Spain: Working hours and collective bargaining

The Preliminary Draft Bill for the reduction of the maximum duration of the ordinary working day, the working day register and the right to disconnection, recently presented and submitted for consultation, modifies, by section 3 of its first article, article 34.1 of the Workers' Statute, which would now read in its second paragraph: "The maximum duration of the ordinary working day shall be thirty-seven and a half hours a week of effective work on average in annual calculation".

This regulation, although it expressly refers to the maximum duration, is actually trying to influence the actual duration of the working day. This distinction is important and is tacitly reflected in Article 34.1 of the ET itself, whose first paragraph refers, without naming it, to the effective working time, while the second refers to the maximum working time. In a system of freedom of collective bargaining (especially if the right to collective bargaining is enshrined in the Constitution), any attempt to legally regulate the actual length of the working day encroaches on the protected sphere of the right to collective bargaining and must be considered harmful to it and, where appropriate, unconstitutional.

Indeed, article 37 of our constitutional text recognises the right to collective bargaining, ordering the legislator to guarantee it and to ensure the binding force of agreements. This right can only be regulated by law, and the law must respect its essential content (article 53.1 of the Spanish Constitution).

Any regulation affecting the right to collective bargaining must therefore respect its essential content. This implies that, in those legal systems, such as ours, in which the right to collective bargaining is enshrined in the constitutional text, the legislature must limit its interventions in such a way that they do not affect the essential content of the right. Legislative intervention is thus limited and the essential content of the right to collective bargaining must always be safeguarded.

What is this essential content? Historically, collective bargaining arose as a system for collectively fixing working conditions, in order to avoid the imbalance of power between the contracting parties if such fixing were to take place through individual negotiations. And there is an essential content in the determination of working conditions: the fixing of the price of work, establishing the key elements of the contractual exchange, which are none other than pay and working time. Thus, irrespective of the progressive expansion of the matters negotiated, which have been increasingly introduced in the field of employment relations (work organisation), the essence of collective bargaining, which marks the essential content of the right to collective bargaining, is the determination of the contractual exchange between work (working time) and pay. Legislative intervention in these matters is therefore severely limited and cannot affect the essential content of the right to collective bargaining or empty it of its content.

This means that the legislator can legitimately set a minimum wage but cannot claim to set actual wages in sectors or companies. If the legislator substitutes in any way for the holders of the right to collective bargaining in the determination of wages, it would be infringing this right and violating its constitutional protection or guarantee. And, as far as we are concerned, the legislator can limit the duration of working time, establishing a maximum working day that limits collective and individual freedom to set the actual working hours agreed upon ("bought", we could say, by the company, in exchange for the corresponding remuneration), but it cannot influence this conventional setting of the actual working day by trying to impose a certain result on it.

Therefore, in order to be constitutionally acceptable, the maximum legal working day must be truly maximum, in such a way that the closer it is to the actual working day, the closer it is to the working day actually agreed, the more debatable it will be as to whether it is constitutionally acceptable. A statistical analysis of the working hours agreed in collective bargaining is sufficient to understand that with this draft bill the legislator is not trying to set a maximum that acts as an insurmountable limit for collective and individual autonomy but is in fact trying to set the actual working day (compatible with its subsequent reduction by the negotiators).

This attempt to influence the working time actually worked, and not so much its maximum duration in the strict sense, is confirmed by the very wording of the draft bill. It is enough to read its second additional provision to understand what we are arguing: it states that the Government will proceed to create a social dialogue round table with the most representative trade unions and business associations in order to, apart from evaluating the results of this reform, continue to make progress in reducing the maximum duration of the ordinary legal working day, taking into account the characteristics of the different sectors of activity, the evolution of productivity and economic circumstances. It is clear that the maximum working day is being confused with the actual working day and that, regardless of the Government's interference in a social dialogue process that should be exclusively bipartite, it is attempting to "direct" the collective bargaining process and impose the direction of its development on the holders of the constitutionally enshrined right to collective bargaining. Irrespective of the ambiguities of the rule ("continue to advance"; how far?), it seems clear that what is intended is the progressive adaptation of the effective duration of working time to legislative or governmental designs, disregarding the leading role that should correspond to collective bargaining in this matter, "invading" its specific sphere and damaging the guarantee of its essential content. This is confirmed by a reading of the first transitional provision of the preliminary draft, which clearly shows that we are dealing with the actual working day and not the maximum working day. The intention, under the formal cover of setting a maximum working day, is to impose on negotiators the length of the actual working day, which they should be free to set freely, by setting reasonable maximums. What is left of the right to collective bargaining if legislative intervention brings the length of the maximum working day to the limits of the actual working day agreed?

Therefore, the regulation of Article One Three of the preliminary draft, as well as that of its second additional provision and the first transitional provision, must be considered unconstitutional insofar as it does not respect the essential content of the right to collective bargaining and therefore violates the mandate of Article 37 of the Spanish Constitution.