8. The provision of work any day of the week will be required of all workers in order to share the workload equally, whether or not they have a personal commitment to work every day. For the purposes of this measure, where the present arrangements are to be amended, undertakings must modify the working conditions in accordance with the provisions of Article 1. 41.3 or 5 of the Staff Regulations and by means of the procedure provided for in the Fifth Transition of this Convention, the supporting distribution of the work being justified and the achievement of the objective provided for therein. "

It is argued that the content of the precept in the paragraphs above, infringes the art. 34.2 and 8 of the Workers ' Statute, art. 12 and 17 of the same legal body and art. 14 of the C. E, in relation to art. 119 of the EEC Treaty and of Directive 76 /297/EEC (sic) and finally, and in conjunction with the last paragraph of the Article. 3 of the ET, articles 1.256 and 1258 of the Civil Code and the Doctrine of the Constitutional Court that it cites, with particular emphasis on the violation of art. 41 of the Law of the Workers ' Statute, in generating an ultraviolet practice to establish a new cause of modification which, in his opinion, will remain in the last term in the sphere of business discretion.

We will begin with the complaint regarding the third paragraph (3) of the aforementioned article 27.

The applicants maintain that the third paragraph allows the alteration of the calendars and that this damages the rights of the workers in relation to the reconciliation of personal, family and work life.

This Chamber was already in advance in its judgment of 12 June of two thousand thirteen, in the case of cars 213/2013, that it was not understood that the contested pact excluded the possibility for the workers to enjoy their legal rights. (art. 37 of the E. T) or conventional in matter, which understood the Judgment should be fulfilled in its fullness. But I also remember that we are faced with a substantial modification concluded with the agreement of the negotiators that is thus plasma, and that it displays the presumption that workers who are subject to their scope can exercise all the necessary rights of reconciliation of personal, family and work life, without that presumption being destroyed by the plaintiffs. At this point we must remember the constant jurisprudential doctrine which has been demanded in the area of infringement of fundamental rights, with which this precept has been connected, which is not enough the formal allegation of facts of what is (a) to bring about the infringement, but the accreditation, at least of prima facie evidence that the conduct imputed to the defendant may be dismissed as unlawful, or discriminatory, without sufficient, for these purposes, the mere affirmation of existence or appearance of violation. (S. T. S RJ1998,3012). We are therefore faced with a conventionally agreed substantial modification and whose presumption of concurrence of the cause has not been adequately destroyed.

A). With regard to point 6 of the same Article. 27.

We will start by pointing out that it corresponds to the art. 32.11 of the Collective Convention of 2009/2012 and that the Judgment of this Chamber of 6 March of two thousand thirteen has solved the same problem here raised.

We reproduce here, the above mentioned on the linking of the Chamber to the resolved in another procedure and on the positive effect of the res judicata the submission to the said in firm sentence; for the connection to the Before the Court of Justice, the Court of Justice of the European Court of Justice of the European Court of Justice of the European Union, the Court of Justice of the European Court of Justice This does not mean that the resolved in previous litigation is unchangeable indefinitely as, as we also stated earlier, but now, at this time we have to reproduce the arguments that the Supreme Court judgment of April 11 From two thousand six and the Judgment of this Chamber dated March 6, two thousand thirteen, they have already explained, accepting the adequacy to the current legality of the wording of this sixth point of the art. 27 and their legal arguments to refer to us.

B). With regard to the analysis of point 8 of art. 27.

First of all, we have to note that the wording of the same is different from that set out in the previous Convention.

The art. 31 of the 2009 2009/2012 Collective Agreement does not coincide with the substantial difference that the most beneficial conditions were respected in this article.

It is maintained by the plaintiffs that the current wording violates art. 1256 and 1258 of the Civil Code, the doctrine is contradicted by the Supreme Court in the judgment of 27 January of two thousand four, in establishing that the Convention is not a suitable channel for the modification of the most beneficial conditions agreed and, moreover, it constitutes a new cause for the modifications of the art. 41 ET.

For the proper solution of the problem we have to remember that the adequacy of the extension of the obligation of work to all the days of the week, including Saturdays and Sundays and for all the workers, has been declared

Regarding the impact this general rule makes of the most beneficial working conditions that were being enjoyed, too, we have said that both full-time workers and workers on time They may be subject to a change in their conditions, if they are legal to do so and are carried out through the procedure indicated in Article 4 (1). 41 ET, without application of the case-law established by the Fourth Chamber of the Supreme Court, in its judgment of 27 January of two thousand four, Rec, 64/2002, in respect of acquired rights, " because in the process of the car process, as we have This is the way of art. 41 of the Staff Regulations (sic) F. J 8 ° SAN19/9/2013.

Tenth.

In a first approach to the problem of verification of the day that we will address next, we have to say that the art. 26 of this Convention establishes the working day maximum annual work, from 1 January of two thousand thirteen, in 1798 hours of effective work, which will be distributed in accordance with what the art says. 27.

