Read the untranslated law here: http://www.boe.es/buscar/doc.php?id=BOE-A-2015-11058
Having regard to the failure of the Judgment number 139/2015 issued by the Social Chamber of the Audiencia Nacional, relapse number 177/2015 in the procedure followed by the demand of the Spanish Federation of Nautical Clubs and Associations Spanish Federation Tourist Marinas and against the National Federation of Employers of Sports Facilities, FES-UGT, CC.OO. and the Public Prosecutor contesting the Collective Agreement,
And taking into consideration the following
In the "Official Gazette" of October 2, 2014 resolution of the General Directorate of Employment, September 19, 2014 was published, which was ordered to enroll in the register of collective agreements and accords working with performance through electronic means that management Center and published in the "Official Gazette", the State Collective agreement sports facilities and gymnasiums (agreement code number 99015105012005).
The September 23, 2015 was received at the general registry of the Department antecitada judgment of the Social Chamber of the Audiencia Nacional, in which judgment is agreed to declare the partial annulment of Articles 1 and 40 of the III Collective Agreement state of sports facilities and gyms, published in the "Official Gazette" of October 2, 2014, in all that affects nautical sports and marinas.
In accordance with the provisions of Article 166.3 of Law 36/2011, of 10 October, regulating the social jurisdiction, when the judgment is annulling, in whole or in part, of the Collective Agreement contested and this would have been published, it will also be published in the Official Gazette in which it is inserted any.
Accordingly, this solves DG Employment:
Order the registration of the judgment of the High Court relapse in the process number 177/2015 and on the State Collective Agreement sports facilities and gyms in the register of collective agreements and working arrangements with operation through means this electronic management center.
Having its publication in the "Official Gazette".
Madrid, September 30, 2015.-The Director General of Employment, Xavier Thibault Jean Braulio Aranda.
NATIONAL AUDIENCE Social Chamber
Dona Marta Secretariat Jaureguizar Serrano
Trial Date: September 8, 2015.
Sentencing Date: September 11, 2015.
Date Auto clarification:
Procedure number: 177/2015.
Type of procedure: Demand.
Material: Challenging Collective Agreement.
Speaker: IIMO. Mr. Don Ricardo Bodas Martin.
Applicant: Spanish Federation of Nautical Clubs.
Spanish Federation of Marinas and Tourist.
Defendant: National Federation of Employers of Sports.
Resolution of the judgment: estimatory.
Brief summary of the judgment:
a collective agreement because it included in its field activities and nautical sports marinas, except for lack of standing of the applicants Federations, because legitimate interest credited on the legality of the agreement is rejected. the accumulated demands are estimated, because he dutifully established that the signatory employer's agreement did not establish the legitimization legally required to expand the functional scope of the agreement to activities in which it had no representation, either not being tested that had a sufficient majority as to ensure their full legitimacy, although any company activities is not represented before those. It is also understood that the disputed activities are not homogeneous with regulated mainly by the agreement, as evidenced by insufficient regulation of groups and professional levels, related to them.
NATIONAL AUDIENCE Social Chamber
Procedure number: 177/2015.
Type of procedure: Request challenge Convention.
Applicant: Spanish Federation of Nautical Clubs.
Spanish Federation of Marinas and Tourist.
Defendant: National Federation of Employers of Sports.
Speaker: IIMO. Mr. Ricardo Bodas Martin.
IIMO. Mr. President: Don Ricardo Bodas Martin.
Ilmos. Judges Messrs.
Doña Emilia Ruiz-Jarabo Quemada.
Don Ramón Gallo Llanos.
Madrid, 11 September of two thousand and fifteen.
The Social Chamber of the Audiencia Nacional made by Messrs. Judges cited the sidelines and
ON BEHALF OF THE KING
Has issued the following
In the procedure followed by number 177/2015 demand for Spanish Federation of Nautical Clubs (Lawyer Don Jaime Prats), Spanish Federation of Marinas and Tourist (Lawyer Don Juan Hidalgo de la Torre) against National Federation sports entrepreneurs (Lawyer Jose Rodriguez Garcia), FES-UGT (Lawyer Don Felix Pinilla), CC.OO. (Lawyer Don David Chaves) contesting the agreement has been Speaker the Hon. Mr. Ricardo Bodas Martin.
The record indicates that, on 18.06.2015 was presented demand for Spanish Federation of Nautical Clubs, Spanish Federation of Marinas and Tourist against National Federation of Employers of Sports Facilities, FES-UGT, CC .OO. contesting collective agreement.
The Board agreed to register the demand and appointed rapporteur, with the result the day 09.08.2015 for acts of attempted conciliation and, if necessary, judgment noted, while it was acceded to the request in otrosí test.
When the day and time indicated was the celebration of the act of judgment prior failed attempt to compromise, and in which the tests were performed with the result that appears reflected in the report drawn up for the purpose.
In compliance with the provisions of Article 97.2 of Law 36/2011, of 10 October, regulating the Social Jurisdiction should be noted that the parties discussed the following:
The Spanish Federation of Tourist Marinas and and the Spanish Federation of Nautical Clubs accumulated ratified agreement contesting demands by which seek the partial annulment of that Convention declare annulling the extension of the agreement to sector "sports and marine ports' which is contained in the last paragraph of paragraph 4. Article 1 of the State Collective Agreement as well as a few other references are contained in the Convention, particularly those made in Article 40 of the Convention in paragraph relating to occupational groups Marina sports, as well as the extension of the agreement to that of 'nautical, sports and marine ports' sector it is contained in the last paragraph of paragraph 4 of Article 1 of the Collective agreement State reference and nullity how many references concerning professional groups of sailing, ports and marinas, desisting from the remaining claims of their demands.
