Employees' representatives enjoy certain special rights, one of which is the entitlement to be relieved of their employment obligations for a certain number of paid working hours per month in order to perform duties as employees' representatives. As stated in Spanish Employment Code, the number of hours per month ranges from 15 to 40, depending on the total workforce in the company.
The provision in the law is quite clear, but really does not consider certain scenarios and conditions that may affect this right. Also, it does not offer room for interpretation in case of specific agreements and amendments.
In the case analyzed by Spain's Supreme Court, the company reached an agreement about the use of the hours for representation purposes with the employees' representatives in each particular work center. The agreement was called "Improvement on the Regime Established in the Employment Code," and with this agreement the parties transformed the maximum hours to be spent for representative functions to complete working days:
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With this conversion, the total hours to be used by the employees' representatives were increased in favor of the employees' representatives. In return, the employees' representatives made the commitment to use said right in complete days and not by hours, all in order to reconcile the right to use trade union credit time. The agreement allows for the possibility to take into account the organizational needs of the company with an eye towards minimizing the impact that trade union credit time could have on the normal operation of the company.
The problem arose when part-time employees started working and also became employees' representatives. They argued that the agreement reached with the company which, in principle, should improve the employees' representatives rights in fact produced the opposite effect for them. The transformation of the hours to working days, in their case reduced their rights. The equivalency is not favorable for part-time employees.
The Supreme Court issued a decree in July 2014 for unification of doctrine, concluding that the agreement was against the law. The Court allowed the parties to reach agreements in relation to the use of the hours for employees' representatives, but these cannot entail a reduction or limitation of the rights recognized in the Employment Code. The Court held that the agreement as it is worded may reduce the hours which part-time employees may use as employees' representatives to a limit below what is established by the law. Mainly because a "working day" does not mean the same number of hours for a full-time employee or a part-time employee.
Again, the use of the representatives' hours by working days and not hours is accepted by the Supreme Court. In practice, this option can help companies from an organizational perspective. They need only find the correct way to draft the agreement so that a reduction of rights is avoided.