Having regard to the ruling of Judgment number 139/2015 dictated by the Social Room of the National Court, relapse in the procedure number 177/2015, followed by the demand of the Spanish Federation of Associations of Nautical Clubs and Spanish Federation of Associations of Sports and Tourist Ports, against the National Federation of Sports Facilities, FES-UGT, CC.OO. and the Fiscal Ministry, on the challenge of Collective Convention,

And considering the following

Fact Background

First.

In the "Official State Gazette" of 2 October 2014, the resolution of the Directorate-General for Employment of 19 September 2014 was published, in which it was ordered to register in the corresponding Register of agreements and agreements working collectives through electronic means of that Steering Center and publish in the "Official State Gazette", the State Collective Convention of Sports Facilities and Gyms (code of convention number 99015105012005).

Second.

On September 23, 2015, the Court of Justice of the National Court, in whose judgment it is agreed to declare partial nullity of Articles 1 and 40 of the III State collective agreement on sports facilities and gymnasiums, published in the "Official State Gazette" of 2 October 2014, in everything that affects the sport's nautical activities and marinas.

Fundamentals of Law

In accordance with the provisions of Article 166.3 of Law 36/2011 of 10 October, the regulator of social jurisdiction, where the judgment is annulatory, in whole or in part, of the contested Collective Convention and that published, it shall also be published in the Official Gazette in which it was inserted.

Consequently, this Employment General Directorate resolves:

First.

Order the registration of that judgment of the National Court relapse in the procedure number 177/2015 and relative to the State Collective Convention of sports facilities and gyms, in the corresponding Register of collective agreements and agreements working through electronic means of this management centre.

Second.

Arrange your publication in the "Official State Bulletin".

Madrid, September 30, 2015. -Director General of Employment, Xavier Jean Braulio Thibault Aranda.

NATIONAL AUDIENCE

Social Room

MADRID

Secretary of Dona Marta Jaureguizar Serrano

Statement number: 139/2015.

Date of trial: September 8, 2015.

Statement date: September 11, 2015.

Auto Clarification Date:

Procedure number: 177/2015.

Procedure Type: Demand.

Accumulated procedures:

Matter: Contestation of Collective Agreement.

Rapporteur: IImo. Mr. Don Ricardo Bodas Martin.

Statement index:

Statement content:

Plaintiff: Spanish Federation of Nautical Club Associations.

Spanish Federation of Sports and Tourist Ports Associations.

Co-plaintiff:

Respondent: National Federation of Sports Facilities Entrepreneurs.

FES-UGT.

CC. OO.

Respondent:

Fiscal Ministry:

Statement resolution: Estimatoria.

Brief statement summary:

Partially contested a collective agreement because it included in its field sports nautical activities and marinas, the exception of the lack of active legitimization of the plaintiffs ' Federations is dismissed, since (a) the legal interest in the control of the legality of the convention. The accumulated claims are estimated, because it was satisfied that the contracting party of the agreement did not establish the legitimacy, legally required, in order to extend the functional scope of the convention to activities in which it did not have any representation, not proving that it had a sufficient majority to ensure its full legitimacy, even if no undertaking was represented in the above activities. It is also understood that the activities at issue are not homogeneous with those regulated mainly by the convention, as demonstrated by the insufficient regulation of the professional groups and levels related to them.

NATIONAL AUDIENCE

Social Room

Procedure number: 177/2015.

Procedure Type: Convention Impeachment Demand.

Statement index:

Statement content:

Plaintiff: Spanish Federation of Nautical Club Associations.

Spanish Federation of Sports and Tourist Ports Associations.

Co-plaintiff:

Respondent: National Federation of Sports Facilities Entrepreneurs.

FES-UGT.

CC. OO.

Fiscal Ministry.

Rapporteur: IImo. Mr Ricardo Bodas Martin.

STATEMENT NUMBER: 139/2015

IImo. Mr President: Don Ricardo Bodas Martin.

Ilmos. Mr Magistrates:

Dona Emilia Ruiz-Jarabo Burned.

Don Ramon Gallo Llanos.

Madrid, a eleven de september de dos mil quince.

The Social Room of the National Audience composed of Messrs. Magistrates cited on the sidelines and

ON REY NAME

You dictated the following

STATEMENT:

In the procedure number 177/2015 followed by the demand of the Spanish Federation of Associations of Nautical Clubs (Letado don Jaime Prats), Spanish Federation of Associations of Sports and Tourist Ports (Letado don Juan Hidalgo de la Torre) against the National Federation of Employers of Sports Facilities (Letado don José Rodríguez García), FES-UGT (Letado don Félix Pinilla), CC.OO. (Llatado don David Chaves) on impeachment of the Convention, has been Rapporteur the Ilmo. Mr Ricardo Bodas Martin.

Fact Background

First.

According to the present in cars, the day 18-06-2015 was presented by the Spanish Federation of Associations of Nautical Clubs, Spanish Federation of Associations of Sports and Tourist Ports against the National Federation of Employers Of the Sports Facilities, FES-UGT, CC.OO. of contestation of collective agreement.

Second.

The Chamber agreed to the registration of the complaint and appointed rapporteur, the result of which was indicated on 08-09-2015 for the acts of attempted conciliation and, where appropriate, judgment, while the request was made in the other test.

Third.

Arrived the day and the hour marked took place the celebration of the act of judgment, previous attempt failed of compromise, and in which the tests were practiced with the result that appears collected in the record lifted to the effect.

Fourth.

Giving compliance to the provisions of Article 97.2 of Law 36/2011 of October 10, Regulatory of Social Jurisdiction must be highlighted, which the parties discussed on the following ends:

The Spanish Federation of Sports and Tourism Ports and the Spanish Federation of Association of Nautical Clubs have ratified their cumulative demands for the impeachment of the convention by which they seek to declare the partial of the said Convention, leaving without effect the extension of the convention to the field of "marinas and marinas" contained in the last paragraph of paragraph 4.-of Article 1 of the State Collective Convention as well as to how many other references contain in that Convention, in particular those provided for in Article 40 of the Convention on Paragraph 4, paragraph 4, concerning the professional groups of marine sports, as well as the extension of the convention to the sector of "nautical, marina and marine ports" contained in the last paragraph of paragraph 4. Article 1 of the State Collective Convention reference, as well as the nullity of any references concerning the professional groups of the nautical, marinas and marinas, giving up the remaining claims of their claims.

