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Resolution Of 18 December 2015, Of The Directorate-General Of Employment, Which Is Recorded And Published The Judgment Of The Supreme Court Of State Collective Convention Of Department Stores.

Original Language Title: Resolución de 18 de diciembre de 2015, de la Dirección General de Empleo, por la que se registra y publica la Sentencia del Tribunal Supremo relativa al Convenio colectivo estatal de grandes almacenes.

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roven: " First. -By Resolution of 8 April 2013, of the Directorate General of Employment, the state collective agreement of large registered warehouses is published, with date 30 January 2013, by the National Association of Large Distribution Enterprises (ANGED) representing companies in the sector, and by the trade unions FASGA and FETICO representing workers, and the registration of the cited collective agreement in the relevant Register of collective labour agreements and agreements with notification to the Negotiating Commission, following its publication in the Official Journal of the State of April 22, 2, 2, 13. Legal forecasts have been met. "

Fifth.

Prepared appeal by the State Federation of Trade, Hostels and Tourism of Workers ' Commissions, was formalized before the Social Room of the National Court, with the following reasons: First to Fourth. -Under the rule of art.  207.e) of the Regulatory Law of the Social Jurisdiction for infringement of art.  9.3, 37, 38 and 129.2 of the Constitution, arts.  3, 12, 17, 34.2 and 8, 37.6, 41, 64 and 82.3 of the Workers ' Statute and arts.  1256, 1258 of the Civil Code, European Directives 76 /207/EEC, 92 /85/EEC and 97 /80/EEC, art.  8 of the European Social Charter of 18 October 1961 and ILO Convention 183 on maternity protection.

In the appeal formalized by the Federation of FASGA Trade Union Associations, the following reasons are stated: First to seventh. -Under the article.  207.e) of the Regulatory Law of the Social Jurisdiction for infringement of art.  4.1.b), 12.4 (d) and (f), 37, 38, last paragraph of art.  68, 85, 91.1 of the Workers ' Statute, art.  2.d) of the Organic Law 11/1985 of 2 August of Freedom of Association, art.  1255 of the Civil Code.

In the appeal formalized by the National Association of Large Distribution Companies (ANGED), the following reasons are stated: First to seventh. -Under the art.  207.e) of the Regulatory Law of the Social Jurisdiction for infringement of the arts.  12.2.a), 4, and 87.5 of the collective agreement of Great Stores, art.  41, 68.e) 82.1 and 3, 83.2, 84.3, 85.1 and 85.3.e) of the Workers ' Statute, art.  3, 1281 and concordant of same, 1283, 1285 of the Civil Code.

In the appeal formalised by the Federation of Trade, Hostels and Tourism, the following reasons are stated: infringement of substantive law and the case-law in accordance with the provisions of the art.  205 et seq. of the Law of Procedure. First. -In reference to the res judicata and art.  27.6 of the implementing convention. Second. -Infraction of the art.  3 of the Staff Regulations and Articles of Law.  1256, 1258 and concordant of the Civil Code. Third. -It adheres to the action brought by Comisiones Obreras.

Sixth.

After the period granted for the challenge of the appeal, a report was issued by the Prosecutor's Office, in the sense that it is in the interest of the declaration of origin of the appeals, with the exception of the first plea of the resource formalised by CC.OO., and of the fourth and sixth grounds of the resources brought by FASG and ANGED whose estimation is proposed.

Seventh.

In Providence dated April 8, 2015, it was noted for the vote and ruling of the present appeal on May 5, 2015, the date it took place.

Fundamentals of Law

First.

The application filed in these cars by the State Federation of Trade, Hostels and Tourism of the union Comisiones Obreras (FECOHT, hereinafter CCOO) and the Federation of Commerce, Hotels, Tourism and Gaming of the Union Union General de Trabajadores (hereinafter the UGT) was intended, according to his request, to declare the nullity of the arts 4, 5.2, 7.1, 8, 9.A3, 10B, 12.3.2.a), 27.3, 6 and 8, 28.2, 39VI, 49, 66, 67 and 87.1.5º and Transitional Provision Fifth and Disposition Additional to the collective agreement of department stores published in the BOE of 22 April 2013.

