Understanding Labor Syndicates

The Syndicate - Concept

• The syndicate is a permanent organization of workers
• It represents and defends their interests
• It improves their living and working conditions

Core Elements of a Syndicate

• It is an organization of waged workers, with assimilated subjects (retirees) also able to join
• The goal is to defend and promote their economic and social interests
• Has a permanent association established to perpetuate itself in the long term

Constitutional Role of Syndicates (Article 7 CE)

• It has a historical and current role (because of how they were created)
• Defends workers' interests, improving their working conditions, as well as defending "economic interests"
• Has a current function that has political involvement and also acts within the political system
• Defends the interests of workers as members of society, related to culture and quality of life, called "social interests"

Syndicate Typology

• Syndicates are comprised of workers
• Classes:
  • Trade union
  • Professional syndicate
  • Industry syndicate
  • Company syndicate
  • General syndicate

Complex Syndicate organizations

• Integrated by lower-level organizations
• Classes:
  • Federations
  • Unions
  • Confederations
  • International organizations

Syndicate Typology II - Simple Syndicates

• Trade union groups workers from the same trade
  • Categorized as a horizontal syndicate
• Professional syndicate groups workers from the same profession
  • Categorized as actual
• General syndicate groups all types of workers
• Company syndicate groups workers from the same company
• Industry syndicate groups workers from the same sector
  • Categorized as a vertical syndicate

Syndicate Typology III - Complex Organizations

• Federation of branch or sector groups syndicates from the same sector
• Territorial unions group syndicates from the same territory, like local, provincial, and regional unions
• International syndicate organizations group organizations from different countries
• Confederations or central syndicates groups federations and territorial unions

Union freedom

• The right of workers to found and join unions of their choice
• The right of established unions to freely exercise their functions
  • To defend the interests of wage-earning work

Basic Regulations

• Article 28.1 of the Spanish Constitution
• Organic Law of Union Freedom (LOLS) 11/1985, of August 2

Ownership

• Collective ownership: collective subjects, such as syndicates
• Individual ownership: individual subjects

Individual Ownership

• Article 28.1 of the Spanish Constitution states that all have the right to freely unionize, where "all" is interpreted as workers
• Meaning the right only makes sense if subjects working for others are recognized
  • Article 7 CE mentions "workers'"
  • Article 28.2 and 37 CE recognize three rights only to workers
• LOLS recognizes the right to union freedom in development of Article 28.1 CE and recognizes "all workers," including two groups:
  • Subjects of a labor relation, meaning waged workers
  • Subjects of an administrative or statutory nature, meaning officials

Limits and Exclusions

• Limited union freedom for retirees, unemployed, incapacitated, and self-employed without employees per Article 3.1 LOLS
  • No right to found their own unions
  • Right to join already established unions
  • Members of the police have limited freedom set in their own regulations and excluded by LOLS Article 1.5
• Exclusions:
  • Armed forces and Civil Guard where Article 28.1 CE allows the law to exclude them or recognize the right with limits, and the legislator has chosen to exclude them and grant no union freedom
  • Judges, Magistrates and Prosecutors are directly excluded by the CE (Article 127)

Content of Union Freedom

• Double content, a Macro Right:
  • Individual
  • Collective
• Individual content:
  • Set of rights recognized to individual workers, called individual union freedom

Union Content in Collective

• Rights recognized to syndicates as collective subjects
• Called collective union freedom
• Individual content:
  • Founding syndicates
  • Affiliation and non-affiliation
  • Union activity
  • Guarantee of indemnity
  • Right to self-dissolution
• Positive and Negative Union Freedom:
  • Right to join the syndicate of one's choice with the obligation to respect the union's statutes
  • Right to leave the syndicate to which one belongs
  • Right not to join

Union Activity

• The right of workers, whether affiliated or not, to participate in the activities promoted by the unions
• Freedom of Indemnity:
  • The right not to suffer negative consequences in one's professional or economic situation if one decides to join or carry out union activities
• Right of Self-Dissolution:
  • The right of members to suspend or terminate the syndicate through democratic procedures

Collective Content

• Is to organize freely
• Rights related to complex organizations
• Includes not being suspended or dissolved without guarantees
• Includes union activity

Rights Related to Complex Organizations

• Right to form federations, confederations and international organizations
• Right to join them
• Right to leave them

Right Not to Be Suspended or Dissolved Without Guarantees

• A right used to prevent state interference
• Dissolutions are allowed with guarantees:
  • Binding court order
  • Serious breach of legality

Collective Content

• Union activity is an essential content
• Rights recognized directly in the Spanish Constitution
  • Allow syndicates to be recognized as such
• Core minimum:
  • Rights that cannot be eliminated: collective bargaining and strike
• Other rights also include:
  • Promotion of conflicts, rights recognized by law or agreement, and rights that may be suppressed by law or agreement, such as promoting union elections, presenting candidacies, and having union delegates in companies.

