The 9th Session of the Cycle on the TRLC is dedicated to a specific aspect of bankruptcy proceedings, such as the labor problems that so frequently arise in situations of business insolvency. The Competition Judge is then responsible for deciding on this matter, both in what affects possible employment regulation files, and in relation to the modification of collective agreements; and, likewise, collective and individual actions, the contract of senior managers, the termination of the contract by the worker himself, etc., are also part of this area of competence, which is channeled through a particular modality of the bankruptcy incident, such as it is the labor one.
Of special interest is the application in this context of the principle of company succession, and its scope in the bankruptcy, closely linked to the cases of transfer of production units, which increasingly constitute a reasonable objective of solving the equity crisis.
Finally, the labor matter also raises the usual “ultra vires” questions in various aspects in which the TRLC has introduced some variation that may cause different interpretations, which motivates a special interest in this perspective.
- Ignacio Fernández Larrea, DLM Insolvia Partner
- Nuria Orellana Cano, Magistrate specialized in commercial matters. Provincial Court of Malaga
I. Labor competence of the contest judge
The treatment of labor issues in the contest has traditionally been conditioned, since the promulgation of Law 22/2003, by the reluctance that, with respect to the exclusive and exclusive jurisdiction of the contest judge determined in art. 8.2º LC and enabled in art. 86.ter. 2º LOPJ arose from very different spheres.
Thus, throughout its validity, there have been many judicial decisions, from one jurisdiction or the other, which have been forced to reflect criteria that are clearly antagonistic at times with respect to the labor competence of the bankruptcy judge.
Despite this, until its recent repeal, this article 8.2º LC was subject to only one modification with respect to its original wording: the one carried out by Law 38/2011, which limited itself to specifying that “Collective suspension means the provided for in Article 47 of the Workers' Statute, including the temporary reduction of the ordinary daily working hours ”.
Now, the Consolidated Text of the Bankruptcy Law (hereinafter, TRLC) clearly identifies the importance of the labor competence of the bankruptcy judge, endowing it with an exclusive precept, article 53 TRLC, which in our opinion may give rise to more interpretive questions. significance than that which could initially be foreseen.
For now, and compared to the previous mention of social actions that have as their object the termination of the employment relationship, now the dismissal is referred to in a more restrictive way, thus cutting off any possible interpretation associated with the previous wording and leading to the character bankruptcy of, for example, the termination of the employment relationship at the impulse of the worker.
The previous mention of the obligation on the part of the bankruptcy judge to take into account the inspiring principles of the statutory regulations and the labor process when prosecuting labor issues in bankruptcy headquarters is eliminated, which gives him greater autonomy interpretative, only constrained by those cases in which the TRLC itself expressly refers to the application of labor legislation, whether supplementary (art. 169) or direct (eg arts. 181 or 182).
In this line of greater independence of the contest, art. 8 TRLC already makes it clear in section 1 that the bankruptcy rule itself is empowered to give a "collective character" to the social actions it deems appropriate. No other meaning can be given to the express provision in this section that attributes jurisdiction to the bankruptcy judge regarding the knowledge of social actions that have a collective character in accordance with labor legislation and -and here comes the novelty “to what is established in this law ”.
And, taking a further step in this regard and starting from the suppression of the previous mention of article 47 of the Workers' Statute (remember, introduced in article 8 LC by Law 38/2011), it comes to deprive of a collective character bankruptcy effects to social actions that previously had it. In effect, the previous express reference to article 47 ET determined that any suspension of contracts and / or reduction of working hours should be understood as “collective” since the statutory norm indicated this regardless of the number of workers affected. However, and in accordance with the current article 53.2 TRLC, only the same actions that, in addition, exceed the threshold of article 41.2 ET (10 workers, 10%, 30 workers, depending on the size of the workforce) will have a “collective insolvency” character. .
II. Possible cases of “ultra vires” labor in the TRLC
The foregoing circumstance, insofar as it "decollectivizes" for the contest certain social actions that previously did have such a character and that, therefore, entailed the necessary intervention regarding them by the contest judge, could be interpreted as a case of overreaching “Ultra vires” by the TRLC, something to which the new recasting rule has not been at all foreign (remember the intense controversy caused by the exemption of public credit in the consecutive competition).