The judgment of the Social Chamber of the National Court of 13 November 2013, after rejecting the exceptions of the litigation and the judgment raised by the defendant, concludes by partially estimating that demand, declaring the nullity of Articles 4.2, 7, 12.3.2 (a), 49, 67, 87.5 and III of the Additional Disposition of the said Convention in the terms that it gives, by condemning the defendants to be and to pass on that declaration and absolving them of the In the case of the Commission, the Commission has taken into account the fact that the relationship to the art.  7 in the sense that " only the second paragraph of art is annulled.  7, confirming the sentence in everything else. "

Appeal, and separately, CCOO and UGT on one side, and Federation of Trade Union Associations (FASGA) and National Association of Large Distribution Companies (ANGED) of another, having contested the State Federation of Independent Trade Workers (FETICO) union and ANGED resources of UGT as well as UGT that of ANGED.

The Prosecutor's Office has issued a report that concludes by interested in " the declaration of the origin of the interposed resources, with the exception of the first reason for the resource formalized by CCOO and the fourth and sixth motives of the resources brought by FASGA and ANGED whose estimation is proposed ".

Second.

The first in the relationship is that of CCOO, which consists of four reasons, and that following that order, it must also be the first in its examination (so the next, in expositive logic and perspective, even if it does not occupy the same place, It must be that of the other recurring trade union), he points out in the initial plea, concerning art.  9 (A) 3 of the contested convention, which conculcates the Articles 9.3 of the Spanish Constitution (EC), 3, 12 and 41 of the ET and 1256 and 1258 of the CC, as well as the case-law represented by the STS of 27 January 2004. In this respect, he argues, in substance and abstract, that the conventional precept of the foregoing constitutes an " invasion of the sphere of the autonomy of the will (which) does not in any way imply an art development.  12 b) of the ET...but on the contrary, a clear and direct infringement of the merited legal precept ", as well as of the art.  3.1 of the Staff Regulations and the case-law.

What the art.  9 has in its section A: "Part-time work contract: The provisions of Article 12 of the Workers ' Statute shall be in accordance with Article 12 of the Staff Regulations", specifying in paragraph A3 that " The journey initially contracted may be extended temporarily when the assumptions that justify the temporary recruitment are given. In enlargement, the causes of the temporary enlargement must be concretized. " It is, therefore, part of an express submission and a remission of equal class to art.  12 of the ET, which is therefore recognised as a referencragraph 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 will not in any case be the Inter-Centres 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 claim. "

The Chamber of the Social of the National Court, issued Auto on December 2, 2013, whose dispositive part is of the following literal tenor: " Part is dispositive: the Chamber agrees to partially estimate the resource of clarification, In the case of CCOO against our sentence of 13-11-2013, we therefore specify that only the second paragraph of Article 4 is annulled.  7, confirming the sentence in everything else. "

Fourth.

In the above judgment the following facts were pjoyed by them pursuant to a unilateral decision by the employer of collective effects, adding in their n ° 4 that ' without prejudice to the specific procedures which may be laid down in the collective bargaining ... in such a way that such a possibility is expressly recognised, requiring only the existence of a period of prior consultation with the legal representatives of the workers that the transitional provision fifth of the convention also expressly recognizes when it says that " the enterprises, in order to comply with the new (a) a period of consultation in accordance with Article 41 of the Staff Regulations of the European Parliament and of the Council of the European Parliament and of the Council of the European Parliament and of the Council of the European Parliament and of the Council of the European Parliament and of the Council Workers ... ", without, at last, and in principle, it can be accepted that what is established in the convention" In the light of the fact that the Commission is not in a position to take the necessary measures to ensure that the aid is granted to the Member State in question, it must be attainment of the objective envisaged therein, that is, non-objective causes which, therefore, distort the legal precept ... ', because this can be considered an organizational cause as the last of the conventional provisions referred to above points out, even if it can be questioned that this "proven" cause is considered from the outset, as says, although this extreme concrete is not the subject of debate on the ground, without prejudice to what can be further reasoned in this respect.

Of all this, it is inferred that not even mentioned 8 of the art.  27 conventionally, in the terms in which it is conceived, is contrary to applicable law.

As soon as it comes from expressing, this motive cannot prosper.

Fourth.

The third is perceived as being in breach of ET 17 and 37.6 in relation to EC 14, Directives 76 /207/EEC, 92 /85/EEC and 97 /80/EEC, art.  8 of the European Social Charter of 18 October 1961 and Convention 183 of the ILO, all of which it considers to be in contradiction with art.  39 VI of the collective agreement fought and with the limitations which it says that the conventional precept establishes, by holding, in definitive, that these are conditions and limitations to the right of time, in the terms in which it is They do, "directly and seriously affect the exercise of the right to the reduction of day by legal guardian".

