The pronouncement addresses the potential use of institutional mail for union purposes and the company’s right to substitute this communication mechanism among its members.
The case we are commenting on this occasion is related to a lawsuit filed in Spain by the Federation of Public Service Employees against a company in proceedings for the protection of fundamental rights and public freedoms, for violation of freedom of association.
The trade union organization claimed that the dispute arose because the company eliminated the traditional system of trade union communication through institutional email, owned by the employer, and replaced it with a computer application for mobile devices and tablets (app).
In this context, the Federation requested the following points:
a) To declare its right to use the company’s corporate mail to send union emails.
b) Declare the Federation’s right to access the distribution list of the company’s corporate email tool in order to be able to send emails of a trade union nature to all employees of the company’s different work centers in Spain.
c) That they be compensated for the moral damages caused by the infringement of their right to freedom of association.
In due course, the lower court dismissed the Federation’s legal action, arguing in the Social Chamber of the Audiencia Nacional the following:
I) The use of the apps is part of the normal course of business of the company and in the specific case at hand, it has been proven that the use of the app by the workers is massive.
II) There is no evidence that there are difficulties in accessing the app, but rather the opposite.
III) Neither has it been proven that the app shows less or different contents, but on the contrary, it includes numerous functions with easy access to union information.
IV) With regard to data protection, it is not known that in the dimension of the right to freedom of association there is any difference between the use of mass email lists and the use of the app.
In response to this resolution, the Federation filed an appeal with the Supreme Court, which, resolving the conflict, stated that “The exercise of such trade union action confers on the union a wide margin of action, beyond even the most appropriate and significant aspects of the law (collective bargaining, strike, collective disputes) that includes any lawful form of action that trade union organizations consider appropriate for the purposes for which they are called (SSTC 1423/1991; 1/1998; 213/2002; 185/2003 and 198/2004, among others)”.
The court adds later: “Therefore, freedom of association is integrated by the rights of activity and the means of action that, by contributing in a primary way to the trade union being able to perform the functions to which it is called by art. 7 CE, constitute the minimum and indispensable nucleus of the freedom of association”.
Thus, the court goes on to note that “In accordance with constitutional doctrine, a company that has an electronic communication system with its employees must allow the union to use it for the purposes just outlined”.
“It is not an absolute right, but its restrictions must be justified, either in the extra cost for the company, in the disturbance of productive activity, or in any other circumstances that lead to its denial or restriction. In the present case, he considers that the new means of communication (the app) competes advantageously with the previous one. The burden on the company should not go so far as to oblige it to maintain a certain electronic communication system, but it should justify the restrictions imposed” the court emphasizes.
Finally, it is determined that “The decision of the instance has exposed several reasons that are sufficient to consider that duty fulfilled: 1º) Technological changes normalize the use of multifunctional computer applications; 2º) There are no difficulties in using the new application; 3º) The functionalities of the app compete advantageously with the previous distribution lists; 4º) No impairment appears from the perspective of data processing, so the resource in question is rejected”.
This is an interesting statement that refers to the scope of a potential use of institutional mail for trade union purposes, and, on the other hand, to the right of the company, in case it has tolerated the trade union use of mail, to be able to replace it – at the expense of the employer – by another communication mechanism between the trade union organization and its members.
For more information on these topics, please contact our #azLabor group:
Jorge Arredondo | Partner | jarredondo@az.cl
Jocelyn Aros | Senior Associate | jaros@az.cl
Felipe Neira | Associate | fneira@az.cl
Palmira Valdivia | Associate | pvaldivia@az.cl