The art. Article 28.2 of the contested convention states:

Verification of the day.

" 2. Within the year of calculation, the undertakings shall proceed to the settlement of the time of excess which may have been produced on the day of Article 26 by means of their compensation with equal rest time, except for their accumulation and enjoyment. on full days, within three months of the completion of the annual computation, by both parties not matching such breaks with the peak periods of production. The companies will give the centre committee the nominal ratio of overtime hours that would be extraordinary.

When, for any cause, the maximum day in annual computation was exceeded by the sum of the hours actually worked and those in which, with work schedule, the obligation to work was legally suspended, while maintaining the Company's right to pay, either in his or her capacity, or in a delegated payment, the hours of excess resulting from the period referred to above shall be compensated to the worker in proportion to the equivalent free time. "

Plaintiffs claim that the concrete content set forth in the paragraph "within three months of the completion of the annual computation", incurs infringement of the art.  34 of the Workers ' Statute and is in contradiction with Articles 26 and 32 of the conventional standard, when it generates a shift from the compensatory rest to the following year or year.

The denunciation is justified in the fact that such foresight is allowed to displace the natural year following the realization of the ordinary day established in the convention, the times of rest considered as time of effective work and that comes to compensate for the excesses of the day.

They allege as the basis of the complaint the doctrine contained in the Judgment of this Chamber dated May 24, 2013 relapse in the Autos 147/2013.

First of all, we have already advanced that the art. 26 of the present Convention establishes the working day maximum annual working maximum from 1 January of two thousand thirteen is 1798 hours of effective work.

The worker, by command of the art. 5 and 34.1 of the Workers ' Statute is obliged to carry out in an effective way the ordinary day agreed. The employer is obliged to provide him with effective occupation during the same period, as provided for by the art. 4.2.a) ET, in such a way that it previews the art. 30 ET which, if the worker is unable to provide his services, once the contract is in force, because the employer will delay in giving him work for impediments attributable to him and not the worker, he will retain the right to his salary, without might force you to compensate for the one you lost with another job, done in another time.

As we have seen the current collective agreement is considered ordinary day to the annual day of 1798 hours of effective work, both for the continuous day and for the working day and the annual salary pay the compliance with that day.

As we anticipate above, companies with the scope of application of the agreement have the right to implement the irregular distribution of the day, in consideration of their different needs, but irregular distribution It can alter the number of hours agreed annually, which allows us to reach a first conclusion: if the companies decide to use the irregular distribution of the day, they will never be able to exceed the 1,798 annual hours agreed. This statement is in line with the provisions of the art.  34.2 ET, where it is established, on the one hand, that only by collective agreement or, failing that, by agreement between the company and the representatives of the workers, the irregular distribution of the day may be established throughout the year, The company, in default of the pact, may distribute the day irregular.

Now, what is being discussed by the actors is the legality of moving the liquidation of the times of excess over the art day for the following year. 26 by clearing with equal rest time, except agreement; for its accumulation and enjoyment on full days within three months from the completion of the annual computation. It is therefore a pact to the contrary, which is perfectly valid and which has nothing to do with what is resolved by the judgment of this Chamber to which reference has been made, and we quote literally ' a

" Liquidation of positive or negative balances of hours, so that, if the balance of hours is negative, that is, the worker must have hours to the company, it may order its realization until March 1 of the following year, whereas, if positive, this is, the company must hours the worker, these will be compensated as days of free disposition or at value hour discount according to Annex 14 of this collective agreement ... " and where in the face of this particular problem the Chamber shared the " complaint of the plaintiffs, since the regime of compensation of the positive and negative balances, agreed in the convention, is part of the irregular distribution of the day, which can only be established during the year, in accordance with the provisions of Article 4 (1) of the Treaty. 34.2 ET, which requires that period on two occasions, in case any doubt fit. "

11th.

In fact 11th of the lawsuit, the content quoted from the art is challenged. 39.VI referred to the Legal Guardian section, which says:

VI. Legal guardian: In accordance with the provisions of article 37.5 and 35.6 of the recast of the Law of the Workers ' Statute, and of Law 39/1999, of Reconciliation of Work and Family Life, and taking into account the variation of the rhythms of existing work in the sector, given the concentration of the sale in certain periods and times of the day, or the week, and to make possible the combination of the rights of reconciliation of the personal, work and family life of all the workers with the organizational needs and attention to the sale of the enterprises, to facilitate the The following parameters shall be taken into account

1. The worker, with the exception of cases of force majeure, shall request the change of time at least 15 days in advance of the time at which it is to be initiated, indicating the time of its completion if it is intended.

2. In cases where the worker requests the time to be given within the framework of his or her ordinary working arrangements, without change of shift and/or rotation system, the Company shall grant the requested time, unless the organisational impossibility as provided for in paragraph 4, to be notified to the applicant and the Enterprise Committee.

