Número 93: Derecho del Trabajo - Ministerio de Empleo y ...

ESTEBAN RODRÍGUEZ VERA
ABSTRACT In this paper, the author takes a critical look at the collective bargaining model applied to
public employees, whose main characteristic is the existence of two collective and very different
bargaining systems, i.e. one for public servants and one for contract personnel.
Firstly, the paper analyses the regulation of collective bargaining within the Basic
Statute of Public Employees and comes to the conclusion that such Statute is trying to
maintain the status quo. That is to say, on the one hand, it mainly maintains the dual collective
bargaining model of public employees, already in existence in previous legislation.
On the other hand, it does not make any progress in the rapprochement or convergence of
collective bargaining systems of public servants and contract personnel, given that important
differences still exist with regards to the following aspects: the subjects who have the
legitimacy to negotiate, the definition of the negotiating frame or unit, the negotiable
instruments, the repercussions derived from a failed negotiation, and so on. Furthermore,
the Statute neither regulates the specialties existing in the collective bargaining system
of contract personnel nor does it resolve the problem of insufficient regulation of the joint
collective bargaining, both of which aspects had been repeatedly stated.
The analysis of public employees' collective bargaining is focused on the differences
between their collective bargaining and the one affecting private sector workers. The
paper reveals how such differences are mostly translated into limitations or restrictions
on the public employees' collective bargaining. The origin and foundations of such limitations
or restrictions are analysed and identified: on the one hand, the presence of Public
Administration in the negotiation determines or limits public employees' collective bargaining
in so far as it is bound by principles or rules which are not applied to private companies
and which condition and restrict its bargaining capacity. On the other hand, the
priority of the principle of legality over that of collective autonomy applied in the case of
Public Administration, together with the safeguarding of the general interest whose
defence belongs to Public Administration, sometimes determines and limits public
employees' collective bargaining. Lastly, the participation of Public Administration in
contract personnel's collective bargaining forces an adjustment of certain aspects of the
rule governing such negotiation — Title III of Workers' Statute. Then, the paper analyses
the specific limitations imposed on public employees' collective bargaining in detail,
which stem from rules governing Public Administrations action, and which subject such
negotiation to specific principles, such as the legality principle, including budgetary legality,
budgetary coverage, good faith, and so on. Furthermore, limitations to public employees'
collective bargaining included in budgetary acts are specially analysed. Out of these
limitations, the yearly maximum ceiling, which cannot be exceeded, limiting public
employees' remuneration stands out. Moreover, the principle of normative hierarchy with
respect to the collective bargaining act is analysed, and the cases in which the Administration
can dissociate itself unilaterally from the agreed collective bargaining.
The paper makes an interesting analysis of two recent experiences affecting public
employees' collective bargaining in which the Government modified an agreement signed
with trade unions representing public employees through two effective royal decree-law.
The Government also modified contract public employees' working conditions, which were
agreed upon in effective collective agreements. The above experiences have resulted in
Royal Decree-Law 8/2010, of 20th May, affecting all public employees, and Royal Decree-
Law 1/2010, of 5th February, affecting air traffic controllers alone.
Finally, throughout the paper, criticism made to the public employees' collective bargaining
model is reflected. However, the paper concludes by identifying the main critical
points of such model and pointing to some plausible future solutions.
REVISTA DEL MINISTERIO DE TRABAJO E INMIGRACIÓN 93
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