FES-UGT was opposed to the demand and excepted the lack of active legitimisation of the applicants, since it is not a matter of employers ' associations, which would be in the field of marinas or nautical clubs, but rather (a) the requirements of Article 4 (1) (b) are not met; 166.1.a LRJS. He argued that the two applicants had no legitimate interest, since the functional scope of the convention covers companies and not business associations and less associations of business associations. It also pointed out that the applicants were aware of the inclusion in the Convention since the Second Sectoral Convention, in any event, in order to destroy the presumption of legitimisation, since they were mutually recognized by the signatories. of the convention.

CC. OO. objected to the accumulated claims, denying the fact that the FEPD demand was third and the fact that the FECN, meaning that they were invited to participate in the negotiation of the II Convention, as follows from the minutes of the from 22-06-2007 and 28-02-2008, without going to the negotiations. He also pointed out that FNEID negotiated the three sectoral agreements, without anyone questioning its legitimacy, which was admitted, in any case, by the social partners.

Defended, in any case, that the activity of marinas and nautical clubs is proper sports, so that the homogeneity in the scope of the convention does not fail, having been understood in the resolution of the Commission National Consultative Convention of the Collective Agreements of 30-04-2009, consultation 2009/6 and in judgment of the TSJ Catalonia of 27-12-2012, rec. 4228/11, existing provincial conventions, which integrate both activities.

The National Federation of Sports Facilities Entrepreneurs opposed the lawsuit, because the art. 83 ET allows the parties to define the functional scope of the agreement, provided that homogeneous elements are present, which is the case here, since the relevant is the provision of sports services in sports facilities.

The plaintiffs objected to the proposed exception, because both are registered as such business associations and have legitimate interest in purging the legality of the agreement, since it has included activities, which are not homogeneous.

The Prosecutor's Office opposed the proposed exception and drew attention to the defendants ' call for co-plaintiffs, with their own acts, crediting the recognition of legitimacy to negotiate the convention, which necessarily involves the possibility of challenging it.

On the other hand, it stressed that no type of representativeness of FDNEIP has been proven in marinas and nautical clubs, stressing that marinas and nautical clubs are not comparable to gyms and facilities. sports, as they develop a much more complex economic activity.

Fifth.

Fulfilling the command of the art. 85.6 of Law 36/2011, of October 14, is meant that the controversial facts were as follows: Controversial facts:

Both Federations are non-directly business associations.

The actors were aware of the negotiation of the third convention; they were called to the joint committee of the second convention.

The purpose of the federation is not the negotiation of collective agreements.

In the second agreement they were urged as federations to participate in the negotiation.

In the minutes of the Joint Committee of 22.6.2007 and 28.2.2008 it found that the actors would be called.

nautical sport is integrated into sports activities developed in sports facilities.

There have been consultations with the National Commission of Conventions of 30.4.2009 case 6/2009 regarding whether a sports port was applicable to the convention of sports activities.

The judgment of the TSJ of Catalonia of 27.12.12 Rec 4228/11 raised a claim for quantity and is condemned to apply the contested convention.

There is a Vizcaya sports venue that integrates the activities of marinas and nautical clubs.

Female Federations are registered as employer associations.

THE FDNEID has representatives of Nautical Clubs and Sports Ports.

After the second convention, plaintiffs have been called to regulate subsectors.

The activities of the FDNEID partners do not relate in particular to the activities of the actors, marinas, marinas, ...

Both federations are the most representative associations in the subsector.

No procedure followed by the second convention. There were no meetings with the female federations even though they were cited.

The FDNEID has no marinas or marinas or nautical clubs.

Compliant facts:

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 conventions.

In the current convention, the rescue is planned at the beach.

Resulting and thus declared, the following

Facts tested

First.

UGT and CC.OO. have the status of more representative trade unions at the state level and have signed, in the name of social representation, the II State Collective Convention of Sports Facilities and Gyms, published in the "BOE" from 6-09-2006. The revisions of the salary tables from 2007 to 2011 were also published in the "BOE" of 15 -08-2007; 25-04-2008; 27-06-2009; 21-042010 and 16-06-2011.

Second.

The aforementioned agreement was signed, in the name of the business representation by the National Federation of Employers of Sports Facilities, who is a member of the Canary Association of Employers of Sports Facilities; the Cantabra Association of Employers of the Health and Physical Exercise; the Association of Entrepreneurs of Catalan Clubs of Fitnexx; the Association of D' Empresaris D' Alinstallers sportives of Mallorca; the Association of Professional Gymnastics of the Region of Murcia; the Navarra Association of Physical and Sports Employers; the Association Sports Entrepreneurs Principality of Asturias; the Vizcaine Association of Employers of Physical Activities; the Federation Employers ' Sports Services of Castilla y León; the Federation of Employers of Sports Facilities of Andalusia; the Galega Federation of Employers of Ximnasios and the Federation of Employers of Sports Facilities of the Community of Murcia.

The FNEIP Statutes are in cars and are reproduced.

In the FNEID Annual Report 2014, the evolution of the number of partners with the following results was published: 404 (2011); 412 (2012); 370 (2013) and 412 (2014).

Third.

In the national census of sports facilities, there are a census of 2,877 gymnasiums; 9,627 swimming pools; 9,902 tracks of athletics; 383 rocodromes; 6,360 sailing centers and 91 ice facilities.

Fourth.

The art. 1 of the above convention, which regulates its functional scope, reads as follows:

" This Convention applies and regulates the working conditions of all undertakings, whatever the legal form they adopt, which have as their object or economic activity the supply and/or provision of services of sports, physical exercise or physical-sports practice, aquatic surveillance and the same: be performed in gymnasiums or in facilities, establishments, premises, swimming clubs, sports, tennis, etc. of public or private ownership, equipped or enabled to develop the above business activity.