Without a peaceful position in this regard, also in the labor competition field, other assumptions that could be framed in this “ultra vires” excess may be detected. This is the case, for example, with the definition made by art. 200 TRLC of the productive unit (so closely linked to the phenomenon of company suppression) and in which - unlike what happened with the previous article 149.4 LC, it is no longer referred to as an economic entity that maintains its identity. And, perhaps with greater intensity, this excess can also be defended with the competence attribution that article 221 TR makes to the bankruptcy judge as the only competent to declare the existence of company succession, although from our point of view we do not consider, even in a case, nor in another, that ultra vires concur. Thus, as regards the definition of a productive unit, although the mention of the economic entity that maintains its identity is deleted, in short, the definition given by the Workers' Statute in art. 44.2 (set of means organized in order to carry out an economic, essential or accessory activity). Regarding the competence of the bankruptcy judge to declare the existence of company succession, although it had not been the criterion of social jurisdiction, it cannot be ignored that art. 57 bis ET of 1995 introduced by Law 22/2003, Bankruptcy, and today art. 57 ET of 2015, refer to the provisions of the Bankruptcy Law for company succession, and it is conceivable that it was the intention of the bankruptcy legislator of 2003 that the bankruptcy judge would be the one to decide on the company succession in the sale of units productive, as initially interpreted by commercial courts.
III. Collective actions and individual actions
Proof of the importance that the TRLC seeks to recognize in the bankruptcy treatment of collective social actions is the fact that its article 62, when referring to the motive cause that the judge must offer for those cases in which, since it involves bankruptcy large size, refuse the appointment of insolvency administrator by correlative tuno, expressly indicates as an enabling cause of such designation the experience that the alternative insolvency administrator treasures with "files of substantial modification of the working conditions or of collective suspension or termination of relations labor ”.
Of course, the current wording of article 169.1 TRLC no longer allows alternative interpretations regarding the non-subjection to the bankruptcy procedure of contract suspensions or dismissals that have their origin in causes of force majeure, since both this article and article 53 they limit insolvency knowledge only to those that are motivated by ETOP causes (economic, technical, organizational or production).
On the other hand, article 169 TRLC updates and adapts different expressions of the previous regulatory regime that did not accommodate the current situation of collective actions, for example, which do not require prior administrative authorization since 2012. Likewise, the mention of the expression "procedures" to refer to this type of actions (which has already been introduced in art. 64 LC by Law 9/2015) is eliminated and it is used to replace the expression "Judicial Secretary" by the most current of "Lawyer of the Administration of Justice".
With respect to the collective measures pre-existing to the contest, the regime of the same is clarified with the wording given to article 170.1 TRLC, in which the moment in which it must be understood that the processing of the pre-existing collective action has ended (scope of the agreement and / or notification, we understand that the legal representation of the workers), with the importance that this entails in order to qualify, as insolvency or against the mass, of the credits associated with the collective action.
Likewise, it clarifies (article 170.4 TRLC) the situation of those collective measures pre-existing to the bankruptcy and that have also already been challenged before the social jurisdiction, specifying that this procedure will continue before the body of this jurisdiction until the firmness of the corresponding resolution .
Regarding the insolvency incidence of individual social actions, article 185 TRLC turns out to be key to clarify the situation of individual resolution / termination actions: it is not that they acquire insolvency collectivity (as in art. 64.10 LC) but rather Despite their individual nature, they will be suspended while the processing of the collective bankruptcy procedure is pending. For this reason, art. 64.10 LC referred to the procedure provided for in this article, for the termination of contracts, and now the TRLC refers to the procedure provided for in this Subsection for collective dismissal. The resulting situation is that the termination of the contract at the will of the worker due to insolvency, will not be governed in any case by the insolvency procedure: the procedure will be suspended before the social jurisdiction and the insolvency order that, where appropriate, agrees the collective dismissal will produce res judicata effect on the former, which will be filed without further formality.
IV- The "collective file"
Regarding active legitimation, article 171 TRLC explicitly states that it also covers the cases of reduction of working hours, thus solving the omission that article 64.2 LC suffered for this purpose, although it was saved by completing it with art. 8.2º. II LC.
With respect to the legitimation of the bankrupt in order to participate in the processing of collective measures, the presence in all cases (art. 174 TRLC) of the same is guaranteed in the consultation period, exceeding the previous wording of article 64.5 LC that subordinated said presence of the bankrupt to the optional authorization of the judge, and only in the event of a regime of intervention of its powers of administration and disposition, also overcoming the discord between paragraphs 1 and 2 of said precept (fruit of parliamentary amendments).
