THE REPRESENTATION INTERESTS OF THE PERSONNEL COMPANY
SYSTEMS OF REPRESENTATION IN THE COMPANY
The " personnel " as category or group with own interest
The workers in the company don't constitute a sum of individuals, they are treated as an entity or group, with an own collective interest; the holder of the interest is the personnel as group. Also that it can obtain and obtain a specific representation for their improvement and defense. The regular personnel of an own interest achieves this exclusive representation in the company by means of his legal representatives.
Unitary representation and plural representation of the collective interest
The ETT (National Statue of Workers) offers one formule of representation dualist; it speaks, one hand, of company Committees and Delegates of personal; and, on the other hand, in other possible participation ways.
The first organs are configured in the ETT like an internal and direct collective representation, exclusive of the personnel of the company or, better, of the work center. They are organs of unitary representation, because they reach the whole personnel of their environment I specify. Their juridical rgime is regulated, in an expressed way in the ETT.
The seconds organs lack of expressed regulation in the ETT. They are mentioned in one formulates uncertain, open to other possible normative developments. The external and indirect collective representations that become operative from the unions. Although they can have their exclusive environment in the personnel of each company or of each work center, they usually have character up-company when organizing the representation and the workers' defense and of their interests for professional sectors or activity branches.
Now then, in attention to the unionization freedom and the pluralist union, the union representations in the company spread to also be several or plural, and with alone limited reach to their members and, therefore, partial if it refers to the personnel as entirety.
One and another formulates of representation of the workers interests in the company have today it legal bases:
.- In the ETT.
.- In the own LOLS (Organic Law of Labour).
With this dualist system dualista, the Spanish Right joins with the guidelines of the own OIT.
The union representatives accepted by the OIT are so much those designated by the own organs of the union like the elects by the affiliated workers in the union to represent. It is a plural representation and of personal reach, in limited principle. The personnel's direct representatives will be freely elects for the workers of the company, and the representation will be total and unitary (they are called elect representatives).
Balance and perspectives
The option among the external union representation, plural and indirect, the direct representation, unitary and total representation in charge of Committees, etc., this open to the political decisions; it varies of some countries to other and, in each country, of some stages to others of the collective Right of the work.
In the continental European countries, it has stayed open during a lot of time the polemic on the advantages and inconveniences that the company its conserves closed to the union, so that the personnel's representation as soon as such stays in the level of the unitary and internal representation, or that, on the contrary, opens up to the union.
In the Spanish Right, with it formulates it open of the ETT and, especially, with the AMI (Agree of Inter-company) signed in 1980 by UGT (General Union of Workers) and CEOE (European Commission of Company Organization) they sat down the bases for the coexistence of the company Committees and Delegates of personal, with the Delegates union and other forms of union action in the company.
The LOLS, from 1985, complete the legal rgime of this coexistence.
UNITARY REPRESENTATION OF THE PERSONNEL
Regulatory norms and imperative character
The second title of the ETT it is the applicable norm to the company Committees and Delegates of personal.
Although the functions and competitions of such unitary organs are completed with numerous references along the articulate. The collective agreement in the matter only will be effective inside the limits authorized by the normative one legal. This also exercises the competitions attributed to the own Committee, this elaborated their own procedure regulation, but without contravening that prepared in the Law.
In summary, the legal precepts of constitution, composition, and, mainly, competitions of the organs of the personnel's representation in the company, are of absolute necessary Right, except for expressed dispensation of the own law.
Delegates of personal
The representation of the workers in the company or, rather, in the work center that has more of ten workers and less than fifty it corresponds the Delegates of personal; now then, rot to have a Delegate of personal in the work centers that count between six and ten workers, if the interested decided in this way for majority. The work centers with five or less hard-working they are outside of this it formulates representative.
The workers will choose, by means of free, personal vote, secret and direct, to the delegates of personal. To such an effect, an unique list of candidates, ordinate will settle down alphabetically, with expression of the union or workers' group that present them. The electoral school is only, in each work center.
Personnel's Delegates have the same competitions that the fixed legislation for the company Committees. They will exercise conjointly before the manager the representation for what they have been chosen; their performance, to be been worth and effective for the whole personnel, it demands the majority agreement, if they are three.
Committees of company
A) The work center like organizational base.
