In Spanish collective bargaining there is a question that is repeated with each labor reform: how much space is left to agree when the law goes into depth on matters that were previously left to the agreement. The expansion of rights and the appearance of new permits, particularly parental and care leave included in Royal Decree-Law 5/2023, are causing a direct clash between current conventional texts and increasingly detailed legal regulation. Convention 154 of the International Labor Organization (ILO) on collective bargaining, ratified by Spain in 1985, guarantees the right to negotiate working conditions freely and voluntarily. However, the reality is that the aforementioned norm refers to a labor market that is almost non-existent. The law, which comes later, expands or redefines the permit, and its application opens an immediate dispute: the company sometimes invokes the agreement to limit the scope of the reform; The unions demand the application of the Workers’ Statute – the new article 37 – and the courts begin to establish doctrine by readjusting the system based on lawsuits. The underlying question is whether this succession of reforms is strengthening minimum rights or, on the contrary, reducing the real scope for collective bargaining until some agreements are converted into simple formal adaptation texts. The answer, for now, is not univocal. What does seem clear is that the law has gained ground and that the judges are acting as the provisional arbiter of a still unstable terrain. For Teresa Trigueros, senior associate at Abdón Pedrajas Littler, the key is in the normative hierarchy: “collective agreements must respect the legal minimums” and, therefore, “they cannot establish a permit regime that is less beneficial than the one legally provided for.” His diagnosis places the focus on the prevalence of the law when the agreement falls short. Joaquín Merchán, president of the General Council of Social Graduates, emphasizes that the reform “has clearly reinforced the unavailable minimum nature of these permits” and recent jurisprudence is confirming that any less favorable clause is displaced by the law. Merchán summarizes the new balance with a formula that describes the moment well: “the law sets the floor of protection and collective bargaining is called to build the ceiling.” The problem is that this ground is not always well defined. And that’s where the litigation begins. Companies find themselves with current agreements that establish permits with formulas that are already outdated or modified: calendar days versus working days; the concept of displacement or the beginning of family care leave, a decision already in the hands of the worker. Cepyme presents it in especially harsh terms. The employers speak of “hyperregulation” and maintain that the modifications have been made “without due social dialogue,” invading spaces of collective bargaining. In his opinion, the current regulation generates legal uncertainty, especially in SMEs and microenterprises, and transfers to companies costs that should fit better into a public social assistance policy.
The point of greatest friction
Alfredo Aspra, labor lawyer and partner at Labormatters, insists that the new regulation is “a right not available to companies and working people” and that, in everything that opposes it, previous conventional or contractual provisions are displaced. But it adds an important nuance: the real problem is not only the coexistence between norm and agreement, but the number of gray areas that the reform leaves. “The permit for caregivers is the one that is causing the most friction, due to its duration, its subjective scope and the doubts about how it is coordinated with other conventional provisions,” he points out. Merchan points out that the courts are betting on an interpretation that guarantees the “real effectiveness of the right” and that the enjoyment must occur on business days. Teresa Trigueros adds that the Supreme Court has reinforced the idea that leave for hospitalization or care of family members does not depend on mere hospital admission, but on the effective need for attention and care, distinguishing between hospital discharge and medical discharge. The underlying idea is clear: the leave is not exhausted by a documentary formality, but when the situation that justifies it disappears. Aspra also points out another criterion: the leave for hospitalization or caring for family members must be computed in working days and does not have to start on the same day that the causative event occurs. This reading aims to give real effectiveness to the law, but at the same time it complicates the life of human resources departments, which must fit new rules into agreements that, in many cases, were not designed for this scenario. The law advances, the agreement ages and the company is forced to manage both levels at the same time. The theory is simple: what the law improves, the agreement cannot cut back. In practice, the lace is much rougher. There are permits that overlap, rights that are stepped on, wordings that have become obsolete. Collective bargaining does not disappear, but it is being redefined. The minimum is no longer negotiated, because that minimum is set by the norm. What remains is to organize the application, specify the use and, if there is room, improve the design. For Aspra, “it would be desirable for the agreements to deal less with repeating the law and more with specifying practical issues.” For the employers’ association, “the reform limits collective autonomy and overloads companies.” For jurists, it reinforces rights that were previously too exposed to unequal agreements.
Justice marks its limits
The Supreme Court is closing the debate on how paid leave is counted and is preventing it from being neutralized with conventional rules or business incentive formulas. In this sense, in a ruling from November 2025, it confirmed that five-day paid leave due to hospitalization, accident or serious illness of family members must be taken on working days, canceling the provision for calendar days in the contact center agreement. In another from February 2026, it established that the worker can choose when the five-day leave to care for a family member begins.
