In a matter analyzed by the Supreme Court regarding the determination of the documentation that a company must deliver to the social representation in the consultation period that must precede the decision to substantially modify working conditions, the high court issued a ruling on last April 19.
In said ruling, the Supreme Court dismisses the appeal filed against the ruling of the TSJ of the Valencian Community, Social Chamber, of November 18, 2014, which declared null or subsidiarily unjustified the modification of working conditions on a collective basis adopted by the defendant company.
The reasons why the TSJ of the Valencian Community considered this modification null are the following:
- Concrete and individualized measures: with regard to the first reason for nullity, that is, that certain measures adopted, in accordance with article 41.6 of the Workers' Statute (ET) should have been agreed upon in accordance with a withdrawal of agreement and not in accordance with the procedure of article 41 of the ET, and that others, as they involve the conversion of full-time contracts into part-time contracts and vice versa would conflict with the provisions of article 12.4 of the same rule, considers that Since these are specific and individualized measures that affect specific workers, the analysis of their legality exceeds the scope of the issues that can be raised within a collective modification of working conditions. .
- Consultation period: the second of the reasons for invalidity invoked is the lack of a genuine consultation period due to the failure to provide the participating unions with various requested documentation. At a minimum, the motivating causes of the business decision and the possibility of avoiding or reducing its effects must be detailed, as well as the necessary measures to mitigate its consequences for the affected workers, and during this the parties must negotiate in good faith, with a view to to the achievement of an agreement, and both the opening of the consultation period and the positions of the parties after its conclusion must be notified to the Labor Authority.
The defendant company appeals in ordinary cassation for a single reason, which is protected by section e) of article 207 of Law 36/2011, regulating social jurisdiction, through which the improper application of article 41.4 of the ET is denounced. .
It is important to remember that this article of the ET establishes the following: "without prejudice to the specific procedures that may be established in collective bargaining, the decision to substantially modify collective working conditions must be preceded in companies in which there are legal representatives." of the workers for a period of consultation with them lasting no more than fifteen days, which will deal with the motivating causes of the business decision and the possibility of avoiding or reducing its effects, as well as the necessary measures to mitigate its consequences for the affected workers.
As reflected in the legal foundations of the analyzed ruling, the omission of such a procedure entails the declaration of nullity of the business modification decision adopted.
Regarding substantial modification of collective working conditions, this Chamber IV of the Supreme Court has been pointing out that, although article 41 of the ET does not contain any provision regarding the documentation that must be provided in the consultation period prior to the modification, substantial of conditions, It is necessary to consider mandatory presence both those documents that prove the concurrence of the causes and those that justify the corresponding measures to be adopted and in any case - in general - all those that allow the purpose of the consultation period to be fulfilled.
The issue of the delivery of certain documentation It has no formal configuration, but must be examined from an instrumental perspective that guarantees the duty to negotiate in good faith, which, in turn, must require the provision of the necessary information that allows effective negotiation between the parties.
It is, therefore, necessary to analyze in each case to what extent the social part is deprived of information or documentation that is convenient to be able to form its opinion and, therefore, design its position.
In the case analyzed, the variation suffered by the company in its production volume between 2013 and 2014 was presented as a determining element of the need to reorganize the workforce. This being the fundamental point on which the implementation of the consultation period pivoted, it is essential to be able to assess the extent of the economic variation between one period and another of the entrusted activity, since, even when the substantial modification of conditions is not accepted for economic reasons, it did rely on the reduction of contributions to propose measures of an organizational nature.
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