The company Committee is the representative and collegian organ of the group of the workers in the company, or more good of the work center, for the defense of its interests. One will be constituted by each work center whose census is of fifty or but workers. The ETT, although speech of Committees of company restitution like organizational base the work center.
The jurisprudence, allows to conclude that the center of autonomous work doesn't require as element essential limit an independent physical space and different from that of any other labor center, because the element that prevails is that of the organization it specifies.
So that in oneself material environment two can coexist or but work centers. Neither it seems indispensable that the work center has a “declaration” in the face of the Labor Authority.
B) Committee of Company
The immediacy principle gives base to the configuration of the committee, for what is looked for that each work center has the representation but suitable to its labor insole; the concentration is avoided of personal of different next centers among if in an unitary representation.
Whenever the center has fifty or but workers will be constituted Committee and the alone accumulation of different labor censuses is accepted for those centers that, being in contiguous space environments, present insufficient insoles. In this case, the law authorizes the combined company Committee.
The combined Committee represents the personnel of the work centers legally.
The Committee had the following members: of 50 to 100 workers, five; of 101 at 250, nine; of 251 at 500, thirteen; of 501 at 750, twenty-one; of 1.000 from now on, two for each thousand or fraction, with the maximum of seventy five; the discontinuous fixed workers and the storms when their contract lasts but of an anus, they are computed as fixed of insole; those not fixed they are computed in proportional terms to the effect of the numeric composition of the Committee.
The insole reduction doesn't affect during the time of the command I save conventional forecast in this respect. Anyway, their number comes determined by the personnel of the work center, and not for the total of the company.
The workers to keep in mind are as much the fixed ones as the storms. They will be electing all the workers of the center bigger than sixteen anuses and with an antiquity of, at least, one month.
They are eligible the workers of the center that have eighteen fulfilled anuses and an antiquity of, at least six months, save in the activities in that, for the personnel's mobility, be made a pact in collective agreement an inferior term that rots to be in any case of less than three months of antiquity.
The foreigners are compared for the passive vote and I activate the Spaniards.
The right to promote elections to Delegates of personal and members of the company Committee are reserved to the union but representative organizations; to those that have a minimum of the 10 for 100 of representatives in the company; and to the workers of the work center that, in this case, they need a majority agreement. The ordinary or simple unions when not having the biggest representativeness lack this decisive ability.
The ostensible difficulty of the majority agreement in the personnel's direct initiative could drive to you continue indefinite if the unions with hegemony in the work center are inhibited in the matter; of there the duty that the STC (Constitutional Tribunal decision) 57/1989 imposes them of summoning, and that it has taken to the suppression of it continues it automatic of command.
They present candidacies as much the representative unions as those no representative, as well as their coalitions, together with the workers that endorse their candidacy with a minimum of voters' of their school signatures and equivalent center to three times the I number from positions to cover.
In the elections for the company Committee, the census of voters and eligible of the work center it will be distributed in two schools: one, integrated by the technicians and administrative; and other, for the specialist and not qualified workers.
In the industrial companies and, in the agricultural ones and of services, the labor school is favored to reach majority in the Committee, for reasons of I number; inside the school of " employees ", it repeats the favor for the office workers regarding the superior technicians and of the controls means and high.
The “high position” is excluded by legal decision of anyone of this schools.
By collective agreement it is rotted a third school that could guarantee the representation to settle down it specifies before of the professional groups mentioned, but as that collective agreement it must be negotiated by the unions favored by the ordinary distribution, it is of very difficult achievement.
Whichever it is the I number of electoral schools, the positions of the Committee will be distributed proportionally in each work center according to the I number of workers that form this schools.
Competitions and guarantees
The ETT details, with enough precision, the competitions, duties and guarantees of the Delegates of personal and members of the Committee, in its articles 64, 65 and 68, respectively that suits to analyze by the light of the clauses of the applicable collective agreements in each company, with the corrections and precisions that it has been forced to establish the jurisprudence.
This has accepted the legitimation of the Committee to promote the personnel's of the work center collective conflicts; if the collective conflict affects the personnel of other work centers, the legitimation it demands the performance consortied of all the Committees of the affected centers, the Committee of a single center it won't be competent; or the intervention of an implanted union or of more representativeness.
