recession-related developments? Please provide a general overview with evidence and examples.

No statistical information is available on the activities of workers’ delegates and workers’ committees in enterprise restructuring processes. However, the overall picture is that dialogue and consultation with representative employee bodies has only played a minor role in these processes, particularly as regards internal flexibility strategies to maintain employment.

In Spain, enterprises have mainly adopted adjustment strategies based on numerical or external flexibility. Thus, according to data provided by the Labour Force Survey (EPA) for 2009, 2,029,000 unemployed persons had to leave their last job because their contracts had not been renewed, compared to the 999,000 unemployed persons who had been dismissed. Additionally, it should be noted that of the 549,282 employees affected by collective lay off and restructuring procedures in 2009, only 20,591 were affected by measures involving a reduction of working hours, i.e., a mere 3.8% (Ministry of Labour and Immigration MET 2009). Thus, it may be inferred that bargaining aiming to seek internal flexibility strategies with a view to maintaining employment have either been non-existent or have been rejected.

Question 5: The nature and extent of the I&C process

(a) How often do I&C bodies typically meet with management? Is it common practice for special meetings of the I&C body to be called to consider urgent or important matters? If so, on what issues?

The law requires that workers’ committees receive information at least every three months regarding the general development of the economic sector that the enterprise belongs to, the enterprise’s production and sales situation, its production schedule and likely evolution with regard to employment.

(b) How does consultation take place? For example, is information on proposed changes provided by management so that employee representatives can prepare a considered view? Do managers provide a reasoned response to employee representatives’ opinions? Examples of good and poor practice would be helpful.

In practice, although workers’ delegates are legally entitled to the same I&C rights as workers’ committees, these rights are being exercised most ambitiously in the larger businesses. The greater capacity of mobilization of workers by workers’ committees in larger workplaces enables the committees to call meetings and discuss organisational aspects of greater scope. Trade union criticism of I&C rights in small businesses focuses on the insignificance given to these rights, which are generally limited to bureaucratic procedures of little impact on issues pertaining to the working conditions and economic strategies of enterprises.

(c) Is information usually provided on a confidential basis to the I&C body before management decisions are taken and announced? Are there examples of I&C not taking place due to confidentiality considerations?

Article 65 of the TRET establishes that workers’ delegates and workers’ committees are bound by professional confidentiality regarding the information rights described in question 3.b.iii, even after they have left the committee, and particularly regarding matters that the enterprise owner explicitly identifies as being confidential.

(d) Please outline what guarantees and protections employee representatives usually have, e.g. time off work, training, material and financial resources, facilities, protection against dismissal/ discrimination, access to workers.

Employee representatives are given greater priority in relation with other employees with regard to remaining in the enterprise in cases of job termination or suspension due to economic causes. They also have the right not to be dismissed or sanctioned during the exercise of their duties or within the year following the termination of their mandate. They are protected against discrimination regarding their economic or professional promotion as a result of their position as employee representatives, and they have the right to devote some working hours to carry out their representative tasks. (Article 68, TRET)

(e) Can employee representatives seek external advice on how to handle difficult topics for consultation (e.g. from trade unions, external consultants)? In the case of the latter, who pays?

Yes. Generally speaking, workers’ delegates and workers’ committees are offered the support of the trade union they belong to, which advises them on bargaining matters. Thus, when the enterprise notifies the workers’ committee of complex decisions such as collective dismissals, the trade unions often back the workers’ committee by making available experts on the subject.

Question 6: Practical outcomes of consultation

(a) What evidence is there, if any, of the consultation process resulting in the modification of management decisions and/or the process or timetable for their implementation? Please give an overview of the impact of consultation with examples.

In Spain, I&C rights are embedded in industrial relations and collective bargaining since the Workers’ Statute was enacted in 1980. They play a major role in all industrial relations and collective bargaining processes.

(b) How many complaints per year concerning the operation of I&C procedures (e.g. employers not consulting in circumstances where consultation is obligatory) have been lodged with administrative or judicial authorities since 2005? Who were the claimants and what were the key issues? What proportion of these applications were upheld? What sanctions were imposed?