3. In those other situations where a worker requests the time-frame in a frame other than his regular shift and ordinary day, the company, in order to make possible the reconciliation of the family and working life in the terms requested, will analyse the possibility of granting it in its own position, as well as enabling a change of area/department/division, and even, if possible, the change of work center.

4. If the concession is not possible in this case, the organizational or productive cause will be expressed, which does not allow it and the alternatives that are viable in the company will be offered.

In the case of change of area/department/division, or working center, the worker, while the legal guardian situation lasts, will be adapted to the working conditions of the new post or function.

1. Given the different models of organization of human resources and attention to the service, for the determination of the organizational possibility of the granting of the time concrete in situations of legal guardian the index must be taken into account In the case of coverage of needs in case it is established by agreement with the representation of the workers at the company level.

2. When the requested concretion is made on a shift that already has that deviation index in the scheduled coverage, the company will have to offer an alternative position that will enable the schedule, if the request is made in its regime of shift and schedule ordinary. In another case it will proceed as set out in point 3 above, in order to allow balancing the worker's reconciliation interests with the correct operation of the company.

It has been transcribed and at the same time I point out in italics and bold the contested contents of the aforementioned article.

It is based on the demand that the specific contents that we have pointed out, incur in violation of the art. 37.6 of the Law of the Workers ' Statute and damages the rights of reconciliation of personal, family and work life by establishing limitations on the right of its holder beyond those that establish the legal provisions.

On the other hand, the defendants make the Chamber see that the provisions of art. 39.6 do not conculcated art. 37.6 of the Workers ' Statute, since what the Law says is that the collective agreement can establish measures for the concretion of the legal guardian and these measures will protect the wording of the art. 39.6 of the agreement providing for an index of coverage to be established in the business agreement. Concluding that what art does. 39.6 is to facilitate the development of art. 37.6 of the E. T, through a pact of the coverage indices by the company agreement.

Plaintiffs ' claims at this point cannot be estimated for the reasons we go through:

The content of the Judgment of this Chamber dated September 19, two thousand thirteen, handed down in procedure 223/2013, is being questioned indirectly by regulating the distribution of the day and that it is obliged to the Chamber To put it in intimate relationship with art. 27.6 of this convention, and with what we have already resolved with regard to the distribution of working hours for workers who occupy the cash lines.

The art. 37.5 of the Staff Regulations as an individual right of workers, who for reasons of legal guardian have to their direct care an eight-year-old child, a person with a disability, or a direct family member who, by reason of their age, accident or illness, cannot be used by themselves, they are entitled to a reduction in the working day, with the proportional reduction of the salary explained in the aforementioned article.

We have already said that the Law of the Workers ' Statute does not expressly oblige workers with legal guardian to be exempt from providing services on Sundays and holidays and the jurisprudential doctrine that we set out in Our judgment of September 19, two thousand thirteen, where we hold that no extensive interpretations of the right recognized in art. It is more the legislator who refers to the agreements reached in the collective agreements or in the agreements of companies, which is what has happened here, in such a way that the agreement that is now being contested, agreed between the representatives of the workers and the company, in the terms we have transferred and in the absence of a legal prohibition cannot be declared null and void by this Chamber.

12th.

In the twelfth ordinal of the claim the art is contested. 49 of the Convention stating:

" General Principles, Equality Plan and Commission sector/a/. The parties this Convention declare their willingness to respect the principle of equal treatment in work for all intents and purposes, without discrimination on grounds of sex, marital status, age, race or ethnicity, religion or belief, disability, sexual orientation, political ideas, affiliation or not yet union, etc. Particular attention will be paid to the achievement of equal opportunities for men and women in:

Access to employment, professional promotion, training, job stability, and equal pay in peer-to-peer work of more than 250 workers, equality measures aimed at avoiding any type of discrimination between women and men through the elaboration and implementation of an equality plan must be negotiated with the legal representatives of the workers in the field of the whole enterprise. To this end, the companies that have not done so will have to implement the corresponding diagnosis within the first year since the publication of the agreement in the BOE. In the month following the publication of this Convention, the " Commission for Equal Opportunities and Non-Discrimination (DIOND), made up of the business representation and trade unions that are signatories to the Convention, will be established.

For the proper performance of its tasks, the Commission will be equipped with an Internal Rules of Procedure. The following shall be the functions of this commission:

1. Ensure that both women and men enjoy equal opportunities in terms of employment, training, promotion and the development of their work.

2. Ensure that women workers are equal to men in all pay aspects, so that equal work and conditions are always equal to women's pay.

3. Ensure that women workers in the sector, on equal terms, have the same opportunities as men in cases of promotions and roles of greater responsibility.

4. With the aim of achieving a more balanced participation of men and women in all professional groups, the Commission will study and propose to implement the convention, implementing measures for the actions of functional mobility for the coverage of posts of an indefinite nature.

