Read the untranslated law here: http://www.boe.es/buscar/doc.php?id=BOE-A-2015-2480
Seen the failure of the judgement of 5 February 2015, issued by the Chamber of the Social of the relapse in the procedure no. 294/2014, national audience, followed by the demand of the State Federation of teaching of Comisiones Obreras against business organizations education and management (E & G), Confederation of centers of education (CECE), Spanish Federation of teaching centres for Social economy (EDF-ACES) , and Association professional Serveis Educatius de Catalunya (APSEC), and the trade unions Federation of independent trade unions of education of the Spanish State (FSIE), Federation of teaching of the Union Union Obrera (use), Federation of workers of the education of the Union General of workers (UGT) and Confederación Intersindical Galega (CIG), and the public prosecutor, on challenges to collective agreement, and taking into account the following background in fact first.-in the «Official Gazette» from August 17, 2013 , is published the resolution of the address General of employment, of 30 of July of 2013, in which is ordered sign in the corresponding register of conventions and agreements collective of work with operation through media electronic of that Center steering and publish in the «Bulletin official of the State», the saw Convention collective of companies of teaching private sustained total or partially with funds public (code of Convention No. 99008725011994).
Second. - February 12, 2015 had input on the General registry of the Department the sentence antecitada of the room of the Social of the Audiencia Nacional, in which failure is agreed to void paragraphs 1 and 3 of article 18 of the sixth collective agreement, as well as the charge of the Joint Commission for the identification of works and tasks likely to hire the contract of work or specific service regulated in the precept, and paragraph 1.1 of annex II of the Convention before this, published in the Official Gazette of August 17, 2013.
Fundamentals of law first.-in accordance with provisions of article 166.3 of law 36/2011, on 10 October, regulating the Social jurisdiction, when the sentence is annulment, in whole or in part, of the challenged collective agreement and this had been published, also will be published in the Official Gazette in which he has inserted.
As a result, this Directorate-General of employment meets: first.
Order the registration of this judgement of the Audiencia Nacional, of date February 5, 2015, relapse in the procedure no. 294/2014 and concerning the sixth collective agreement of sustained private education companies total or partly with public funds, in the corresponding register of conventions and collective work agreements with operation through electronic means of this Management Center.
Have your publication in the «Bulletin official of the State».
Madrid, 19 February 2015.-the General Director of employment, Xavier Jean Braulio Thibault Aranda.
National hearing room of the Social No. procedure: 294/14.
Type of procedure: demand for challenging Convention.
Index of judgment: content judgment: plaintiff: Federación Estatal de Comisiones Obreras teaching.
Co-applicant: Sued:- E and G - education and Management Commission negotiator of the Convention.
-CECE - Confederation of schools Negotiating Committee of the Convention.
-FED-ACES-Federation Spanish of centers of teaching of Economic Social Commission negotiating.
-APSEC-Association professional Serveis Educatius de Catalunya Commission negotiating of the agreement.
-FESIE - Federation of independent trade unions of education of the State Spanish Commission negotiator.
-USE-Federation of teaching of the Union Union workers Commission negotiating of the agreement.
-FETE UGT-Federation of workers of the education of the Union General of workers.
-IGC-Confederación Intersindical Galega-Ministerio tax.
Rapporteur: IImo. Mr. D. Ricardo wedding Martin.
JUDGMENT No. 0014/2015 IImo. Mr. President: Don Ricardo wedding Martin.
Ilmos. Messrs. Justices: Don J. Pablo Aramendi Sánchez.
Doña Emilia Ruiz Jarabo Sanchez.
Madrid, to five in February of two thousand fifteen.
The room of the Social of the Court composed of Mr Magistrados mentioned on the sidelines and in the name of the King has issued the following statement in the procedure no. 294/14 followed by demand of the State Federation of teaching of Comisiones Obreras (lawyer Angel Martín Aguado) against - E and G-education and Management Commission negotiating the Convention (lawyer John Hodar González) -CECE - Confederation of centres of Education Commission negotiating the Convention (legal Basilia Cuellar Gragera), - FED-ACES - Spanish Federation of schools of Social economy Commission negotiator (lawyer Antonio E. Gonzalez) - APSEC - Association professional Serveis Educatius de Catalunya Commission negotiator of the Convention (lawyer Miguel Mateo García), - FESIE - Federation of independent trade unions of education of the Spanish State Commission negotiator (lawyer Roberto Vicente Ruiz) -USE - Federation of teaching of the Union Sindical Obrera Negotiating Committee of the Convention (lawyer Carlos Quirós Bohorquez) - UGT - Federation of workers of the education of the General Union of workers (lawyer Patricia Gómez Gil), - IGC - Confederation Intersindical Galega (legal Rosario Martin Narrillos) on challenges to Convention, has been speaker the Hon. Mr. D. Ricardo wedding Martin.
In fact the first background.-According to cars, day 27-10-2014 action by State Federation of teaching of Comisiones Obreras against - E was filed and G - education and Management Commission negotiating the Convention, - CECE - Confederation of centres of Education Commission negotiating the Convention,-FED ACES - Spanish Federation of schools of Social economy Negotiating Committee, - APSEC - Association professional Serveis Educatius de Catalunya Commission negotiator of the Convention -FESIE - Federation of independent trade unions of education of the State Spanish Commission negotiator, - use - Federation of teaching of the Union Sindical Obrera Negotiating Committee of the Convention - FETE UGT - Federation of workers of the education of the General Union of workers, - IGC - Confederation Intersindical Galega de contestation of collective agreement.
Second. - La Sala remembered the record demand and appointed rapporteur, whose result was noted the day 04-02-2015 for acts of attempt of conciliation and, where appropriate, judgment, at the time which is accessed as requested in the other if test.
Third. - If the day and time designated took place the event of the trial, prior attempt to compromise, and that there were tests with the result that is collected in the Act raised to the effect.
Fourth. - pursuant to provisions of article 97.2 of law 36/2011, on 10 October, regulating the Social jurisdiction, should be noted that the parties discussed the following: the State Federation of teaching of Comisiones Obreras (CC. OO. (((from here) ratified its demand of challenge of Convention, through which aims to the nullity, by illegality, of them precepts that is will say then: to) the article 18, as exceeds them limits, admitted by the article 15.1. to) ET, for the formalization of contracts by work or service determined, although admitted that already not there are subjects that not are of offer compulsory having been collected in the Convention, because it had not entered force LOMCE, committing to include the new regulation.
Also, because it excluded from the Joint Commission, to whom is attributed the determination of other activities covered by this contract modality, unions entitled to negotiate the collective agreement.
(b) Article 23.1, because it attributed to the employer coverage of vacancies, to elude the powers of the School Board.
(c) article 26 of the Convention, because he attributes to the businessman, the mode of distribution of the non-teaching activities, avoiding also the powers of the School Board and the Faculty of teachers.
d) the articles 53.3, 62 bis, 69 and additional provision 2 of the Convention, as excuse to businesses of compliance with their wage obligations to its workers.