However, this presence of the bankrupt in the consultation period is still somewhat illusory in terms of its effective significance, since although article 174 in its third section provides that the bankrupt must also negotiate in good faith to achieve of an agreement (which was not provided for in art. 64.6.I LC, which limited negotiation in good faith to the bankruptcy administration and the representation of the workers), however, in other precepts it seems to exclude the need for the bankrupt to sign the agreement. Thus, art. 176.1 TRLC provides for the unnecessary nature of the consultation period when an agreement signed by the bankruptcy administration and the workers' representatives is presented with the application (without foreseeing the intervention of the bankrupt); and in accordance with art. 178 TRLC, once the term has expired or when an agreement is reached, the bankruptcy administration and the workers' representatives will notify the bankruptcy judge of the result of the consultation period; without it being clear whether the bankrupt has to sign the agreement in the consultation period, because article 177 TRLC is limited to indicating the necessary agreement on the part of the legal representatives of the workers or the ad hoc representative commission, in the The same terms as contained in article 64.6.II LC, but with the difference that the 2003 Bankruptcy Law did not contemplate negotiation in good faith in the period of consultations of the bankrupt.
Within the consultation period, the incidental irruption of other natural or legal persons that may constitute a business unit with the bankrupt may become particularly relevant. The treatment of this issue in the bankruptcy rule does not seem to be very clear since, starting from that mere participation in the consultation period, however, some possible consequences arise later that do not match very well with the existence of a true judicial procedure. Thus, we find that these people are assisted by a duty of collaboration whose non-compliance may lead to a request for judicial assistance by the representatives of the workers or the bankruptcy administration, without it being very clear to what extent this assistance from the court. But, perhaps the most important thing is that from the regime in force in the bankruptcy rule it can be deduced that from that mere participation in the consultation period, and without any contradictory procedure or hearing procedure to that effect, the bankruptcy judge can culminate declaring the existence of a labor group of companies (known as a "pathological group" in the workplace itself). No other conclusion can be reached if we pay attention to the wording given to article 551 TRLC which, in order to provide legitimacy to appeal the order relating to the collective measure, grants active legitimacy “in the event of a declaration of the existence of a labor group of companies, to those entities that integrate it ”.
Precisely with regard to that order that is positioned in order to the requested collective measure, article 183 TRLC already expressly indicates that it will have constitutive effects, so it will take effect from the date it is issued unless otherwise provided in it. date that in any case of necessarily being later.
It is true that article 183 TRLC only refers to the order that agrees the suspension of contracts or collective dismissal, without mentioning the cases of reduction of working hours, in which, precisely, the date of effects could have so much relevance . It is very striking in our opinion that the constant mention throughout the consolidated text of this specific assumption (reduction of working hours), however, disappears in the precept that expressly endows the resolution order with constitutive effects. It is evident that this order may have the purpose of deciding on a collective measure to reduce working hours (and articles 541 and 551 themselves expressly indicate this for the purposes of their challenge) and therefore the absence of any mention in the reduction of working hours Article 183 TRLC can be interpreted in the sense that the order that decides regarding this measure does not necessarily have constitutive effects and can, therefore, recognize validity to previously implemented reduction of working hours measures, although it is not This is the interpretation that we uphold, because we consider that it should be given the same treatment as the suspension of contracts, and perhaps the omission is due to the fact that the legislator of 2003 in art. 8.2. II LC included the reduction of working hours in the suspension of contracts.
V. The senior manager
Regarding the situation of the senior manager, the TRLC does not contain significant variations, beyond a systematic redistribution of previous content.
The fact that, despite systematic relocation, the non-supplementary application of labor legislation is maintained with respect to the senior manager.
In effect, Article 169 TRLC (Applicable Legislation) establishes in its section 2 that "In all matters not provided for in this Subsection, labor legislation shall apply ...". Well, the subsection in which this article 169 is framed is subsection 1 (On the effects on employment contracts) which, obviously, does not cover subsection 2, specific to senior management personnel contracts. Consequently, there is no such express reference to labor legislation as a supplementary one for the senior manager.
If said express provision is unnecessary, it would not make sense for it to work, however, for ordinary employment contracts, but it is that, in addition, we must remember in accordance with what has already been stated above, that the previous mention of article 8 has disappeared LC to the subjection to the inspiring principles of the labor regulations in order to the insolvency prosecution of this matter.
