Legal Updates – Employment Area- October 2024
Royal Decree 1026/2024, of 8 October, developing a planned set of mandatory measures with the aim of ensuring the real and effective equality and non-discrimination of LGBTI people in businesses has been published.
The main agreed measures, in the employment area, are covered below:
I. CONTENT AND AIMS OF THE LGBTI PLAN
The LGTBI Plan or Protocol consists of a structured set of measures and resources dedicated to achieving real and effective equality for LGTBI people, including an action protocol to address situations of harassment or violence against members of this group.
This suite of measures aims to prevent any form of discrimination against LGBTI employees and their families. As with equality plans in the business environment, preparing them must be settled through collective bargaining and agreed with employees’ representatives.
In particular, Royal Decree 1026/2024, of 8 October, which came into force on 9 October, aims to develop the regulatory obligations of businesses to implement an organised set of measures and resources designed to guarantee the effective equality of LGBTI people, as recognised in article 15.1 of Law 4/2023, of 28 February, for the real and effective equality of trans people and the protection of the rights of LGBTI people (the “Trans Law”).
II. SCOPE OF APPLICATION OF ROYAL DECREE 1026/2024
The regulation will be applicable to businesses that have a workforce of more than 50 employees. Regarding those businesses that have 50 or fewer employeesemployees, the implementation of these measures will be optional and subject to voluntary negotiation.
The measures established in the LGTBI protocol will also cover employeesemployees who are temporarily assigned by temporary work agencies, during the time they provide their services in the user business.
during the time they provide their services in the user business. The protocol for action against harassment and violence against LGBTI people will apply to all employees in the company, regardless of the type of legal relationship they have with the latter, so long as they carry out their work within the business’s organisational scope. Furthermore, this protocol will also cover candidates during the selection processes, temporary employees, suppliers, customers, and visitors interacting with the company.
III. EFFECTS OF THE TRANS LAW ON THE COMPANY ENVIRONMENT AND NEGOTIATING THE LGBTI PROTOCOL
Duty to negotiate
These measures must be negotiated via collective bargaining, with the participation of the parties set out in article 87 of the EmployeesEmployees’ Statute. Depending on the company circumstances, the process can follow different paths:
- Companies with their own collective agreement: The measures must be discussed and agreed within the company’s collective agreement.
- Higher level collective agreements: : If the company is subject to a higher-level collective agreement (sectoral or territorial), the LGTBI measures will be negotiated within the framework of said agreement wherein the applicable terms and conditions will be set.
- Companies without a collective agreement, but where employees are legally represented: In this case, the measures will be negotiated directly with the employees’ representatives or trade unions present in the company through business agreements.
- Companies that have several workplaces in some of which employees are represented but not in others: A negotiating committee will be formed with the selected representatives in the workplaces that have them. Regarding workplaces without representatives, the unions for the corresponding sector will be included.
- Companies lacking a collective agreement and legally represented employees: A negotiation committee will be set up in companies that do not have the above modes of representation and where there is no applicable collective agreement. The committee will consist of, on the one hand, the companies representatives, and on the other, the employees’ representatives, comprised by the trade unions with the greatest representation and those of the corresponding sector. This negotiating committee will have a maximum of 6 members for each party, and the different trade unions will be represented in accordance with their membership share within the sector.
What is called “trade union silence” can also be taken into account, since if more than 10 working days elapse from the date on which the negotiating committee is convened (or up to 20 working days if the deadline is extended), without a response from the unions, the company may determine unilaterally the planned measures included in the LGTBI protocol in accordance with the terms of the Royal Decree.
On the other hand, companies that had a collective agreement in force prior to the entry into force of these regulations must convene a negotiating committee within the set deadlines for the sole purpose of agreeing the measures for the LGTBI protocol.
Negotiation deadlines for the LGBTI protocol
Companies are obliged to negotiate the measures of the LGTBI protocol in accordance with the circumstances regarding collective agreements and the legal representation of employees. Negotiation deadlines may vary depending on the companies’ organisational structure.
Companies are obliged to negotiate the measures of the LGTBI protocol in accordance with the circumstances regarding collective agreements and the legal representation of employees. Negotiation deadlines may vary depending on the companies’ organisational structure.
- Companies with a collective agreement or where employees are legally represented