5. It will carry out a study on the evolution of employment with the specification of sex in contact with the employment observatory and equal opportunities in the sector and will make active policies to eliminate any discrimination based on this. which may be detected by reason of sex, marital status, age, territorial origin and other circumstances which may lead to discrimination or bankruptcy of the principle of equal opportunities.

6. Develop a good behavior guide in the sense of this section. "

It is maintained in the suit that the conventional limitation referred to in the fifth paragraph "and the trade unions that are signatories to the convention" is in violation of Articles 28 and 37 of the Constitution, solid constitutional doctrine and consolidated jurisprudential criteria, on the subject, and therefore be deleted because of the illegality of the text that we have quoted.

The claim must be welcomed for the reasons we set out below.

1. The art. 49 of the present convention, it is drafted in an equal way, in the constitution of the sectoral commission of the convention on equality, to art. 54 of the 2009/2012 Convention.

2. The Commission "Equal Opportunities and Non-Discrimination" (ICD), as well appointed by art. 49 of the Convention cannot be integrated solely by the business representation and trade unions which are signatories to the Convention, because it is a Commission which does not aim at the administration of the Convention. It is, on the contrary, a negotiating commission and therefore have the right to be present in the same more representative trade unions, that is, the trade unions with legitimization to negotiate.

This is stated by the Constitutional Court in the judgment of 11 July 2000, when it states that leaving a union with representativeness in the Sector outside the negotiating committee violates the right to freedom of association.

13th.

The art. 66 of the Collective Agreement reads as follows:

" The Delegates or members of the Business Committees will enjoy the guarantees granted to them by the Workers ' Statute. They shall also have the credit of paid monthly hours which the Law determines and the guarantee provided for in Article 9.2 of the LOLS. Those hours shall not apply to them as provided for in the final paragraph of Article 28 of this Convention.

For use, you will have to put it to the company's knowledge at least 24 hours before your enjoyment, except for cases of force majeure. Without exceeding the legal maximum, the paid hours available to the Members of Committees or Staff Delegates may be consumed, to to provide for the assistance of the same to training courses organized by their trade union, institutes training or other entities. "

The third paragraph of the previous conventional article is contested in the order of the thirteenth party of the claim, which in regulating the guarantees of the representatives of the workers understand that, in particular the paragraph " at least 24 hours before his enjoyment ", except in cases of force majeure, he incurs the infringement of the art. 68 e) and consistent with the Staff Regulations.

The art. 66 current, establishes a condition for the enjoyment of the credit schedule that was not found in the 2009/2012 Convention in Articles 77; 78 and 79 under the heading Section 2. º "guarantees".

It is alleged that the requirement to "bring to the company's knowledge 24 hours before" violates the right to the credit schedule of the staff representatives.

The Chamber cannot appreciate the infraction that is reported, because we understand that there is no violation of the right to freedom of association for the following reasons:

1. There is no limitation of the time credit, it is to impose your request 24 hours in advance with an obviously organizational purpose, this organizational cause and the advance request 24 hours is incompatible with the good and free exercise of the credit schedule. Thus the Supreme Court has been pronounced in Judgment of 8 November of two thousand ten. And so the Superior Courts of Justice, like the one in Andalusia (Seville headquarters), are pronounced in the Judgment dated February 15, 2011.

2. This criterion of imposing on the Staff Delegates and members of the business committee the communication to the company with at least 24 hours in advance the dates on which they will make use of the monthly credit schedule for the exercise of their functions, is no stranger to the drafting of other sectoral collective agreements. For example, art. 53 of the Collective Labour Convention of the Siderometalurgic Sector of Leon, dated January 1, two thousand thirteen.

3. However, we believe that the expression "force majeure" is not the most appropriate for the purpose and a weighted proportionality of the concurrent rights in this precept, because contrary to what was stated by the The notice is not an end to the use of the law and it is not stated in the precept, as they alleged in the act of the oral judgment, " that if you cannot tell you nothing happens ... and that when you say 'except case of force majeure' ' is not referring to the force majeure of an 'earthquake', but to the normal impossibility of doing so ... "

We understand that this expression, it would be appropriate to clarify it in the sense of including "any circumstance that would overcome and that could not have been foreseen in advance". This nuance is saved, the Chamber does not share the doubt of legality of the advance notice imposed in the art. 66 and we conclude that he does not prevent or limit the exercise of the right to the credit schedule of the staff delegates or members of the business committee.

14th.

In the 14th ordinal of the claim is challenged the temporal limitation that the art establishes. 67 of the Convention under the title of Time Credit Accumulation Systems.

Says the art. 67 in fine: " The delegates or members of the Committee may waive all or part of the credit of hours that the Law in question recognizes, in favor of another or other delegates or members of the Committee or Trade Union delegate. For this to take effect, the transfer of hours must be submitted in writing, in which the following extremes shall be included: name of the transferor and the transferee, the number of hours transferred and the period for which the transfer is effected, which shall be the full months, up to a maximum of one year, and always in advance of the use of the hours by the transferee or transferee ".