The referenced art.  39 VI of the collective agreement provides:

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

determining the time-frame provided for in Article 37 (6) of the Staff Regulations:

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 The Commission will examine the possibility of granting it in its own position, as well as enabling a change of area/department/division, and even, if this is possible, the change of the working centre. 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.

4. 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.

5. 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 shall proceed as set out in point 3 above, in order to enable the worker's reconciliation interests to be balanced with the proper functioning of the undertaking. '

As the M. º Fiscal in its precept report shows and FETICO agrees in its impeachment, this is a reason that suffers a priori from a flawed approach as soon as " the appellant is limited to generic considerations by citing numerous precepts infringed by the judgment without any concreteness, in a field of generality but without specifying the specific infraction of the sentence ", which contravenes what is established in the art.  210.2 of the LRJS.

In addition, this Chamber has repeatedly stated (for all, our judgment of 9 December 2010 and those mentioned in it), " the appeal is an extraordinary resource which, as such, when it denounces an infringement Article 205 of the Law on Labour Procedure of the same legal text (current art.  (e) of the LRJS) it necessarily has to invoke as a cause of challenge the infringement of a rule of law-whether that be a constitutional precept, a statutory or statutory provision, a statutory collective agreement-or a Case-law of the Court of Justice (judgments of 19 February 2001, 31 May 2004 and those referred to therein). Moreover, the Chamber has also specified that the requirement to establish the legal infringement which is alleged ' is not complied with only to indicate the precepts which are considered to be applicable, but also, since various interpretative options are at stake which have given rise to the different judicial pronouncements, it is an essential requirement to reason expressly and clearly on the relevance and substantiation of the action in relation to the infringement or infringements which are the subject of a complaint (judgments of 25 April 2002, 13 July 2007 and 22 October 2008, inter alia). It follows not only from Ahe time of their entry into force, unless otherwise provided for in the standard by means of a transitional law extending the effects of the contract. above, which does not happen in this case.

The art.  In the light of the above, the Commission considers that, in the light of the above, it considers that the conditions of employment for working hours are substantially altered, and that such changes ' may affect the conditions recognised for workers in the contract of employment. work, in collective agreements or agreements or agreements en foundation, as soon as the reason for the same procedural defect as the previous one, also reviewed by FEICO in its impeachment.

the light of the above, it can be added that, in our previous third legal basis, the aforementioned transitional provision is already partially transcribed and the corresponding provision is reasoned in relation to the above. The second reason for the appeal, now, however, is its complete reproduction, given its considerable extension, which is more than a great way of overcoming what has already been collected, for a better understanding of what is concerning it, which is the nuclear object of the motive. This provision states that: ' undertakings, in order to comply with the new maximum working day and the application of the distribution system in solidarity with the distribution of work throughout the week, shall be the subject of the the opening of a period of consultation 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 working day is necessary. annual, so to carry it out without loss of annual day and due attention to the client, In the light of the periods of the year and/or the days of the week in which the activity takes place, the necessary changes must be made to the working hours of the workers concerned, in accordance with the procedure laid down in the Article 41 of the ET, in the event that the amendment is substantial.

In order to deal with this amendment, 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 workers. in the same, prior to its application, and without the need to reopen a new process of consultation 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 in Article 41 of the ET:

In the distribution of working time in the field of enterprises 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 calendar for 2013 will be compensated for the hours that are actually to be carried out on an annual basis, distributing them for the rest of the year.

Any discrepancies which may arise as a result of the processing of the amendments referred to in this Transition shall be settled by the Joint Committee of the Convention in accordance with the procedure laid down in Articles 87 and follow 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 of the arbitrator, which will be executive, will take effect at the fifteen days since its communication. to the parties ".

