Condicionantes al derecho de las secciones sindicales a recibir asesoramiento externo y libertad sindical. Comentario a la STSJ Andalucía/Sevilla, de 14 septiembre 2010 (AS 2010, 2412)

Abstract

The STSJ (High Court of Justice) of Andalucía (Sevilla), on this day 14th September 2010 (AS 2010, 2412), settles an appeal filed by the Confederación Sindical de CCOO of Andalucía and two others against the Ruling of the Social Justice Court No.4 of Sevilla on 17th February 2010 handed down in the proceedings on the protection of fundamental rights. The interest of the above-mentioned Ruling lies in the fact that it affects the delimitation of the contents of the Freedom of Association, by determining the exact location of the right of unions to receive external counselling among those contents, while at the same time highlighting, in line with constant constitutional and judicial doctrine, that its fundamental nature does not imply the inexistence of limits to its exercise. The appeal for protection of fundamental rights against OPAEF was dismissed by the Ruling of the Social Justice Court No.4 of Sevilla on 17th February 2010. In conclusion, on integrating the right of trade unions to receive external assessment within the additional content of the right to Freedom of Association, the norm that is created is the one that delimits it, while also establishing the conditions under which it can be exercised. In any event, such conditions must be reasonable, since otherwise they would jeopardise the right, and in this case they are reasonable because they are justified on grounds of a productive nature, which determine that the presence of third parties in the enterprise must take place within the context of meetings of which the enterprise has been given due notice. Likewise, the enterprise must also be given notice of the assessor's attendance at those meetings by the union, since it is the holder of the right. Taking into account all the foregoing, the High Court of Justice of Andalucía (Sevilla) dismisses the appeal that has been filed, and concludes that the factors conditioning the exercise of this right do not breach the Freedom of Association. More specifically, the open or generic notification by the union regarding the presence of the assessor is unacceptable; similarly, the manifestation of this same figure can in no way be understood as satisfying the request of prior notification to the enterprise, as was the appellants’ intention, since the normative requirements must be complied with, and these state that prior notice of his or her attendance must be given at each meeting, and the enterprise should in turn have been notified of them.