On the other hand, the Committee this legitimated to act in the retired workers' favor although it doesn't show a resulting representation of such votes, especially as regards social action.
The Law 2/1991, of January 7, conferred the personnel's representatives the ability of knowledge of the contracts that they are formalized in writing (to exception of that of high address), as well as in you continue them, quietuses and other vicissitudes.
In short, the Committee enjoys capacity and legitimation to negotiate the collective agreements in its respective work centers; but a collective agreement of company with different work centers is outside of it formulates it consortial of the center committees, for what its negotiation will look for through the Union Sections.
Among the guarantees of the vowels of the Committees (and Delegates of personal), they deserve special attention the following ones:
a) Opening of contradictory file in the supposition of sanctions for serious and very serious lacks, in which will be heard, besides the interested one, the Committee of Company or remaining delegates of personal; the omission of the file makes null the discharge, although from 1994, single unfounded discharge.
b) Permanency Priority in the company or work center regarding the other workers in the cases of geographical mobility; of suspension or extinction of work contracts for technological or economic causes.
c) Not be discharged neither sanctioned during the exercise of their functions neither inside the following anus to the expiration of their command, except for in case this she/he takes place for repeal or resignation, whenever the discharge or sanction is based on the worker's action in the exercise of its representation. When it is discharge disciplinarian, or of other extinctive suppositions compared to this in their effects, if the labor jurisdiction declares the unfounded discharge, the personnel's representative enjoys benefit of the real or effective stability, so that the readmission is guaranteed without it can be substituted by the payment of a compensation against the will of the one affected.
d) Have the credit time rewarded for the exercise of their representation functions that is measured, in every month, with the following scale:
1) Delegates of personal or members of the company Committee:
- until 100 workers, fifteen hours;
- of 101 at 250, twenty hours;
- of 251 at 500, thirty hours;
- of 501 at 750, thirty five hours;
- of 751 from now on, forty hours;
2) It rots to be made a pact in collective agreement the accumulation of the personnel's representatives' hours, in one or in several of their components, without surpassing the total maximum, being able to be raised or raised of the work the beneficiaries of the accumulation without damage of their remuneration (the liberated of the work).
In principle the union hours they must be paid by the manager without the worker suffers damage of his ordinary remuneration, for what is understood in them the nocturnity bonus.
Among the acreditive functions are the times of attendance, meetings, formation courses, seminars, as well as to the meetings to prepare the reivindicative platform of the collective agreement, etc.
The dedication to own matters is very serious lack, but it finishes it jurisprudence it subjects to severe restrictions the managerial controls, especially through private detectives.
SPECIAL STUDY OF THE INTER-COMPANY (CIC).
The CIC uch and as this regulated in the ETT, it could be said on the one that doesn't enjoy the legislator's favor. The ordinary rule takes to the autonomous maintenance of the Committee of company of each center. The Law has given up to impose you formulate of concentration, so much in the form of a Unique Committee, with sections delegates in each work center, like in the form of a central Committee that coexists with the specific Committees of each work center
The resulting rgime is, therefore, markedly restrictive; that is:
a) The CIC demands an expressed agreement in this respect, and this it must necessarily have the form of collective agreement.
b) Reduced numeric composition: “…with a maximum of thirteen members…”.
c) The ETT imposes the internal composition of the CIC since it speaks that the “vowels will be designated...of among the components of the different center Committees…”, with what defines the eligible ones, but without determining the school of the voters. Nevertheless, it is strong the judicial approach that the representatives in the center Committees chosen by the non unions must have proportional presence in the CIC.
d) The CIC doesn't have attributed functions you specify for its simple existence. Their attributions are those that it grants him the collective agreement of creation and such a concession must be expressed. The restrictive approach obeys a certain in favor union philosophy that the integrative representation above the work center shows it exclusively the union.
Such a philosophy is characteristic of the next political means to the UGT and the contrary one, of the next ones to CCOO (Labour Comisions).
The exam of the existent collective agreements informs of deviations in the I number of members, in the exclusive appointment from the base Committees and, on the tendency to give entrance in them so alone to the unions but representative implanted in the company but they are firm the four following points:
.-in the first place that only CIC exists if there are expressed pronouncements in applicable collective agreement; in second place that said agreement is, necessarily, the regular or statutory; in third place that the CIC doesn't take but abilities that those that expressly attributes him the applicable collective agreement,; in fourth place that the representatives of the independent unions and of the workers non members they must be assisted when distributing the vocalsof the CIC.