FES-UGT opposed excepted demand and lack of standing of the applicants, because it is not properly employers' associations, which encuadren marinas or yacht clubs, but organizations that fit associations, concurring therefore , the requirements of art. 166.1.a LRJS. He defended, also, that both plaintiffs lacked proper legitimate interest, since the functional scope of the agreement falls to businesses and not to business associations and federations least business associations. He noted, moreover, that the applicants were aware of the inclusion in the agreement from the sectoral II Convention They accounted in any case, rebut the presumption of legitimacy, by the signatories to the agreement have mutually recognized.
CC.OO. opposed to accumulated demands, denying the third fact demand FEPD and the fourth made the FECN, meaning that they were invited to participate in the negotiation of the Second Convention, as is clear from the minutes of the commission 22-06-2007 and 28-02-2008 parity of without them to come to negotiation. He noted further that FNEID negotiated the three sectoral agreements without anyone questioning his legitimacy, which admitted in any case, by the social partners.
Defended, in any case, that the activity of marinas and yacht clubs is properly sport, so it does not break the homogeneity within the scope of the agreement, having well understood in resolution of the National Advisory Committee on Collective Agreements 30 -04-2009, see 2009/6 and Catalonia Supreme Court ruling of 27.12.2012, rec. 4228/11, existing provincial agreements that integrate both activities.
The National Federation of Employers of Sports opposed the demand, because the art. 83 ET allows the parties to define the functional scope of the agreement, provided that homogeneous elements, which happens here, since what matters is the provision of sports services in sports facilities.
The plaintiffs objected to the proposed exception, because both are registered as such business and have a legitimate interest in debugging the legality of the agreement, since it has included in its field activities, which are not homogeneous.
The prosecution opposed the proposed exemption and drew attention to the call of the co-plaintiffs by the defendants, crediting with its own acts, the recognition of legitimacy to negotiate the agreement, which necessarily involves the possibility to impeach him.
He stressed, moreover, that has not proven any representation of FDNEIP in marinas and yacht clubs, stressing that the marinas and yacht clubs are not comparable to gymnasiums and sports facilities, as they develop an economic activity much more complex.
Fulfilling the mandate of art. 85.6 of Law 36/2011, of October 14, it means that the facts were as follows: Acts controversial:
not directly integrate business associations.
The actors were aware of the negotiation of the third agreement; They were summoned to the second joint commission agreement.
purpose of the federation is negotiating collective agreements.
In the second agreement they were encouraged as federations to participate in the negotiations.
The minutes of the Joint Committee of 22.6.2007 and 28.2.2008 it found that the actors would be convened.
The water sport is integrated in sports activities in sports facilities.
There have been consultations with the National Commission on record 6/2009 30.4.2009 Conventions on whether a marina it was implementing the agreement of sporting activities.
The judgment of the Supreme Court of Catalonia Rec 4228/11 27/12/12 a claim amount was raised and conviction to implement the contested agreement.
There is a convention of sports venues Vizcaya that integrates the activities of marinas and yacht clubs.
Federations actors are registered as employers' associations.
THE FDNEID has representatives from Yacht Clubs and Marinas.
After the second agreement has been convened to regulate plaintiffs subsectors.
Activities to partners engaged FDNEID not refer in particular to developing players moorings, marinas, ...
Both federations are the most representative associations subsector.
No procedure has followed the second agreement. There were no meetings with the actors federations even if they were cited.
The FDNEID has no sports or marinas or yacht clubs.
The number of moorings or sports clubs that are not associated as such but through partnerships is denied.
The FDNEID has negotiated the three previous agreements.
The current agreement is scheduled the lifeguards on the beach.
and so declared, the following
UGT and CCOO have the status of most representative trade unions at the state level and have signed, on behalf of social representation, the State Collective Agreement II sports facilities and gyms, published in the "Official Gazette" of 09.06.2006. Revisions to salary tables 2007 to 2011 inclusive were published in the "Official Gazette" of 15-08-2007; 25-04-2008; 27-06-2009; 21-042010 and 16-06-2011.
The before the agreement was signed, on behalf of corporate representation by the National Federation of Employers of Sports, who falls to the Canary Islands Association of Sports; the Cantabrian Association of Health and Physical Exercise; the Association of Clubs Catalanes Fitnexx; the Asociació D'Empresaris D'Instalacions Esportives de Mallorca; the Association of Fitness Professionals Murcia; the Navarra Association of Physical and Sports Company; Businessmen Association Sporting Asturias; Biscayne Association of Physical Activities; Sports Services Employers Federation of Castile and Leon; the Federation of Employers of Andalusia Sports; the Galician Federation of Employers of Ximnasios and the Federation of Employers of Sports of the Community of Murcia.
In the file FNEIP Statutes and have to be reproduced.
The annual report of 2014 FNEID the evolution of the number of partners was published with the following results: 404 (2011); 412 (2012); 370 (2013) and 412 (2014).
In the national census counted 2,877 sports facilities appear gyms; 9,627 pools; 9,902 athletic fields; 383 climbing walls; 6,360 sailing centers and 91 facilities ice.
Art. 1 mentioned agreement, which regulates its functional scope, states:
"This Convention applies and regulates the working conditions of all businesses, whatever the legal form, which has the purpose or economic activity, supply and / or provision of leisure and sports, physical exercise or sports, water monitoring and the same practice: Undertaken in gyms or facilities, establishments, premises, swimming clubs, sports, tennis, etc. publicly or privately owned, equipped or qualified to develop the aforementioned business.