It follows that the practical concreteness of the general criteria in the field will be carried out after the process of consultations with the intercenters committee to which the knowledge previously has to be " the knowledge treatment, negotiation and (i) approval of the general criteria for the establishment of the necessary amendments "and that" any discrepancies which may arise as a result of the processing of the amendments referred to in this Transition shall be settled by the Joint Committee on the Convention in accordance with the procedure laid down in Articles 87 and (i) the following is the case: ' the practical implementation of the general criteria following the consultation process with the inter-centre committee and the scope of such changes at the centre level will be the subject of communication to the legal representation In the case of workers in the same Member State, prior to their application, the undertakings shall respect the limits for such amendments to be made by way of Article 41 (1) (a). From there, all that and the rest of the disposition interpreted according to the rules of good faith, whose observance is imposed as a principle (vid., p.e., art.  20.2, in fine, of the ET and, in the concrete field of collective bargaining and its development, by art.  89.1 of the same legal text) and by virtue of which the said hermeneutics claims that the criteria relating to the precept are the subject of a restrictive assessment in that it is possible to deduct only the power of the company's management In addition, the limitation of the rights of reconciliation of family and work life implies that the concurrency of the "proven" organizational reason (a) cannot imply an indisputable presumption in this respect. that it is only in advance that it is established that the existing reason for the measure is such (organizational) and which, in principle, concurs, and that the modifications, as long as they are admitted or not evidenced otherwise, contribute to improve the reconciliation of the family and working life of the majority of the workers of the sector and the the situation of the undertakings through a more appropriate organisation of their resources (b) and all of this, without prejudice to the specific actions which, in the event of the case, could be exercised in the event of disconformity and of course prejudice to the last control mechanism in this respect, where in a procedure with due guarantees for both parties, it would be determined whether the alleged cause is actually existing and whether, with the measure adopted, it is actually contributing to improving the said conciliation, it is possible to admit, at last, to the judgment under appeal that ' it is not a question of leaving the content of the art procedure.  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 "and that" it is not a priori to understand that the wording of that Transitory Disposition is contrary to the norms on substantial changes in working conditions, which would ial condition that in an inveterate and peaceful way came "It is a clear sign of conventional authoritarianism," he said. that in the established terms, the period of ex art queries.  41 of the ET is already vitiated and void of content " having preconstituted the sectorial convention a proven organizational cause for all the companies, that obviously prevents or makes unnecessary the negotiation where it must occur, that is, in the companies ".

In advance, it is possible to reproduce what was previously stated on the basis of the previoused, is not appreciated in the text referred to in paragraph 1 above, which is already part of the guarantee of the agreement with the workers ' representation may be exempted from part-time workers, which, in principle, does not constitute discrimination, given the very difference in the contract between workers on a part-time basis, it is precisely this (the day) that the nuclear element of the fluctuation contemplated in the precept, constituting, in short, a mere possibility ("may be taken into account") the extension of the number of ordinary daily hours, which previews the n ° 1 of the conventional precept (which is not referred to in the resource), conditioned, in advance, at the greatest intensity in the commercial activity on certain days of the week and at the time of the year, with the limits that the same precept imposes ("respecting in any case the rest between days") and with the controls that the same one would deduce.

The reason, therefore, is not attachable.

Seventh.

The resource of FASGA, first of the two recurring lawsuits, contains seven reasons, the first of which denounces the infringement of art.  85 of the ET to declare the judgment under appeal the nullity of the second paragraph of the art.  4 of the collective agreement which states: " Consequently, in order to establish for the scope of the present Convention a rational and homogeneous structure, avoiding the effects of disarticulation and dispersion, the parties legitimized in the The scope of the present Convention agrees that the structure of collective bargaining in the department store sector shall be made up of this negotiating unit at the State level, with the express exclusion of any other and, where appropriate, the development of the same within each company, with respect in any case to the legislation ".

For its part, the appeal of ANGED contains a first motive of the same object but denouncing the infraction of the arts 84.3 and 83.2 of the ET, so that they are susceptible of joint treatment, having to answer both with follows.

In the third ground of law of the aforementioned judgment, it is declared null and void art.  4.2 "as soon as it reserves its own unit renegotiation the structure of collective bargaining in the department of department stores and with the exclusion of any other" and congruently with this, in its ruling declares the nullity of such a precept in the terms mentioned.

The art.  85 of the ET does not refer to the litigious question, by focusing on the content of the convention, but if the first of the recurring entities part of the idea that the art.  4.2 of the convention is subject "in any case to compliance with the current legislation" so that " the exclusive negotiating unit requires that it does not collide with other bargaining units unavailable to the parties as they may be ", although, it continues," in the same way nothing prevents that if such a collision does not exist with other possible bargaining units the signatories of the collective agreement of large (warehouses) are in their legitimate ability to establish the (i) the conclusion that it is necessary is that, of course, it is necessary to This is also possible, according to what the appeal of ANGED argues, which also reiterates that in art.  4.2 conventional is a reference in fine, with express submission, to the respect of the legislation in force, " since, obviously, at the level of the sector, it is not possible, by law, to interfere the negotiation of collective agreements of company in the materials contained in art.  84.2 of the ET ".