OPERATION AND RGIME OF AGREEMENTS
Performance of the Delegates of personal
Personnel's Delegates appear as regular of an unique representation, common to all those represented. "Personnel's delegates will exercise conjointly before the manager the representation for which they were chosen... The doctrine, makes end this demand in a performance that, to be been worth and effective, it demands the majority agreement of the Delegates of personal of the center of affected work
Colegiality of the company Committee
The colegiality principle: The organs of the organized collectives can be unipersonal or pluripersonals; and these seconds, in turn, they can be or non collegians.
The note specifies for the performance of the Committee this, in fact, in the colegiality.A collegiate organ is a ruled organ.
The unitary will presupposes the opportunity that all and each one of the individual wills has shown, and that, at the end, a voting have taken place.
1) The colegiality principle regulates the formation of the unitary will of a school through a complex procedure. This usually disintegrates in several phases:
- the convocation to which they should accompany the agenda.
- quorum, since requires the constitution been worth to adopt resolutions; it is, because, of necessary observance the presence of a certain one numbers of members.
2) Discussion, so that all and each one of the members of the school can express their view and their will freely.
3) Voting, process of equally indispensable closing, in which the whole process previous of deliberation is formalized.
4) Documentation in records, the reflective records the session schoolboy, and for that reason their approval is later and it is made in the following session.
The social will of the organ is formed for the coalition of the individual wills of each one of the collegiate members that, after being pronounced, an agreement that is that of the collegiate as soon as such organ take place and not the one of each one of its members.
The collegiate act is, this way, a simple act that emanates of a single will that is the will of the organ.
In some cases, unanimity will be demanded in the agreement; in other cases, those but you frequent, it was enough with an absolute, or simply relative majority, but the essential requirement is always the same one: that opportunity has been given to all and each one of the members of full right of the collegiate organ to that they manifest its will
Most physics, be worth the expression, it can not substitute most artificial, and this alone one exists when she/he takes place in the course of a regular meeting, with convocation, agenda, etc.
B) Performance of the company Committee: The ETT remits to the own committee the elaboration of its regulation of procedures and it doesn't predetermine its content. It is limited to say that it will choose of among their members a President and a Secretary that the meetings will have place every two months or whenever it requests it a third of their members or a third of the represented workers; in short, it accepts the majority agreements.
The collective will demands a regular performance of the collegiate organ as soon as such a school: convocation in term, agenda, etc., and at the end, the agreement, previous discussion and voting. The later performance of some or some of the members of the committee presuppose that previous agreement and their acreditation.
The necessity of the previous and majority agreement is, because, a requirement noun. Their omission corrupts of nullity the performance of the individual fellows that they integrate the collegiate organ.
And, anyway, it must be credited in enough form. Now then, it is possible the delegation, and it is frequent that it is made in favor of the president and of the secretary; the Tribunals accept the performance for delegation if he undergoes later ratification of the full one.
THE PROFESSIONAL ORGANIZATIONS, THE UNION.
The Law of Associations, of 1887, also speaks of unions; in the first third of the century XX, in the successive laws on it, reconciliation and arbitration, etc., is appreciated like a loathing to speak of unions; for everything it, instead of union the expressions of Unions were used, Centers, employer and labor professional Associations, etc.
The Constitution in the erticle number 193 gave letter of artificial nature to the word when declaring that “The Spaniards rot to associate or to syndicate...", although when referring to the public officials, it simply speaks that they rot to constitute professional Associations”.
In short, at the present time the expression union this fully admitted, although they are used other denominations simultaneously, such it ate “union organizations”, “professional unions”, etc.
a) Classic concept
Inside the classic concept the union was marked by the following notes:
- it is a permanent association, with what the plurality of people has reached stability and, it has overcome the incidental and episodic character and the improvised organization of the simple coalitions of the labor movement in its initial stage;
- this formed for salaried, workers for other people's and subordinate bill that they live fundamentally off the fruit of their work; the typical union is the worker of the industry and the employee or clerk of the trade;
- in short, it directs their actions to the improvement or, to the conservation of the conditions of the employment.
b) Current concept
In the current moment, union should be defined as the permanent grouping constituted by a plurality of people that exercise a similar professional activity for the representation and improvement of its professional interests and of its conditions of life.