They understand that the temporary limitation "up to a maximum of one year" incurs infringement of the art. 68 of the Workers ' Statute and it affects the right of representation and union action in the company, so they request from the Chamber that it be declared null and void of the standard norm.

We also understand that such a claim must be accepted because it is in fact art. 68 in fine of the Workers ' Statute Act does not set any time limit.

Such inclusion implies a conventional extraction of the limits marked in the Law and should be understood as deleted from the wording of the art. 67, which is worded in the same way as it currently does but without the expression "up to a maximum of one year".

15th.

The art. 87 of the Collective Agreement says in regulating the functions of the Joint Commission:

" These are specific functions of the Mixed Commission:

1. Interpretation and development of the collective agreement.

2. At the request of the parties, it shall mediate or arbitrate, in the treatment and resolution of any collective issues and conflicts of a collective nature that may arise within the scope of this collective agreement.

3. ° You will be able to perform tasks of monitoring compliance with the agreed upon, and most especially of the mandatory stipulations inserted in the Convention.

4. Pretend, prior and compulsory to the administrative and judicial route, in relation to the collective conflicts that may be interposed, by those who are entitled to do so with respect to the application and interpretation of the provisions of this collective agreement. The submission and resolution of a matter by the Joint Committee shall exempt the prior knowledge processing when the matter is repeated.

5. ° If in the future there will be created posts or functions on which there will be discrepancies in order to their prevalent activity for the framing of the same one in one of the Professional Groups, it will be equally competent Mixed Committee to resolve them.

6. ' To tender for the application provided for in Article 82 (3) of the ET, when the legal circumstances contained therein are met.

7 ° Activate in case the parties do not come to the commission or the commission does not reach an agreement the procedures that have been established in the next Chapter under the provisions of article 82.3 paragraph seven of the Staff Regulations.

8 ° To be resolved by the mechanisms provided for in the following Chapter: discrepancies arising in the scope of the companies for the purpose of the application of the Fifth Transition of this agreement.

9. ° Resolve discrepancies arising in the field of companies from the provisions of point III of the sectoral pact for employment and the maintenance of domestic demand in a crisis environment that is contained in the provision Additional to the Convention by the mechanisms provided for in the following Chapter ".

Plaintiffs claim that the cited art. 87 by regulating the functions of the Joint Committee by establishing a generic and unconditional competence for the development of the Convention and providing it with functions connected to the generation of new posts and functions, the structure is being infringed In the case of workers ' rights, it is possible to create new working conditions and to provide a joint body with the exclusive powers of collective bargaining, apart from the case-law criteria cited in the Constitutional Court Judgment 184/1991 and the Supreme Court Sentencing of 10 July 2009 and June 5, 2011

Article 87.5 of the Convention as drafted allows the Joint Commission, within its functions, to create new posts and functions. This is a negotiating competition.

It also allows the said Commission to solve the problems of Enquadration within a professional group. This function is non-negotiable.

On the basis of the above premises we must conclude that, within the functions that the mentioned article entrusts to the Joint Commission only those that are limited to functions of framing within one of professional groups, because those of creating new posts or functions can only be carried out by the same trading units that have created them, that is, the negotiators of the Agreement.

This interpretation is what we understand is in line with what is established in art.  22 of the Workers ' Statute, since the Joint Commission cannot introduce new functions which are reserved by law to the content of the negotiations.

sixteenth.

The sixteenth of the convention is challenged in the sixteenth of the demand by the convention, which reads as follows:

" Transient Disposition fifth.

The companies, in order to comply with the new maximum day and the application of the system of solidarity sharing of the distribution of the work throughout the week, will proceed to the opening of a period of consultations in accordance with Article 41 of the Staff Regulations, in so far as, in order to be able to comply with the provisions of this Convention, an orderly redistribution of the annual working day is necessary, to carry it out without loss of annual day and due attention to the client, the companies, having in accounts for the periods of the year and/or days of the week in which there is a higher activity, the necessary changes in the working hours of the workers concerned, in accordance with the procedure laid down in Article 41 of the ET that the modification will be substantial.

In order to deal with this modification, it will be the competence of the Intercenters Committee the knowledge treatment, negotiation and approval in its case of the general criteria for the establishment of the modifications required. The practical implementation of the general criteria following the consultation process with the intercentres committee and the scope of such changes at the centre level will be the subject of communication to the legal representation of the employees in the centre. prior to its implementation, and without the need to reopen a new consultation process in this field. The changes produced will be communicated in the terms and deadlines legally provided for the affected workers.