But what is worth noting anyway is that art. (84.2 of the ET) is not the priority to be taken into account in the matter but the art.  83 of the same legal text, as it specifically regulates the trading units, having regard to that provision that: " 1. Collective agreements shall have the scope to which the parties agree.

2. The most representative trade union organizations and associations of state or Autonomous Community may establish, through inter-branch agreements, clauses on the structure of collective bargaining, setting, where applicable, the rules to resolve concurrency conflicts between conventions of different scope.

These clauses may also be agreed upon in collective agreements or collective agreements, at state or regional level, by those unions and business associations that have the necessary legitimacy, compliance with the provisions of this Law.

3. Such workers 'and employers' organizations may also draw up agreements on specific matters. These agreements, as well as the interbranch agreements referred to in paragraph 2 of this Article, will have the this Law for collective agreements. "

In accordance with the above, this rule is of a special nature and even of an ordinal antecedence to which the judgment is cited (art.  84.2), concerning concurrency, which is also referred to in Article 2 of the Article itself.  83, referring to the 84 specifically mentioned in the aforementioned paragraph (2), to the regulation of the conditions laid down in an agreement of undertakings, in one, not by generic, less clear allusion to the content of the subjects under negotiation in a The agreement of that class, as on the other hand, is evident with the relationship it carries out in such matters, which is different from the aforementioned negotiating units. On the other hand, the agreed solution for the design of the collective bargaining structure in the sector is justified in the idea of establishing for the scope of the convention a rational and homogeneous structure, avoiding the effects of the disarticulation and dispersion, not to forget that according to the n. 1 of that art.  84, a collective agreement may not be affected during its term by other conventions of a different scope, " unless otherwise agreed, negotiated in accordance with the provisions of Article 2 (2).  83 ", so that everything leads us to this last precept, according to which the art is written.  4.2 of the Convention, reiterating this pact in art.  84.3 in order to oppose agreements or conventions in the field of autonomy which affect the provisions of the State in question, for all of which, the annulment of the conventional provision by the judgment of the instance must be regarded as inadmissible, involves the estimation of the above reasons.

Eighth.

Likewise, the respective second reasons for the FASGA and ANGED resources are amenable to joint treatment, when they are both about the nullity declared by the instance sentence of the second paragraph of the art.  7 of the sectoral implementing agreement, pointing out the first recurring entity which is concerned with the Articles 12.4, paragraphs (d) and (f), 37, 38 and 85 of the ET and the second the conculcation of the Articles 3, 1281 and concordant of the CC. The art.  7 in question is as follows:

The hiring of workers will be in accordance with the general legal rules on placement in force at any time.

The following sections will apply to the different procurement modes:

1. The conditions agreed in this collective agreement relate to the performance of the ordinary maximum daresent case and under the same terms it is understood that paragraph 6 of the art.  27 of the convention is in accordance with the law, conclusion that it is possible to maintain as soon as has not been sufficiently explained nor have been given arguments enough nor justified in any moment the theoretical discrimination sustained by the On the other hand, it could be the subject, if any, of the specific action in this respect at the time when the conventional forecast was applied, so that it could be concluded in an equally specific situation, which, it is reiteratany discrimination on grounds of sex, whether directly or indirectly, and in particular in relation to maternity, to the assumption of obligations. family and marital or family status.

1. Direct discrimination on grounds of sex is the situation in which a person is, has been or could be treated less favourably than another in a comparable situation on grounds of sex.

2. Indirect discrimination on grounds of sex is the situation in which an apparently neutral provision, criterion or practice places persons of a particular sex at a particular disadvantage vis-à-vis persons of the other sex, unless such Provision, criterion or practice can be objectively justified with a legitimate aim and the means to achieve that aim are appropriate and necessary.

From this legal perspective, we have to conclude that the conventional standard examined implies a violation of the precepts denounced as it prevents women from directly or indirectly developing professional development in the the same conditions as the rest of the workforce when establishing assessment criteria for professional promotions that are discriminatory ".

It is necessary to ratify this reasoning as long as they are not contemplated as an exception to the time-frame that in principle the precept mentions as one of the two requirements (to undergo an evaluation and the passage of time) The promotion to the Group of professionals of periods related to maternity leave is considered (pregnancy, childbirth and breastfeeding), which puts the woman at a clear disadvantage in order to achieve the necessary minimum time.

