When an employer opts out of your agreement's pay terms (descuelgue)

Key rules

• Only lawful route: Pay set by your agreement can be reduced only through the opt-out procedure or a valid agreement.
• Duration: An opt-out cannot last more than three years, and ends sooner if the agreement stops applying.
• Company agreements: This procedure does not cover a company's own agreement.

The short answer

Your employer cannot cut pay that your collective agreement sets just because they want to. The only lawful route is the opt-out procedure, called "descuelgue". It needs a valid cause, a consultation with your representatives, and then either an agreement or a decision by an outside body. A pay cut without this is unlawful.

What an employer can opt out of

The opt-out applies to a sector or higher-level agreement. It does not apply to a company's own agreement. It can cover:

• working day
• shift schedule and distribution of working time
• shift work
• pay system and amount
• work and performance system
• functions, when they go beyond your professional classification
• voluntary Social Security improvements

The cause your employer must show

Your employer needs an economic, technical, organisational or production cause. An economic cause means a negative financial situation, such as current or expected losses, or income or sales falling for two consecutive quarters. Simply wanting to save money is not enough.

How the procedure works

1. Your employer opens a consultation of up to 15 days with your workers' representatives. If there are none, a committee of union or elected members takes their place.
2. An agreement needs a majority of the representatives.
3. With no agreement, either side can send the dispute to the joint commission of your agreement. It has 7 days to decide.
4. If it is still unresolved, the parties use the regional mediation and arbitration procedures.
5. If those fail, either side can refer the matter to the national or regional consultative commission on collective agreements. It decides within 25 days.

An arbitration decision can be challenged only on limited grounds.

How long an opt-out lasts

An opt-out cannot last more than three years, and it ends sooner if the agreement itself stops applying. When it ends, your employer must apply the agreement's terms again.

If your pay was cut without this procedure

You can claim the unpaid amounts in the labour court and ask for your rights to be recognised. Your representatives can bring a collective claim, and the Labour Inspectorate can fine the employer.

You can also ask a court to end your contract for serious breach. Severance is 33 days of pay per year worked, up to a maximum of 24 months. Weigh this carefully, because it means losing the job. Get advice from a union or labour lawyer first.

The timeline, checklist, warnings and questions below help you check each step.

Timeline and deadlines

• Your employer shows an economic, technical, organisational or production cause for the opt-out: before the consultation starts

• Consultation with your workers' representatives, or a committee of union or elected members if there are none: up to 15 days

• Agreement is reached, which needs a majority of the representatives: during or at the end of the consultation

• If there is no agreement, either side sends the dispute to the joint commission of the agreement: after the consultation ends without agreement

• The joint commission decides: within 7 days

• If still unresolved, the parties use the regional mediation and arbitration procedures: after the joint commission has decided or failed to decide

• If those fail, either side refers the matter to the national or regional consultative commission on collective agreements, which decides: within 25 days of the referral

• The opt-out ends and your employer applies the agreement's terms again: at the end of the opt-out period, which is never more than three years

Checklist

• Ask your employer in writing which cause they rely on for the pay cut: economic, technical, organisational or production.

• Check that your pay comes from a sector or higher-level agreement, not a company agreement.

• Ask your workers' representatives whether a consultation of up to 15 days has started and whether a majority agreed.

• If there was no agreement, ask whether the dispute went to the joint commission of the agreement, then to arbitration.

• Compare your payslips with the pay set in your agreement and keep copies.

• If pay was cut without this procedure or an agreement, ask a union or labour lawyer to claim the unpaid amounts in the labour court.

What to watch out for

• A pay cut without the opt-out procedure is unlawful: Your employer cannot cut pay set by a collective agreement on their own. Without the opt-out procedure or a valid agreement, the cut breaches your contract, and you may lose money every month it continues. Keep your payslips and ask a union or labour lawyer to claim the unpaid amounts in the labour court.

• Leaving over an unlawful cut has a cost: If the cut is a serious breach, you can end your contract and receive 33 days' salary per year of service, up to 24 months. Leaving ends your job, so you give up your pay and your position. Get advice from a union or labour lawyer before you resign, and ask first whether a claim for the unpaid amounts is enough.

• Representatives and the Labour Inspectorate can act too: If the cut affects many workers, your representatives can file a collective-dispute claim, and the Labour Inspectorate can fine the employer. Handling it alone can leave you without that support. Tell your workers' representatives about the cut and ask whether a collective claim is planned.

Frequently asked questions

Can my employer opt out of a company-level agreement?

No, the opt-out procedure only applies to sector or higher-level agreements, not to an agreement made inside your own company. If your pay comes from a company agreement, a cut needs a different route, so ask your representatives or a union.

Which parts of my agreement can an employer opt out of?

An employer can opt out of the pay system and amount, and also of working day, shift schedules, shift work, the work and performance system, some functions and voluntary Social Security improvements.

What happens when an opt-out period ends?

When the opt-out period ends, your employer must apply the agreement's terms again, including the full pay. It also ends sooner if the agreement itself stops applying. If your pay does not go back up, ask your representatives or a union to check it.

Can I challenge an arbitration decision on an opt-out?

Yes, but only on limited grounds, so a simple disagreement with the result is not enough. Take the decision to a union or a labour lawyer to see whether any of those grounds apply.