Which is performed under subcontracts or legal relationship with other companies or private entities in which the object is the management of sports facilities or gyms and / or performing the activities listed in the first paragraph of this article. It is done through administrative contracts or legal relationship with government, under any law valid way in which the object is the management of sports facilities or gyms and / or performing the activities listed in the first paragraph of this article. It is done by organizing competitions, events and performances physical and sporting character.
They are also included in the functional scope of this agreement, the companies developing the object and the indicated economic activity even if it takes place outside of establishments or facilities authorized to do so, ie outdoors or in contact with nature.
Since the completion of the sports physical activity involves the provision of comprehensive and different users and society in general services covered under this agreement are those companies whose main objective is the development of such activity, regardless other complementary, related or similar activities which is considered major. The Negotiating Committee of this Convention, the specificities which are of companies that develop sports activities golf and sailing, considers it necessary to its regulation within the functional scope of this Convention, so that a procedure is established in the Rider first order to proceed to its regulation. "
In the DA reiterated 1st of agreement, entitled sub-regulation, the following was said:
"For the specific lining the clubs and companies that develop sports activities golf and water, and understanding the SNB that a more specific and concrete definition of groups and categories, and pay more adapted to these activities would be necessary , it is necessary to its regulation as subsectors, and a procedure for it states: once published the Convention may contact the Joint Commission representative business organizations, clubs or companies that develop sports activities golf and water, for the purposes of identification and integration in the commissions created by the present article.
Fulfilled the previous procedure, the Joint Commission Joint Convention, in which a representation of representative business organizations define subsector or subsectors will be integrated will be convened. The joint committee of the Convention may agree that the development of work in order to establish professional groups, remuneration, effective date and any issues that may prove necessary defined by the specificity of the subsector, is carried out by a Commission Guests, composed of representative business organizations and trade unions subsector. The reduced Commission is empowered to negotiate respecting the rights and guarantees generally established by the Convention may establish and regulations necessary improvements in its subsector. At the moment there is a consensus in the Commission reduced the terms of the regulation of the subsector, will raise the text that may result to the joint committee. The Joint Commission Joint plenary, analyze the content of the text that is proposed, and according to the procedure for adopting resolutions, approve or not, including regulation subsector in question in the text of the Convention. The procedure initially planned for regulating subsectors Clubs and companies developing sports activities golf and water, at the request of business or representative trade unions, can be extended to those other areas with its own entity, which may be necessary proceed to its definition as subsectors in order to serve a greater adaptation of the agreement to this area or take into account the specificities thereof. During the last year of the Agreement, if the joint committee had not been addressed business organizations representing the areas mentioned above, it shall carry out investigations in order to ascertain whether or not the existence of the same. If there will be invited them to participate in the negotiation of this Agreement, and be unfruitful determining the existence of representative organizations, the joint committee and the Negotiating Committee of the Convention, they are empowered to carry out the definition of subsectors manner it deems appropriate. "
The 22-06-2007 the joint committee of the Second Convention met and agreed to forward a letter of invitation to hold an informal meeting confederations or federations of Nautical Clubs and Marinas and Golf, to to develop the DA 28-02-2008 1.ª- the said Committee met again and approved send a letter to those responsible for the sub-sectors of the clubs and companies that develop sports activities golf and water to develop the subsectors under the DA 1st of the agreement. - The 07/07/2008 meets again repeated commission, whose record states that has not received a reply to the letters received from the sub-sectors Sports Clubs; Water and Golf, so the Commission will start work documentation prior to making recommendations on collective bargaining in order to refer them to the Negotiating Committee of the Convention.
Has not proven that the applicants received invitations Federations mentioned, so never attended any meetings related to the agreement before that.
The 10-02-2011 the committee negotiating the Collective Agreement III State Sports and Fitness, which was attended, on the one hand and other FNEID UGT and CCOO, who recognized each other legitimations constituted legally required. - Work in cars a record of the SNB of 06/03/2013, the final act, concluded with agreement, 11-072014 and minutes of 11.11.2014, by which the errors identified by the Authority were corrected Labor.
The 10.02.2014 was published in the "BOE" the State Collective Agreement III Sports and Fitness. Its first article, which regulates its functional scope, states:
"This Convention applies and regulates the working conditions of all businesses, whatever the legal form, which has the purpose or economic activity, supply and / or provision of services related to physical exercise . Included among these services, physical practice sport, amateur, voluntary or professional; recreational or leisure sports physical practice, whether recreational purposes, whether for educational purposes or both at once, as well as aquatic monitoring. Such activities or services may be provided:
1. In gyms or facilities, establishments, premises, swimming clubs, sports, tennis, etc. publicly or privately owned, equipped or qualified to develop the aforementioned business.
2. Through subcontracts or legal relationship with other companies or private entities in which the object is the management of sports facilities or gyms and / or performing the activities listed in the first paragraph of this article.
3. Through administrative contracts or legal relationship with government, under any law valid way in which the object is the management of sports facilities or gyms and / or performing the activities listed in the first paragraph of this article.
4. By organizing competitions, events and performances physical and sporting character.
Also are included within the functional scope of this agreement, the companies developing the object and the indicated economic activity even if it takes place outside of establishments or facilities authorized to do so, ie outdoors or in contact with nature.
