Can the employer set limits on the use of trade union time credit?

Frequently, companies ask us for advice to resolve a situation that is causing them conflict: the inadequate use of the hours corresponding to the trade union credit legally recognised for people who have been validly elected as members of the legal representation of workers, either as staff delegates or as members of the works council.

This is because, without prejudice to what may be established for this purpose in the collective bargaining agreement applicable in the company, the members of the workers’ legal representatives have a credit of paid hours per month for the exercise of their representative functions, which varies between fifteen (15) and forty (40) hours depending on the size of the company’s workforce.

Conditions for the use of trade union credit: good faith and organisational needs of the company

However, despite the overprotection available to these members of the legal representation, and the existing conviction that they are ‘untouchable’, the fact is that case law has been consolidating that this trade union credit cannot be considered an absolute and unconditional right, Rather, it must be exercised in accordance with the rules of good faith and in the manner that is least detrimental to the organisational needs of the company, and an attempt must always be made to reconcile, when feasible, the worker’s right to this right with the least possible detriment to the needs of the service, especially when these affect the general interest.

Advance notice for the use of working time credit

Thus, the Supreme Court has established that the use of this time credit requires adequate advance notice and generic justification, these being the limits that may be established in companies so that those who make up the legal representation of workers can exercise their right to use this time credit.

As for the notice period, it is considered appropriate that it be at least forty-eight (48) hours, and is justified by the provisions of paragraph e) of Article 37.3 of the Workers’ Statute, which regulates paid leave, and expressly provides that the worker, with prior notice and justification, may be absent from work, with the right to remuneration, to carry out trade union or staff representation functions.

Furthermore, this notice must be adequate to allow the company to organise the production process properly, taking into account the period of time during which the legal representatives of the workers who are going to take advantage of their right to working time credit will be absent.

Justification of the use of time credit

With regard to the justification of the use that the worker wishes to make of the trade union credit that corresponds to him/her as a member of the company’s legal representation, what the company can demand is a generic justification of the destination or use of this time credit, and the Supreme Court concludes that this demand for justification does not imply any violation of the right to trade union freedom, protected by Article 28 of the Spanish Constitution, and by Convention number 135 of the International Labour Organisation (ILO) ratified by Spain and in force in our national territory.

This generic justification means that the company may require the workers who are the legal representatives of the company’s workforce to indicate the activity to which they will assign this trade union time credit, with terms such as ‘meeting’, ‘assembly’, ‘training’, etc.

For the Supreme Court, the possibility for companies to demand a generic justification of the use of union time credit by the members of the legal representation of the workforce is based on the fact that an improper use of this union time credit that would violate the principles of good faith and reciprocal loyalty required in the employment relationship would constitute a labour offence that could even be punishable, although it is true that the Supreme Court qualifies that only in exceptional cases, hence the duty of justification.

Therefore, what the company cannot claim is to have detailed knowledge of the destination given by the worker who is a member of the legal representation of the workforce, of his or her right to union time credit, as this would be a violation of the provisions of Conventions 87 and 98 of the International Labour Organisation (ILO), also ratified by Spain, as in this case, the indispensable independence and freedom in the exercise of their representative function would be lost, which to a large extent can and should be supervised and controlled, if they so wish, by their own colleagues, who are precisely the ones they represent.

In other words, the use of trade union time credit cannot be subject to rigid control by the company that could threaten the independence of the person exercising the functions of legal representation of the workforce.

Consequences for employees of non-compliance with the regulations established by the company for the exercise of trade union working time credit

The fact is that, in these cases, what the Supreme Court establishes is that the period of time during which the employee has been absent from work, without prior notice and/or generic justification of the use to which he/she was going to put this time credit must be deducted from his/her salary as if it were unjustified absences or absenteeism, but no direct sanctions may be imposed, given that this possibility is only permitted in exceptional cases.

In conclusion, although it is true that trade union time credit constitutes an instrumental right at the service of the activity of the trade union and its representatives which forms an inseparable part of the fundamental right to trade union freedom, this does not prevent companies from limiting or rather regulating the exercise of this right by those who make up the legal representation of workers.

Companies may require them to give at least forty-eight (48) hours’ notice of the date and time of absence from work, as well as a general justification of the use to which the trade union credit is to be put. In the event of non-compliance with the requirements established by the company, priority shall be given to deducting from the worker’s salary the amount corresponding to the hours taken as if they were unjustified absences, with the application of a sanction only being permitted in the most exceptional cases.

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Labour law