Be made by subcontracting or legal relationship with other companies or private entities in which the object is the management of gyms or sports facilities and/or the performance of the activities indicated in the first paragraph of this article. It is carried out by means of administrative contracts or legal relationship with public administrations, in any form valid in law in which the object is the management of gyms or sports facilities and/or the performance of the activities indicated in the first paragraph of this article. It is done by organizing competitions, events or shows of a physical-sports character.

Also included in the functional scope of this agreement are the companies that develop the object and the indicated economic activity, even if it is carried out outside of establishments or facilities authorized for this purpose, that is, in the open air or in contact with nature.

In view of the fact that the performance of the physical activity of sport entails the provision of services that are wide and different to the users and society in general, those companies that have the as a main object the development of such activity, irrespective of other complementary, related or similar activities to which it is considered to be principal. The Negotiating Committee of the present Convention, for the specific characteristics of companies which carry out golf and nautical sports activities, considers that it is necessary to regulate them within the functional scope of this Convention. Convention, thus establishing a procedure in the First Clause First with the object of proceeding to its regulation. "

In the DA 1st of the Reiterated Convention, titled regulation of subsectors, the following was said:

" For the specificities of the Clubs and companies that develop the sport activities of Golf and Nautics, and understanding this negotiating commission that a more specific and concrete definition of (i) the Commission's proposal for a Council Directive on the protection of the environment and the protection of the environment and the protection of the environment and the protection of the environment; representative business organisations of the Clubs or Companies, which develop the Golf and Nautical sports activities, for the purposes of their identification and integration into the commissions created by the article.

Fulfilled the previous procedure, the Joint Joint Committee of the Convention will be convened, in which a representation of the representative business organizations of the subsector or subsectors to be defined will be integrated. The Joint Joint Committee of the Convention may agree that the development of the work with the aim of establishing the Professional Groups, remuneration, date of effect and those questions which may be necessary to define specificity of the sub-sector, to be carried out by means of a reduced Commission, composed of business organisations representing the subsector and trade union organisations. The reduced Commission shall be empowered to negotiate in compliance with the rights and guarantees established in general in the Convention, and may establish the necessary improvements and regulations in its subsector. At the moment there is a consensus in the Commission on the terms of the regulation of the sub-sector, it will raise the text that could be the result of the Joint Committee. The Joint Joint Committee shall, in plenary, analyse the content of the text proposed to it and, in accordance with its procedure for the adoption of agreements, approve or otherwise approve the regulation of the subsector concerned in the text of the Convention. The procedure initially foreseen for the regulation of the subsectors of the Clubs and companies that develop the sports activities of Golf and Nautics, at the request of representative business organizations or unions, can extend to those other areas with its own entity, in which it may be necessary to proceed to its definition as subsectors, in order to attend to a greater adequacy of the convention to that field or to take into account the specificities of the itself. During the last year of validity of the Convention, if the Joint Committee of the Joint Committee had not been directed to business organisations representing the above areas, it will carry out inquiries with the aim of not the existence of the same. The same shall be invited to participate in the negotiation of the following Convention, and the determination of the existence of representative organizations, the Joint Joint Committee, and the Negotiating Committee of the Convention shall be unsuccessful. they shall be empowered to carry out the definition of the subsectors in such a manner as it deems appropriate. '

On 22-06-2007 the Joint Joint Committee of the II Convention was convened and it was agreed to send a letter of invitation for the holding of an informal meeting to the confederations or federations of the Nautical Clubs and Sports Ports and of Golf, in order to develop the DA 1.-On 28-02-2008 the Commission was again summoned and it was approved to send a letter to the officials of the Subsectors of the Clubs and companies that develop the sports activities of Golf and Nautical to end to develop the sub-sectors in implementation of the Convention's 1st AD. -The repeated commission is reconvened on 7-07-2008, in whose record it is stated that no reply has been received to letters received from the sub-sectors of Sports Clubs; Nautics and Golf, so the Commission will initiate the previous work of documentation for the preparation of recommendations in the field of collective bargaining in order to refer them to the Negotiating Committee of the Convention.

It is not established that the requesting Federations received the mentioned invitations, so they never attended any meeting related to the above convention.

Fifth.

On 10-02-2011, the negotiating commission of the Third State Collective Agreement on Sports Facilities and Gymnastics was established, attended by FNEID and another UGT and CCOO, who recognized each other. legally required legitimations. -Work in cars on a record of the negotiating commission of 3-06-2013, the final act, concluded with agreement, 11-072014 and an act of 11-11-2014, by which the errors identified by the Labor Authority were remedied.

Sixth.

The III State Collective Agreement on Sports Facilities and Gymnastics was published in the "BOE" on 2-10-2014. Its first article, which regulates its functional scope, reads as follows:

" This Convention applies and regulates the working conditions of all undertakings, whatever the legal form they adopt, which have as their object or economic activity the supply and/or provision of services. related to physical exercise. These services are included in the physical practice of sport, in an amateur, voluntary or professional way; the physical practice of recreational or sports leisure, whether they are for leisure purposes, whether for didactic purposes or both, as well as the aquatic surveillance. These activities or services may be provided:

1. In gyms or in facilities, establishments, premises, swimming clubs, sports, tennis, etc. of public or private ownership, equipped or enabled to develop the business activity indicated above.

2. By means of subcontracting or legal relationship with other undertakings or private entities in which the object is the management of gyms or sports facilities and/or the performance of the activities referred to in the first paragraph of this article.

3. By means of administrative contracts or legal relationship with public administrations, in any form valid in law in which the object is the management of gyms or sports facilities and/or the performance of the activities indicated in the First paragraph of this article.

4. By organizing competitions, events or shows of a physical-sports character.

Also included within the functional scope of this agreement are the companies that develop the object and the indicated economic activity, even if it is carried out outside of establishments or facilities authorized for this, i.e. outdoors or in contact with nature.