There is no doubt that the factor referred to (the average annual activity of the activity) is of unquestionable objective character, but its competition with the first (the evaluation) seems to already condition the taking into account of the result of this is even in the formulation of the precept to have the one as the only one ("if there is no evaluation", which, it seems, is left to the discretion of the company) when everything indicates that what must be pursued for the ascent is the greater " multipurpose and multifunctionality ", which if, in effect, in the generality of the cases, of the work practice (i) continued, it is not, in any case, absolutely irreplaceable (at least partially) in some cases, in that, because of the special endowment or skill of the worker, the assessment itself (duly carried out with full guarantees) could show that does not require the minimum time required as a requirement, and if in advance it is anticipated that that may not take place, the time factor stands in the exclusive arbiter of the professional promotion, with the harmful results of previously In particular, the fact that the 450 hours of average are required to be carried out is required. without interruption exceeding two months, with the equally negative accuracy, for these purposes, that in the event of such higher interruptions, the period before the end of the period shall not be computed for the purposes of reaching the Average quoted.

Consequently, and especially when, after, the art.  49 of the Convention, which is referred to in the next legal basis, provides, in general but expressly, that ' Particular attention will be paid to the achievement of equal opportunities for men and women in: access to employment, vocational promotion, training, stability in employment, and equal pay in jobs of equal value. " it could have enabled a system more sensitive to the human differential which took into account the natural inequality of people by reason of their sex in a way that respected in a better way not only the principle of equality and not discrimination of art.  14 of the EC but also the purpose of rules such as the Law of Equality which cites the judgment under appeal (Organic Law 3/2007 of 22 March for the effective equality of women and men) and the spirit of necessary and related precepts of law with the subject matter as art.  37 of the ET,

And having not understood the recurring part, however, the arguments are not free of reasonableness, the reason cannot be accepted.

Tenth.

The fourth reason for each of the referred resources is dedicated to art.  49 of the collective agreement of application, the annulment of which, according to FASGA, is the conculcation of art.  85 of the ET and according to ANGED the of the Arts 3, 1281 and 1283 of the CC in relation to the arts 82.1 and 85.3.e) of the ET, as well as of the ordinary and constitutional jurisprudence that it cites.

The referenced art.  49 sets out: " General principles, Equality Plan and Sectoral Commission.

The parties to this Convention declare their willingness to respect the principle of equal treatment in work for all intents and purposes, not discrimination on grounds of sex, marital status, age, race or ethnicity, religion or convictions, disability, sexual orientation, political ideas, affiliation or not yet union, etc.

Special attention will be paid to equal opportunities for men and women in:

Access to employment, professional promotion, training, job stability, and equal pay in jobs of equal value.

In the case of companies of more than 250 workers, equality measures aimed at avoiding any kind of employment discrimination between women and men through the elaboration and implementation of an equality plan should be 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 must 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 created.

For the proper performance of its tasks, the Commission shall be provided with an Internal Operating Regulation.

The following will be 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 aspects of the wage, so that equal work and conditions are always equal to women's pay.

3. Ensure that women working 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,of the Equality Act of February 6, two thousand six, says to want to comply is to make effective the principle of equal treatment and equal opportunities between women and men and the elimination of discrimination against women. Women in all areas of life, and in particular in the political, civil, economic, social and cultural spheres, for the development of Articles 9.2 and 14 of the Constitution, to achieve a more democratic, fairer and more supportive society.

This principle of equal treatment between women and men implies the absence of riting, 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. "

The underlined limitation is not explained, since only a justification is given to the fact of the use of the system of accumulation of hours, not establishing the art.  (e) of the ET more than the right of the members of the business committee and of the staff delegates to have a credit of paid monthly hours for the exercise of their representation functions, to which in their last paragraph adds the (a) the accumulation of hours of the various members of the business committee and, where appropriate, the staff delegates in one or more of its components 'without exceeding the maximum total', in such a way as to be the case, the only cote that imposes on the subject the aforementioned precept. And if it is taken into account that the time credit constitutes a guarantee of the exercise of the representative functions, any impediment or restriction, in and in principle, if it is not in advance rejected, must be found, at least, fully justified, in such a way that it is good what succinctly expresses on the particular the judgment under appeal when it says, starting from that the art.  68 of the ET does not set any time limit, that "such inclusion implies a conventional extraction of the limits marked in the Law", so that although theoretically it is a procedure that in the opinion of the appellant itself (FASGA) is "reasonable and proportionate to the intended purpose" consisting of the operational management of the time credit, this is not no longer a limitation that lacks legal support and therefore inathensible.