Since both conducting sports physical activity as performing recreational physical activity involves the provision of comprehensive and different users and society in general services are covered under this agreement companies that have as their object main development of such activity, regardless of other complementary, related or similar activities which are considered principal.
The SNB of this Convention by the specificities that are of companies that develop sports activities golf, nautical ports and marinas and considers it necessary to its regulation within the functional scope of this Convention. "
The following professional groups were included in Article 40:
professional groups. Marinas Sports and Golf
1st specialist Gardener Professor
Head caddy master.
DRY DOCK OPERATIVE
The operation of a marina requires exploiting the natural or legal person has obtained ownership through authorization or concession areas in the public domain in the corresponding time domain for the construction, procurement and operation of docking ports. In 2013 there were 368 marinas in Spain and 132,930 moorings.
The operation of a marina includes, among others, the following features:
A) Rental mooring to natural and legal persons for their own use.
B) mooring rental companies whose activity is the charter boat.
C) Transfer of rights of use of moorings to individuals and legal entities.
D) Winter Stays in the dry zone of the boats.
E) Supply of fuel and lubricants for ships.
F) varadero. Service Repair and maintenance of ships (workshop, painting, conservation of the hull).
G) Electricity and water craft.
H) Management and payment of the fee maritime signaling.
I) crane services and launched boats beached for both individuals and corporations.
J) own sailing school services.
K) hotel and catering activities.
L) DIY stores.
The operation of ports, canals and levees is integrated into the Group / Epigraph IAE 752.7.
The Spanish Federation of Associations of Tourist Marinas and is a business association, incorporated under the Law 19/77, of April 1, regulation of the right of association, governed by the Statute accompanying to present along with registration documents of the last renewal of the board positions. Its territory extends to the entire national territory of Spain.
The functional scope of the "Spanish Federation of Associations of Tourist Marinas and is the entity whose economic activity is extended to all professional activities related to the field of Marinas, Docks Sports and sports and tourist ports and any authorization or administrative concession granted with the aim of managing infrastructure for the mooring or use of sports boats.
Membership of the Spanish Federation of Associations of Tourist Marinas and all associations incorporated under the Law 19/1977, of April 1, regulating the right of association, whose objects and purposes are concurrent to include in the statutes, and integrate as members of the same natural or legal persons who are holders by authorization or concession of areas of public domain in the corresponding territory for the creation, realization and operation of docking ports.
The Spanish Federation of Marinas and Tourist has among others aims: to contribute to community development by protecting and promoting the principles of private property and free enterprise initiative in a market economy system. -To The development and improvement of Sports, Sports and Marine Ports Docks in all the activities that make up the sector in its water, tourism, technical, economic, labor, tax, organizational, etc. -The Management and collective representation delegated by its members before public authorities and any other entities both public and private and To represent the sector in all types of bodies of public administration of national and international, negotiating with the state and any kind public or private bodies, any agreement or decision is deemed appropriate or necessary to stop the development and improvement of the sector and its partners. -The Management and coordination of common organizational and business interests of its members in all water, tourism, technical, economic, labor issues, tax joining and supporting their initiatives. -The Participation with public authorities and other public and private in the development of regulations that have a direct or indirect impact on administrative concessions of public land for the construction, management and operation of Marian and marinas and resorts entities or activities thereof.
The Federation before that in 2014 the association accredits 140 332 marinas on existing marinas in 2014.
The yacht clubs, whose number IAE is the same as marinas, usually offer their partners, among others, the following services:
B) Service in land.
C) Varadero.-Area Technical and attention to user.
D) Technical services for brand and specialty.
E) Services navigator.
F) Restaurants, pubs, clubs, hotels, supermarkets, services.
G) Clinic and hospital.
H) Water and electricity to all berths.
J) Access ramps.
L) Dry Navy discovered and cover.
M) Sailing schools.
N) Parking area.
O) clean area.
P) meteorological information.
Q) Telematic services.
R) Stairs to dock for cases of cases fall.
S) Fire detection system.
T) Civil Protection and First Aid.
U) Port Office.
The Spanish Federation of Nautical Club (formerly the Spanish Confederation of Nautical Club) is a private association incorporated under the Law 19/77, of April 1, regulation of the right of association, and it is governed by its own statutes in the file and have to be reproduced.
It is constituted as an association for the defense, promotion and advancement of the interests of the confederated associations, extending its scope to the entire national territory of Spain, and in order to promote association of yacht clubs around their regional associations . They can be part of all associations legally established yacht clubs that meet the requirements of Article 69 of the Statute. It is a private non-profit organization that has legal personality and full capacity to act, and whose primary purpose and basic aims are the representation, management and defense of economic, social and labor interests of the member associations, as means to achieve the main purpose and standard preferred performance of all its partners, consisting in promoting nautical sports in all its aspects (Article 4.2 of the Statute). Among its functions it is therefore negotiate, conclude or enter into agreements or agreements affecting or interest yacht clubs either in tax economic, trade union workplace. Tourism, and any other related activity. It consists of yacht clubs of the country located in Andalusia, Ceuta and Melilla, Galicia, Canary Islands, Balearic Islands, Murcia and Valencia. This means that in the whole of Spanish territory, the FEACNA represents 163 nautical clubs some of which also operate marinas and / or docks.
The Federation aforesaid 163 associated with yacht clubs, marinas and sailing schools approved by their respective regional associations.
FNEID not count among its partners with no marina, nor yacht club.
Have been complied with legal provisions.