In view of the fact that both the performance of physical activity and the performance of recreational physical activity entails the provision of services that are broad and different to users and society in general. under this agreement those undertakings which have as their main object the development of such activity, irrespective of other complementary, related or similar activities to which it is considered to be principal.

The Negotiating Commission of the present Convention, for the specific features of companies developing sports activities of golf, nautical and marinas and marinas considers that it is necessary to proceed to their Regulation within the functional scope of this Convention. '

In Article 40, the following professional groups were included:

Professional groups. Marinas Sports and Golf

Categories

Group 1:

Field Manager.

Captain.

Group 2.1:

Contractor.

Regattas manager.

Varadero manager.

Chief of machines.

Group 3.1:

Poster.

Radio.

Mechanical.

Segador.

Trachtorist.

Specialist Gardener 1.

Professor of golf.

Head caddie master.

Specialist sailor.

Varadero operation.

Sports secretary.

Scuba Diving Instructor.

Group 3.2:

Golf Wizard.

Caddie master.

Commercial.

Group 4.1:

Sailor.

Marshall.

Golf monitor.

Group 4.2:

Nightly save.

Varadero auxiliary.

Group 5:

Costume manager.

Pick Up.

Gardener.

Seventh.

The operation of a Port of Sport requires that the natural or legal operator has obtained the ownership, by means of authorization or concession of areas of public domain in the corresponding temporary area for the construction, achievement and exploitation of docking ports. In 2013 there were 368 marinas in Spain and 132,930 moorings.

The operation of a marina involves, inter alia, the following capabilities:

a) Rental of moorings to natural and legal persons for their own use.

b) Rental of moorings to companies whose activity is the charter of boats.

c) Transfer of rights of use of moorings to natural persons and legal persons.

d) Winter stays in the dry area of the boats.

e) Fuel supply and lubricant for vessels.

f) Varadero service. -Repair and conservation of the vessels (workshop, painting, hull conservation).

g) Supply of electricity and water to vessels.

h) Managing and paying for the rate of maritime signage.

i) Crane services for stranded and boatwork for both natural and legal persons.

j) Own sailing school services.

k) Hotel and restaurant activities.

l) DIY stores.

The exploitation of ports, canals and dams is integrated into the IAE Group 752.7.

Eighth.

The Spanish Federation of Associations of Sports and Tourism Ports is a business association, constituted under Law 19/77, of April 1, on the regulation of the right of trade union association, which is governed by the Statutes accompanying the present together with documentation of record of the latest renewal of board charges. Its territorial scope extends to the entire national territory of Spain.

The functional scope of the Spanish Federation of Sports and Tourism Ports Associations is that of entities whose economic activity extends to all professional activities related to the Marine sector, Sports and tourist ports and tourist ports and any type of authorization or administrative concession granted with the objective of managing infrastructure for the mooring or use of sports vessels.

May be part of the Spanish Federation of Associations of Sports and Tourism Ports all associations formed under the Law 19/1977, of April 1, on the regulation of the right of association of trade unions, whose social object and purposes are concurrent with the figures, in the statutes, and integrate as members of the same to natural or legal persons who are holders by authorization or concession of areas of public domain in the territorial field corresponding to the constitution, achievement and exploitation of docking ports.

The Spanish Federation of Sports and Tourist Ports Associations has other purposes as aims: to contribute to the development of the community through the protection and promotion of the principles of private and free property business initiative in a market economy system. -To promote the development and improvement of the Sports Ports, Sports Darsenas and Marinas in all the activities that integrate the sector in its nautical, tourist, technical, economic, labor, tax, organizational aspects, etc. -The management and collective representation delegated by its members to the public authorities and any other public and private entities and to show the representation of the sector to all types of public administration bodies national and international character, managing before the State and any kind of public or private body, any agreement or resolution deemed appropriate or necessary for the development and improvement of the sector and its partners. -The management and coordination of the common and business interests of its members, in all the nautical, tourist, technical, economic, labor, organizational tax aspects and supporting their initiatives. -participation with the public authorities and other public and private entities in the elaboration of regulations that have a direct or indirect impact on the administrative concessions of land of public domain for the construction, management and exploitation of marianas and marinas and tourist ports or their activities.

The Federation previously credited in 2014 with the association of 140 marinas over the 332 marinas in 2014.

Ninth.

The nautical clubs, whose IAE number is the same as the marinas, normally offer their partners, among others, the following services:

a) Darsena.

b) Land service.

c) Varadero. -Technical area and attention to user.

d) Technical services by brand and specialty.

e) Services to the navigator.

f) Restaurants, pubs, nightclubs, hotels, supermarkets, services.

g) Clinic and hospital.

h) Water and electricity for all attacks.

i) Crane.

j) Access ramps.

k) Marineria.

l) Dry marine discovered and covered.

m) Sailing schools.

n) Parking area.

o) Clean zone.

p) Weather information.

q) Telematic services.

r) Dock access escalation for drop case cases.

s) Fire system.

t) Civil Protection and First Aid.

u) Port office.

Tenth.

The Spanish Federation of Association of Nautical Clubs (formerly the Spanish Confederation of Association of Nautical Clubs) is a private association constituted under the protection of Law 19/77, of April 1, on the regulation of Trade union law, which is governed by its own statutes which are in the case of cars and are reproduced.

It is constituted as an association for the defense, promotion and promotion of the interests of the confederated associations, extending its scope to all the national territory of Spain, and with the objective to promote the associationism of nautical clubs around their autonomous associations. All associations of legally constituted nautical clubs may be party to the requirements laid down in Article 69 of the Statute. It is a private non-profit association which enjoys its own legal personality and full capacity to act, and whose primary purpose and basic aims are the representation, management and defence of economic, social and economic interests. work of the affiliated associations, as a means to achieve the main purpose and standard of preferential action of all its associates, which consists in the promotion of the nautical sport in any of its aspects (article 4.2 of the Statutes). Among its functions, therefore, is to negotiate, to conclude agreements or agreements or agreements that affect or interest the nautical clubs in the economic field, tax union. Tourist, and in any other related to the activity. It is composed of nautical clubs from the national territory located in Andalusia, Ceuta and Melilla, Galicia, Canary Islands, Balearic Islands, Murcia and Valencia Region. This means that in the whole of Spanish territory, the FEACNA represents 163 nautical clubs some of which also manage marinas and/or docks.

