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On September 21, 2017, the Supreme Court handed down a judgment (appeal 205/2016) that has reopened the debate on whether there is a new type of Condiciones Más Beneficiosas (CMB, more beneficial conditions) arising from changing a company’s collective bargaining agreement (CBA).

Until now, the individual more beneficial conditions were attached to the employment contract as a result of the business owner’s reiterated and clear will to assume a commitment that improved the standard set by law or the CBA (Supreme Court Judgment 16.09.2015, Appeal 233/2014).

Likewise, it may be collective in origin, when resulting from a collective covenant or agreement or enjoyed by workers as the result of a unilateral decision by the business owner for collective purposes.

Despite its special collective appearance, it casts its shadow over the contract and is attached to it as a contractual condition, meaning that it cannot be separated from the contract by the business owner’s decision, as the condition is classifiable as a tacit contractual agreement under article 3.1 c) of the Spanish Workers’ Statute.

Based on the doctrine of the Fourth Chamber of the Supreme Court (Supreme Court Judgment 15/06/2015, appeal 164/2014), the Collective Bargaining Agreement cannot be the source of more beneficial conditions, since being regulated in a collective rule, it becomes a condition enjoyed by virtue of the provisions of the CBA and not as more beneficial conditions.

Therefore, to date, and although the institution of more beneficial conditions is a living being with an unstable perimeter, it was clear that the CBA cannot be a source of more beneficial conditions, both whether they are in the agreement or outside it (Supreme Court Judgment 29/03/2016, appeal 127/2015).

However, the recent Judgment of 09/21/2017 (Appeal 205/2016) seems to question—at least on the surface—the established doctrine under which the CBA cannot be the source of more beneficial conditions.

The Judgment examines the petition of a trade union to recognize previous workers of a supermarket chain in the province of Girona, with contracts in force at October 2, 2014, the right to enjoy a 25-minute break during the uninterrupted work day after five and a half hours.

The company was being governed by the Girona Commerce Collective Bargaining Agreement, whose article 12 regulated the 25-minute break after five and half hours.

In 2013, following a change to the shareholder structure, the hours were homogenized, which resulted in the collective bargaining agreement adhered to the State Collective Bargaining Agreement of Household Products, Herbalists and Perfumery retailers.

This Collective Bargaining Agreement recognized the right to a 15-minute break after six hours of uninterrupted work. Likewise, article 7, under the title of “condición más beneficiosa,” established that all economic and other conditions contained in this Collective Bargaining Agreement, are the minimum; therefore, the current conditions in place in the various companies which globally entailed more beneficial conditions with respect to the provisions of the CBA would survive for those workers who wished to continue enjoying them.

Lastly, this last CBA specifically regulates in Transitional Provision One under the title “more beneficial conditions resulting from the change of Collective Bargaining Agreement”: This Collective Bargaining Agreement replaces in full the previous Collective Bargaining Agreement that was applicable to each worker, so that better rights resulting from the previous Collective Bargaining Agreement will govern the terms for each matter in this conventional agreement, and not the general referral made by article 7.

In view of this conventional regulation, the Supreme Court did not find that, to apply the 25-minute break, a more beneficial condition had to be established, therefore, upholding the claim based on the CBA’s regulation of more beneficial conditions, i.e., that a more favorable regulation for workers than that set out in the State Collective Bargaining Agreement will be respected.

Therefore, if workers had been enjoying a 25-minute break on days longer than five and a half hours under the provincial Collective Bargaining Agreement, that condition must be maintained as it is more favorable than those established in the State CBA.

From the Judgment it could be interpreted—despite the Judgment not arguing this—that the more beneficial conditions include a new connotation, as in the situation analyzed, the category of more beneficial conditions appears to extend to CBA conditions that are more favorable to the worker.

However, the Supreme Court does not base its decision on article 3.3, so the conflicts arising between the precepts or two or more labor rules, both at state level or agreed, (…) will be resolved by applying the most favorable rules; since this precept has been applied restrictively in the conflict between Collective Bargaining Agreements, not only due to the prohibition of concurrence under article 84 of the Spanish Workers’ Statute but because the principle of Regulatory succession established in its article 86.1 prohibits mention of the most favorable rule.

In any event, we must take into account that this Judgment has not been handed down in a case of unification of doctrine but in a standard final stage appeal; therefore, it is not case law and cannot be classified as general. Despite that, the profound nature of its contents means that once again we are readdressing the parameters of the most beneficial conditions of which, under a possible interpretation of this Judgment, more favorable conditions of CBAs seem to have been included.

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Blog de Cuatrecasas, uno de los referentes en la abogacía de negocios en España y Portugal. Representamos a algunas de las principales empresas cotizadas de ambos países y asesoramos a nuestros clientes en operaciones estratégicas, así como a inversores extranjeros interesados en el mercado ibérico