Spanish Supreme Court unblocks the registration of equality plans not negotiated with trade unions

The Supreme Court has ruled in its judgment no. 545/2024 on the possibility of registering an equality plan drawn up unilaterally by a company, after having tried, without success, to form the negotiating committee with the unions in the absence of legal representation of the workers (RLPT).

Equality plans

According to equality regulations, companies with more than 50 employees are required to prepare an equality plan, negotiated and registered with the Labour ministry's register of collective agreements and bargaining agreements REGCON.

The negotiation must be carried out with the RLPT. In the case of companies that do not have RLPT, this will be by means of a negotiating commission made up of representatives from the company and for the workers from the most representative unions in the sector to which the company belongs –with the legitimacy to form part of the negotiating commission of the applicable collective bargaining agreement.

Blockage problems

The problem arises when companies try to include the most representative unions in the sector in the negotiating committee, however, these do not respond or prolong the negotiations – to the point of blocking them.

Consequently, this does not allow the companies to approve and register the equality plan, as required by the regulations.

The ruling ratifies that, in the exceptional case of a negotiating deadlock due to the failure of the unions to appear, the company can unilaterally approve the plan and register it with REGCOM.

Arguments of the Supreme Court

The Supreme Court decision justifies its decision on the following grounds:

• An ad hoc committee cannot be constituted in these cases.
• Companies are required to have a registered equality plan in accordance with Royal Decree 901/2020, of October 13, an obligation that would be impossible to comply with in cases of absence of RLPT and lack of response from the unions.
• A period of 10 days is established for the unions that accept the call to form part of the negotiating committee, without the need to wait any longer for a response from all the entitled parties.
• The absence of an agreement, due to the failure to form the negotiating committee because of a repeated negotiating deadlock attributable to the counterparty, should not prevent the registration of the plan, without prejudice to the analysis of the content of the plan by the labour authority.

The judgment also addresses the provisional (or not) nature of the registration of an equality plan in this exceptional situation, clarifying that in no case will it be considered provisional and that, with the reference to the provisional nature of the registration, it refers to the fact that as soon as possible the elaboration of an equality plan with a real negotiation should be carried out.

Osborne Clarke comment

This ruling provides a boost to the processing of equality plans pending registration in the REGCOM that are paralysed due to the lack of response from the unions.