(e) article 77, because it is itself a Commission negotiator, which excluded legitimate unions, even if they prove representativeness.
(f) the transitional provision 6th, because instructs the Commission functions properly negotiating.
(g) the transitional provision 8th, as unjustifiably postpone payment of the agreed remuneration.
(h) the number 1.1 of annex II to the Convention, because it introduces a double scale wage, which pivots only about the date of entry.
IGC acceded to the demand, as well as the applicant's arguments.
Education and management (E & G from here) was opposed to the demand, denouncing, in first term, CC. OO. It acted against their own actions, as articles 18, 23, 26, 53, 62 bis, 69, 77 and transitional provision is already agreed in a similar way in the V Convention, which was signed by CC. OO.
He defended the legality of article 18 of the Convention, as the activities described there have autonomy and substantivity, therefore meeting the requirements of article 15(1)(a). to) ET.
It supported the legality of article 23.1 of the Convention, because the company imposes only decides not concerted activities vacancies.
It supported, in the same way, the legality of article 26 of the Convention, because thus article 9 of the Convention, authorized it as it could not be otherwise, since the Organization of not teaching activities corresponds to the company, without prejudice to the rights of information and hearing of the cloister of teachers, as well as the School Board.
He defended the block of articles, which accused the administrations the remuneration of salaries, because it should be concerted education, where competent authorities replaced the debtor, in accordance with the provisions of article 1203 CC, trying, therefore a guarantee for workers.
Highlighted, to these effects, that them wages is quantified annually after the publication of the laws of budgets, highlighting, in all case, that the postponement of the payment of them autonomous communities. is agreed with it own CC. OO. in the SIMA held the 22 of April of 2013, as revealing that CC. OO. He has sued the Education Ministry of the Junta de Andalucía, based precisely on the 8th of the contested agreement transitional provision.
Defended also the legality of the article 77 of the Convention, inasmuch as not is is of a Commission negotiating, as the Commission agreed in the available additional 6th stressed finally that CC. OO. signed them tables wage of 2013, validating them with their own acts and denied that is agreed double scale wage in the point 1.1 of the annex II of the Convention, inasmuch as the try differential brought cause in the available additional 7th, where was clear that the try differential not was the date of income, but them rights consolidated by the personal hired with prior to the Convention.
APSEC; EDF-ACES and CECE opposed the demand and theirs made allegations of E and G.
The Federation of independent trade unions of education (FSIE now) objected to the demand and excepciono inaccuracies in procedure, inasmuch as it is not actual in game interpretation of the regulatory articles of retribution, but their interpretation.
It supported, otherwise the opposition reasons alleged by E and G.
USE was opposed to the demand and stressed that article 53 of the Convention refers in its paragraph 1 to budget laws.
The UGT was opposed to the demand, stressing, firstly, that the encomienda of article 18 the Joint Commission is not negotiating.
He stressed, however, that concerts should be paid for periods of 4 or 6 annuities, which allows to distinguish the normal and permanent activity subject to annual funding levels.
He argued, on the other hand, that the concerted vacancies are still regulated procedure in the LOE.
He defended the legality of the remuneration regime, whose satisfaction racing to the public administrations, substitute for the entrepreneur.
He denied that the functions of the Committee on prevention of occupational risks is negotiating, like the regulated in the transitional provision 6th denied finally a double is quite scale wage based on the date of entry, inasmuch as additional provision 7 makes it perfectly clear that the first cycle of pre-school education workers retain their previous working conditions.
Fifth.-fulfilling the mandate of the article 85.6 of the law 36 / 2011, of 14 of October, is means that them made controversial were the following: made controversial: articles 18, 23, 26, 53.3, 62 bis, 69, available transient 2, article 77, annex II; they were agreed in the previous agreements and specifically in the 5th Convention which was signed by CC. OO.
Vacancies, their coverage, single entrepreneur imposes it when it's not concerted education.
Salaries are quantified annually by the Joint Commission as the LPGE.
On April 22, 2013, before blocking the negotiation reached an agreement at SIMA and CC. OO. refer to LPGE in the wage area, extra pay of antiquity with suspension when there are no funds and the businessman would not respond what corresponds to the administration.
In Andalusia CC. OO. He presented not paying the extra pay of antiquity-related demand calling for the implementation of the Convention.
CC. OO. It is part of the Board of Trustees of the Foundation of occupational hazards. It was published in Official Gazette on August 1, 2013, call to the signatories of the Convention.
The 6th additional provision speaks of a Commission study and CC. OO. He was called to negotiate.
Level 0 to 3 years is not concluded, did not exist before and the differential treatment brings cause in relation to transitional provision 7, respect to condition more beneficial for workers.
The Joint Commission is not only adaptive negotiator.
The concerts are for 4 or 6 years, not annually.
Made peaceful: there is no permanent tasks such as for example support units.
Applies the Convention retroactively. 2009 salary tables have been retroactively published.
In 2000, the activity is transferred to the autonomous communities. They are budgeted extra pay of antiquity.
Resulting and thus declared, the following facts first.-January 17, 2007 was published in the Official Gazette V collective agreement total sustained private education companies or in part with public funds.
The agreement was signed by E and G; CECE and APSEC on one side and by FSIE, UGT and CCOO on the other.
Second. - in the year 2000 was transferred to most autonomous communities sustained private education total or partially publicly-funded activity.
The amount of the extraordinary pay by seniority was included in the corresponding transfers from the central administration.
Third. - on April 22, 2013 Convention VI negotiators reached agreement in mediation before the SIMA in the following terms: «the parties reiterated willingness to reach an agreement at the earliest, in extraordinary seniority pay, complement by IT and the rest of the Convention matters both the salary part.
In relation to the field wage, agree to establish a formula so in 2015 them tables wage is suit to them budgets General of the State, for this purpose, them parts is undertake to work in the search of that formulation.
In reference to the extraordinary pay of antiquity and complement IT by hand is recognizes the right, settling the suspension of the payment in any autonomous community when budget shortfalls, are credited then referring to possible regional arrangements. In any case, companies will be responsible for the payment of these concepts.
A meeting of Secretaries-General of the organisations present for on April 30, 2013 at 10:00 at the headquarters of education and management, which will present the articles about have been worked out by the parties is also convened.
Finally reached the agreement to submit a joint request for report to the Ministry of education, culture and sports, with the following text: based on the current wording of article 117 of the LOE, would be interpreted including the extraordinary pay by seniority within the "concepts of seniority of concerted private centres teaching personnel" of heading "Variables C-Gastos" educational concert modules? contained in article 61 of the collective agreement V centres sustained with public funds for staff that is in executive pay? And therefore, what is the practice being in this regard the Ministry in the field of their competence?»
Fourth. - June 19, 2013 was signed the sixth collective agreement total sustained private education companies or in part with public funds by E and G; CECE; EDF-ACES and APSEC, one part and FSIE; USE and UGT, published in the Official Gazette of August 17, 2013.
Agreed period extends from publication until December 31, 2019, while its economic effects retrotrajeron of January 1, 2009.
