Spain: The reform of article 84.2 of the Workers’ Statute: priority of application of the company's collective bargaining agreement

Prior to the 2012 labor reform, application of the general principle of concurrence of collective bargaining agreements provided for in the first paragraph of article 84 of the Workers' Statute (WS) was peaceful and was supported by extensive case law. Thus, as indicated in the Supreme Court ruling of January 29, 1992, "the chronological priority (does not) attribute once and for all better collective bargaining rights to one or other negotiating parties for the regulation of a regulatory aspect or working condition; the rule of Article 84 WS of respecting or not affecting the agreement already drawn up only applies logically throughout its term; and in principle, in accordance with Article 86 WS, agreements are temporary or fixed-term rules. It makes no sense, therefore, to go back to the origins of the negotiation of one or the other to find out which of them has regulated the matter before, since at each expiration of the term of an agreement the possibility of revision of its different clauses is reopened".

For these purposes, it is crucial to define what is considered to be the initial moment of effectiveness of the collective agreement (whether the communication of the commencement of negotiations, the effective application of the concurrent agreement or the registration of the agreement in the public office). Out of all the options, the safest is the date of registration of the concurrent agreement because it avoids the risk of relying on a mere expression of will that might not end successfully or, if the date of its effective application is chosen, because it would be left to the will of the parties as to its true effectiveness.

Likewise, the final moment of the prohibition of concurrence, that is to say, the moment from which the prohibitive rule does not apply, is of enormous importance. This moment can only be understood as the end of the agreed term (including its extensions), and cannot be extended during the periods of ultra-activity.

Thus, the 2012 reform introduced a new exception to the general rule, with a new paragraph 2 in article 84, allowing the negotiation of a company (and group of companies or network) collective bargaining agreement at any time during the term of the collective bargaining agreement of a higher scope, giving it priority of application over a certain list of matters.

This exception did not alter the general rule. However, the judgment of the Supreme Court of 30 December 2015 substantially changed the rules of the game and considered that "the prohibition of concurrence persists, once the agreed term of the agreement has ended and during the period of ultraactivity thereof, since during said period of ultraactivity the expectation of negotiation of a new collective bargaining agreement is maintained (...) consequently, during the legally established period of ultraactivity, the mandatory clauses also remain in force and, in addition, the purpose of this period is the negotiation of the new agreement, the conclusion is that the prohibition of competition subsists during the period of ultraactivity".

The immediate consequence was that from that moment onwards, company agreements, once finalized and renewed, only fell under the second paragraph of article 84, subordinated to the applicable sectoral collective labor agreement, except in the matters indicated in Article 84.2, with the exception of only those company agreements whose scope had been previously protected by maintaining their validity by means of extension (and not ultra-activity) or by the existence of a prior agreement under the terms of Article 83.2 of the WS (resolution of conflicts of concurrence) within the sectoral agreement.

Fortunately, the Supreme Court, in its judgment of 5 October 2021, has rectified this, considering that "the prohibition of concurrence between collective bargaining agreements proclaimed as a general rule in Article 84.1 WS extends during the term of the pre-existing agreement. This legal expression must be understood as referring to the initial term provided for in the agreement or expressly extended by the parties, but not to the period subsequent to such term, once the agreement has been reported, known as the ultra-active term, either that provided for in the agreement itself or, failing that, that established in Article 86.3 WS".

In this scenario, RDL 32/2021, of 28 December, on urgent measures for the labor reform, the guarantee of employment stability and the transformation of the labor market, has been enacted. Its first article, paragraph nine, has eliminated paragraph a) of article 84.2, maintaining the possibility of negotiating a company collective bargaining agreement during the term of the sectoral collective bargaining agreement of higher scope and eliminating the priority of application of the company agreement over the sectoral agreement in regard to the amount of the base salary and the salary supplements.

Therefore, the company agreement shall have priority application not only in compensation matters, but in all matters, depending on its effective date in relation to the applicable sectoral collective bargaining agreement, as follows:

1. If the company agreement is registered with the competent public office after the sectoral agreement has expired (i.e. during its ultra-activity period) and before the latter (the sectoral agreement) is registered with the public office, it will be fully applicable, without reservation, in accordance with the provisions of Article 84.1 of the WS.
2. If, on the other hand, the company collective bargaining agreement negotiated during its ultra-activity period (and not during its extension) has been filed for registration with the competent public office while the sectoral agreement is in force (and there is no agreement under the terms of Article 83.2 of the WS in the sectoral agreement), it will be governed by the provisions of Article 84.2 of the WS.