The worker in Malaga of a Madrid company demanded the application of the Malaga Collective Agreement.

The collective agreement established in the employment contract prevails over other agreements that may apply to the secondary activity of the company, since the main activity is not subsumed within the functional and territorial scope of any collective agreement.

The TS resolves the appeal for unification of doctrine presented by the plaintiff against the ruling of the Social Chamber of the Court of Justice of Andalusia/Málaga no. 923/2021 of May 26 (rec. Supplication 202/2021), invoking STSJ Andalucía/Málaga no. 1671/2012 of October 25, declaring the finality of the appealed sentence.

The worker provided services at the Larios Málaga and Plaza Mayor workplace of a company with registered office in Madrid, with the professional category of employee, with both parties having signed the application of the Madrid Collective Trade Agreement in the indefinite full-time employment contract. The claim formulated in the appellant's statement of claim is the claim for an amount and the application of the Collective Agreement of Commerce for Malaga and its province, in addition the infringement of articles 1 and 2 of the C.C. of Malaga, as well as articles 37.1 of the Spanish Constitution and the Workers' Statute, articles 82, 85.1 and 2.

The main activity of the defendant company is that contemplated in CNAE 461 "intermediaries of trade in various products" with the company's corporate purpose being mediation as a distribution agent between telecommunications operators, for the processing of registrations between operators and clients, with the secondary activity being the sale and repair of mobile terminals.

The Chamber considers, like the Public Prosecutor's Office, that since it is not possible to frame any collective agreement for the predominant activity of the company and the one for the Malaga trade or the miscellaneous trade in Madrid is not applicable, since the sale of terminals is a secondary activity, the existing agreement between the parties is binding, being the one that regulates their labor relations.

Furthermore, nothing prevents the parties from freely agreeing on the application of one of the agreements, in accordance with the provisions of article 3.1 c) of the E.T.”by the will of the parties, expressed in the employment contract, its object being lawful and without in any case less favorable conditions or conditions contrary to the legal provisions and collective agreements expressed above may be established to the detriment of the worker.” in relation to articles 1,089, 1,091 and 1,255 of the Civil Code, therefore not violating the provisions of article 37.1 of the EC, nor articles 82 and 85.1 and 2 of the ET, confirming the validity of the terms stated in the employment contract as no unfavorable conditions or contrary to legal provisions and collective agreements are established.