Fifth. - wage tables from 2009 to 2012 is have been publishing in the Official Gazette, after approval by the Joint Commission of the VI Convention.
Sixth. - La Commission negotiator of the 6th Convention, including representatives of CC. OO., has met the 20 days of September; on October 18 and December 16, 2013 and 30 April 2014, the corresponding proceedings that work on cars and have to rise by reproduced.
On February 10, 2014 was published in the Official Gazette the minutes of December 16, 2013, that 2013 salary tables were approved.
Seventh. - in article 18 of the V collective total sustained private education companies or partly with public funds, published in the Official Gazette of 17 January 2007, that regulates the contract for work or specific service, agreed the following: "aims at the realization of a work or service with autonomy and own, of uncertain duration substantivity , within the activity of the company. In the scope of this Convention, may be covered by contracts of this nature, without prejudice to any other activity permitted legally, which have as their object: teach tiered financed subject to annual renewal: programs of Social guarantee programmes of initial professional qualification, curriculum diversification and other similar programs.
Teaching areas or subjects to be extinguished by application of the LOE. Teach elective courses except the mandatory for institutions offering. Teaching at levels that the company has begun the process of extinction and up to the total closure of the same.
The Joint Commission may determine any other activity (teaching or non-teaching) that may be susceptible to cover with this contractual modality in the conventional field.
At the end of the contract, the worker is entitled to receive financial compensation equivalent to the proportion of the amount that would be payable 8 days salary for each year of service.»
Eighth. - in annex II, paragraph 1.1, of the before this Convention, which regulates the salary for 2006 tables, it was agreed that teachers/teachers (integrated) cycle of early childhood education and preschool (integrated) would charge a salary of 1.421,40 euros and three years of 34,01 euros, while before this cycle technicians would get paid a salary of 1.085,35 euros and a three-year period of 20,45 euros.
Ninth. - 17 of June 2014 CC. OO. it filed ballot of conciliation with the SERCLA against the Ministry of education, culture and sport of Andalusia, in which called for recognition of the current right to the PAE according to their background and as remuneration of wage character to which the Ministry is obliged as payment delegate, currently existing budgetary availability, and for the case in which according to the criteria of the TSJA in this area is justified of informing the absence funds (globally and in each concrete Centre), a temporary up to count with new budget deferral is determined.
The legal provisions have been met.
Fundamentals of law first.-in accordance with the provisions of articles 5, 9 and 67 of the Organic Act 6/85 of 1 July, the Judicial Branch, in relation to the provisions of the articles 8.1 and 2.h) of law 36/2011, October 14, compete understanding of the process to the Social of the court room.
(Second.-in compliance of it established in the article 97.2 of it law regulatory of the jurisdiction Social, is makes record that them previous made declared tested is have retrieved of them means of test following: to) them made first, seventh and eighth of the BOE cited.
(b) those made second and fifth not were controversial, nonexistent is compliant, to tenor with it ready in the article 87.1 LRJS.
(c) the third act of this mediation, which work as document 5 e and G (47 description of cars), which was recognized by the other disputants.
(d) the fourth of the BOE cited.
(e) the sixth of the records of the Commission negotiating of the VI Convention, that work as document 4 of E and G (description 46 of cars), that were recognized of contrary, as well as of the BOE cited.
(f) the ninth of the ballot of conciliation mentioned, that work as document 7 of E and G (description 49 of cars), that was recognized of opposite.
Third. - FSIE excepciono, adhering use, inadequacy of procedures, because the demand of pretensions don't properly question the legality of the contested provisions, but an interpretation of the same.
The room will dismiss plane derogation, as proper procedure is determined by the claim of the demand and the simple reading of the beg of the same allows inferring, without any effort, which is intended to clearly and categorically the nullity of the items contested by violation of current legislation, cited detail for each of the contested articles , following carefully as required by article 164.1. to LRJS.
Thus, if not intended interpretation of the cited articles, but his invalidity by illegality, the relevant procedure is the challenges to statutory agreements, regulated in the articles 163 et seq. of the LRJS, which is exactly the promoted by CC. OO.
Fourth. - E and G the applicant criticized his inconsistency, because most of the contested articles reproduced V collective agreement total sustained private education companies or in part with public funds, as well as other agreements signed by CC. OO., as the collective agreement of State-level assistance and early childhood education centers, which reported that the real object of the lawsuit is not the control of the legality of the agreement, but an act of propaganda electoral period of trade union elections.
As it is known, all litigants must conform in their performances in the process the rules of good faith, in accordance with article 75.4 LRJS, so that when it fails to comply with this requirement, courts will reject the claims of abusive, fraudulent or reckless, imposing, in its case, the fine that corresponds, in accordance with the provisions of article 75.1 and 4 LRJS.
The burden of proof of fraudulent, abusive or reckless action corresponds to whom denunciation, in accordance with article 217.3 LEC.
We need clear, then, if it is not feasible that a Trade Union signed a collective agreement, can challenge, illegality, this collective agreement, to anticipate, from now on, a negative response, inasmuch as article 165.1. to) LRJS conditions the legitimisation of the Union, to challenge the collective agreement by illegality, which has not signed it, as it could not be otherwise , inasmuch as the Convention collective is subject necessarily to the principle of legality, to tenor with it willing in the article 9.3 CE, without its registration and publication from the authority labor prevents the control of legality from them courts.
If the agreement does not prevent the Union or, where appropriate, to the company or signatory employers Association challenge by illegality, with less reason prevents him that non-signatory negotiating subjects, who previously signed similar agreements, to challenge legitimately the agreement not signed, since, if concurs illegality in the new Convention, the collusion of the impugnante with the illegality of earlier conventions not it becomes legal to the new Convention, irrespective of the studs of inconsistency, that could make the objecting Union, that do not correspond to this Court.
Sixth. - Article 18 of the sixth Convention, which regulates the contract for work or specific service, reads as follows: "aims at the realization of a work or service with autonomy and substantivity own, of uncertain duration, within the activity of the company. In the scope of this Convention, may be covered by contracts of this nature, without prejudice to any other activity permitted legally, which have as their object:-teach tiered financed subject to annual renewal, under the current educational legislation at all times.
-Teach areas or subjects to be extinguished by application of the current educational legislation in every moment.
-Teach subjects that are not mandatory for institutions offering.
-Teach at levels that the company has begun the process of extinction and up to the total closure of the same.
The Joint Commission may determine any other activity (teaching or non-teaching) that may be susceptible to cover with this contractual modality in the conventional field.
At the end of the contract, workers are entitled to receive the financial compensation that apply to you at all times according to the legislation in force.
«If the contract set a duration or term, these should be considered for reference only on the basis of the work or service covered by the contract, settling, for this contractual modality, a maximum duration of four years.»
CC. OO. (and IGC report that described listing violates the provisions of article 15(1). to) ET, inasmuch as such activities do not have autonomy and substantivity required contracts for work or specific service, opposing the defendants, who argued that in the 5th Convention, signed by CC. OO., be admitted as activities with autonomy and sufficient substantivity the now challenged, although they admitted that teach subjects that are not mandatory for institutions offering has lost raison d ' être since the entry into force of the LOMCE.
