Very often companies may have certain doubts about the rights of the workers’ legal representatives, either unitary or as members of the trade union, but fearing they could violate their rights to union freedom they prefer to leave them as they are and not adopt decisions that could compromise them and lead to negative consequences in the form of claims, costly compensation or being smeared in some way through means of communication or social media.

However, there are specific and special situations that under no circumstances imply a violation of the rights of this group of workers bearing in mind their special position and the protection granted to them by law. Correct application of the law is a key factor to avoid compromising situations that could result in causing damages to a company.

Judgement of the Supreme Court of 14-07-2022: In the case of the number of staff being decreased, the company can unilaterally adjust the hourly credit of the union delegates, adapting it to the real number of workers in the company.

The Supreme Court recently repeated doctrine that had already been determined on previous occasions. As already mentioned in the introductory title of this section, companies can adjust the hourly credit of their union delegates providing such adjustment is in accordance with the criteria stipulated in Article 10.2 of the Spanish Union Freedom Act (with initials in Spanish “LOLS”). We refer to the contents of such provision below:

• The number of delegates specified in the scale referred to in this section may be increased either by virtue of reaching an agreement or collective bargaining, bearing in mind the company’s staff or, when appropriate, the work centres corresponding to each of them.

If there are no specific agreements in this respect, the number of union delegates for each union section of the unions that have obtained 10 per cent of the votes in the election of the Works Council or the representative body of the public authorities must be determined according to the following scale:

• From 250 to 750 workers: One.
• From 751 to 2000 workers: Two.
• From 2001 to 5000 workers: Three.
• From 5001 or more: Four.

Moreover, Article 68 e) of the Spanish Labour Relations Act (Estatuto de los Trabajadores), states that the workers’ legal representatives must be allowed individual monthly remunerated hourly credit, enabling them to accumulate hours in one or several of its components, but without exceeding the total maximum number. The hours available will vary according to the following scale:

• Up to one hundred workers, fifteen hours.
• From one hundred and one to two hundred and fifty workers, twenty hours.
• From two hundred and fifty-one to five hundred workers, thirty hours.
• From five hundred and one to seven hundred and fifty workers, thirty-five hours.
• From seven hundred and fifty-one or more, forty hours.

The factual case of the judgement ruled by the Supreme Court of 14-07-2022:

In this case, there was only one union delegate appointed in a company that employed 763 workers on 23 March 2020, with an accumulated hourly credit of 80 hours, bearing in mind the aforementioned provisions.

However, after a series of contractual terminations, (termination of temporary contracts, disciplinary dismissals, declaration of permanent disabilities, etc.), on 20 April 2020 the company informed the union delegate that a number of fewer than 751 workers were employed on the staff at such time; therefore the union he belonged to was allowed to appoint one sole union delegate, with 35 hours of credit, therefore he would no longer be entitled to the 80 hours that he had previously been granted.

The trade union in question and the union delegate filed a claim against the company in order to protect his fundamental rights, petitioning that a credit of 80 hours was acknowledged, alleging that his union freedom had been violated and, for such reason, claiming compensation of €6,000.

The ruling of the Supreme Court

By applying case law doctrine already determined by the High Court, it was concluded that companies were allowed to adjust the hourly credit of union delegates when the staff of a company is decreased, adapting such hours to the real number of workers for which the union delegate must perform his/her duties, ruling that the fundamental right of the union delegate in question had not been violated, all the foregoing notwithstanding the fact that, if the company recovers the previous number of staff, the hourly credit must be adapted again.

The judgement reviewed the criteria stipulated to determine the calculation of the number of workers that must be taken into account regarding the total number of workers, which is no easy matter; however this is not subject to analysis in this article due to its special scope and complexity. Therefore, please do not hesitate to contact us if you have any doubts related to which workers must be counted in order to determine the exact number of staff to then find out the exact number of union delegates your company can appoint. We will be delighted to advise you about this or any other issue related to this matter. We look forward to hearing from you!