In accordance with Articles 9, 5 and 67 of the Organic Law 6/1985 of 1 July, the Judiciary, in relation to the provisions of Articles 8.1 and 2 h of Law 36 / 2011, of October 14, is the knowledge of the process to the Social Chamber of the Audiencia Nacional.
In compliance with the provisions of Article 97.2 of the Law Regulating the Social Court, it is noted that the above findings of fact have been obtained from the media following test:
A) The first of the "BOE" cited, being notorious condition most representative state-level federations of both unions.
B) The second FNEID Statutes and certification of affiliated associations, which act as descriptions 50 and 51 cars, which were recognized contrary. 2014 FNEID memory work as a document 7 Harbours, which was recognized by FNEID.
C) The third document 8 Marinas, provided in the act of judgment that have credit for this room, although not recognized by the defendants, since it is the national census of sports facilities and not crossed out of falsehood.
D) The fourth of the "BOE" said. The records referred to the joint committee was provided in the act of judgment as documents 1, 2 and 4 of CC.OO. and they were recognized otherwise. States that has no call for the applicants, although CC.OO. brought a letter addressed to the Spanish 28-02-2008 Yacht Club Association, because was not recognized contrary and lacks any probative value, because what matters is not the letter itself, which can preconstituirse, but prove that he was received by the addressee. Moreover, it is common that the applicants did not attend any meeting of the Convention or its organs.
E) The fifth of the administrative record, which works in the digital procedure.
F) The sixth "BOE" mentioned.
G) The seventh document 22 Yacht Clubs, provided in the act of judgment, which contains a binding request of the DGT, which has all the credit for the room though not recognize contrary, since it is an official document. The number of IAE follows certificate census situation of the Tax Agency, provided in the act of judgment by Yacht Clubs, which has full credit for the room, though not recognize contrary, to also be an official document.
H) The eighth of the Bylaws of Marinas, which act as 3 of its bouquet document (description 3 cars), which were recognized otherwise. The number of ports of the report of the annual report Port of Spain and Harbours certificate on associated ports, which act as documents 6 and 5 of Marinas, provided in the act of judgment that were recognized otherwise.
I) The ninth of documents 12 to 15 inclusive, provided by Yacht Clubs the act of judgment containing the letter of services of various yacht clubs and have credit for the room, though not recognize contrary, because it typical activities of such clubs.
J) The tenth Statutes Yacht Clubs and certification of partners act as their documents 1 and 2, provided in the act of judgment and recognized otherwise.
K) The eleventh is declared proven in the exposed terms, since questioned the legal representative of FNEID on the number of marinas and yacht clubs associated with the Federation gave no response, stating, then they admitted partners for the simple manifestation of engaging in sports activities, but not required to make it clear to which sporting activity, which is no less striking in a federation, which is considered entitled to occupationally regulate such complex sectors such as marinas or clubs sea by the mere fact that they are made in sports activities.
FES-UGT excepted lack of standing of the applicants Federations, because they are not employers 'associations, as fit only to employers' associations and companies, which are only included in the functional scope of the convention, so lack of legitimate interest to challenge it because it does not directly affect them.
The applicants and the prosecution opposed this exception, claimed only by UGT, because both federations are legally constituted and registered in the Register of Associations in accordance with the provisions of art. 4 of Law 19/1977, of 4 April, regulating the right of association. The prosecution stressed, furthermore, that if the joint committee of the agreement agreed to address the defendants to negotiate labor regulation subsector, were implicitly recognizing their initial legitimacy, demonstrating, in any case, a manifest legitimate interest the challenge of the agreement by illegality.
Art. LRJS 17.2 provides that business associations have standing to defend the social and economic interests that they represent. The art. 163.1 LRJS recognized standing to business associations concerned to challenge the collective agreement by illegality. The art. 4 of Law 19/1977, of April 1 provides professional associations may establish federations and confederations and the requirements laid down in art effects. 3 and join the same character are found constituted.
Credited that the applicants are representative federations in their respective areas. Among its social purpose is the defense of the social interests of its members, among which is implicit negotiating collective agreements in the art. 4-b, c and e of the Statutes of Harbours and explicit in the art. 4.2 of the Statutes of the Maritime Club, we must clear if they have a legitimate interest in challenging illegality a collective agreement that has governed labor relations of nautical sports and marinas without them, we anticipated from now, a positive response. Our response must be necessarily positive, since it has abundantly proved that FNEID not have among its members or a marina, nor a yacht club, which more than justifies that Federations, which fall to a very significant number of marinas and yacht clubs, have a legitimate interest in challenging such intervention.
Moreover, it has been dutifully accredited by the acts themselves of the negotiators of the Second Convention, which were not considered able to regulate labor relations in what they called subsector of water activities, and this is the reason why they established a sui procedure géneris in the First Additional Provision of the second sectoral agreement, which granted a period to representative associations of this area to contribute to the regulation of the subsector, although they did not make the slightest effort to ensure their presence, as reveals that the first time it will pose was the joint committee of 22-06-2007, ten months after the publication of the agreement in the Official Gazette, returning to remember 20 and 22 months after the 28-02-2008 and 30-04 -2009, although they have not tried, in any way that effectively notify the representative associations of water activities, even during the term of the agreement, inconsequential mode agreed, not regulated the course subsector, so that their inclusion in the functional scope of that agreement was an empty shell, since it never properly regulated.
Therefore established that the applicants Federations are representative of nautical and seaports sector are entitled to challenge the agreement in accordance with the provisions of art. 166.1.a LRJS, although encuadren associations and companies, because if you fall associations affiliated companies and art. 4 of Law 19/1997 allows federate these associations, contemplating among its statutory objectives the defense of its members, who are ultimately affiliate entrepreneurs federated business partnerships.