The jurisprudence, for all STS 21-01-2009, rec. 1627 / 2008, has defined what requirements are enforceable for the validity of the contract for work or service determined of the mode following: «(to) that the work or service that constitutes its object, present autonomy and substantivity own within what is it activity labour of the company;» (b) that his execution, although limited at the time, is in principle of duration uncertain; (c) that is specify and identify in the contract, with precision and clarity, the work or the service that is its object; (and c) that in the development of the relationship work, the worker is normally occupied in the execution of that or in the compliance of this and not in tasks different.
This room is has pronounced repeatedly on the need of that converge together all requirements listed, so the hiring temporary by work or service determined can consider is adjusted to right. Statements that so say it though, by logical reason of consistency, each should investigate the concrete requirement, among those mentioned, whose existence was subject of discussion are repeated. Corroborate it said, those of 21-9-93 (rec. 129 / 1993) EDJ 1993 / 8134, 26-3-96 (rec. 2634 / 1995) EDJ 1996 / 1720, 20-2-97 (rec. 2580 / 96) EDJ 1997 / 1379, 21-2-97 (rec. 1400 / 96) EDJ 1997 / 897, 14-3-97 (rec. 1571 / 1996) EDJ 1997 / 1399, 17-3-98 (rec. 2484 / 1997) EDJ 1998 / 1324, 30-3-99 (rec. 2594 / 1998) EDJ 1999 / 13948, 16-4-99 (rec. 2779 / 1998) EDJ 1999 / 6339 , 29-9-99 (rec. 4936 CV / 1998) EDJ 1999 / 30599, 15-2-00 (rec. 2554 / 1999) EDJ 2000 / 1635, 31-3-00 (rec. 2908 / 1999) EDJ 2000 / 12166, 15-11-00 (rec. 663 / 2000) EDJ 2000 / 44327, 18-9-01 (rec. 4007 / 2000) EDJ 2001 / 35536 and which in them is cite that, still dictated in its greater part low the validity of them previous standards regulatory, contain doctrine that maintains its today given the identity of regulation , at this point, of the Royal Decrees 2104 / 1984, 2546 / 1994 and 2720 / 1998.
All of them highlight, in the part that interests here, that this Chamber has always considered crucial that the cause of temporality remain accredited."
In the same sentence, assessed how its funding regime can affect the validity of these contracts: «La Sala has maintained a repeated doctrine with regard to the validity of the temporary hiring linked to the perception of a grant, having established, among others, in its judgment of 8 February 2007, resource 2501/05 EDJ 2007/8710 , the following: "the doctrine of the judgment of this Court of 19 February 2002 (resource 1151/01) 2002/27036 EDJ, which the appellant invokes in support of his thesis, in the passage that says that do depend on the duration of contracts of employment necessary for the provision of these services for the persistence of the required subsidy to operate" ", when this grant comes from a third party and not a mere budgetisation of the own employer, do not act that can be estimated abusive, in fraud law or contrary to law and if, conversely susceptible of being framed in contract by specific service", has been nuanced and supplemented by others later, such as the 10 of April 2002 (resource 2806/01) EDJ 2002/27119 , in which it is argued that for its part, the judgment of 22 March 2002 (resource 1701/01) clarifies that this room "has not elevated, in any case, the existence of a subsidy to the category of decisive and conclusive, if element itself, the validity of the causal temporary contract", stating that "the annual nature of the plan, the temporality of the work or service that subsidizes not can be deduced because it's a temporary concretion that affects exclusively to subsidies, not the basic services that they finance". And in the same vein pronounced the new paragraph e) article 52 of the Statute of the workers EDL 1995/13475, who to recognize as cause objective of termination of the employment contract the loss or failure of the budgetisation or another order of plans and programmes that do not have a stable financial system, is recognizing that the same funding itself cannot cause of the temporality of the relationship. And later he adds what is at issue is not determining what has been agreed, but whether the agreement conforms to the legal contract of work or specific service type and at this point it is clear that, even on the assumption not discussed in this resource that we have a contract of work or service , which would be the subject of the contract would be the activity of developed lifelong learning, which is which is concerned the procurement as a service subject to a temporary definition, which operates in some way as to its completion at the end of its funding not permanent through contributions ("certus an"), but uncertain as to the time that such termination has occurred ("incertus quando"). If is accept the thesis of the resource not would be before a contract of work or service specific, that is, in principle, a contract of duration uncertain (judgments of 26 of September of 1992 EDJ 1992 / 9249 and 4 of mayo of 1995 EDJ 1995 / 2786), but before a contract to term certain that not is adjusts to none of them types of the article 15.1 of the Statute of them workers EDL 1995 / 13475 (, as it fails to the functions of the interim, nor can be considered contingency, because that does not respond to a need for extraordinary work, nor the time limits of article 15(1) have been fulfilled. b) of the Statute of the workers EDL 1995/13475, so, not be valid the term invoked, the cessation of the actors has been described correctly as a dismissal.
In the same line is the judgment of this Court of 25 November 2002 (resource 1038/02) 2002/61281 EDJ pointing, to purpose of linking the duration of the contract of a grant, (f. J. 2nd) in any case, the existence of a subsidy, does not derive that recruitment should be necessarily temporary as corroborates it the law 12/2001 of 9 July 2001/23492 EDL, which has introduced a new paragraph in article 52 of the Statute of the workers EDL 1995/13475, which authorizes the termination of the contract due to objective. "For contracts indefinitely concluded directly by public administrations or entities without spirit of profit for the execution of plans or public programs certain, without funding stable and funded through budgetary appropriations or extrabudgetary annual result of external income of character finalist, by the failure of the corresponding appropriation for the maintenance of the employment contract in question" arguing also that the annual nature of the Plan, the temporality of the work could not deduce is or service he subsidised, as it's a temporary concretion that affects exclusively to subsidies, not the basic services that the same finance."
Thus, if the annual renewal of funding levels in which teaches not mechanically proves that such activity has the autonomy and substantivity required by article 15(1). to) ET, must cancel the first object of the contract with independence in the 5th Convention specific assumptions, such as Social guarantee programmes were introduced (Programs of initial professional qualification, curriculum diversification and others with similar characteristics, programs since these cases have disappeared from current article 18 of the sixth Convention and the ambiguity of the current wording is not cohonesta with the instructed by article 15(1). to) ET, because the data of the annual financing not mechanically attributed autonomy and substantivity to the contracted activity.
We consider, however, that the contracting to provide areas or subjects to extinguish by application of educational legislation in force at any time, as well as to provide teaching in levels that the company has started the process of extinction and up to the total closure, if it meets the requirements of autonomy and substantivity, required by article 15(1). to) ET , to the extent that the areas or subjects to be extinguished or the processes of extinction of the levels are fully identified by formalizing the contracts of work or specific service.
As we anticipate above, the defendants admitted that teach subjects that are not mandatory for institutions offering has become obsolete since the entry into force of the LOMCE, so we nullify the first and third paragraphs of article 18 of the sixth Convention and convalidamos second and fourth paragraphs.
