En torno al alcance extraterritorial de la normativa española sobre implantación de órganos de representación de las personas trabajadoras en la empresa

Abstract

The regulations on the right of representation of the workforce in the company continue to be framed at the national level and the private international law does not consider the problems that arise in this area as a result of the transnational activity of companies, which has been increasing in the last decades. Hence the right of representation has been  qualified as the poor relation of international social law. This study analyzes the extent to which the provisions of the domestic law of the European Union or those relating to the settlement of conflicts of laws are of application, or whether it is possible to apply extraterritorially, as a result of the provisions of domestic international law, the Spanish legislation on representation in cases of companies with transnational activities. Concluding -in spite of the objections raised by some scholars- that in such cases the Spanish legislation can be applicable, this does not resolve the issue in terms that guarantee the effectiveness of the institution, which contrasts with the increasingly relevant role to which these representative bodies are called in the application and control of compliance with labour regulations, as well as in their function as collaborating agents of the responsibilities that they are assuming in matters such as the environmental responsibility of companies and in the implementation of decent work. On the other hand, the lack of conflict-of-law settlement rules in this area leads to scenarios that even national law is not prepared to resolve. It can therefore be agreed that the provisions resolving conflicts of laws between norms of different countries should take into account this essential facet of collective law, the effectiveness of which cannot be ensured without clarifying the subjects who must exercise it, as well as on the means and guarantees that must be recognized to them.