Avala above, settled case all STS 11-11-2009, rec. 38/2008, where it remained the following:
"The reason can not succeed because it is consolidated in this room that is the part that interested in challenging the association agreement which is implemented in the sector and which represented are included in the scope of the agreement in question doctrine (STS of 03.04.2006 (Rec. 81/2004) and 20/03/2007 (Rec. 30/2006) among others), as well as that the validity of the agreement can be questioned for their entire term, even by associations formed after entering into force the same (S.TS. of 09.19.2006 (Rec. 6/2006), 03.15.2004 (Rec. 60/2003) and 2-32007 (Rec. 131/2005) entity others) doctrine which is completed by the established in our judgments of 19.9.2006 (rec. 6/2006), 02.03.2007 (Rec. 131/2005) and 20/03/2007 (Rec. 30 / 2006) in which resolved the issue raised saying '' not all business associations are actively legitimated, but only those in which concurs qualification 'interested'. On which note, this Court in its judgment of 15 February 1993 (715/91 resource) indicated that "is certainly interested in the challenge to meet their constituents included in the scope of the Convention and affect the same to the possibilities of negotiation statutory applicant itself '. In this regard, the judgment of 15 October 1996 (resource 1883-1895) recognizes locus standi 'to those Associations of companies interested in the challenge to be their constituents included in the scope of the Convention'. For its part the judgment of 14 April 2002 after referring to the doctrine of the previously alluded resolutions, clarifies that 'so called before attention to the impossibility of passing this impugning process the rules on standing, by area or by representation, own the process of collective conflict. And it's still important to clarify that one thing is the concrete standing to legally challenge a collective agreement, and legitimizing a different substantive law to be involved in negotiating the agreement, requested by the Statute of Workers in Arts. ...... 87 and 88, it is different standing to be part of the Negotiating Committee of the Convention required to challenge. [...], A conclusion which would deprive the business associations, which were not part of the negotiating table, any possibility of contesting the Convention even if they had the qualification of 'interested' in the terms stated reasons and institutions enjoy illegality, ie, that could only challenge the allegedly illegal agreement, those business associations that have initial and full legitimacy to negotiate, because only they would be entitled to form the negotiating table under the provisions of articles 87 and 88 of Workers' Statute. '' (...). "
Therefore tested the manifest interest of the applicants in debug the legality of an agreement, within which were included their constituents, without ensuring, in any way, their participation in the negotiations, although the defendants themselves expressly admitted the representativity of the applicants, as emphasized by the prosecution, it must be the rejection of the proposed exemption.
The applicants claim that the activities of marinas and yacht clubs are not objectively homogeneous with generic sports activities regulated in the contested agreement, so its regulation in the same was not adjusted to right. They argue, similarly, that the negotiators of the agreement have not established the legitimization legally required, because FNEID does not have any presence in marinas and yacht clubs. The defendants argued, however, that the activities of marinas and yacht clubs are integrated naturally in the scope of the agreement and stressed that the negotiators of the agreement is mutually acknowledged the required legitimization, which corresponds to the applicants rebut the presumption concurrency of such legitimization.
Art. 83.1 ET establishes a general principle, according to which the parties agree on the scope of collective agreements. Jurisprudence, all STS 21-11-2010, rec. 208/2009 and 11-11-2010, rec. 235/2009, has studied the limits of that freedom, establishing the following criteria:
"In this vein, is constant jurisprudential statement that although the general principle in the matter is that collective agreements have the scope that the parties agree [under art. 83.1 ET], this rule is "not unconditional but is subject to certain limitations that relate on the one hand with requirements of objectivity and stability [STS 20.09.93 -rec. 2724 / 91-] and the other with the proper representation of the Covenanters organizations [STS 23.06.94 -rec. 3968 / 92-], apart from those derived from the provisions of the Statute of Workers on concurrency and articulation agreements. From this perspective it should be noted [...] that the appropriate bargaining unit usually constructed from certain homogeneity criteria that establish a uniform regulation of working conditions, without prejudice to other exceptional game of correction mechanisms, such as today contemplate articles 41 and 82.3 of the Statute of Workers "[19/12/95 -rec SSTS. 34 / 95-; 10/28/96 -rec. 566 / 96-; and -rec 02/12/96. 1149 / 96-] (SSTS 03/05/06 -rco 104 / 04-; -rco 06/10/08 10 / 07-, and 21/05/09 -rcud 2914 / 08-). Or what is the same, the general rule of freedom in delimiting the scope of the agreement [that art. 83.1 ET] is not absolute, but is limited by objective criteria, that serve the representation and legitimacy of the negotiators [20/09/93 -rco SSTS 2724 / 91-; 06/23/94 -rco 3968 / 92-; 26/04/06 -rco 38 / 04-; and -rco 21/09/06 27 / 05-] and the Convention as a standard configuration, which requires -vinculadamente the principle of equality before the law-that the exclusion of the natural scope of the Convention is to be objective and reasonable justification [ SSTC 52/1987, 7 / May; and 136/1987 of 22 / July. And -rco 09.10.03 STS 103/02 -] (STS 14/03/07 -rco 158 / 05-). And, although the representativeness of the negotiators would not be questioned at the negotiating table, nothing prevents it then judicially reviewed this information, which affects the total or partial validity of the signed agreement (SSTS 26/04 / 06 -rco 38 / 04-;. and -rco 21/09/06 27 / 05-) "
So freedom of scope, the parties recognized by the art. 83.1 ET, is not absolute They accounted prove legitimations, required by arts. 87, 88 and 89 ET, and the concurrence of certain homogeneity criteria that establish a uniform regulation of working conditions.