CC. OO. and UGT denounce, moreover, that book to the Commission joint, composed only by them signatory of the Convention, the determination in the field conventional of any another activity (teaching or not teaching) that may be susceptible of cover is with this mode contractual, violates it willing in them articles 28.1 and 37.1 CE, in relation to the article 85.3 ET, opposing is them demanded who defended that the alleged function is not negotiating but Adaptive.
The jurisprudence, for all STS 1-04-2014, rec. 65/2013, which confirmed SAN 6-06-2012, pointed out that the agreements of the Joint Commission should be limited to the interpretation or application of the Convention, but they have forbidden their novation amending, since its function is interpretadora or applicator, but not negotiating, this being repeated and peaceful criterion of the doctrine of the room, by all 24-09-2014 SAN, Internat. 147/14.
Article 15(1). to) «in fine» ET instructs collective agreements, it may however its scope, identifying those jobs or tasks with own substantivity within the normal activity of the company that may be covered by contracts of work or specific service.
It seems clear, therefore, that the identification of works or tasks constitutes a negotiating role, which entitled to collective bargaining unions can not be excluded, they have signed or not the collective agreement, so we nullify the precept reiterated, since the controversial identification can not instruct the Joint Commission, whose function, as we have seen above You can not go beyond the interpretation and administration of the Convention.
Seventh. - Article 23.1 of the 6th Convention, which regulates the vacancies, reads as follows: «vacancy means the situation in a company by a worker as a result of the extinction of their working relationship.
(1 vacant between the personal teaching: to) them vacant that is produce in the Group 1 (article 10), will be covered between the personal of the same group, combining the capacity, qualification and fitness with the antiquity in the company.
Not exist according to the entrepreneur, personal who before such eligible, vacancies will be covered pursuant to the legislation in force at any time.
(b) concerted levels coverage of the vacancies that occur will be according to the current educational legislation. Also you can see as preferential criterion, be included in the list of relocation of centers affected by suppression of concerted units.»
Article 9 of the Convention, which regulates the organisation of work, has that you discipline and organization of work is specific Faculty of the entrepreneur and they conform to the provisions of the Statute of workers and other provisions of the workplace.
Plaintiffs allege that the reserve recognized the employer violates the provisions of articles 57 and 60 LODE, accorded to the School Council of the concerted centers intervene in the selection of the teaching staff of the Centre, through the adoption of criteria for selection of the same.
The plaintiffs argue that the School Board has the right to intervene in the agreed levels, but not in others, which are precisely the regulated by article 23.1. to) the VI Convention.
Room shares the view of the defendants, since the intervention of the School Board in the selection of faculty is preached agreed levels, but not those who are not, are precisely those affected by the contested precept, that we convalidamos entirely.
Eighth. - Article 26 'in fine' VI Convention says: «not teaching activities will be distributed throughout the year by the employer in accordance with the criteria agreed between the same and the representatives of the workers. In case of disagreement, the entrepreneur will decide according to stated in article 9 of this Convention».
The plaintiffs denounced again that leave the distribution of non-teaching activities at the discretion of the employer violates the articles 4.1. f) and 57.f) LODE and articles 125, 127 and 129 LOE.
The article 4.1. f) LODE recognizes parents and guardians: 'f) to participate in the Organization, operation, Government and evaluation of the educational center, in the terms established in the laws'.
Article 57.f) LODE grants to the School Board: 'f) inform and evaluate the general programming of the Centre that, on an annual basis, will draw up the management team'.
He article 125 LOE 2 / 2006, says it following: «them centers educational shall draw up to the beginning of each course a programming general annual that collect all them aspects relating to the Organization and operation of the Center, included them projects, the curriculum, them standards, and all them plans of action agreed and approved».
(He article 127.b) LOE entrusted to the Council school: «(b) evaluate the programming general annual of the Centre, without prejudice of them powers of the cloister of the faculty, in relation to the planning and organization teaching».
Article 129.b) LOE entrustment to the Faculty: «b) approve and assess the implementation of the curriculum and all the educational aspects of the projects and the annual general programming».
The room not shares them blame of them demanding, because the distribution of them activities not teaching not are to the discretion of the entrepreneur, but is agrees with them representatives of them workers and only, when not is reach agreement, decides the entrepreneur, as not could be of another mode, to tenor with it willing in the article 20 ET , in relation to it willing in the article 9 of the VI Convention, without prejudice of the intervention, that corresponds to parents, tutors, cloister of teachers and Council school, whose performance is more evaluation and advisory that properly decision-making.
Ninth.-them demanding contested them articles 53.3, 62 bis, 69 and provision additional 2nd of the saw Convention, inasmuch as exempt to the companies of the fertilizer of them remuneration wage, agreed in the Convention.
Article 53.3 VI Convention reads as follows: «3. years 2015 to 2019.-La Commission negotiator will approve the salary tables for these years according to their respective General State budgets for each year.»
The payment of these salaries on the payroll of the teaching staff in executive pay corresponds to the competent educational administration. In any case the companies of schools will assume the payment of these amounts corresponding to this staff, not being obliged to do so.
The payment of wages is done for months overdue, within five days of the following month and within working hours.»
Article 62 bis of the Convention, which regulates the extraordinary pay by seniority of the teaching staff in executive pay, says: «without prejudice to the right established in the previous article, staff in Executive payment scheme will receive this wage directly from educational administrations through payment delegate depending on budget availability of modules of concerts. To facilitate the payment shall apply provisions of additional provision eighth, paragraph 3.b), and eighth transitory provision.
Manure shall be subject to the same is carried out by the corresponding educational administration companies, therefore they will not pay any amount by this concept.
In any case, decisions or instructions of the competent authority or the agreements signed will respect the rights of workers that they originated during the deferral period.»
Article 69 of the Convention, which regulates the complement for temporary disability, reads as follows: ' 1 general case: all workers in a situation of temporary disability and during the first 3 months, will receive the necessary complement to complete 100% of their total salary remuneration, including salary increases in the period of low. "
2nd in the case of teachers included in the Executive payroll of corresponding educational administration, the perception of 100% of their total salary remuneration will be extended to the first seven months of temporary incapacity.
3rd in each case than those specified above, once the respective periods referred to, will be paid 100% of the total wage compensation in proportion of one month for each three-year period of antiquity in the company.
The payment of the mentioned plug-in for temporary disability staff in executive pay will be conditioned to the same is carried out by the corresponding educational administration. Companies, therefore, not paid any amount for this concept.
However, when an autonomous region changed these conditions according to their budgets or their administrative decisions, business organisations and Trade Union negotiating of this collective agreement adapted this article in that field to the new situation».
The additional provision 2nd of the VI Convention reads as follows: «at agreed levels, the competent educational administration is responsible for many legal and wage obligations apply to you, your subscription to that carried out by her being conditioned.» Companies therefore not be paid any amount for these obligations and, consequently it will not be forced to do so. Workers who consider these rights, injured must complain to the relevant authorities, contacting jointly against the corresponding educational administration and the employer.»