The Federation previously associates 163 nautical clubs, marinas and sailing schools approved through their respective autonomous associations.

11th.

FNEID does not count among its partners with any marina, nor any nautical club.

Legal forecasts have been met.

Fundamentals of Law

First.

According to the provisions of Articles 9, 5 and 67 of the Organic Law 6/1985 of 1 July of the Judicial Branch, in relation to the provisions of Articles 8.1 and 2, of Law 36/2011 of 14 October, the knowledge of the process to the Social Room of the National Audience.

Second.

In compliance with the provisions of Article 97.2 of the Regulatory Law of Social Jurisdiction, it is stated that the previous proven facts have been obtained from the following means of proof:

a) The first of the "BOE" cited, the condition of the most representative unions at the state level of both Federations being noted.

b) The second of the Statutes of FNEID and the certification of affiliated associations, which act as descriptions 50 and 51 of cars, which were acknowledged to the contrary. The 2014 memory of FNEID works as Document 7 of Sports Ports, which was recognized by FNEID.

c) The third of the document 8 of the Sports Ports, provided in the act of the trial, which has credit for this Chamber, even if it was not recognized by the defendants, since it is the national census of sports facilities and not tacho of falsehood.

d) The fourth of the "BOE" cited. The abovementioned minutes of the Joint Committee were provided in the act of the judgment as documents 1, 2 and 4 of the CC.OO. It is stated that the call of the applicants is not known, although CC.OO. provided a letter of 28-02-2008 addressed to the Spanish Association of Nautical Clubs, because it was not recognized to the contrary and lacks any evidentiary value, for relevant is not the letter itself, which can be preformed, but accredit that it was received by its recipient. For the rest, it is peaceful that the plaintiffs did not attend any meeting of the convention or its organs.

e) The fifth of the administrative file, which works in the digital procedure.

f) The sixth of the "BOE" mentioned.

g) The seventh of the document 22 of the Nautical Clubs, provided in the act of the trial, which contains a binding consultation of the Directorate General of Taxation, which has all the credit for the Room even if not recognized otherwise, since this is an official document. The number of IAE is deducted from the certificate of status of the Tax Agency, which was provided at the event of the trial by Nautical Clubs, which has full credit for the Chamber, although it was not recognized otherwise, as it is also a document official.

h) The eighth of the Social Statutes of Sports Ports, which act as document 3 of their class (description 3 of cars), which were recognized to the contrary. The number of ports of the report of the annual report of Ports of Spain and of the certificate of Sports Ports on associated ports, which act as documents 6 and 5 of Sports Ports, contributed in the act of the judgment and that were recognized of

i) The ninth of documents 12 to 15 inclusive, contributed by Nautical Clubs to the act of judgment, which contain the letter of services of various nautical clubs and have credit for the Chamber, even if not recognized otherwise, as activities typical of this type of club.

j) The tenth of the Statutes of Nautical Clubs and the certification of associates working as their documents 1 and 2, contributed to the act of judgment and recognized to the contrary.

(k) The 11th is declared to be proven in the above terms, as the legal representative of FNEID on the number of marinas or nautical clubs associated with the FNEID did not give any answer, In the following, they stated that they admitted partners for the simple demonstration of engaging in sports activities, although they did not demand that it be necessary to which sports activity, which is not to be noticeable in a Federation, which is considered In order to regulate labour markets as complex as sport ports or the sea clubs for the mere fact that sporting activities are carried out on them.

Third.

FES-UGT excepted lack of active legitimacy of the applicants 'Federations, since they are not employers' associations, since they only cover employers ' associations and not companies, which are the only ones included in the functional scope of the convention, so they lack the legitimate interest to challenge it, as it does not directly affect them.

The plaintiffs and the Prosecutor's Office objected to that exception, alleged only by UGT, since both Federations are legally constituted and registered in the Register of Associations in accordance with the provisions of the in the art. 4 of Law 19/1977, of 4 April, which regulates the right of trade union association. The Prosecutor General's Office stressed that if the Joint Committee of the Convention agreed to address the demands to negotiate the labor regulation of the subsector, they were implicitly recognizing their initial legitimization. demonstrates, in any event, a manifest legitimate interest in the challenge of the convention by illegality.

The art. 17.2 LRJS provides that the business associations will have legitimation for the defence of the social and economic interests that are of their own. The art. 163.1 LRJS recognises the active legitimacy of the business associations concerned to challenge the collective agreement for illegality. The art. 4 of Law 19/1977, of April 1, provides that professional associations may constitute Federations and Confederations with the requirements and effects provided for in art. 3, as well as affiliate with the same character as they are constituted.

Accredited, which the applicant Federations are representative in their respective fields of action. Among its social aims is the defense of the social interests of its members, among which is implicit the negotiation of collective agreements in art. 4.b, c and e of the Statutes of Sports Ports and explicit in art. 4.2 of the Statutes of the Maritime Clubs, we must clear, if they have legitimate interest in challenging by illegality a collective agreement, because it has regulated the industrial relations of the nautical sports activities and without to have them, to which we anticipate, from now on, a positive response. Our response must necessarily be positive, since it has been shown that FNEID does not have a sports port or a yacht club, nor a nautical club, which justifies overtly that Federations, which will cover a very relevant number of marinas and nautical clubs, have a legitimate interest to challenge such intervention.