The current union is, then, marked by the following characters:
- it maintains their associative nature with their permanency notes, formal organization, etc.
- their personal base is now very wide, because the unionization right is open to the particular salaried workers, to the officials public and other groups of the workers for other people's bill, but also to the autonomous workers, and to the same managers, etc., in spite of the reticences, when not unconstitutional limitations of the LOLS; the generalization is so wide it thinks about the question (with tendency to the affirmative solution) of the unionization of the order public agents, of the students, of the priests, etc.
- in their ends they have also been surpassed very thoroughly the strictly labor contents; the union action covers in block the interests of the profession and it pursues, also, the improvement of the general conditions of life of its members; reaching questions extra-labour or extra-company .
The OIT, it has syntonized with the current orientation of union when consigning that their fundamental mission is the economic and social progress of the workers. It also corresponds to the unions the economic and social development and the progress of the collective group.
The CE, also picks up, in good measure, this new international orientation.
Tune figure to the union
The union keeps, a narrow relationship with other social groupings (universitas personarum) and, inside these, with the following ones:
Union and society: In the strictly juridical plane, the society is a grouping of two or but people that suit in contributing goods or work to a bottom common with encourage of obtaining a benefit by means of the allotment of the earnings.
With this definition the common notes are appreciated between society and union: people's plurality, permanency, common bottom, etc.; the difference this in the end: the society and the union intend to obtain a benefit, but in the first one the note is added the encourage of distributing earnings, with that in finish of individual social interest, while in the union the interest is collective, indivisible in quotas parts among the members.
In a plane more sociological that juridical, the difference between society and union is manifested in that the first one is of contractual nature, while the second, but that a contract, they would have its birth in a agreement “to live”, immediately, like an institution.
The society like such it is a simple juxtaposition of singular interests, and the grouping of the partners is purely conventional, while in the union the organization like such is born of an agreement enter its members founders and for the adhesion of the syndicated futures, but in its base this the professional community, to which the union represents and gives form, but it doesn't create.
Union and association
In the juridical order, the association is a grouping of people that they suit in putting goods or work in common to get a benefit different from the allotment of earnings among its members. The association the union coincides, in numerous notes. There is, however, you differ in attention to the nature of the end, while the union is, an association but, qualified by its professional character.
The union can live to the help of the general Right of association, subjected to the same precepts of the cultural, beneficent, recreational, sport associations, etc., and such the Spanish situation went when being promulgated the General Law of Associations of 1887.
In other cases, the unionization is configured as a right I specify, such it was the case of Spain in 1932. Today the CE (Spanish Constitution) regulates as much the associations as the unions accepting its specificity; however, in both cases it is, of freedoms you publish, guaranteed to the maximum.
Union and professional coalition
The coalition, is a grouping of several people, of incidental or momentary character, with a very concrete and limited objective, for what its organization is informal. The professional coalitions constitute sociological and legally the normal antecedent of the union. Now then, although the coalition, contrary to the union, is an episodic and informal organization, it should not made a mistake with the manifestations, strikes and other means of the reivindicative action; the coalition is, always, a grouping that, as such, it is different from its acts.
The legislation in the XIX century occupies more for coalitions that for unions, and, like it happened in Spain, the laws speak indistinctly of coalition, and of strike or of employer closing.
Union and professional school
The professional school, also has a permanent organization, a social end, without I encourage of lucre; etc.; but it is born of the Law: it is obligatory and it embraces all the members of the community. For that reason, in the Spanish authoritarian rgime it was, in Right, impossible to distinguish between the vertical union and the professional schools. The colegiality is a constitutional obligation.
Unions and official cameras
The CE, accepts the existence of other entities of associative base and, however, of corporate character; that is to say, corporations of Right publish properly this that justify the affiliation and all the professionals' obligatory rate (and companies) understood in the sector by the necessity and importance of their functions: some, characteristic of the entity, in benefit of the collective interest; and other, for delegation of the Administration, so that they carry out functions of collaboration and aid of such an Administration.
