Reflections on the constitutional guarantee of the ‘essential content’ of the fundamental right to collective bargaining and the binding force of collective agreements

Abstract

The constitutional guarantee of the right to collective bargaining and the binding force of collective agreements is reinforced by the system of safeguards established in Article 53.1 of the Spanish Constitution (“The rights and freedoms recognised in Chapter Two of this Title are binding on all public authorities. Only by law, which in any event must respect their essential content, may the exercise of such rights and freedoms be regulated, and they shall be protected in accordance with the provisions of Article 161.1.a) of the Constitution); the review of constitutionality carried out by the Constitutional Court; and the mandatory review of compliance with collective agreements carried out by the ordinary courts (in accordance with Articles 10.2 and 93 to 96 of the Constitution). This is consistent with the recognition of collective bargaining as a fundamental right to freedom enshrined in Chapter II (“Rights and Freedoms”) of Title I of our Constitution (“On Fundamental Rights and Duties”), and given its treatment at international level in instruments such as the revised European Social Charter (Article 6) and the Charter of Fundamental Rights of the European Union (Article 28) (in accordance with Articles 10.2 and 93 to 96 of the Constitution); and this is regardless of whether it is deprived of other guarantees provided for in other constitutional provisions, such as the right to appeal for constitutional protection (Article 53.2 of the Constitution), or the constitutional guarantee regarding the enhanced drafting and adoption of laws, consisting of their regulation through an Organic Act (Article 81 of the Constitution).