In sectoral collective agreements, they will be entitled to negotiate business associations in the geographical and functional scope of the agreement have with 10 percent of entrepreneurs in the sense of art. 1.2 of this Law, provided that they give equal percentage occupation of the workers concerned, as well as those business associations in this area give employment to 15 percent of the workers concerned (art. 87.3.c ET). This premium, thus, employers' associations, which provide work to a large number of workers, but not clump together 10% of companies in the sector.
So, if the employer's representative has undergone significant changes, to enhance the negotiating legitimacy of business associations that have few affiliates but they have many workers, so that where before the representation was attributed to associations business in the geographical and functional scope of the agreement provided with 10 100 entrepreneurs in the sense of art. 1.2 of this law, provided that they give employment to the same percentage of workers affected, now standing recognizes previous business associations and also those in this area give occupation to 15 100 workers affected, so that is sobreprima associations whose companies have a greater number of workers that companies, claimed by the unions in the draft agreement negotiation frustrated 30-05-2011, initial legitimacy of employers' associations having been validated, evidencing 15% of workers, all STS 06.04.2014, rec. 111/2013.
It should be noted, in any event, employers' associations, evidencing 15% of companies and workers in an autonomous community, will be entitled to negotiate collective agreements at state level They accounted consequently the burden of proof of such levels representativeness, for all SAN 11.11.2013, proced. 298/2013.
However, the legislator, aware of the difficulties of business associations to achieve representation required by the above rules, also provisions of art. 87.3.c) ET, which in those sectors in which there are no business associations that have sufficient representation, as provided in the preceding paragraph, shall be entitled to negotiate collective agreements corresponding sector business associations statewide that have with 10 percent or more of the companies or workers at the state level, as well as business associations Autonomous Region have on this with a minimum of 15 percent of the companies or workers, so that is no longer required to accredit cumulatively percentages of representation of companies and workers, sufficing prove one or the other.
Therefore, in order to promote sectoral collective bargaining in sectors where there are no state-wide business associations that have sufficient representation -10% of companies and 10% of workers or, failing with 15% of workers-will be entitled to negotiate the relevant collective agreements sector business associations statewide that have 10 percent or more of the companies or workers at the state level, as well as business associations Community autonomous have on this with a minimum of 15 percent of the companies or workers. - However, although these associations are initially entitled to the negotiation of statutory agreements, must also prove that the agreement has statutory nature, representing the majority of workers in the sector, because if not, not credited full legitimacy, as required by art. 88.2 ET, all STS 06.04.2014, rec. 111/2013.
Legitimizing the most representative unions of state and regional level in their respective areas and representative trade unions in the sector in question, which will force them to credit 10% of unit representatives (TS 11 is held -04 to 2011, rec. 151/2010, confirms SAN 14 Jun 2010 (79/2010 cars). they will also be entitled to state level agreements Autonomous unions that are considered most representative in accordance with the provisions in art. 7.1 of the Organic Law on Freedom of Association and business associations of the Autonomous Community that meet the requirements stated in the sixth additional provision ET. the bargaining authority must demonstrate, in any case, to start negotiating the agreement (. SAN 12.07.2013, proced 184/2013) and if you exclude a legitimate union for negotiation, the result will necessarily be the nullity of the agreement (STS 28-06-2012, rec 81/2011.). | ||
It should be noted, in any case, that the presumption of legitimacy granted by the mutual recognition of the counterparty, will not be operational in those cases in which the labor authority, in exercise of its powers, to conclude that the negotiating parties they are not entitled, in which case it is for those parts prove that hold the legitimization provided in arts. 87, 88 and 89 ET (STS 7.3.2012, rec. 83/2011). Otherwise, if the Labour Authority does not question the representativeness of the negotiators, the presumption of representativity is activated, when supported by the other partners in the corresponding negotiation (STS 19-07-2012, rec. 191/2011, confirms SAN 13 -052 011 and STS 24.6.2014, rec. 225/2013).
Moreover, art. 88.1 ET provides that, to prove the full legitimacy, required for the SNB is validly constituted, it is necessary that the unions, federations or confederations and employers in the preceding article refers to associations representing at least, respectively, most absolute of the members of the works councils and staff representatives, if any, and entrepreneurs that employ most of the workers affected by the agreement (STS 11.5.2002, RJ 2003 \ 759; 17-012006, RJ 2006 \ 3000 and 22-12-2008, RJ 2008 \ 7172), which was due finally that the agreement is signed by the majority of each of the representations, pursuant to art. 89.3 ET.
As anticipated above, the negotiators of the agreement were recognized legitimacy to negotiate at the constituent meeting of the committee negotiating the Sectorial III Collective Agreement, without stating the challenge of precedents, which trigger, in principle, the presumption of concurrence of legitimacy, supported by case law.
Now, I proved that negotiators II Sectorial Convention decided to integrate in its scope nautical sports activities (art. 1), although explicitly admitted the existence of representative business organizations, which were not represented on the committee negotiating the agreement. - Tested, likewise, never to such representative business organizations were invited to participate in the regulation, under the DA 1st of that agreement, which led to a paradoxical situation arise, since such nautical sports activities included in the area of agreement, although they were not mentioned during its term, nor has tried to prove, even, that some work was done to promote such regulation, despite which repeated activities, more marinas were included in the field functional of the Third Convention, having finally established that FNEID not associated with any marina or yacht club must conclude with the plaintiffs and the Prosecutor, the negotiators of the agreement lacked sufficient legitimacy to include both activities in the functional scope of the agreement .