SAW. Agreement modification
Regarding the modification of conditions established in collective agreements, article 189 TRLC broadens the scope of application of article 66 LC, as the reference to it, which refers exclusively to statutory agreements, disappears. The current wording, when referring to the collective agreements that are applicable, also allows the inclusion for these purposes of any modification of those contained in article 82.3 ET, even when it affects an extra-statutory agreement. However, the applicable regime is not modified, and the reform could well have been used to adapt it to the provisions of art. 82.3 ET to pick up the agreement.
VII. The labor bankruptcy incident
Regarding the labor bankruptcy incident, article 514 TRLC clarifies the condition of the FOGASA, with a more precise wording, in line with what has already been stated by the best doctrine. And, for its part, article 541 TRLC, regarding the term applicable to the action and, unlike what happens with the workers who are attributed a term for filing the lawsuit associated with the "Actio nata" (one month since they knew or were able to know the judicial resolution) confers on this body the same term but from the moment in which the resolution is notified, which also links with the legitimacy that for the purposes of bankruptcy procedures includes article 33.3 ET .
In our opinion, the objective scope of the labor bankruptcy incident should have been the object of further clarification, expressly stating that "the workers" may only challenge through it the individual consequences that derive from the approval of the collective measure, because interpretative doubts may arise due to the suppression of the expression questions that refer strictly to the individual legal relationship that art. 64.8 LC .. Apart from this, we believe that a problematic interpretation question may arise: it is perfectly possible that the worker comes individually to challenge his own affection to the collective measure, that is, the criterion of selection of workers carried out and that has determined its inclusion in it. The fact that this selection criterion for inclusion in the collective measure affects a plural number of workers does not mean that it cannot be discriminatory (let us think, in an extreme hypothesis situation, that it has been decided to include as a selection criterion workers originating in a certain province) and this criterion being challenged individually by the worker affected through the bankruptcy incident, therefore leading the contest judge to express himself regarding the character, discriminatory, or not, of said selection criteria It is worth considering whether the decision of the judge leading to consider it as a discriminatory criterion should not have any effect on the collective measure in which said selection criterion was precisely used. The question will be different if the discriminatory criterion only affects that worker who files the claim for a labor bankruptcy incident.
From the purely procedural point of view of the insolvency incident in labor matters, simply note that article 541 TRLC reiterates -in our opinion, unnecessarily- in its sections 4 and 5, that after taking the test it will be granted to the parties an oral procedure of conclusions.
And, regarding the mention of the "costs" that in relation to the bankruptcy incident in labor matters contains article 542 TRLC, referring to the Regulatory Law of Social Jurisdiction, it should be noted that in the social jurisdiction and precisely by virtue of Said Law, does not mediate costs in the instance and yes, only, in the challenge phase, without the possible sanctioning measures provided for in articles 75 and 97 of the labor ritual law, may in any way be considered "costs".
- Means of challenge. Resources
Regarding challenge, article 551 TRLC clarifies the objective scope of the appeal, expressly stating that it will also fit, not only against the order that decides on the collective measure, but also against the sentence that resolves bankruptcy incidents related to social actions whose knowledge corresponds to the judge of the contest.
In section 2 of this article, the legitimacy to which we have already alluded regarding the entities that make up that "labor group of companies" that may have been determined and declared judicially is expressly included, we added in the previous bankruptcy processing of the measure collective, something that, as we have already advanced, could be procedurally questionable given the absence of an effectively contradictory procedure in order to such a determination.
Authors: Nuria A. Orellana Cano, Magistrate specialized in commercial matters. Provincial Court of Malaga and Ignacio Fernández Larrea, DLM Insolvia Partner
Summaries of previous sessions of the cycle:
- 1st session: The declaration of the contest and the budgets. The insolvency administration, January 27.
- 2nd session: The effects of the bankruptcy: on the debtor, on the shares, credits and contracts, Feb. 10.
- 3rd session: The active mass and the passive mass of the contest, February 24
- 4th session: The sale of productive units; reintegration and reduction of the mass; credits against the mass and payment order in case of shortage, March 9
- 5th session: The bankruptcy agreement, March 24
- 6th session: The liquidation of the active mass and the qualification of the contest, April 14
- 7th session: The conclusion of the contest and the express file; The benefit of exoneration of the unsatisfied liability, April 21
- 8th session: Refinancing and extrajudicial payment agreements. The impact of the Restructuring Directive