The company has the right to control the use of hourly credit without this constituting a violation, according to the ruling that defines the scope of business control over union hours.

It resolves the cassation appeal for the unification of doctrine on the Protection of Fundamental Rights, filed by a company against the ruling handed down by the Social Chamber of the Superior Court of Justice (TSJ) of Galicia on December 7, 2020 (recourse for supplication no. 3405/2020), in turn filed against ruling no. 141/2020 of June 23 of the Social Court no.

The plaintiff,Ms. Enriqueta, is a personnel delegate and represents a union. Until October 2019, union loans were requested without the need for any justification. However, on October 8, 2019, the company issued an internal statement demanding that the type of activity to be carried out (assembly, congress, meeting, training, etc.) be generically indicated.

On January 14, 2020, the Labor Inspection sent a letter to the union's legal counsel with a report favorable to the worker's claims.

The question to be resolved is whether the company's requirement to justify the use of time called "hour credit" violates freedom of association or, if not justified, whether said hours may NOT be paid as they are considered unjustified absences.

At the instance, Ms. Enriqueta's claims were rejected. The court considered that the generic justification of the permits was not a disproportionate demand on the part of the company, confirming the discount of 70 and a half hours between October 2019 and March 2020. The ruling held that the company has the right to demand a generic justification for the use of the hourly credit and that the worker must comply with this obligation.

The TSJ of Galicia upheld the appeal filed by Ms. Enriqueta, revoking the lower court ruling. Arguing that the requirement to specify the type of activity “meeting, assembly, etc.” is not reasonable, so The lack of payment for union hours constituted a violation of the fundamental right to freedom of association. He ordered the company to pay 438.51 euros plus 10% annual interest for unpaid hours and compensation of 6,250 euros for moral damage derived from the violation of fundamental rights (minimum degree for very serious misconduct according to art. 8.12 LISOS).

The company filed an appeal and alleging a contradictory ruling issued by the TSJ of Galicia on December 4, 2020 (rec 3408/2020) and the violation of art. 182.1 d) and 183 LRJS in relation to art. 28 CE and arts 37.3 and 68 e) ET.The company maintains that requiring a generic justification for the use of union hours does NOT violate the right to freedom of association.

Ms. Enriqueta's lawyer and the worker's representative challenged the appeal, maintaining that there is no contradiction and that the reference ruling was not final at the time the appeal was formalized.. The Public Prosecutor's Office and the Supreme Court consider that there is a contradiction between the sentences and that the referring doctrine is correct.

The High Court considers the appeal for the unification of doctrine y argues that the justification required by the company could constitute a limitation of rights and a possible interference in the fundamental right to freedom of association if it were a rigorous and exhaustive justification of the use of hourly credit. Article 37.3 of the ET does not establish additional requirements regarding the specificity that the required justification must contain. The generic specification of the use of hourly credit is not contrary to the right to freedom of association.This requirement does not prevent or restrict the free development of representative functions and responds to the purpose intended by the legislator to avoid the illicit use of hourly credit. We are not facing a disciplinary sanction review nor is the payment of wages not received simply being demanded, but rather it is being discussed whether there is a violation.There is no violation Therefore, the payment of the amount claimed or the compensation for moral damage requested is not appropriate.

The Supreme Court concludes,It does not constitute an injury to union freedom if the company requires a generic justification for the use of union hours. Failure to pay unjustified hours is not a penalty nor does it prevent the worker from enjoying his or her right. The company simply exercises its right to control these hours,without this representing a rigid control that would violate the law.

For all these reasons, the sentence handed down by the Social Court of the TSJ of Galicia is married and annulled, rejecting the appeal and the sentence handed down by the Social Court No. 3 of Orense is declared final.