As we had already published in May of this year, as of March 2024, many companies are obliged to have an LGBTI Plan. At that time, as we indicated in the article, the applicable regulations were not fully developed.

 

On 8 October, the Council of Ministers approved, as proposed by the Ministry of Labour and Social Economy, Royal Decree 1026/2024, which develops a planned set of measures for the equality and non-discrimination of LGBTI individuals in companies.

The approved Royal Decree protects the rights of LGBTI individuals through the regulatory development of Article 15.1 of Law 4/2023 of 28 February, for the real and effective equality of trans people and to guarantee the LGBTI individuals’ rights. This aims to ensure their rights by eradicating situations of discrimination against diversity, and by promoting effective equality of LGBTI people in the workplace, thus establishing the mechanisms, deadlines, and structure of the planned measures agreed through collective bargaining.

 

Impact of the “Trans Law” on companies: scope of application and quantification of workers

The development of this set of measures aims to prevent discrimination against LGBTI workers, ensuring their rights and those of their families, through collective bargaining and in agreement with workers’ representatives.

One of the most impactful measures is the obligation for companies with more than 50 employees to develop specific planned measures outlined in an LGBTI Protocol or Plan. Notwithstanding, companies with fewer employees may negotiate these measures voluntarily.

This protocol will apply to employees of the company as well as to job applicants, temporary staff, suppliers, customers, and visitors.

 

Quantification of workers

The total workforce of the company shall be considered, regardless of the number of work centres and the type of employment contracts:

  • Permanent discontinuous contracts
  • Fixed-term contracts that have been in force in the company in the previous 6 months, for every 100 days worked (or fraction thereof), one more person will be counted
  • Stand-by contracts
  • Part-time contracts will be counted as full-time
  • Temporary agency workers

The calculations will be made on the last day of June and December each year. If a negotiation committee is required, the calculation will be made on the day it is formed.

 

Collective bargaining of the planned measures

The planned measures will be negotiated through collective bargaining, considering the following cases:

  1. In those cases where there is a company-level collective agreement, negotiations will be carried out within this framework.
  2. If there is no company-level collective agreement but a higher-level agreement applies, the measures will be negotiated under that agreement.
  3. For collective agreements signed prior to the implementation of the Royal Decree, the negotiating committee will meet to discuss exclusively the planned measures.
  4. In the case of companies where there is no applicable collective agreement, but there is legal representation of workers, the planned measures will be negotiated through company pacts.
  5. On the other hand, in those cases where there is no applicable collective agreement and no legal representation of workers, a negotiating committee, composed of company representatives and the most representative unions from both the company and the sector, will organise the measures. This committee will have a maximum of 6 members from each of the negotiating parties and will be formed by those members who respond to the company’s invitation within 10 working days (extendable in specific cases by another 10 days).

If no response is received, the company may unilaterally proceed to determine the planned measures.

If there are work centres with legal representation of workers and work centres without, the negotiating committee will have a maximum of 13 members from each party, both social and business.

In all cases, the negotiating committees may have external support and advice from specialists in LGBTI equality in the workplace, who will intervene with the right to participate but not to vote.

 

Timeline and procedure for negotiating planned measures

  1. Companies that are obliged to negotiate planned measures through collective agreements or company pacts must begin negotiations within a maximum period of three (3) months from the implementation of the Royal Decree. This period therefore ends on 10 January 2025.
  2. Companies not covered by a collective agreement and without legal representation of workers will conduct the process through negotiating committees, with a maximum period of six (6) months to form the committee and begin the process after the implementation of the Royal Decree. This period therefore ends on 10 April 2025.
  3. For companies that currently do not reach a workforce of 50 employees, the three (3) month period will begin once they reach this volume.
  4. If 3 months have passed since the start of the negotiating procedure without an agreement being reached, or if the applicable collective agreement does not include these measures, the companies obliged to negotiate will implement the set of measures outlined in this Royal Decree.

 

Structure and content of planned measures in collective agreements or company pacts

1.In companies without a higher-level collective agreement, the agreement must be structured with at least the following content:

a. Identification of the negotiating parties.

b. Personal, territorial, and temporal scope of application.

c. Procedure for resolving possible discrepancies that may arise in the application and interpretation of the agreed planned measures.

2.In companies with a higher-level collective agreement, the personal, territorial, and temporal scope will be defined by that agreement.

3.In all cases, while respecting the parties’ freedom to determine the content of the planned measures, the collective agreements or company pacts must include at least the planned measures of this Royal Decree.

 

The planned measures must contain at least the following items:

  • Equal treatment and non-discrimination clauses
  • Access to employment
  • Classification and personal promotion
  • Training, awareness, and language
  • Diverse, safe, and inclusive working environments
  • Leave and social benefits
  • Disciplinary regime

Additionally, in all cases, the planned measures must include a protocol against harassment and violence towards LGTBI individuals, identifying preventive practices and mechanisms for detection and action.

This requirement can be considered fulfilled if the company has a general protocol against harassment and violence that includes measures for LGBTI individuals or if it is specifically amended to include them.

The structure and content of the protocol will include at least the following sections, as outlined in Annex II of the Royal Decree:

  1. Statement of principles
  2. Scope of application
  3. Guiding principles and guarantees of the procedure
  4. Procedure for action
  5. Resolution

 

Duration, monitoring, evaluation, and review of the planned measures

The duration will be the period agreed by the bargaining parties in the collective agreement.

It is also important to note that monitoring and evaluation periods for compliance with the agreed planned measures may be established, as well as the circumstances under which evaluations will take place.

The planned measures agreed upon in the different areas of negotiation must be reviewed whenever they prove to be inadequate or insufficient in terms of compliance with legal and regulatory requirements, especially when detected as a result of an inspection by the Labour and Social Security Department.

These measures will be respected in the terms and conditions set forth in Article 44 of the Consolidated Text of the Workers’ Statute Act.

CategoryLabour updates