The above reasons should therefore be rejected.

12th.

The sixth of both resources refers to art.  87.5 of the agreement, the deletion of which is considered to be atentatory to the ET's 85 and 91.1 and the CC's 1255 (FASGA) and 82.1 and 85.3.e) (ANGED). The aforementioned art.  87 is integrated among the regulators of the Joint Commission, within Chapter I of Title IV of the Convention, concerning the interpretation of the agreement and voluntary resolution of collective conflicts, pointing out the art.  85 of the above conventional text that "both parties agree to establish a Joint Commission as a body for the interpretation and enforcement of this collective agreement". On this basis, the art.  87.5 of the same provision, as one of the functions mentioned by the Commission, provides that "if in the future there are created posts or functions on which there are discrepancies in order to their prevalent activity for the framing of the same one in one of the Groups" Professionals, the Joint Commission will be equally competent to resolve them. "

According to the literal tenor of this precept, it is a matter of resolving discrepancies with regard to the framing of the prevalent professional activity, that is, of periatesand that its exclusion is attentive to the principle of freedom of association. The "implementing" commissions are those which aim at the interpretation or application of some of the clauses of the collective agreement, the adaptation of some of them to an unexpected problem or the adaptation of their content according to objective data and prefixed (in this sense, SSTS 21/12/94-rco 2734/93-; 28/01/00 -rco 1760/99-; 11/07/00 -rco 3314/00-; 29/01/04 -rco 18/03-; 24/05/01 -rco 3816/00-; 08/04/02 -rco 1201/01-; 06/07/06 -rco 212/04-; 26/12/06 -rco 14/06-; 28/12/06 -rco 140/05 -01/06/07 -rco 7/06-; and 15/01/08 -rco 59/06).

... And in application of such a doctrine, the Chamber maintains: (a) the exclusion of a trade union from certain committees established by a pact which neither signed nor assumed after accession may constitute an injury to the right of freedom of association, if this implies a lack of knowledge, or at least a limitation, of the right to collective bargaining; (b) that this " unconstitutional limitation of the union's right to participate in a particular commission occurs when two circumstances are present: on the one hand, that the union is legitimized for (a) to negotiate and, on the other, to deal with committees with a negotiating function, the ability to make changes to the convention or new rules not contained therein; and (c) that when the above data are not met, the signatories of a collective agreement, in the use of collective autonomy, may provide for the creation of commissions reserved for those who signed the agreement, while they do not have regulatory functions in their own sense, but without having to restrict themselves either, to the mere function of interpretation or administration of the rule established in agreement collective (e.g. SSTS 29/01/04 -rco 18/03-; 06/07/06 -rco 212/04-; 26/12/06- rco 14/06-; 28/12/06 -rco 140/05-; and 10/06/09 -rco 105/08-).

... The preceding doctrine determines that the action must not be successful, in view of the unquestioned-at least formally-facts which the judgment under appeal has proved to be: a) the Negotiating Commission of the Collective Agreement had agreed-with the favorable vote of all twelve members, except the representative of CGT-the constitution of various Commissions [on consolidation of hours; adequacy (b) the CGT does not take part in these Commissions, "as it is not a signatory to the Convention; (c)" the conclusions, studies and deliberations held within the committees are: subject to the consideration of the Intercentres Committee, which, in short, decides on admission or rejection of the proposals; and (d) in the Intercentres Committee " the CGTGV participates.

Well, if the Commissions-whose nullity is demanded by the CGT, which refused to sign the Collective Agreement-have no negotiating quality, because it is declared proven in the judgment under appeal, and this statement does not try to counter the corresponding review section [does not have to be argued by the Union in an argumentative manner, but it should have previously urged-and obtained-its modification by the proper course of the art.  205.d) LPL, error in the assessment of the test], but its purpose is of simple study and formulation of proposals to the Intercenters Committee, which is who accepts or rejects them, and that of this Committee if it is part of the CGT [together with UGT and CCOO], it is clear that the limitation of the right of freedom of association for which action is taken cannot be assessed and that, for the same reason, the nullity of the various committees set up and the recognition of private compensation cannot be accessed- basis ".