Furthermore, it has been duly accredited by the acts of the negotiators of the Second Convention, who were not considered to be able to regulate industrial relations in what they called the subsector of nautical activities, This is the reason why they established a sui generis procedure in the Additional Provision First of the Second Sectoral Convention, in which they granted a period of time to the associations representing that area to contribute to the regulation of the subsector, although they did not make the least effort to guarantee their presence, as reveals that the first time they will be asked to do so was in the joint committee of 22-06-2007, ten months after the publication of the agreement in the BOE, returning to remember 20 and 22 months later on 28-02-2008 and 30-04-2009, although they have not tried, (a) no, which would effectively notify the representative associations of water activities, although during the duration of the agreement, inconsequential to the agreement, they did not regulate the alleged subsector, so that their inclusion in the the functional scope of that convention was an empty shell, since it was never properly regulated.

Therefore, it is established that the applicant Federations are representative of the nautical and maritime ports sector, are entitled to challenge the agreement, in accordance with the provisions of Article 4 (1) of the Treaty. 166.1.a LRJS, although it covers associations and non-enterprises, as far as the associations affiliated if they cover companies and the art. 4 of Law 19/1997 allows to be federated to such associations, considering among its statutory purposes the defense of its affiliates, who are, ultimately, the entrepreneurs affiliated with the federated business associations.

Avala is exposed, settled case law, by all STS 11-11-2009, rec. 38/2008, where the following was maintained:

" The reason cannot prosper because it is the consolidated doctrine of this Chamber that it is interested to contest the convention that association that is established in the field and whose represented are included in the scope of the contested convention (S.T.S. of 3-4-2006 (Rec. 81/2004) and 20-3-2007 (Rec. 30/2006) among others), as well as the fact that the validity of the convention can be questioned during its entire term, even by associations formed after its entry into force (S. TS. of 19-9-2006 (Rec. 6/2006), 15 -3-2004 (Rec. 60/2003) and 2-32007 (Rec. 131/2005), other), a doctrine that is completed by the one established in our judgments of 19-9-2006 (rec. 6/2006), 2-3-2007 (Rec. 131/2005) and 20-3-2007 (Rec. 30/2006) in which the question raised was resolved by saying: 'not all business associations are actively legitimated, but only those in which the' stakeholder ' qualification is present. On the basis of which the Court of First Instance, in its judgment of 15 February 1993 (appeal 715/91), has indicated that it is of course interested in the challenge to be represented in the field of application of the Convention and to affect the possibilities for the applicant's own statutory bargaining. ' In this respect, the judgment of 15 October 1996 (appeal 1883/95) recognises the 'associations of undertakings interested in the challenge of being represented in the field of application of the Convention'. For its part, the judgment of 14 April 2002, after referring to the doctrine of the resolutions mentioned above, clarifies that 'the attention was therefore drawn to the impossibility of transferring this challenge to the Court of Justice'. the rules on the process of collective conflict that legitimize, by scope or representativeness. And it remains important to clarify that one thing is the concrete procedural legitimization to contest judicially a collective agreement, and another different the legitimization of material law, to intervene in the negotiation of the agreement, requested by the Staff Regulations in their arts. 87 and 88 ......, since it is different from the legitimization to be part of the Negotiating Commission of the required to contest the Convention. [...], conclusion is, that it would imply to deprive the Business Associations, that they will not be part of the Negotiating Table, of any possibility to contest the Convention even if they have the qualification of 'interested' in the indicated terms and In the case of the Commission, the Commission has not yet taken into account the fact that the Commission has not been able to submit a proposal for a decision on the basis of Article 1 (1) of the Treaty. to form the negotiating table within the meaning of Articles 87 and 88 of the Staff Regulations the Workers ''. (...). "

Thus, it was proven that the plaintiffs ' manifest interest in purging the legality of an agreement, in whose area their representatives were included, without assuring, in any way, their participation in the negotiations, even though the Defendants expressly admitted to the representativeness of the applicants, as underlined by the Prosecutor's Office, the dismissal of the proposed exception is appropriate.

Fourth.

Plaintiffs claim that the activities of marinas and maritime clubs are not objectively homogeneous with the generic sports activities regulated in the contested convention, so their regulation in the same non- was adjusted to the right. They defend, in the same way, that the negotiators of the agreement have not accredited the legitimate legitimations, because FNEID does not have any presence in marinas and nautical clubs. The defendants defended, on the contrary, that the activities of marinas and nautical clubs are naturally integrated in the ambit of the convention and emphasized that the negotiators of the convention have mutually recognized the legitimacy required, and it is for the applicants to destroy the presumption of concurrence of such legitimisation.

The art. 83.1 ET establishes a general principle, according to which the parties will agree on the scope of the collective agreements. The case law, for 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 order of things, it is constant case-law that although the general principle in the matter is that collective agreements will have the scope that the parties agree to [according to art. 83.1 ET], this rule " is not unconditional, but is subject to certain limitations which relate to a party with requirements of objectivity and stability [STS 20/09/93 -rec. 2724/91-] and on the other hand with the representativeness of the organisations agreed (STS 23/06/94 -rec. 3968/92-], apart from those deriving from the provisions of the Staff Regulations on concurrency and the articulation of conventions. From this perspective, it should be noted [...] that the appropriate unit for negotiation is usually constructed on the basis of criteria of a certain degree of homogeneity which allow for the establishment of a uniform regulation of working conditions, without prejudice to the game of others. exceptional correction mechanisms, such as those provided for today in Articles 41 and 82.3 of the Staff Regulations " [SSTS 19/12/95 -rec. 34/95-; 28/10/96 -rec. 566/96-; and 02/12/96 -rec. 1149/96-] (SSTS 03/05/06 -rco 104/04-; 06/10/08 -rco 10/07-; and 21/05/09 -rcud 2914/08-). Or what is equal, the general rule of freedom in the delimitation of the scope of the convention [cited art. 83.1 ET] is not absolute, but is limited by objective criteria, which cater for the representation and legitimacy of the negotiators [SSTS 20/09/93 -rco 2724/91-; 23/06/94 -rco 3968/92-; 26/04/06 -rco 38/04-; and 21/09/06 -rco 27/05-] and the The provisions of the Convention as a rule, which, in the principle of equality before the law, require that the exclusion of the natural scope of the Convention should be objectively and reasonably justified (SSTC 52/1987, 7/Mayo; and 136/1987 of 22 July 1987). And STS 09/10/03 -rco 103/02-] (STS 14/03/07 -rco 158/05-). Furthermore, although the representativeness of the negotiators would not have been questioned in the negotiation table, nothing prevents the fact that this data, which affects the full or partial validity of the pact, can be reviewed later. subscribed (SSTS 26/04/06 -rco 38/04-; and 21/09/06 -rco 27/05-). '

Thus, freedom of scope, recognized to the parties by art. 83.1 ET, it is not absolute, corresponding to accredit the legitimations, demanded by the arts. 87, 88 and 89 ET, as well as the concurrence of criteria of a certain degree of homogeneity that allow the establishment of a uniform regulation of working conditions.

