César Navarro Eva Ceca February 1 2023 Time off for trade union duties due to staff cuts does not violate right to freedom of association CMS Albiñana & Suárez de Lezo | Employment & Immigration - Spain César Navarro, Eva Ceca Employment & Immigration IntroductionFactsDecisionIntroductionJudicial doctrine allows a company to adjust time off granted to union representatives when there are staff redundancies, so that such time off corresponds to the actual number of employees. On 22 July 2022,(1) the Labour Division of the Supreme Court resolved the issue of whether reducing the time off granted to a union representative due to staff shortages is a violation of the right to freedom of association. The judgment also ruled on how to calculate the total number of staff, considering both permanent and temporary employees.Facts The case involved a company that had over 751 employees in 2019. Given its size, the Federation of Industry, Construction and the General Union of Workers (UGT-FICA) representative had accumulated 80 hours of time off for trade union duties, which is the amount of time that would correspond to two representatives if calculated based on the number of employees in the company.On 11 March 2020, the company laid off 22 employees with temporary employment contracts, effective 31 March 2020. The company implemented a temporary collective redundancy (ERTE) in 2020, in which the union representative acted as a worker's representative", with the union being against the redundancy procedure altogether.In April 2020, the company informed UGT-FICA that, as the company had fewer than 751 employees at that time, the amount of time off for their union representative would be reduced from 80 to 35 hours. The union and its representative challenged the company's decision, as they believed it went against the union's right to freedom of association. They described the reduction as an act of retaliation in response to the union's negative stance on the ERTE procedure and argued that, in any case, the number of employees had not been estimated correctly.The claim was dismissed by the National High Court. The union and its representative filed an appeal against the ruling.DecisionThe Supreme Court recalled its doctrine by which, if there is a reduction to the workforce, the company can alter the time off granted to union representatives to correspond to the actual number of staff in the company.The Supreme Court also pointed out that the number of permanent and temporary employees calculated to determine the number of workers' representatives is established in article 72 of the Workers' Statute. Such article, by analogy, must also be applied to determine how many union representatives are covered by the guarantees set in the Law on Freedom of Association, including time off to carry out their duties.The above-mentioned article also foresees that if the duration of a temporary contract is over one year or, if during this term, the aggregate of time worked exceeds 200 days, the employee is to be counted as a permanent employee.In view of the above, the Supreme Court found that the company's workforce at the time of the notice was fewer than 751 employees, due to the termination of multiple employment contracts.The Supreme Court concluded that the company had simply adjusted the amount of time off to correspond to the number of employees, on objective and reasonable grounds, and therefore it was not an act of retaliation due the union's stance on the ERTE negotiations, in which the union representative had not even participated.The Supreme Court thus dismissed the appeal for the unification of doctrine.For further information on this topic please contact César Navarro or Eva Ceca at CMS Albiñana & Suarez de Lezo by telephone (+34 91 451 9300) or email ([email protected] or [email protected]). The CMS Albiñana & Suarez de Lezo website can be accessed at www.cms.law.Endnotes (1) ECLI:ES:TS: 2022:3093.