In any case, it is established to facilitate and homogenize this procedure: (a) that, as a result of the necessary respect for the equitable distribution of the work set out in Article 27 of this Convention and the agreed distribution system, the organisational reason for this is proven; b) that these amendments contribute to improving the reconciliation of the working and family life of the majority of workers in the sector and the improvement of the situation of firms through a more adequate organisation of their resources; and c) that firms will respect the following limits for the amendments to be made by way of Article 41 E.T., thereby complying with the attenuation the consequences for the workers concerned referred to in the first subparagraph of point 4. Cited Article 41 of the ET:

In the distribution of working time in the field of companies in commercial centers open to the public, workers with more than three days of average annual work per week will have no obligation to provide services more than up to 55% of the annual opening and annual public holidays, provided that the resulting number is greater than 9. For the purposes of calculating the number of Sundays or holidays, the resulting fraction shall be raised to the whole. Given the date of entry into force of the new day, with effect from 1 January 2013, the hours that are actually to be carried out on an annual basis, distributed throughout the rest of the year, will be offset during the calendar for 2013. year.

Any discrepancies that may arise as a result of the processing of the modifications referred to in this Transition shall be resolved by the Joint Committee of the Convention in accordance with the procedure laid down in Articles 87 and following from the same.

The processing of the discrepancies will not paralyse the business decision after the consultation period, so the decision of the Commission or the arbitrator, which will be executive, will have effects within 15 days from its communication to the parties. "

Maintain the applicants that the conventional forecast in establishing an obligation for companies in the sector to initiate a procedure of modifying working conditions and to configure as reason or organizational cause and (a) the provision of such amendments ' the necessary respect for the equitable distribution of the work set out in Article 1. 27 of this agreement, " is being incurred in a direct and serious infringement of the art. 41 of the Staff Regulations and the principle of freedom of enterprise with the effect of rights of collective representation and union action.

On the other hand, the plaintiffs argue that this fifth transitional provision must be connected to the art. 27 and what is being questioned is that the drafters of the Convention enter into the individual terms of the employment contracts.

The fifth transitional provision is an impact on individual relations, because the Workers ' Statute says that when business decisions have an impact on the employment contract, the procedure of art. 41, which is also the procedure that best allows the defense of the worker's interests if the measure causes injury or damage to his contract.

Allege in support of his thesis, the judgment of the Supreme Court of 27 January 2004 in Rec. 65/2002; in relation to the acquired rights and that in our judgment of September 19, 2013 we have already said that In this case, as in the case of the cars examined there, it was being used to the way of the art. 41 of the E.T.

The foundation of establishing the art procedure is maintained. 41, it is in the doctrine of the National Court of the National Audience, which has said that when the measure affects the personal relations of the workers it has to be challenged by the procedure of the art. 41 to resolve their employment relationship.

Effectively, in our judgment of 12 June of two thousand thirteen, relapsed in the procedure 213/2013, it was already said that the negotiators of the convention have already considered in their moment that the adaptation of the enterprises should be carried out through the art procedure. 41.4 of the Workers ' Statute, the concurrency of the organisational cause being accepted in advance, provided that the guarantees set out in the last points of the fifth transitional provision of the Convention are respected. However, it is also stated in that judgment that that provision, whether or not it is shared or not, has not been contested in those cars and therefore the Chamber of Trade cannot consider its eventual implementation, with all the employers and workers in the department store sector, in accordance with the provisions of Article 4 (1) of the Treaty. 82.3 ET.

In the face of the claim that the fifth transitional provision directly and seriously infringes the art. 41 of the ET, but they do not provide any reasoning on which to base their challenge or concrete references that could endorse such a conclusion.

On the contrary, the detailed text of this Transitional Provision shows that it is not a matter of leaving the procedure of the art void. 41 of the ET, but what appears in the D.T. are a series of channels and limits that concretize the processing of this article.

The D.T. itself expressly refers to the processing provided for in the art. 41 of the ET, and except that in specific cases irregularities of the procedure appeared, which could be fought at the time, so it is not a priori to understand that the wording of this Transitional Provision is contrary to the rules on substantial changes in working conditions, which would only be likely to be appreciated when they are actually carried out.

On the other hand, the judgment of the Supreme Court of January 27, two thousand four, has already said that the Convention is not the right channel to leave without effect certain aspects of the individual content of one or several contracts of work. In order for the Convention to be able to do so, it must have a change in the conditions under a rule of law, as is the rule. 41 of the Staff Regulations.

17th.

The additional arrangement of the convention is challenged which sets the following:

"sectoral pact for employment and the maintenance of domestic demand in a crisis environment. The parties, aware of the circumstances that the country's economy is going through, with the character of exceptionality and They consider it necessary to make all the necessary efforts to deal with the crisis and the negative effects on the destruction of employment in an adverse environment, establishing to this effect the following stipulations:

I. Wage growth and consumption: Given the commitment to employment assumed by the companies and trade unions that are signatories under the Convention, it is necessary to undertake a wage treatment during its term that seeks to promote maintenance. of existing jobs in the sector, such as facilitating the generation of new jobs wherever possible.