Fifth.

In the sector collective agreements, they will be legitimized to negotiate the business associations that in the geographical and functional scope of the agreement have 10 percent of the business owners, in the sense of art. 1.2 of this Law, and provided that they are employed as a percentage of the workers concerned, as well as those employers ' associations which in this field are occupying 15% of the workers concerned (Article 3). 87.3.c ET). In this way, employers ' associations, which provide jobs for a large number of employees, are thus at a premium, although they do not bring together 10% of the sector's enterprises.

Thus, the employers ' representation if they have undergone important changes, to enhance the negotiating legitimacy of the business associations that have few affiliated companies but which have many workers, in such a way that, where the representation to the business associations was attributed previously that in the geographical and functional scope of the convention have 10 per 100 of the entrepreneurs, in the sense of the art. 1.2 of this law, and provided that they are employed as a percentage of the workers concerned, it is now recognised that the above business associations are legitimised and, in addition, those in that field are entitled to 15 per 100 of the workers affected, so the associations whose companies have a higher number of workers than those of companies, claimed by the unions in the draft of the frustrated negotiation agreement of 30-05-2011, have been overcome. validated the initial legitimation of the employers ' associations, which provide for 15% of workers, for all STS 4-06-2014, rec. 111/2013.

It should be borne in mind, in any case, that the employers ' associations, which establish 15% of companies and workers in an autonomous community, will be entitled to negotiate collective agreements at the state level, Accordingly, the burden of proof of these levels of representativeness, for all SANs 11-11-2013, proced. 298/2013.

Nevertheless, the legislator, aware of the difficulties of the business associations in order to achieve the representativeness required by the aforementioned rules, has also disposed in the art. 87.3.c) In those sectors where there are no business associations which are sufficiently representative, as provided for in the preceding paragraph, they will be entitled to negotiate the relevant collective agreements in the sector. State-wide business associations that have 10 percent or more of the companies or workers in the state sector, as well as the business associations of the Autonomous Community with a minimum of 15 percent. of companies or employees, in such a way that it is no longer enforceable to accredit the percentages of representativeness of companies and employees, sufficient to prove one or the other.

Therefore, in order to promote collective bargaining, in sectors where there are no state-wide business associations with sufficient representativeness-10% of the total In the case of companies and 10% of workers or, failing that, with 15% of workers, they will be entitled to negotiate the corresponding collective agreements of the sector of the State-wide business associations that have 10% or more of companies or workers at the state level, as well as the business associations of The Autonomous Community with a minimum of 15 percent of the companies or workers. -Although these associations are initially entitled to the negotiation of statutory conventions, they must also prove that the convention has a statutory nature, the representation of the majority of workers in the The sector, since if it were not so, would not prove the full legitimization required by art. 88.2 ET, by all STS 4-06-2014, rec. 111/2013.

The legitimacy of the most representative trade unions at the state and regional level in their respective areas, as well as the representative trade unions in the sector concerned, will be maintained, which will require them to credit 10% of the unit representatives (TS 11-04-2011, rec. 151/2010, confirms SAN 14-june-2010 (autos 79/2010). The Autonomous Community trade unions which are more representative in accordance with the provisions of Article 1 shall be entitled to the State-wide conventions. 7.1 of the Organic Law on Freedom of Association, and the business associations of the Autonomous Community that meet the requirements set out in the additional sixth ET provision. In any case, the legitimization to negotiate must be accredited when the negotiation of the agreement begins (SAN 12-07-2013, proced. 184/2013) and if a union legitimized for negotiation is excluded, the consequence will necessarily be the nullity of the convention (STS 28-06-2012, rec. 81/2011).

It should be borne in mind, in any case, that the presumption of legitimacy, granted by the mutual recognition of the counterparty, will not be operative in those cases in which the Authority, in use of its powers, concludes that the negotiating parties are not entitled, in which case it will be for those parties to prove that they have the legitimate legitimacy provided for in the Articles. 87, 88 and 89 ET (STS 3-07-2012, rec. 83/2011). Otherwise, if the Labour Authority does not question the representativeness of the negotiators, the presumption of representativeness is activated, when it is admitted by the other interlocutors in the relevant negotiation (STS 19-07-2012, rec. 191/2011, confirms SAN 13-052011 and STS 24-06-2014, rec. 225/2013).

On the other hand, art. 88.1 ET provides that, in order to prove the full legitimacy, required for the negotiating commission to be validly constituted, it is necessary that the trade unions, federations or confederations and the business associations referred to in the article they represent at least, respectively, the absolute majority of the members of the works councils and staff delegates, where appropriate, and employers who occupy the majority of the workers affected by the agreement (STS 5-11-2002, RJ 2003\759; 17-012006, RJ 2006\30 00 and 22-12-2008, RJ 2008\7172) the convention is signed by the majority of each of the representations, as provided by the art. 89.3 ET.