Union Representation

• Most representative syndicates
• A way of selecting syndicates from among all existing ones to represent the interests of all workers
• Aims to achieve a balance between union pluralism and effective union action
• Most representative syndicates enjoy a special legal position and allows them to perform functions that are not available to minor ones
• Unequal treatment between syndicates but considered constitutionally legitimate by the Constitutional Court
  • Not arbitrary or unreasonable
  • The selection criteria are objective, reasonable, and non-abusive

Criteria for Measuring Representativeness

• Single criterion: results in the elections by which unit representatives in companies are elected
• Double method: real representativeness or representativeness by irradiation plus real representativeness (electoral audience) including numbers obtained in the union elections
  • Representativeness by linking to unions with real representativeness meaning results obtained in the union elections
    • The link functions as a transmission belt for representativeness between syndicates

Degrees of Representativeness

• Most representative syndicates at the state level must obtain at least 10% of the unit representatives in the state
• The syndicates affiliated, federated, or confederated to the previous ones
• Most representative syndicates at the autonomous community level must obtain at least 15% of the unit representatives
  • Includes unions that have obtained at least 1,500 representatives, and are not federated or confederated to state syndicates
  • Includes unions affiliated, federated, or confederated to the above.
• Sufficiently representative syndicates have obtained at least 10% of the unit representatives in a specific territorial and functional area

Competencies of Most Representative Syndicates at State Level

• These unions have representative capacity in all territorial and functional levels
• Competencies include:
  • Holding institutional representation before administrations and public bodies
  • Statutory collective bargaining
  • Participating in determining working conditions in public administrations
  • Participating in non-jurisdictional systems of conflict resolution
  • Promoting union elections
  • Obtaining temporary transfers of the use of public properties
  • Any other function assigned to them by other laws

Competencies in Autonomous Communities

• Possess the same competencies as a state union
• At the state level, they have the following expertise:
  • Institutional representation
  • Collective bargaining

Competencies for Sufficiently Representative Syndicates

• All the previous ones except two: institutional representation and transfer of use of public property
• Other norms may recognize the competencies excluded by the LOLS:
  • Representation: the Constitutional Court says organizations can be used if there's a norm that says so
  • Transfer of use of property is a right recognized by Law 4/1986, but no preferential treatment

Ways of Financing

• Grants from the State and from the Autonomous Communities and local administrations
• Union fees are regular contributions from affiliates
• Discount clause
  • Employer's duty to deduct from salary
  • Affiliates eligible to collect them and has unavoidable character
• Negotiation fee
  • Amount to be paid by workers to cover the expenses caused by the negotiation of the agreement
  • Only to be paid if so stipulated in the agreement

Union Equity

• Historical as seized from the unions by the Franco regime and returned in democracy
• Accumulated amount used during the Franco regime by the OSE, now assigned for use by unions and business associations

Protection of Union Freedom in Articles 12-13 of LOLS

• Acts or conduct contrary to union freedom, called anti-union conduct, are null and void according to LOLS
• The injury to union freedom may come from an employer, business association, public administration, or any other person, entity, public or private corporation
• Can only result in injury to the rights of the holders including unions and/or individual workers, whether or not they are affiliated to a union

Anti-Union Conducts (Arts. 12 and 13 LOLS)

• The ones which discriminate against workers for their affiliation or not, or for carrying out union activities are considered anti-union conducts
• LOLS considers injury to union freedom to be:
  • The constitution of syndicates dominated or controlled by the employer or a business association
  • The maintenance of syndicates with equal purpose of control

Other Anti Union Conducts

• Open shop clauses that make the worker's employment dependent on whether or not they join a union or whether they cease to belong to it
• Dismissing or prejudicing a worker in any way for their union membership or participation in union activities

Union Security Clauses

• Incorporated in collective agreements
• Closed shop only requires the employer to hire those affiliated with the union signing the agreement
• Union shop requires workers to join the signing union if they want to keep their jobs

Ways to Protect Union Freedom

• Appeal for protection as it is a fundamental right
• Administrative sanctions imposed on the employer for injuring union freedom or discriminating for union reasons
• Criminal convictions for the most serious anti-union conduct
• Special process following the procedure in Article 53.2 CE
  • For public officials, the contentious-administrative jurisdiction applies
  • In the labor sphere, the procedure for the protection of fundamental rights and public freedoms applies

Characteristics of the Process

• Preferential and summary: priority over other processes. and of short terms and procedures
• It is intended to protect all fundamental rights in the labor relations sphere

Active Legitimation by the claimant

• Main party:
  • Worker when there is an injury of individual significance
  • Syndicate when there is an injury of collective significance
• Assistants to the worker: • The syndicate to which it belongs and the most representative syndicates, participate in the process in a limited way, play a complementary role of the plaintiff, and cannot appear, appeal or continue the process against the will of the worker

Passive Legitimation

• By the defendants
• Employer or any other person responsible for the injury
• The public prosecution intervenes as defender of the effectiveness of fundamental rights and can have the position of plaintiff or defendant depending on the circumstances

Rules on the Suspension of the Challenged Act

• Suspension protects against damages that cannot be repaired, while process is ongoing
• Claimant may request the suspension of the contested act in the letter of interposition of the claim
• The judicial body will agree to the suspension of the act when the alleged injuries are:
  • Impede participation of candidates in union elections or in collective bargaining
  • Impede participation in collective dismissals
  • Affect the general interest of workers

Burden of Proof

• Peculiarities: according to the common rule, corresponds to the plaintiff to prove the facts he alleges.
• In the protection process
  • Shift burden of proof, the applicant must provide evidence that generates a reasonable suspicion of the existence of the alleged injury and defendant corresponds to prove that its decision is reasonable, based on real causes and unrelated to any purpose of injuring the right
  • The defendant is not required to prove they have not injured the right

Content of the ruling

• Dismissal: states there has been no violation of union freedom.
• Estimation: when the injury is found to have been substantiated.

