Adopting a structured approach to decentralization could help to improve collective bargaining procedures given the Spanish context, where enterpris- es are mostly micro, small or medium in size. The present lack of resources, capacity and experience of collective bargaining at the local level suggests
Box 4.4 iLo supervisory mechanisms on collective bargaining
The starting point in ILO Conventions and Recommendations is free and voluntary negotiation, which implies that it should be possible for collective bargaining to take place at any level whatsoever, including establishment, undertaking, branch of activity, industry, regional or national levels.204 The Committee of Experts has held that the
parties themselves – the experts on their own particular situation – should be able to choose the level of negotiation or can adopt a mixed system of framework agreements supplemented by local and enterprise-level agreements, if they so wish. The Committee on Freedom of Association has held that the best way to ensure independence of the parties is to allow them to decide on the bargaining level by mutual agreement. Interventions by the legislative or administrative authorities that have the effect of annul- ling or modifying the content of freely concluded collective agreements, including wage clauses, are contrary to the principle of voluntary collective bargaining.205 However,
as part of economic stabilization or structural adjustment policies and for imperative reasons of economic interest, restrictions on the content of future collective agreements introduced by the government can be admissible if they are: (i) introduced after con- sultations with the social partners; (ii) applied as an exceptional measure; (iii) only to the extent necessary; (iv) not exceeding a reasonable period; and (v) accompanied by adequate guarantees to protect the workers’ standards of living.206
The supervisory bodies have not stated any preferences or criteria as to the hierarchy or inter-relationship of agreements at different levels: in practice, organization of issues both in collective bargaining agreements and through legislation is accepted, such as a regulation giving priority to a certain agreement level, for example. The Collective Bargaining Recommendation states that in countries where bargaining happens at sev- eral levels, the parties should endeavour to ensure coordination between the levels. ILO supervisory bodies have, however, on several occasions raised concerns on effective worker representation at all bargaining levels. Parties to collective bargaining are employ- ers or their organizations, on the one hand, and workers’ organizations, on the other. In principle, only in the absence of workers’ organizations can the workers or their repre- sentatives participate directly in collective bargaining.207 Recently, in the case of Greece,
the Committee of Experts repeated its concerns in relation to worker representation through unions at the enterprise level in light of recent reforms.208
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204 Collective Bargaining Recommendation, 1981 (No. 163).
205 These interventions include: the suspension or derogation of collective agreements by decree without the agreement of the parties; the interruption of agreements which have already been negotiated; the requirement that freely concluded collective agreements be renegotiated; the annulment of collective agree- ments; and the forced renegotiation of agreements which are currently in force.
206 Gernigon et al. (2000). 207 Ibid.
208 Observation of the ILO Committee of Experts on the Application of Conventions and
Recommendations (CEACR)– adopted 2013, published 103rd ILC session (2014), Right to Organise and Collective Bargaining Convention, 1949 (No. 98), Greece.
that higher-level arrangements should be improved to ease the situation of, in particular, micro and small enterprises. Provincial industry-level agree- ments have been criticized for their inefficiency and seen as an obstacle to competitiveness. It should be noted, however, that these inefficiencies have often been associated with the provincial rather than the sectoral nature of these agreements. It is important therefore to comprehensively analyse these agreements, their territorial organization and effects with a view to identifying ways to improve their quality.
While making efforts to improve the quality of sectoral agreements, the bipartite partners with support from the Government could simultaneously develop bargaining modalities that will ensure that gaps in CBA regulation do not emerge and that effects of derogations are balanced. As seen in the previous section, over 40 per cent of newly negotiated CBAs introduce unlimited ultra-actividad with a view to addressing the issue of potential gaps in CBA regulation. Where possible, the partners could also ensure that a higher-level agreement is always in place to cover such situations. As seen above, cases where a CBA expires and no higher-level CBA is in place have already emerged. It is thus important to pay attention to this possibility with a view to preventing similar occurrences.
More concretely, the bipartite partners in collaboration with the Government could engage in discussions on how to avoid these gaps and fragmentation of collective bargaining by deciding on appropriate bargaining levels, pos- sible needs for coordination guidelines, and organization of issues between the levels. In the German case, for example, coordination guidelines were established so as to control non-application of CBA clauses at levels higher than the enterprise.
New industry-wide agreements based on economically meaningful geo- graphical areas could help to enable a redistribution of issues between agreements at the firm and industry levels, thus contributing to prevent- ing fragmentation and lack of coordination among parties. This approach would, in particular, enable small companies to concentrate their scarce resources on their core business, while issues common to the industry
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would be agreed at the industry level. Issues such as functional mobility and flexibility of organizational aspects of production could continue to be secured at the higher level, as these aspects have been seen as particularly beneficial when agreed upon at a higher level. Through this, some of the concerns brought forward by the Spanish workers’ and employers’ organiza- tions could be addressed.
Further, this approach would allow for more coordination, and thus miti- gate the risk of fragmented collective bargaining. It could also strengthen collective bargaining by hindering the widespread use of opt-out clauses, and reduce the use of evasive negotiating strategies. Indeed, the existence of opt-out clauses as a means for companies to maintain employment in times of crisis is important, yet their widespread use can lead to an unsus- tainable situation of increasingly varied working conditions in the same sector, or even in the same company. In the German case, as seen above, the metalworking industry developed an industry-level response to mitigate similar problems. In addition, the rather broad conditions upon which companies may choose to substantially modify working conditions could potentially lead to increasing use of this modality, and these derogations could therefore also benefit from monitoring to allow for more general-level responses, as necessary.
It should be noted that with the priority given to enterprise-level agree- ments, any enterprise-level agreement provisions on key issues such as sal- ary and working time209 would prevail over industry-level agreements. The bipartite parties can, however, freely agree to refrain from negotiating cer- tain issues at the enterprise level and instead adopt conditions established through higher-level agreements.