As we anticipated above, the negotiators of the agreement recognized legitimization to negotiate it at the constitutive meeting of the negotiating commission of the Third Sectoral Collective Agreement, without the fact that the The Court of Justice

that the Court of Justice held that the Court of First

Now, it is proven that the negotiators of the II Sectoral Convention decided to integrate in their field the nautical sports activities (art. 1), although they explicitly admitted the existence of representative business organisations, which were not represented in the negotiating committee of the convention. -Proven, likewise, that these representative business organizations were never called upon to participate in the regulation, as provided for in the DA 1. of the aforementioned convention, which prompted a paradoxical situation, since they were included These are not regulated during their lifetime, nor have they been tried to prove, even, that any work will be carried out to promote such regulation, despite the fact that the activities were included in the repeated, more the marinas, in the functional area of the III Convention, having Finally, FNEID does not associate any marina or nautical club, we must conclude with the plaintiffs and with the Prosecutor's Office, that the negotiators of the convention lacked sufficient legitimization to include both activities in the functional scope of the convention.

We came to that conclusion, because the inclusion of both activities involved a very significant increase in the number of companies and the number of workers to meet the requirements of the arts. 87.2.c and 88.2 ET, as the existence of 368 marinas in Spain and 132,930 moorings, as well as a large number of nautical clubs, have been established, which would have required, once the process of regulating the nautical activities has failed, referred to in the second Convention of the Second Convention, a minimum effort to justify the representativeness of FNEID in that area, extended to marinas, especially when its lack of representativeness has been established in ports and clubs I would like to make it clear that we are not going to be in a position to FNEID, neither UGT and CC.OO. were unaware of the existence of representative business associations in both areas, as they demonstrated their own actions.

Certainly, this deficit of representativeness could be saved, case of the homogeneity between the nautical activities of sea ports and nautical clubs with the very generic recreational activities regulated in the the scope of the convention, to include them naturally, if an extraordinary representativeness of FNEID had been proven in the general sporting activities, as referred to in Article 1. 1 of the convention, which would allow a reasonable conclusion, that the inclusion of marinas and nautical clubs would not mean that FNEID will no longer represent employers who occupy the majority of the workers in the sector, but it has been proven In the case of FNEID's own documentation, which in 2014 had 412 affiliated companies, when in the national census of sports facilities 2877 gyms were registered; 9627 swimming pools; 9902 tracks of athletics; 383 rocodroms; 6360 Sailing centres and 91 ice facilities, not counting marinas and sea clubs. Therefore, it is proven that FNEID does not hold the legitimacy required by art. 88 and 89 ET to extend the scope of the convention to the activities of marinas and nautical ports, it is necessary to partially annul the art. 1 in the end of the convention, as well as the regulation contained in Article 40 thereof, in respect of the sectors concerned.

Furthermore, if the appropriate bargaining unit must be constructed on the basis of criteria of a certain degree of homogeneity, which will allow for a uniform regulation of working conditions, which requires that it be defined according to objective criteria for establishing clearly and stability the whole of the labour relations regulated by the Convention and its correspondence with the levels of stability required, as the case-law claims, by all STS 11-10-2010, rec. 235/2009, it seems obvious that the inability of the negotiators of the convention, explained in the DA 1. of the II Convention, to define groups and categories and a remuneration adapted to the activities of marinas and marine clubs, credits for itself, that the professional groups and levels of remuneration necessary for the regulation of these activities did not, of course, accommodate the regulation of the other activities of the convention. If we join this observation with the normal activities of marinas and marine clubs (facts tested 7. º and 9. º) and we compare them with the professional groups, reproduced in the fact tested 6th, we will find that it is a clearly insufficient regulation, since it introduces only navigation-related activities (capitan; counter-master; responsible for regattas; head of machines; signal; radio; mechanical specialist seaman) and some activities related to the docks (responsible of the port of call; operator of the port of call and auxiliary of However, it does not expressly define its functions, but it leaves without regulating the other activities of a marina or sea club, which are significantly more complex than those of a gym or a sports facility. The Court of Justice held that the Court of Justice held that the Court of Justice held that the Court of Justice held that the Court of Justice held that the Court of Justice held that the Court of Justice We fully estimate the demand.

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

FALSE

In the accumulated demands of the challenge of convention, promoted by the Spanish Federation of Associations of Sports and Tourist Ports and the Spanish Federation of Associations of Nautical Clubs, we dismiss the exception of lack of active legitimacy of both applicants, alleged by FES-UGT. We consider these demands, which is why we partially annul the arts. 1 and 40 of the Third State Collective Agreement on Sports and Gyms, published in the "BOE" of 2-10-2014, in all those affecting sports activities and marinas, and therefore we condemn the National Federation of Employers of Sports Activities, FES-UGT and CC.OO. to be and to pass through such partial nullity to all appropriate legal effects.

Notify the Employment Authority of this judgment.

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

At the time of preparing before the Social Room of the National Court the Appeal of Cassation, the appellant, if he does not enjoy the benefit of free Justice, must prove to have made the deposit of 600 euros provided for in the art. 229.1.b of the Regulatory Law of the Social Jurisdiction, and, in the case of having been condemned in judgment to the payment of some quantity, to have entered the quantity object of condemnation in accordance with the art, 230 of the same legal text, all in the Current account that the Chamber has opened at Banco de Santander Branch of Barquillo Street, 49, if by transfer with number 0049 3569 92 0005001274 by stating in the observations the number 2419 0000 00 0177 15; if in cash in the account number 2419 0000 00 0177 15, it is possible to replace the cash consignment by the insurance by bank guarantee, in which the liability of the guarantor is established.

It is also noted that the parties to prepare the Action for Cassation against this judicial decision, which, as provided for in Law 10/2014, of 20 November, as amended by the RDL 3/13 of 22 February, for which they are regulated certain fees in the field of the Administration of Justice and of the National Institute of Toxicology and Forensic Sciences, with the written application of the appeal, shall be required to provide proof of payment of the fee for the financial year the judicial authority to which the rule of law is concerned, provided that no such rule is (a) the grounds for exemption for objective or subjective reasons referred to in that standard, which shall be met by means of self-settlement in accordance with the rules laid down by the Ministry of Finance and Public Administrations in Order HAP/2662/2012 ,of 13 December.

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

So by our judgment we pronounce, send and sign.