The parties are aware of the drastic reduction in consumption that has been recorded since 2,008 and of the effort undertaken by companies in the maintenance of the remuneration level, and even their increase, even if the Circumstances have been very different from those expected at the time of the signing of the previous Convention, which is to be compensated by the establishment, as of 1 January 2013, of the new maximum time provided for in Article 26 of the Convention. Hence, the parties have set the basic salary amounts set out in Article 22 as stable for the entire duration of this Convention, allowing for higher perceptions in the case of positive developments in consumption.

In this way the parties aim to contribute, with a mutual effort, to maintain employment, and to pay for the evolution of consumption.

From 2015 onwards, the parties will evaluate the evolution of consumption in case of falls by adopting measures that they deem necessary.

II. Commitment to maintain indefinite employment: Throughout the duration of the collective agreement, companies will maintain the level of employment fixed at sectoral level. The commitment is understood throughout the duration of the Convention, so regardless of the annual controls and monitoring, it will be verified at the end of the validity of the Convention.

III. Resolution through internal flexibility of crisis situations.

Companies with crisis work centers: The previous commitment will not reach those companies that are immersed in the causes that justify the adoption of other measures on employment.

this is, however, in order to avoid measures for structural reduction of employment, or for the implementation of the Convention by virtue of Article 82.3 of the EJ, in those centres where there are, or are, persistent situations of decline in employment. sales (continued annual sales decline over the three previous years of 9% of the average annual in the said period) or similar falls of results in the same period in the same period, the companies will preferably apply measures of internal flexibility consisting primarily of functional or geographical mobility as the change of a temporary or permanent centre, in order to meet the needs of workplaces within a perimeter of not more than 50 kilometres from the worker's home where they are outside the metropolitan area.

These alone effects are understood to be a persistent decrease in the level of sales, or of results that is contemplated at the center level in the preceding paragraph and calculated at a comparable surface.

Only in the second place can a temporary reduction of the base wage of a convention of up to 5 percent, and maximum for one year, be applied in such centers, extendable for equal periods following the procedure here established, provided that the adoption of this measure serves to preserve as much employment as possible, although prior to the adoption of this measure, the internal flexibility provided for in this Sectoral Pact must be exhausted.

The application of this measure, which will necessarily be temporary and is based on the provisions of the first paragraph of Article 41 (4) of the Staff Regulations, shall be carried out on the basis of the the procedure laid down in Article 41, 4 and 5 of the Staff Regulations and supporting the accreditation of the concurrency of the intended cause.

In order to preserve the necessary homogeneity of the measure at company level the competent body will in any case be the Intercenters Committee.

Also before the employment structural or structural changes, additional internal flexibility measures such as the modification of the working conditions higher than those referred to as minimum by the This Collective Agreement.

The discrepancies in the application of these measures described above, as they derive from an extraordinary procedure for the application of the Convention originating in the Convention, will necessarily be resolved by means of the procedures provided for in Articles 86 and concordant with this Convention.

In any case, companies will be able to come to short-term employment measures or those referred to in Article 82.3 of the Workers ' Statute, when the circumstances in which they are described are present, following the procedure where provided for in Chapter II of Title IV of this Convention, provided for and developed pursuant to Article 83.2 of that Convention.

The applicants understand that the mechanism for the implementation of the wage agreement or the salary disservice provided for in the preceding paragraphs is in breach of Articles 82.3 and 41 of the Staff Regulations, to disaggregate and fragment these procedures by job centres without taking into account the situation of the company. In this sense, it is the paragraph of the D. A that the concrete object of pretense of illegality is reviewed in bold.

The challenge is based on the fact that the signatories to the Convention are legislating directly in recognizing the inapplication of art. 82.3 of the Staff Regulations in relation to art. 41, which refers to the causes of companies, while what the Additional Disposition does, in his judgment, is to move those causes from companies to the workplace. In this case, it is possible that the causes imposed by the Workers ' Statute may not be met if a company which is unable to justify at the level of the company the case may be able to do so at the level of the some or some of your job centers. They understand that this violates legal foresight.

It is also reported by the conteants of the Convention, the illegality of the forecast contained in the last paragraph of paragraph III of the D.A. because it incurs in violation of the art. 64 of the ET, by excluding and marginalizing the committees of the centers of work of participation in the negotiation processes of the measures that can be carried out in its center and scope of representation, and the paragraph that says is illegal must be declared illegal: "in order to the need for homogeneity of the measure at the enterprise level, the competent body will be the inter-centre committee in any case."

For their part the representation of the defendants justifies the content of the additional provision in the sectoral pact and they argue that what has been intended with this additional provision, in paragraph 3. °, is to establish a a novel method of internal flexibility. That innovation is done through art. 81.1 of the Workers ' Statute, which allows for the establishment of measures for labour regulation in order to try to avoid the spread of legislation through the way of the general neglect and the business agreements in particular. What has been sought is that before going to measures of job losses, establish a mechanism of internal flexibility within the collective bargaining process and start from this innovative premise that the last word should have the joint commission of the agreement or an arbitration, in relation to the criterion of the processing of the art. 41 ET. This innovation also deviates from what is a process of neglect by the way of art. 82.3. All this finds its justification, in the opinion of the defendants, in the own idiosyncrasies of the companies involved in the Sector.