We arrive at that conclusion, since the inclusion of both activities involved a very significant increase in the number of companies and the number of workers to meet the demands of the arts. 87.2.cy 88.2 ET, to have established the existence of 368 marinas in Spain and 132,930 moorings, as well as a large number of yacht clubs, which would have required once failed the process of regulating water activities referred to in the DA 1st of the Second Convention minimal effort to justify the representativeness of FNEID in this field also extended to marinas, especially when it has proved its zero representation in the ports and clubs mentioned, being insufficient, obviously, the simple recognition of unions, since neither FNEID, or UGT and CCOO unaware of the existence of representative business associations in both areas, as credentials for their own actions.
Certainly could save the deficit of representation, if attend homogeneity between nautical activities seaports and yacht clubs with very generic sports and leisure activities regulated within the scope of the agreement to include them naturally in the same, if I had tasted an extraordinary representation of FNEID in mainstream sporting activities referred to in art. 1 of the Convention, that would reasonably conclude that the inclusion of marinas and yacht clubs not mean that FNEID ceases to represent employers that employ most workers in the sector, but it has been proven conclusively, by the documentation itself of FNEID that in 2014 had 412 member companies, when the national census 2877 census sports facilities appear gyms; 9627 pools; 9902 athletics tracks; 383 climbing walls; 6360 sailing centers and 91 facilities ice, without marinas and yacht clubs. Therefore it is proven that holds the legitimization FNEID not required by art. ET 88 and 89 to extend the scope of the agreement to sports activities and nautical ports, be partially annulled the art. 1 in fine of the agreement and the regulations contained in Article 40, in what affects these sectors before.
Moreover, if the appropriate bargaining unit should be constructed from certain homogeneity criteria that establish a uniform regulation of working conditions, which forces define according to objective criteria and clearly establish stability the set of labor relations regulated by the agreement and correspondence with the levels required stability, as claimed by jurisprudence, all STS 11-10-2010, rec. 235/2009, it seems clear that the inability of the negotiators of the agreement, explicit in the DA 1st of the Second Convention, to define groups and categories and remuneration commensurate with the work of marinas and yacht clubs, credits itself, that professional groups and compensation levels needed to regulate these activities are not naturally accomodated regulating other activities of the agreement. If we combine this finding with the normal activities of marinas and yacht clubs (7, and 9 proven facts) and compare them with professional groups, played on the 6th proven fact, we will find that it is manifestly insufficient regulation, as it introduces only activities related to navigation (captain, boatswain, responsible for regattas, chief engineer; signalman; Radio; sailor mechanical specialist) and some activities related to the berths (responsible for slipway, operator of dry dock and auxiliary slipway) but not expressly define its functions, but leaves regulate other characteristics of a maritime marina or club, which are significantly more complex activities, which own a gym or a traditional sports facility, which allows us to conclude that no concur notes objective homogeneity required by law to include in the functional scope of the agreement nautical sports and marinas, so we estimate full demand.
Having regard to the legal provisions cited and other general and relevant application
In the accumulated claims contesting the agreement, promoted by the Spanish Federation of Marinas and Tourism and the Spanish Federation of Nautical Clubs, we dismiss the objection of lack of standing of both plaintiffs alleged by FES- UGT. We consider these demands, so partially nullify the arts. 1 and 40 of the Third State Collective Agreement of sports and fitness centers, published in the "Official Gazette" of 02.10.2014, all affecting the nautical sports and marinas, so we condemn the National Federation businessmen sports activities, FES-UGT and CCOO to be and go through the partial annulment all legal purposes.
Notifíquese this judgment to the Labour Authority.
Notifíquese this judgment to the parties warning them against it fits cassation appeal before the Fourth Chamber of the Supreme Court, which will prepare for the Social Chamber of the High Court within five working days of notification and can do so by manifestation of the party or its counsel's being served, or by application lodged at this Court within the period specified above.
While preparing before the Social Chamber of the High Court the remedy of appeal, the appellant, if not enjoy the benefit of free justice, must prove to have made the deposit of 600 euros provided for in art. 229.1.b of the Regulatory Law Social Jurisdiction, and in the case have been convicted in a judgment to pay any amount, having consigned the amount subject to conviction under Article 230 of the same law, all in the current account that the Chamber has held at the Banco de Santander Branch street Barquillo, 49, if transfer to the number 0049 3569 92 0005001274 stating the observations the number 2419 0000 00 0177 15; if it is in cash at the number 2419 0000 00 0177 15 account and can be exchanged for cash consignment assurance by a bank guarantee, stating joint liability of the guarantor.
The parties to prepare cassation appeal against this judgment, which, as provided in Law 10/2014, of November 20, RDL amended by 3/13 of February 22 It is, also, he warns, amending certain rates are regulated in the field of Administration of Justice and the National Institute of Toxicology and Forensic Sciences, the application initiating the appeal must submit proof of payment of the fee for the exercise of judicial power that legal standard applies, provided that either of the grounds for exemption for objective or subjective terms that standard reasons, a rate that is satisfied by a self-assessment according to the rules established by the Ministry of Finance and Public Administration in a PAH / 2662/2012 Order of 13 December.
testimony of this judgment to the original proceedings and join it to book sentences.
So our sentence we pronounced it, we commanded and we signed.
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