The plaintiffs allege, that the disclaimer of entrepreneurs in payment of the agreed remuneration violates provisions of article 37.1 EC, in relation to the provisions in items 4.2. f), 26, 29 and 82 ET and 117.5 and 6 article LOE.
Article 117 LOE, which regulates concert modules, says the following: "1. the overall amount of public funds to support private centers agreed to enforce free concert object lessons, will be established in the budgets of the relevant authorities.»
2. for the purposes of distributing the overall amount to which the preceding paragraph refers, economic school unit module is fixed annually in the General State budget and, where appropriate, in the of the autonomous communities, and can these be not less than that is set to the first in any quantities differ cited module in accordance with what is established in the following section.
3. in the module, which will ensure that teaching is provided in terms of gratuity, they will differentiate:
(to) them wages of the personal teaching, including the quotes by share employer to the Security Social that correspond to them holders of them centers.
(b) the quantities assigned to others expenses, that will understand them of personal of administration and services, them ordinary of maintenance, conservation and operation, as well as them amounts that correspond to the replacement of investment real. In addition, they may be considered those derived from the exercise of non-educational directive function. In any case, the own equity interests will be calculated. The above amounts shall be fixed with criteria similar to those applied to public schools.
(c) the relevant amounts for the payment of the concepts of seniority of the teaching staff of concerted private workplaces and consequent impact on Social Security fees; payment of teacher substitutions and the exercise of the educational directive function derivatives; payment of the obligations arising from the exercise of the guarantees accorded to legal representatives of workers as set out in article 68 of the Statute of workers. Such amounts will be collected in a Fund general, to be distributed on an individual basis between teachers of the concerted private centers, according to the circumstances that are in each teacher and applying criteria similar to the set for the teachers of public schools.
4. them quantities corresponding to them wages of the personal teaching to makes reference the paragraph previous, will enable the matching gradual of their remuneration with the of the Faculty public of them respective stages.
5. the salaries of the teaching staff will be paid by the Administration to teachers as executive pay and on behalf of the assignee of the Centre, with charge and on account of the quantities provided for in the preceding paragraph. To such end, the holder of the Center, in its condition of employer in the relationship labor, will facilitate to the Administration them payroll corresponding, as well as their possible modifications.
6. the Administration will not take changes in labour costs of faculty and staff costs, arising from collective agreements exceeding the percentage of overall increase of the amounts corresponding to wages referred to in paragraph 3 of this article.
7. the educational administrations may be increased for concerted private centers that escolaricen students with specific needs of educational support in proportion to the established a general rule or modules for the zone in which it is located.
8 regulations which develop the regime's concerts shall take into account the specific characteristics of cooperative education and the teachers work unrelated to the ownership of the Center, in order to facilitate their economic and human resources management.
9 the State budget law will determine the maximum amount of quotas with singular concert centers can collect families.»
Jurisprudence, by all STS 12-11-2012, rec. 84/2011, has examined the responsibilities that correspond to the public administrations in the remuneration of staff at centres concluded in the following terms: "pointed out that, as starting point should be noted is that the jurisprudential doctrine is unanimous in determining the legal nature which corresponds to the responsibility of the public administration with respect to wages paid in Charter schools repeatedly claiming that the AP responds to the teachers of wage debts generated by the activity work and teaching of these, even if you do not assume the role of entrepreneur, and is not, therefore, part of the employment relationship, limited its obligation to a sort of executive pay (SSTS 03/02/93 - rcud 1881/92 - EDJ 1993/920... 10/02/02 - rcud 1285/01-EDJ 2002/61485; 09/05/03 - rco 90/02 - 2003/81029 EDJ; 31/10 /) 04 - rcud 6669/03 - 2004/278711 EDJ; 21/09/09 - rcud 4404/08 - 2009/234798 EDJ; (y 21/12/11 –rco 2/11– EDJ 2011/327218)» as well as «but the criterion of the room is not less unanimous in holding - and here is where he plays decisive role that constitutional doctrine quoted in the previous legal basis - that that responsibility with regard to the right restributivos of the teachers Charter is not absolute, but it is limited by the amount of which modules are equipped with» to the payment of which undertakes the Administration and accept centres private who decide to avail himself of the concerts. To the effect he reasoned - we summarize - that if well articles 49 LODE (Organic Act 8/1985 EDL 1985/8789) and 76 LOCE (organic law 10/2002 2002/53949 EDL) feature that the salaries of the teaching staff of the centers reached «shall be paid by the Administration Faculty as executive pay and on behalf of the assignee of the Center», all such precepts and several other forms (arts. 47 and 48 LODE; art. 75 LOCE; arts. 10 and 12) of the RD 2377 / 85 EDL 1985 / 9683; (and art. 133.4 CE EDL 1978 / 3879), demonstrate and proclaim that «the amount global of them funds public destined to the support of them centers concerted is will establish in them budgets General of the State and, in its case, in them of them communities autonomous», that are which quantified «the module economic by unit school, for the purposes of the distribution of that amount global» , so the possible salary alterations that may occur through collective agreements between employers and workers, as well to increase the wage concepts already covered by the conventional standard, well to create new ones, only may be assumed by the Administration insofar as they do not exceed the abovementioned statutory limit (specifically, the arts. 49.6 LODE, 76.6 LOCE and 13. 2 RD 2377/85 EDL 1985/9683) (recent , SSTS 29 / 06 / 06-rec. 795/05 - EDJ 2006/105743... 01/30/07 - rcud 4623/05 - 2007/7455 EDJ; 16/12/08 - rcud 4369/07-; 23/09/09 - rcud 297/07 - 2008/178575 EDJ; 21/09/09 - rcud 4404/08-; (and 12/21/11 - 2/11 rco-). Jurisprudence which insists that the modules to which payment undertakes the Administration and centers accept private who decide to avail himself of the concerts (art. 47.1 and 2 LODE, 75. 1 and 2 and 76 LOCE and 10 and 12 RD 2377/85 the EDL 1985/9683), are precisely "establishing the rights and obligations reciprocal in terms of the economic regime (arts.» (48 LODE y 75.3 LOCE)' (SST 18/05/05 - rco 149/02 - 2005/108951 EDJ; and 21/12/11 - rco 2/11-)».
1.4 "criterion which - of course - has extended the reduction of modules economic through budgetary, in such a way that the subsequent collective bargaining impairment exempts public administration take the amounts agreed upon in collective agreement that exceed these modules, since... the responsibility of the payment by the AP does not derive from the Convention , but the above mentioned legal provisions and - particularly in the case of auto - the rules of the Basque country (art. 19 of the Decree 293/87 EDL 1987/13692, of 8 September, which integrates the educational concerts 'regulation'; DA second decree 2889 / 1993 EDL 1993/18223, 19/October, on 'Implementation of delegated to private centers reached payment system'; and Circular of 27/01/09 of the Department of education), which developed the mandate set out in article 27 EC EDL 1978/3879. And because... If modules represent the regulatory threshold of responsibility that is incumbent administration, this limit cannot be altered by a decision taken by the negotiating parties of the collective agreement, which may certainly agree that pay changes that they deem appropriate, but knowing anyone - that is the time in which the collective bargaining occurs - ' (t) ales agreements will be implicit» ««, in any case, the obligation of the employer take exclusively the quantities exceeding those legal units, there is no rule requiring the Administration to expand the budgetary limit ' (SST 18/05/05 - ECR 149/02-; 21/09/09 - rcud 4404/08-; and 21/12/11 - rco 2/11-)».