The art. 83.2 of the Workers ' Statute, establishes the structure of collective bargaining and lays down the rules to resolve conflicts of competition between conventions of different fields and the rules of complementarity of the various units (a) Also, the requirements for legitimisation to be met by the negotiators of the agreement and a constitutive requirement laid down by the aforementioned precept in order to be able to enter into collective agreements is that the negotiators have the status of being more representative trade unions or employers ' organisations of a state or autonomous community. The Trade Unions that have signed the present agreement have a representativeness that has not been discussed in the sector of the Great Stores and are entitled to subscribe to the collective agreements of the statutes, as set out in the article. 87.2 of the ET, but not to negotiate inter-professional or collective agreements of art. 83.2 ET.

It is to say that the procedure to be followed to reach the agreement will be the one that establishes the art. 82.3 without any reference to the art procedure. 41.1 of the Workers ' Statute, and it is from this perspective that the agreements reached in paragraph III of the Additional Disposition have to be interpreted, when the criteria for resolution are established "through internal flexibility". of the crisis situations, and for the reasons we set out below that would lead to the nullability in their case of such flexibility measures if they are not followed by an agreement in accordance with the art procedure. 82.3.

1. So when it is said that in the second place, a temporary reduction of base salaries can be applied in such centers ... following the procedure here ... This procedure cannot be that of the art. 41.1 ET.

2. And in order to preserve the necessary homogeneity of the measure at company level the competent body will not be in any case the Inter-Centers Committee, because the majority union sections, as we have stated, have priority.

Viewed the cited legal precepts and other general and relevant application,

FALSE

In the demand for contestation of convention, promoted by CC.OO. and UGT, to which the IGC has adhered, we reject the exceptions of litipendens and res judicata.

We partially estimate the demand for contestation of the convention and declare the nullity of the following conventional provisions:

-From the art. 4.2 of the Collective Agreement as it reserves to its own bargaining unit the structure of the collective bargaining in the field of the department stores and with the exclusion of any other.

-From the art. 7.

-From the art. 12, paragraph 3.2.a), because it prevents, directly or indirectly, women from professional development under the same conditions as the rest of the workforce when imposing assessment criteria for promotions Discriminatory professionals.

-From the end point of the fifth paragraph of the art. 49 of the Convention, when it says "the trade unions that signed the convention".

-Art. 49 The Commission " Commission for Equal Opportunities and Non-Discrimination (DIOND), thus designated by art. 49 of the Convention cannot be integrated solely by the business representation and trade unions that are signatories to the Convention.

-Art. 67: Temporary limitation "up to a maximum of one year" of the accumulation of overtime.

-Art. 87.5 of the Convention as soon as it allows the Joint Commission, within its functions, to create new posts and functions.

We also declare the nullability of paragraph III of D A of the Convention as regards internal flexibility measures if they are not followed by an agreement under the art procedure. 82.3. And in respect of which the competent body shall not in any case be the inter-centre Committee.

We condemn ANGED, FETICO and FASGA to be and go through the nullity of the above precepts, absolving them of the other demands of the demand.

Notify the parties of the present judgment by warning that against the same action, the Court of Cassation may be brought before the Fourth Chamber of the Supreme Court, which may be prepared before this Chamber of the Social of the National Court in the five working days from the notification, and may do so by means of a demonstration of the party or its Letter to the notified serle, or in writing lodged in this Chamber within the period specified above.

At the time of preparing before the Social Room of the National Court the Appeal of Cassation, the appellant, if he does not enjoy the benefit of free Justice, must prove to have made the deposit of 600 euros provided for in the art. 229.1.b) of the Regulatory Law of the Social Jurisdiction, in the current account that the Chamber has opened in Banesto, branch of street Barquillo, 49, with the n. º 2419 0000 000278 13.

The parties are also advised to prepare an appeal against this judgment, which, as provided for in Law No 10/2012 of 20 November, as amended by RDL 3/13 of 22 February 2001, is a certain fees in the field of the Administration of Justice and of the National Institute of Toxicology and Forensic Sciences, with the written application of the appeal, shall be required to provide proof of payment of the fee for the financial year the judicial authority to which the rule of law is concerned, provided that no such rule is the reasons for exemption for objective or subjective reasons referred to in that standard, which shall be met by means of self-settlement in accordance with the rules laid down by the Ministry of Finance and Public Administrations in Order HAP/2662/2012, December 13.

Take evidence of this statement to the original cars and incorporate it into the statement book.

So by our judgment we pronounce, send and sign.