Termination due to non-compliance by the Company
Royal Decree 901/2020, of October 13, which regulates equality plans and their registration, established in article 5 that, without prejudice to the provisions agreed in collective bargaining agreements, equality plans must be negotiated by the companies with the legal representation of the workers, setting up the corresponding negotiating committee.
In the event that in the company, or in some work centers, there was no legal representation of the workers (RLT), paragraph 3 of the aforementioned provision stipulated that the representation in the negotiating committee of the workers of the company, or in the case of the work centers without RLT, will be made up of the most representative unions, will be made up of the most representative trade unions and the trade unions representing the sector to which the company belongs and which are entitled to form part of the negotiating committee of the applicable collective bargaining agreement, which respond to the company’s summons within ten days.
This provision raises a possible problem: what happens if the unions do not respond within those ten days?
This problem, far from remaining strictly theoretical, has been recurrently materializing in business life, since it is not uncommon for the unions to fail to respond, either within ten days or any other period, to the requests made by the companies to participate in the negotiating committee.
Faced with this situation, companies have opted for various solutions: from the formation of “ad hoc” commissions, whose members are made up of workers elected for the sole purpose of negotiating the equality plan, to the unilateral approval of the plan, without ever forming the negotiating commission.
However, at the time of making the application for registration in the public registry, an obligation imposed on companies by art. 4.4 of Royal Decree 901/2020, the administration rejects the application, considering that the requirement provided for in art. 5 of the Royal Decree, i.e., that the unions have not participated in the negotiating committee, has not been met.
In this regard, the administration has been arguing that if the unions do not respond within ten days to the company’s request to form part of the negotiating committee, the companies must reiterate the request as many times as necessary, until the unions decide to participate in the committee, thus granting them a sort of omnipotent power with respect to the possibility of negotiating equality plans in companies without RLT, or with RLT in only some of their work centers, subjecting them to their exclusive discretion.
This scenario has led companies without a RLT in their workplaces or in some of them, to choose between plunging into an endless spiral of complaints to the unions, or continuing with the processing of their equality plan, after formulating the mandatory call without it being attended, with the almost total certainty that its registration will be rejected once it is requested.
Well, the First Section of the Social Chamber of the High Court of Justice of Madrid, has issued a judgment on July 7, 2023, upholding the claim filed by this firm, claiming the registration of the equality plan of a company, despite the fact that the unions that were convened in the negotiating committee did not participate.
In the case analyzed, only the RLT of the only work center that had it participated on the part of the workers in the negotiating committee, given that the unions did not respond to the requirements that were repeatedly made to them by the company to intervene in representation of the rest of the work centers. Once the registration of the plan was requested, it was rejected by the GENERAL DIRECTORATE OF LABOR, and by the MINISTRY OF LABOR AND SOCIAL ECONOMY, precisely because the unions did not participate in the negotiating committee.
In the lawsuit we raise both the estimation of the request for positive administrative silence (legal figure undervalued and underused by a good part of the legal profession, as a result of the widespread and erroneous belief that the general effect of administrative silence is negative), having More than 3 months have elapsed since the registration of the equality plan was requested, such as adequate compliance with the requirement established in art. 5.3 of Royal Decree 901/2020, as unions have been required to form part of the plan’s negotiating committee.
The judgment handed down concluded that “The registration request does not transfer to the applicant company any power of public domain or a power of the public service” and therefore, having elapsed more than 3 months since the registration of the plan was requested without having been resolved, in accordance with the provisions of arts. 24.1 and 21 of Law 39/2015, the estimate concurred due to positive silence.
And likewise, regarding the merits of the matter, it considered that the equality plan should be registered as “it was the stubborn attitude of the unions that have ignored the company’s repeated requests to sit down and negotiate that has prevented the constitution of the negotiating commission”.
The conclusion reached in the aforementioned judgment is highly relevant in view of the scant judicial doctrine that exists regarding this issue, which is relatively new, and establishes a trend that is being reiterated, at least in the Superior Court of Justice of Madrid, although it is pending confirmation by the Supreme Court.