The Supreme Court, in its Judgment of January 25, 2022, Rec. 1565/2020, dismisses the appeal for unification of doctrine, which resolved the issue of whether the collective agreement of commerce in Madrid, as agreed in the employment contract, should apply to the claimant, or whether the collective agreement of commerce in the province of Málaga, where the services are rendered, should apply.

The Court concluded that the main activity of the company is not covered by either of the two collective agreements at issue; therefore, neither of the two is legally applicable. Consequently, if there is no applicable collective agreement, nothing prevents the parties from freely agreeing in the employment contract to apply one of those agreements, in accordance with Article 3.1(c) of the Workers’ Statute, in relation to Articles 1089, 1091, and 1255 of the Civil Code. Therefore, this does not violate Article 37.1 of the Spanish Constitution, nor Articles 82, 85.1, and 85.2 of the Workers’ Statute, since the aforementioned agreement had a lawful object, as no collective agreement was applicable, which by itself prevents the establishment of less favorable conditions or those contrary to legal provisions and collective agreements.