N.A

Question 7: Relationship between I&C bodies and other forms of employee voice

(a) Can, and if so do, trade unions play a part in the establishment of I&C bodies and in their operation? Do external trade union officers often sit on I&C bodies? How common is it for I&C bodies to include both union and non-union employee representatives?

As mentioned previously, the representative trade unions can call elections for workers’ delegates and workers’ committees. In Spain, trade unions and unitary employees representative bodies have a close relationship. In fact, the representativeness of trade unions is established according to their electoral strength, measured by the number of workers’ delegates and workers’ committees achieved during elections. Hence, a very high percentage of unitary body representatives belong to the main trade unions.

(b) Is there any overlap between the remit of I&C bodies and trade union-based collective bargaining? If so, how are such issues resolved?

As described in question 6a, the model of industrial relations in Spain enables the most significant aspects regarding I&C rights to materialise by means of collective bargaining. Moreover, the fact that most workers’ delegates and workers’ committees are affiliated to the trade unions that participate in collective bargaining facilitates communication between organisations and employee representatives in the enterprise. In fact, at an internal level, trade unions are usually responsible for initiating consultation processes with workers’ representatives prior to the negotiation of multi-employer agreements.

(c) Is the consultation required by the collective redundancies/transfer of undertakings Directives carried out via I&C bodies, trade unions or other employee representatives?

In these cases, consultation rights devolve upon workers’ delegates and workers’ committees which are usually backed up by trade union organisations

(d) Is the use of direct forms of employee involvement by management through such things as team briefings seen as complementary to or in competition with the I&C body?

The most representative trade unions acknowledge and agree to collaborate with the enterprise and claim an active participation in the economic strategy and work organisation. However, the idea of an inherently conflictive relationship between employees and employers, as a result of the diverging interests of each collective, has led trade unions to be mistrustful of forums of debate and participation that are managed by the enterprise.

Question 8: Views of the social partners

(a) What are the attitudes of the main employer and trade union organisations in your country towards (i) the value or necessity of I&C bodies and (ii) the operation of I&C bodies in practice, especially in a recession?

There is currently no debate on the need to promote I&C rights, but discussion is focused on the organisation of collective bargaining, where a marked divergence has arisen between employers’ organisations and trade unions.

The thesis upheld by the leading employers’ organisation, the Spanish Confederation of Employers' Organizations (CEOE), argues for the need to bring flexibility to collective bargaining. They consider that enterprises should be enabled to negotiate changes in work organisation and remuneration in the minimum possible period, thereby facilitating resort to opting-out clauses regarding the sector agreements.

The most representative trade unions, the General Workers’ Confederation ( UGT) and the Trade Union Confederation of Workers’ Commissions ( CCOO), opposing the CEOE position, argue that sectoral collective bargaining has provided sufficient examples of responsibility, being a contributing factor to wage moderation in times of economic growth. In addition, the scant trade union presence in small enterprises (the majority of enterprises in Spain) works against bargaining in the workplace since only the employers’ side is represented.

(b) Have the social partners, jointly or separately, conducted any review of the operation of the national regulatory framework governing I&C? What is their assessment of its effectiveness? Is there any pressure from the social partners for reform?

The social partners have not suggested any revision with regard to I&C mechanisms.

Commentary by national correspondents

The rights of information and consultation enjoy wide legal recognition within a system of industrial relations that establishes the degree of representation of trade union organizations according to their presence in the unitary representative bodies. Nonetheless, the fact that over half the undertakings which employ between 11 and 50 workers and 74% of the undertaking with less than 11 workers – which, in Spain, employ 70% of employees – lack workers’ representatives, restricts in practice the I&C rights. This factor, combined with a temporary employment rate that is well above the European average (25%), has facilitated the fact that company adjustment to the crisis has basically occurred through employment. Hence, one would hope for a greater presence of workers’ representatives in small enterprises, combined with greater impetus in seeking strategies of internal flexibility through the positive application of I&C rights.

Pablo Sanz De Miguel, CIREM Foundation

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