The Court rules on the right to freedom of association – Commentary

In a judgment of June 12, 2021,(1) the High Court ruled on whether the defendant company had breached its obligation to negotiate the holiday schedule and, therefore, had violated the trade unions’ right to freedom of association.

The case arose after a company agreed with unions before the Interconfederal Mediation and Arbitration Service (SIMA) on June 8, 2020 that the vacation schedule for 2021 would be established by December 31, 2020.

However, without any prior negotiation with the legal representatives of the workers, the company informed its employees on March 12, 2021 of the dates on which paid leave must be taken in 2021.

As a result, the unions filed numerous collective complaints, in which they demanded the cancellation of the 2021 vacation notice that had been sent by the company to the staff.

The unions felt that paid leave had to be negotiated with the legal representatives of the workers and that, as this procedure had not taken place – contrary to what had been agreed before SIMA – the right to freedom of association had been infringed, in particular with regard to the possibility of collective bargaining.

The court clarified that the undertaking that had been made by the parties before SIMA invited the two parties to negotiate the calendar of public holidays before December 31, 2020. In this sense, the court considered that the undertaking made concerned the two parties and that, since there is no evidence that the unions were proposing new negotiations, the company and the unions were to blame for not establishing a vacation schedule for 2021.

In addition, the high court said that:

negotiation does not necessarily require that an agreement be reached, but rather that consultations be established between the parties in good faith with the aim of reaching a solution to any given dispute.

Therefore, the court concluded that the holiday schedule set by the company was valid and that there was no violation of the fundamental right to freedom of association with regard to the possibility of collective bargaining. Therefore, unions should not receive compensation.

On this basis, the High Court rejected the claims brought by the unions and acquitted the company of the proceedings brought against it.

For more information on this, please contact Elena Esparza or Maria Jose Ramosat CMS Albiñana & Suarez de Lezo by phone (+34 91 451 9300) or email ([email protected] and [email protected]). The CMS Albiñana & Suarez de Lezo website can be accessed at


(1) ES:AN:2021:2762.

Andrew B. Reiter