CHAPTER 11. Concept, purpose and structure

Collective bargaining is a rule-making and decision-making procedure characterised by the direct, joint and exclusive involvement of workers’ representatives (unitary or trade union) and employers and/or their representatives, with a view to the conclusion of an agreement (usually a collective agreement).

It is based on the parties’ autonomy and is usually developed under legal (minimum) rules and the guidelines or criteria drawn up or accepted by the negotiating parties.

The normative nature of collective agreements, the most successful outcome of bargaining, justifies the fact that the latter must be subject to the provisions of the law, which recognises their legal validity.

In contrast to state regulations, collective bargaining is characterised by its dispersion: It takes place in different areas or bargaining units, delimited by functional criteria (professions, sectors of activity, etc.) and territorial criteria (State, autonomous communities, regions, counties, provinces or municipalities), and enables specific needs to be met that are difficult to regulate in a heteronomous manner by the public authorities. 

The dispersion (and sometimes “atomisation”) of collective bargaining generates major articulation problems due to the abundance of collective agreements that seek to regulate the working conditions of employees in their different territorial and functional field and levels.

Its primary purpose is to create rules for disciplining working conditions, broadly understood. Still, it can and often is also used for many other purposes, such as the creation of channels of communication and participation between companies and their employees or between the representatives of one and the other. It can also facilitate the management of collective disputes.

The structure of collective bargaining is determined by the set of collective agreements, pacts and treats existing in a given industrial relations system and refers more specifically to the bargaining areas or units and their different levels, which means that issues of hierarchy, preference, complementarity relations and the articulation of agreements are part of the bargaining structure.

The structure is simple when a particular type of collective agreement dominates or prevails (company, branch of activity, inter-professional, etc.), and the other types of collective agreement are articulated around it. Conversely, it is complex when there is no clearly dominant bargaining unit. Still, several coexist (company and provincial, sectoral and occupational, etc.), which in turn may or may not be coordinated.

Coordination or articulation between agreements can be achieved by applying rules of hierarchy, which establish distinctions in rank between the different types of agreement, normally according to the size of the corresponding bargaining unit. This occurs by applying rules of delimitation and complementarity, which ensure an appropriate distribution of matters and functions between the different levels or units, and, finally, by applying rules of concurrence.

Unlike collective bargaining, the primary and ultimate aim of reaching an agreement or collective agreement, consultation is primarily aimed at bringing the parties into contact with each other to gather and exchange opinions, provide information or address a given issue jointly.

Consultation is a form of employee participation in the company and does not necessarily imply the opening of a negotiation process, but it can lead to it and the adoption of collective agreements; in many cases, consultation is only the first step in launching negotiations, becoming an instrument that is very close to negotiation and is situated at a stage before it.

Although concertation or social dialogue is very similar to collective bargaining and, like collective bargaining, aims to reach a collective agreement, it is clearly differentiated by the participation of the public authorities and the social partners (the most representative trade unions and the most representative employers’ associations).

The most perfect theoretical hypothesis is when the public authorities participate with the trade union representatives and employers’ organisations to develop communication channels on a tripartite basis. Still, social concertation often occurs with only one social partner (usually the trade unions).

Social concertation can take place at both national and regional level and has a wide range of content, ranging from major economic and social policy decisions to more specific, short-term issues such as industrial restructuring, restructuring of sectors, wage increases in the civil service or the creation of systems for the extrajudicial settlement of disputes.

In recent times, social concertation has been used to design future labour laws, or the reform of existing ones, agreeing on specific contents that can be finally approved, as has happened, by Parliament.

Inappropriately, the term social concertation is also used to refer to collective bargaining “at the top”, i.e., between the heads of trade unions and employers’ organisations, intending to establish general criteria for collective bargaining for development of labour relations.