The sentence before said, leaning, in turn, on STC - House-58/1985, de 30/April EDJ 1985/58) (SSTS 24/01/92 - rcud 1467/91 - EDJ 1992/568...; 29/04/93 - rcud 459/92 - EDJ 1993/3984...; 04/05/94 - rcud 3311/93 - EDJ 1994/12130; and 28/09/11 - rco 25/11 - EDJ 2011/242428), defended, that companies cannot pay the remuneration agreed upon in collective agreement , because there had been a reduction of the corresponding module.
We need clear, then, if the exemption of corporate responsibility, contained in the contested provisions, breaches the provisions of article 37.1 EC in relation to the provisions of article 82.3 ET to which anticipate a negative response.
Our answer is no, because the remuneration agreed upon in the Convention, were adjusted from the first moment to the budgetary limits of the public sector responsible for, the General Administration of the State, autonomous communities who took the transfers, so that, unlike the cases examined by case-law reproduced above, in where agreed to a wage compensation benefits agreement , that could not be satisfied, because subsequently reduced the concert by the administration modules, here the agreed wage was limited from the start to the amount established in the corresponding module, which should satisfy the Administration in executive pay, in accordance with the provisions of article 117.5 LOE.
Moreover, has proven that the Negotiating Committee of the Convention has approved, with intervention of CC. OO., salary tables later, tweaking them entirely to budgetary limits, so it is reasonably justified in our view, that it exempts companies from payment of the tables, because the responsibility for the payment of fees corresponds exclusively to the public administrations responsible, who paid the remuneration of staff subject to concert in quality of executive pay of companies by which descaramos the annulment of the above-mentioned precepts more above.
Tenth. - the 8th of the Convention sixth transitional provision reads as follows: "when an autonomous region justifies the failure of annual budgetary allocation for payment of this pay by seniority in the company, the effects that is regulated in article 62 of this collective agreement shall be immediately deferred until the autonomous community have a new annual budget and issue resolutions or relevant payment instructions or until business and trade union organizations by most» «of its representation in the regional area, and prior agreement of the competent educational administration, reaching an agreement in this regard, pursuant to the provision of additional octave of this Convention.»
The plaintiffs allege that the postponement agreed, due to insufficient budget of the autonomous communities, violates the provisions of article 37 EC, in relation to articles 82, 4, 26 and 29 ET, while we agree with this reproach, inasmuch as it was expressly agreed in article 62 bis, which pays the controversial paid directly by the educational administrations, through payment delegated according to budgetary concerts module availability , so that the suspension of manure, when budget failure, constitutes pay payment guarantee by concerted staff seniority, although it delayed until budget, still revealing, to these effects, which CC. OO. He admitted the postponement in the mediation reached before the SIMA 22-04-2013.
Eleventh.-the article 77 of the VI Convention, that regulates the organ joint sectoral for it promotion of it security and health in the work in the sector of them companies of teaching private sustained total or partially with funds public, says it following: «is shall constitute an organ specific for the promotion of the safety and health in the work of character joint and field State in the sector of them companies of teaching private sustained total or partially with funds» public, which will develop programs with the aim of disseminating and reporting of occupational risks existing in the sector, as well as the rights and preventive obligations of the employer and workers, and the promotion of preventive actions.
This body will assume all the powers referred to in the Spanish strategy for safety and health at work, and provisions of development, if necessary, and perform actions actions, planning visits, projects, reports, etc., they are accurate, as well as an annual assessment to analyze the preventive effects of the programs.
The organ is called "organ joint sectoral for the promotion of the safety and health in the work in the Sector of them companies of teaching private sustained Total or partially with funds public".
The headquarters of the organ joint sectoral for the promotion of it security and health in the work in the Sector of them companies of teaching private sustained Total or partially with funds public, is set in the address social of education and management (E and G).
He organ joint is composed by them organizations signatory of the present Convention, and must have at least one representative by each an of such organizations, being equal the number of components both by the part social, as by it part employer.
At the first meeting that is held be appointed a Chairman and a Secretary from among its members, always with the Presidency in a representative of the employer and the Secretariat on a representative of the trade union organizations.
The representatives mentioned in the preceding paragraph may attend the meetings accompanied by advisers that they deem necessary.
Members of the joint body will be appointed and replaced, where appropriate, of a part by various business organizations that make up this body, and on the other hand, by the various unions that comprise this body. Members shall exercise their mandate of representation for a period of four years and may be re-elected for a period of the same length.»
The plaintiffs allege, its exclusion from the joint body, violates their right to freedom of Association, as well as to collective bargaining, secured by articles 28.1 and 37.1 CE, opposing the defendants, who denied carrying out negotiating functions.
As we saw above, it is legitimate to exclude from joint bodies, by collective agreement, the trade unions entitled to negotiate the Convention, that not signed it, provided that their functions are interpretive, applied or adaptive, while it is not legitimate if its functions are negotiating, through all STS 1-04-2014, rec. 65/2013, which confirmed SAN 6-06-2012 and SAN 24-09-2014, Internat. 147/14.
We should clarify, then, if the tasks entrusted to the joint body are negotiating or are not, to what they anticipate a negative response, as is entrusted only to develop programmes aiming to disclose and report of occupational risks existing in the sector, as well as the rights and preventive obligations of employers and workers , and the promotion of performances preventive, trying to is to all lights, of functions informative and promotional, whose execution not will require properly negotiation collective, without prejudice, clear is that, if in the development of its activity, is produced negotiation effective that amend them conditions of work in the sector, fit your corresponding challenge, if is that not is summoned to them demanding, what until now not has happened Since that, when negotiations have occurred in other areas, they have been invited (sixth proven fact).
Therefore, discard the invalidity of article 77 of the Convention VI.
Twelfth. - the transitional provision 6th of the 6th Convention, reads as follows: «the signatories of the Convention commit themselves to constitute a Committee for the adaptation of the professional classification to demands laid down by the legislation in force, as well as the necessary adaptations of this Convention to equality plans and developments which could set in educational laws.»
Professional classification systems are proper task of collective bargaining, in accordance with the provisions of article 22.1 ET, as well as plans, in accordance with article 85.1 ET.
Consequently, if the components of the Commission introduced modifications, which were beyond the adaptation of the professional classification to the legislation in force, or introduce modifications in the Convention, which were beyond its adaptability to the legislation in force, as a result of the implementation of equality plans, would be overflowing the boundaries of these committees, in which case should call legitimate unions to negotiate.
When it does not happen, if tasks do not behave properly more than adaptations, while actually mediate bargaining activity, the Commission would be set right.