Judgment Exceeds Pronouncements

• Declaratory statement: states that there has been an injury to union freedom
• Nullifying declaration: declares the radical invalidity of the anti-union conduct
• Order requires immediate cessation of the conduct or obligation to perform the omitted activity
• Provision orders restitution, the situation to the moment before the injury
• Provision offers an indemnification to repair the damages caused, the consequences derived from the anti-union conduct

Relationship with Other Types of Process

• Not all alleged lesions of union freedom can be processed through this special process
• The corresponding procedural modality will be used when its lesion is invoked in the following cases: dismissals, other forms of termination of the contract and sanctions; suspension of the contract or reduction of working hours for economic reasons; substantial modifications and geographical mobility; vacations and conciliation rights; electoral matter; challenging of union statutes or collective agreements

In All These Procedural Modalities

• Guarantees of the process of protection of fundamental rights will be respected
• The Public Prosecutor must be cited

Procedure for the Constitution of the Syndicate

• For the syndicate to acquire legal status and full capacity to act, it must be constituted following the established procedure in LOLS and Decree 416/2015, of May 29
• In Andalusia, Decree 14/1986, of February 5, is also applicable, which regulates the system of deposits of the statutes for the syndicates that are constituted in the Community
• Syndicates must provide themselves with union statutes and deposit them correctly
  • Union statutes are the basic rule by which the union, once constituted, will be governed

Syndical Statutes Content

• Must include the following minimum content:
  • Name of the syndicate must not coincide with another already registered or induce confusion
  • Address and territorial and functional scope of action
  • Organic mentions
    • Bodies of representation, administration, and government
    • System of election of positions, which must comply with democratic principles
  • Requirements and procedures for the acquisition and loss of membership status
    • System of modification of statutes, merger, and dissolution
  • Economic system
    • Indicating the character, origin and destination of resources
    • Means that allow members to know its economic situation

Deposit of the Syndical Statutes

• The rules on the deposit of the syndical statutes must be complied with both when the syndicate is created and when it is intended to modify the statutes
• The syndical statutes must be deposited in the competent public office by the promoters or leaders of the syndicate
• Once submitted for deposit, the public office has 10 days to adopt one of the following decisions:
  • Give publicity to the deposit
  • Grant a period of rectification

Publicity of the Deposit

• The public office will give publicity to the deposit when it verifies that the statutes include the minimum legal content required
• For these purposes, the statutes will be published on the notice board of the public office and in the Official Gazette
• The following data must appear in the published document: name and scope of the syndicate, identification of its promoters and of the signatories of the articles of incorporation
• The syndicate will acquire legal personality and full capacity to act once 20 working days have elapsed since the deposit of the statutes

Term for Remedy

• The public office will grant a period of 10 days to rectify any defects found when it verifies that some of the mentions that form part of the minimum content are missing
• If the promoters remedy the defects, the public office will give the deposit publicity
• If the defects are not remedied, the office will reject the deposit for lack of minimum content
  • This resolution may be challenged through the special process provided in the LOLS

Process to Challenge the Refusal Resolution of the Deposit

• Those with standing to initiate the process through the process include
  • Promoters and leaders of the syndicate
  • Signatories of the articles of incorporation
• Always include the public administration to which the public office is attached and the Public Prosecutor who participates in defense of legality

The Judgement

• If the judgment is dismissive, it will confirm the refusal resolution of the deposit
• The judgement will be estimated when it is proven in the process that the syndical statutes include the minimum content required
• The judgement will order the deposit of the syndical statutes in the public office

Process to Challenge the Syndical Statutes

• The syndical statutes, already deposited and published, may also be challenged if they are considered not to comply with the law
• The following active legitimization is granted, the Public Prosecutor and those who prove a direct, personal, and legitimate interest, such as members and other syndicates
• Anyone may examine the statutes and obtain a copy of them
• Passive legitimization corresponds to the promoters and signatories of the articles of incorporation if the syndicate has not yet acquired legal personality
  • To the legal representatives of the syndicate if it has already acquired legal personality
  • The Public Prosecutor will always be part of the process
• The judgement may be is either dismissive, and doesn't affect the validity of the statutes, or estimated to declare the partial nullity of the challenged statutes when the nullity only affects one or several statutory clauses
• Declare the total nullity if it affects the statutes in their integrity