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Negotiating equality plans has become a real new challenge for companies.

Not only because the plan’s technical content is now much more complex, due to the recently approved Equality Plans Regulation (under Royal Decree 901/2020, of 13 October, summarized in our Legal Flash) but also because the parties who must sit down and negotiate is a key issue and can lead to the plan being unstable if the negotiating committee is incorrectly established.    

In fact, the courts have declared equality plans invalid — despite the companies reaching an agreement in negotiations with the employee representation — and flawed from the outset, as they failed to respect representation and parity rules for the negotiating committee.

Setting up that negotiating committee is relatively straightforward for companies with a single work center and a workers legal representation. But it can become a maze for those with several work centers,  particularly those that also have a workers legal representation in some centers but not in others.   

For a single company with several work centers, the first point to consider is that the negotiating committee is hybrid; the employee side has up to 13 members, made up of workers legal representatives and union organizations.

Another issue is whether the number of members on the negotiation committee can be reduced since, logically, negotiations should be smoother in smaller groups.

Having defined the number of members on the employee side, the company must do two things. First, it must invite the relevant union organizations to participate in the negotiations. They then have ten days to confirm whether they accept or decline the invitation; The second is more complex and involves defining how many seats fall to each of the workers representatives or union organizations participating in negotiations.

The Supreme Court has stated in the past that, in these cases, it is acceptable for each member to occupy a seat at the table in accordance with the union representativeness under which they have been elected as a committee member or employee delegate. This means that when distributing members in accordance with the membership of different union organizations that have joined the electoral process, seats must be distributed using the higher remainder rule (Supreme Court Judgment 4-11-2011, app. 151/2010, Supreme Court Judgment 11-19-2010, app. 63/2010, and Supreme Court Judgment 3-7-2010, app. 1220/2001).

This involves dividing the number of representatives by the number of members of the employee representation on the negotiating committee, dividing the number of representatives obtained by each union by the same quotient. Thus, the number of integers of the quotient obtained makes it possible to directly award seats on that committee, then award vacant positions in the order of fractional remainders, from highest to lowest.

However, it becomes complex for a company with several work centers to precisely calculate how many members of the negotiating committee fall to each work center and, in turn, each union. Access to the negotiating committee must also be based on the number of represented workers are in the center out of the total workforce.

The issue is further complicated for the equality plans of groups of companies operating in different sectors of activity. Despite this, there is a trend towards negotiating group equality plans, as, aside from any initial difficulties in setting up the negotiating committee, it is a more streamlined process in terms of efficiency and cost.

Although it is solely up to the union to establish the workers representation, in these circumstances it is practically essential to seek legal advice, to be certain that the equality plan will not be deemed void due to the negotiation committee having been established incorrectly.

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