Therefore where the Commission does not exceed the adaptive functions in the above subjects will be set right.
13th. - in the appliance 1.1 of annex II of VI Convention, which regulates the fees of the first cycle of education integrated differentiates between teachers/teachers and technicians, hired after the entry into force of the Convention, whose salary is 1.386,89 euros and 955,97 euros respectively, of those hired previously, whose monthly salary is 1.556,31 euros and 1.188,29 euros, respectively.
The plaintiffs allege, that the differential treatment violates his right to equal, because it justifies only on the date of entry into the company.
The defendants, however, defended that the differential treatment does not bring cause at the time of hiring, but in respect to the conditions, which workers said workers were enjoying as reflected in the additional provision 7 of the Convention, which reads as follows:
«Workers who are providing their services at the stage of first cycle infant education to the entry into force of this collective agreement shall retain the working conditions established for this educational stage in the collective agreement V while they provide their services at this stage.»
Jurisprudence, by all 15-12-2008 STS EDJ 2008/272951 ROJ STS 7190/2008 has also dismissed that can consolidate a complement of old differed depending on the date of entry under acquired rights, does not condition more beneficial, in the following terms: «the doctrine on the debated issue already has been unified in the judgments of this Court which referred in the previous Foundation , which, in short, set the double salary table, which is the result of a statutory collective agreement and not a private agreement or a business decision, violates the constitutional principle of equality, by not providing any justification objective and reasonable for that difference in treatment. Could be - accepted designated these sentences with appointment of the 21 December 2007 - that is recognition to those who entered before a complement for the amount so charged, as a guarantee of acquired rights, but what is not acceptable is that, from certain date, generated fees different in order to complement antique, "is unacceptable a clause of differentiation that is not limited to preserve a particular salary amount already perceived" , but that sets two different systems of giving back the antiquity. Hence, the arguments of the room of supplication of provenance is not eligible because we are not of a most beneficial condition is maintained for the workers that they had recognized that it is the establishment of a more favourable future treatment, without any objective reason justifying that this benefit does not recognize those who are in the same situation except with regard to the date of entry or the access of antiquity.
(In the same address, the TS in sentence of 9-10-2008 EDJ 2008 / 203704, referring is to them double scales wage and to them rights acquired, has sustained it following: to) that "could admit is that to who entered before is them recognize a complement only and not compensable by the amount until then charged and that starting from that day once equal plus of antiquity that them again income" ", but what is not acceptable is that, from certain date, each generate a plus of antique amount very superior to general others working the same number of years" (STS 11/06/07 - rcud 2809/06 2007/223164 EDJ-); and (b) that a clause of differentiation, which "is not limited to preserve a particular salary amount already perceived, but it establishes, without that - he insists - record justification, a double picture of complement of antiquity with calculation of dynamic elements in each one of its components, therefore intended to perpetuate that pay differences by the mere fact of the date of entry in the company" is unacceptable (STS 05/07/06 - rco 95/05 2006/266053 EDJ-) (, reproduced by the from 27/09/07 - rco 37/06 2007/195079 EDJ-).
Or what is the same, a clause of the collective agreement which guarantees rights gained in the wage area, can - where appropriate and depending on the circumstances - have seal of legality and justify the difference of treatment, although not contemplated their absorption and compensation (simply desirable, from the perspective of the principle of equality), but such proclamation would be unsustainable if the collective rule establishes what the maintenance for the future of a particular legal regime with persistence enhanced time - the privilege."
Therefore, credited the differential fee brings cause only on the date of entry, since the additional provision itself 7 keeps workers hired before, the conditions of the Convention V, which do not generate conditions more advantageous, as we held in SAN 25-06-2009, Internat. 95/2008, must agree with the plaintiffs to paragraph 1.1 of annex II of the Convention VI introduces a dual salary scale, which breaks the right to equality, guaranteed by article 14 EC, unless concur more reason than the simple date of entry, by which nullify this precept.
In view of the above-mentioned legal provisions and other general and relevant application, we fail to demand for challenging Convention, promoted by CC. OO., to which adhered CIG, dismiss the exception of inadequacy of procedures promoted by FSIE, which adhered to in use.
We believe partially demand and nullify, by illegality, paragraphs 1 and 3 of article 18 of the sixth collective agreement total sustained private education companies or in part with public funds, as well as the charge of the Joint Commission for the identification of works and tasks likely to hire the contract of work or service determined, regulated in the precept.
We nullify, likewise, paragraph 1.1 of annex II of the Convention before this, by what we condemn State Federation of education workers committees against - E and G - education and Management Commission negotiating the Convention, - CECE - Confederation of centres of Education Commission negotiating the Convention,-FED ACES - Spanish Federation of schools of Social economy Negotiating Committee, - APSEC - Association professional Serveis Educatius de Catalunya Commission negotiator of the Convention -FESIE - Federation of independent trade unions of education of the State Spanish Commission negotiator, - use - Federation of teaching of the Union Sindical Obrera Negotiating Committee of the Convention - FETE UGT - Federation of workers of the education of the General Union of workers, - IGC - Confederation Intersindical Galega to be and go through such nullity for all relevant purposes, absolving them of the remaining motions of the demand in the terms set out in the legal basis.
Notify is it present sentence to them parts warning them that against the same fits resource of Cassation before it room fourth of the Court Supreme, that may prepare is before this room of it Social of it audience national in the term of five days working from it notification, can make it through manifestation of it part or of its lawyer to the be you notified, or through written presented in this room within the term up designated.
(To the time of prepare before it room of it Social of the audience national the resource of Cassation, the recurrent, if not enjoys of the benefit of Justice free, must accredit have made the deposit of 600 euros planned in the article 229.1. b) of it law regulatory of the jurisdiction Social, and, in the case of have been condemned in sentence to the payment of any amount have stated the amount subject to sentence in accordance with article 230 of the same legal text, all in the current account which room is open in the Banco de Santander branch of calle Barquillo, 49, is by transfer with the No. 0049 3569 92 0005001274 by stating on observations the No. 2419 0000 00 0294 14; If is in effective in it has no. 2419 0000 00 0294 14, can is replace the consignment in metal by the assurance through endorsement banking, in which record the liability solidarity of the surety.
Is warns, equally, to the parts that prepare resource of Cassation against this resolution judicial, that, according to it planned in the law 10 / 2014, of 20 of November, modified by the RDL 3 / 2013 of 22 of February, by which is regulate certain rates in the field of the administration of Justice and of the Institute national of Toxicology and Sciences forensic , with the written of interposition of the resource of Cassation will have of present proof of payment of the rate by the exercise of the power jurisdictional to is refers such standard legal, whenever not concur any of them causes of exemption by reasons objective or subjective to is refers it cited standard, rate that is will satisfy through autoliquidación according to them rules established by the Ministry of Hacienda and administrations public in the order HAP / 2662 / 2012 , of 13 December.
Bring witness of this sentence to the original cars and incorporated it into the book of sentences.
Thus by our judgment we pronounced it, we sent and signed.
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