In corollary, this is also the reason for both resources.

13th

FASGA's fifth alludes to art.  67 of the collective agreement and the sentence 'up to the maximum of one year' contained in the same as the judgment of the Court of Appeal annuls, which, according to that party, infringes the Articles 68, last paragraph, and 85.1 of the ET, 2.d) of the LOLS and 1255 of the CC, the object of equal ordinal of the appeal of ANGED, which mentions the infringement of the art.  68 e) of the ET.

The pacted text expresses about the particular: " Hours accumulation systems.

To facilitate higher-level representation of the workplace, unions with a presence in the Intercenters Committee will be able to use the enterprise-wide system of hours accumulation.

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 wforming strictly hermeneutic work, determining before the The Commission's task is to interpret and monitor compliance with the Convention, so it can be considered to be the case if it is not fully authentic, since it does not come from the person who created the rule, the less, the less, the official of an ad hoc body which, in turn, has been conceived in the very heart of the negotiations, that the Joint Committee is not in a negotiating position on this point, because it is not dealt with as in principle the judgment under appeal in its fifteenth basis for the right of 'the creation of new posts or functions', but, as an act followed, "solving the problems of framing within a professional group" and, as expressly acknowledged in the resolution, "is not a business", so from that statement and the one that then establishes that only those functions are legal. which are limited to the framework within one of the professional groups, the solution which It should have adopted it would not be the annulatory of the article.  87.5 conventional, in correct development and application of the art.  22 of the ET, being of bearing in mind, that according to art.  85 of the Convention itself, the Joint Committee is a Joint Committee (The Joint Committee will be integrated ...) , to which the art.  91 of the ET grants capacity to resolve the discrepancies produced in the application and interpretation of the collective agreements, so that does not alter, at this point, the legal prescription.

The reason, therefore, is to thrive.

13th.

The seventh and last, also common, is designed to annul paragraph III of the Additional Provision of the Convention, which refers to the Sectoral Pact for Employment and the Maintenance of Internal Demand in the a crisis environment, in particular in this section, which reads "Resolution through internal flexibility of crisis situations", which follows:

" 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 means of Article 82.3 of the ET, in those centres where there are persistent or 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.

According to the appellants, the annulment of that point is contrary to the art.  85 of the ET and 1255 of the CC (FASGA) and the art.  82.3 and 41 of the ET, on the one hand, and the arts 85.1 and 82.1 and 2 of the ET, on the other (ANGED). As the Tax Mº argues at this point, the reasoning of those who do not try to apply the convention but to apply flexibility measures cannot be assumed, because this is "a clearly indeterminate concept in which they can be applied". (i) to include a number of measures, since it means that it does not comply with strict rules (and) if such a measure of flexibility entails a reduction in wages, it goes beyond the lines of the application of the convention, a transcendent and relevant decision which must not be the art procedure.  41 but in the most guaranteed of the repeated art.  83.2 " (in fact, 82.3). Consequently, the thesis of the judgment under appeal expressed in its tenth seventh foundation of law, which is given by reproduced, is shared by this Chamber and must therefore be confirmed.

The reasons in question should therefore remain adverse.

As to how much has been expressed thus far, the partial estimate of the resources brought forward in the concrete terms below is deduced.

For the above, on behalf of S. M. El Rey and the authority conferred by the Spanish people.

FALSE

To estimate in part the appeals, formulated by the Federation of Hotels and Tourism of Workers ' Commissions (FECOHT-CCOO), the Federation of Trade Union Associations FASGA, by the National Association of Great Distribution Companies (ANGED), and the State Federation of Trade Workers, Hostels-Tourism and Gaming of the General Workers ' Union (CHTJ-UGT), against the sentence handed down by the National Court dated November 13, 2013, clarified by order dated 2 December 2013, in proceedings followed by FECHT-CC.OO. and FECHT-UGT, against ANGED, FETICO, FASGA, CIG, LAB and MINISTRY OF TAXATION, on Collective Conflict. We declare the rule of nullity.  9.A. 3) of the collective agreement of department stores and the validity of the second paragraph of the art.  4, in the second paragraph of Article  7, from art.  49, and his art.  87.5, maintaining the judgment under appeal in the remainder of its pronouncements. No costs.

Return the proceedings to the relevant Jurisdictional Body, with the certification and communication of this resolution.

So for this our sentence, which will be inserted in the Legislative Collection, we pronounce, send and sign.