Spain: Validity and ultra-activity of collective bargaining agreements after the reform

The reform of Article 86 of the Workers' Statute (WS) carried out by Decree-Law 32/2021 (article one, ten) maintains, in substance, the previous regulation and, the conceptual confusion that characterizes it. The wording of sections 1, 2, 3, in its first two paragraphs, and 4 (now converted into 5) is the same as before, and in the new section 4 the last two paragraphs of the previous section 3 are reworded. It reorders the cases of mediation and arbitration when negotiations are blocked and, above all, establishes the provision that "in the absence of an agreement, when the negotiation process has elapsed without reaching an agreement, the validity of the collective labor agreement will be maintained". This reference to the maintenance of the validity is equivocal and must be understood in the sense that what is established is the indefinite ultra-activity of the collective labor agreement, eliminating the previous limitation of its duration to one year. We are not in the presence of an indefinite and unlimited validity of the agreement, but of an ultra-active application of the same, once its validity has been lost, with no time limit.

The Law, in fact, neither before nor now, clearly delimits the concepts of term, extension and ultra-activity. The term of the collective bargaining agreement, like that of any other contract, is that expressly agreed (different terms may be agreed within the same collective labor agreement: Article 86.1 of the Workers' Statute). Once the term has expired without denunciation, the tacit renewal (Article 86.2 of the Workers' Statute) is maintained for one year (and operates every year as long as there is no denunciation). And if the parties agree to extend the term of the agreement, it remains in force during the extension period, during which the agreement must be considered to be in full force and effect. However, once the agreement has been denounced and its initial term or that of any of its extensions has expired, the agreement ceases to be in force. There cannot be, as the legislator seems to suggest (article 86.3, first paragraph), a kind of "validity after the end of the term". The parties may, expressly or tacitly, extend the term of the agreement as long as they wish, but once it has been lost, after the denunciation, the only thing that can exist, and that is what in a correct interpretation of the rule exists, is the legal requirement that the application of the provisions of a collective contract (agreement) that is no longer in force be maintained. The ultra-activity, first for one year (which seems to be considered a "normal" period for the renegotiation of the agreement: articles 86.3, second paragraph, and 86.4 of the TE) and subsequently (once the negotiation has failed or been blocked) indefinitely (article 86.4, third paragraph), does not imply, despite the conceptual and terminological confusion of the legislator, an ex lege maintenance of the validity of the agreement, nor can the agreement be considered in force during this period. The expired agreement will have to be applied (ultra-activity) as required by the legislator, but in no case can it be considered legally in force. The ultra-activity is nothing more than a legal imposition, exceptional, which, contrary to what would result from the contractual regulations, requires that the application of a contract (agreement) that has lost its validity be maintained. And this cannot, logically, fail to have repercussions on the legal regime to which the agreement must be subject during the period of ultra-activity.

The obligation to continue to apply the CBA (Articles 86.3, second paragraph and 4, third paragraph, of the WS) cannot, therefore, be interpreted, despite the legislator's wording, as meaning that it is still in force. This is why the "peace clauses" that may have been agreed (Article 86.3, second paragraph) lapse, because the agreement is no longer in force and therefore the strikes called to seek the modification of a collective agreement during its validity (Article 11.c of Decree-Law 17/1977, of March 4, on labor relations) cannot be considered illegal. This is why the mandate of article 86.4, third paragraph, is compatible with that of article 84.1, since otherwise the indefinite validity of the agreement would lead to a "petrification" of the bargaining units and the structure of collective bargaining, vetoing the prohibition of any change in the bargaining unit.

The ultra-activity, previously limited to one year, is now of indefinite duration (unless otherwise agreed, which could be prior to the reform, since the same judicial doctrine would have to be applied that was established, in relation to the agreements against the limitation of the ultra-activity, after the 2012 reform), but its nature and legal regime must be the same as before.

In this regard, the doctrine set forth by the Supreme Court (SC) in its judgment of October 5, 2021 (judgment 958/2021, appeal 4815/2018) is very important. The SC clarifies that the legal expression referring to the "term" of the collective agreement, which we have already criticized, must be understood "as referring to the initial term provided for or expressly extended by the parties, but not to the period subsequent to such term, once the agreement has been denounced, known as ultra-active term, whether provided for in the agreement itself or, in its absence, that established in article 86.3 ET". The concepts of validity, extension and ultra-activity are clearly delimited here, which the SC, in order to accommodate the conceptual imprecision of the legislator, calls "ultra-active validity". It is clarified that the legal reference to the term of the agreement (in Article 86.3 and now also 4) must be understood as being made to its agreed or extended term (expressly or tacitly), but not to its ultra-activity or "ultra-active term".

Therefore, as the SC also clarifies, in a doctrine that must be considered fully applicable after the regulatory reform, "the prohibition of concurrence (of Article 84.1 of the ET) ends upon the loss of validity of the agreement and despite its maintenance in a situation of ultra-activity". Agreements are "temporary or fixed-term rules", and ultra-activity "cannot be confused with validity". The period of validity referred to in Article 84.1 of the ET "cannot include the possible period of ultra-activity of Article 86.3 ET, since these are two different concepts".

Once the term of the collective bargaining agreement has expired, then, despite its ultra-activity, whether limited (to one year under the preceding legislation, or under the terms agreed under the current legislation) or indefinite (under the current legislation, in the absence of an agreement, or if so agreed under the preceding legislation), it becomes possible to change the bargaining unit and a new collective bargaining agreement can be negotiated, in the preceding legislation), it becomes possible to change the bargaining unit and an agreement of a different scope can be negotiated, or the agreement that has been agreed in concurrence with the terminated agreement and that is expected to enter into force at the end of the term of the latter can become fully effective. Otherwise, says the Court, the "petrification" of the collective bargaining structure (to which we have referred) would occur, which would be contrary to a system of free bargaining, since the corresponding units would be eternally predetermined.

This doctrine should have other interpretative consequences. Fundamentally, in my opinion, it will not be possible to seek the non-application ("descuelgue") of a collective bargaining agreement that has lost its validity, although it continues to be of ultra-active application, and that it will be possible, on the contrary, to seek the substantial modification of working conditions agreed in an agreement not in force and of application only because of its "ultra-active validity".