The negation of the principle of freedom association singular is evident; with the result that the TC has declared the unconstitutionality of the Agrarian Cameras, of the Cameras of the Urban Property and of the Chamber of Commerce, Industry and Sailing.
However, when the functions attributed being changed to these you finish Cameras for the Law of March of 1993, 22 and to appear among them the promotion of the external Trade and the professional formation, the TC has understood that they are functions of general interest and that alone they can be assisted if the framing is obligatory.
The unions can be classified of agreement with many approaches; among those that it is necessary to highlight the following ones:
1.- Occupation unions and industry unions: The union can adopt like base of its structural configuration the occupation or the industry; in the first case, it contains the workers of oneself occupation of different professional branches or sectors of services; in the second case the grouping reaches the professionals of the different occupations inside oneself professional branch, so that in the union of miners, for example, they entered the picadors, the office workers of offices, etc. simultaneously
The occupation union is characteristic of the first union time, it connects with the organization and the handmade production techniques, with highly qualified workers; of there its tendency to the representation and defense of professional privileges. The industry union was born.
On the contrary, when already the industrialization and the mechanization, together with the concentration of the companies, they had displaced the center of gravity of the organization of the individual work toward the collective, impersonal work.
In Spain, the unionization for occupations characterizes the reivindicative associations of the XIX century.
The decadence of the occupations and of the work artisan in the big industrial formations imposed, the constitution of the calls “Unions manufacturers” or of “similar occupations” that in fact ended in the unique called unions that wanted to be, the solution inside each professional branch to the plurality of the unions of occupations.
2. Exclusive or parallel unions and mixed unions: In the company and, with her, in the professional's socio-economic community, they are so much the managers and their representatives like the workers that integrate the subordinate personnel; the professional associations can, therefore, or to contain separately to some and other or to gather them.
- In the first case, it is admitted that each social group has an exclusive and singular collective interest of agreement with its different social situation, what forces to that is respected in the union organization the exclusivity principle or social cleaning, for which the labor unions accepted salaried workers exclusively and the employer labor unions accepted managers exclusively.
- In the second case, one presumes that the company, configures a total community, with an own collective interest in the one that the interests are synthesized of all and each one of their personal elements, with independence of the social situation that they occupy outside of the labor community.
In general, the unions are exclusive character; the mixed unions have represented but well a pretense of certain schools that a historical-social reality. The " purity " in the composition of the union organizations this, sometimes, imposed by law: the Spanish Law of 1932 demanded that the union associations are constituted exclusively by bosses or for workers. The effective LOLS repeats this internationally dominant approach.
Horizontal and vertical unions.
The classification of the unions in vertical and horizontal can be it mistakes, because in such expressions they made a mistake purely organizational approaches, been worth for any country, and strictly legal, worth approaches so alone for Spain.
Indeed: the organization for occupations corresponds to a horizontal consideration, while the industrial organization to a vertical consideration of the professional activities.
Other organization approaches.
The territory and the company offer, on the other hand, possible bases of union organization. The unions keep in mind the territory when being configured as local, regional, provincial, departmental, regional or inter-provinciales, in short, national and international, and the same thing happens in the “federations” and the “confederations”.
The company, it is kept equally in mind in the organizations of superior environment to the same one, and this way the unions of occupations and those of the industry operate inside each company by means of “sections” or “delegates”; in fact, one of the burning problems of the current syndicalism this in the regulation of the relationships of the own union with the representatives of the personnel of each company and of the sections or union delegates with each manager.
Equally the company appears like base or mark of the union organization for if same, and they are formed this way the “company unions”, referred to the personnel of this exclusively.
Methodology substitution for a new order, in which the shop like primary cell of the production
The union, it can be treated as an ordinary, constituted association and working to the help of the general right of association, or like a singular association according to the right specifies of unionization; it can reach person's juridical rgime it juridical-publishes or to stay with person's of private right character, etc.
For it, it seems very opportune to give up the expositive technical of the oppositions among medical union and obligatory union, unique union and pluralist union etc., to see, all these questions analyzing the union political-juridical rgimes, and inside them it would suit to assist to the following relationships:
- between the union and their members or syndicated;
- between the union and the members of the profession, be or not syndicated;
- between the union and the company;
- between the union and the other unions;
- between the union and the other political organizations, especially the State.