Subrogated workers can adapt to the schedules of the incoming company in accordance with the collective agreement, without it being necessary to initiate the substantial modification procedure.

The ruling analyzes a collective conflict promoted by a union after a subrogation belonging to the sector of food stores open to the public between the outgoing company and the incoming company, the works councils, three personnel delegates and other unions. 

The conflict arose due to the decision of the incoming company to modify the schedules of 61 workers so that they provided services on Saturday afternoons. The union requested that the nullity or inadmissibility of this measure be declared, compensation for the damages caused by the hours carried out on Saturday afternoons (from 2:00 p.m. to 8:30 p.m.) as extraordinary and compensation for moral damages of €4,500 for violation of freedom of association for the unitary legal representations of the workplaces, the Álava Works Committee and the existing union sections in the company.

The Superior Court of Justice of the Basque Country dismissed the lawsuit, a decision that was appealed by the union before the Supreme Court.The object of debate was to determine whether the incoming company should follow the procedure of art. 41 of the Workers' Statute(ET), which requires a consultation period with the legal representation of the workers when substantial modifications to working conditions are introduced, or if the agreed modification could be directly applied in the context of surrogacy.

In subrogation, the incoming company and the representation of the workers of the outgoing company signed a collective agreement on October 13, 2022. This agreement established that:

• The workers adhered to the collective conditions of the incoming company.
• The previous conditions of the outgoing company are left without effect, except for salaries, which would be respected individually.
• The organization of working time, opening hours and days would be governed by the usual systems of the incoming company, including the possibility of opening on Saturday afternoons.

Therefore,The terms of the agreement were admitting the possibility that the company could alter the conditions they had previously of not opening on Saturday afternoons..

The Supreme Court concluded that this modification did not constitute a unilateral decision of the company. 

• “The workers' representation was accepting the possibility of a change in schedule and, with it, the possibility of working on Saturday afternoons. Modifications of substantial conditions agreed between the employer and the workers' representation are excluded from article 41 of the ET, for the simple reason that it would not be a modification but rather the application of what was agreed upon.

The ruling indicates that The union's arguments were the following:

The company made the decision to open on Saturday afternoons long after the collective agreement was signed(October 13, 2022). According to them, as time passed from the agreement to the application of the measure (February 1, 2023), the company could no longer invoke the agreement to justify the change in schedule.The reasons for the change were for market or competitive reasons., so the change should have been negotiated following art. 41 of the ET.

The Supreme Court rejected these arguments, because the period between the agreement and the measure was reasonable. The competitiveness reasons are compatible with the agreement and reasonably explain the decision, without violating rights. Furthermore, the review of the proven facts proposed by the union did not provide new documentary evidence that justified altering the ruling.

After analyzing the arguments of the company and union, as well as the content of the agreement,The Supreme Court concluded that:

• The measure is neither null nor unjustified.
• The incoming company acted within the collective agreement negotiated with the subrogated workers of the outgoing company.
• There was no violation of freedom of association or obligation for additional compensation.

Failed: The appeal filed by the union against ruling number 1800/2023, of July 11, of the Social Chamber of the Superior Court of Justice of the Basque Country (orders number 492/2023) is dismissed.