The Ministry of Labor and Social Economy considers that the negotiation of the algorithms between the companies and the legal representatives of the workforce is one of the points of debate in the elaboration of a new Workers’ Statute.
Companies do not, for the moment, have the obligation to negotiate the algorithm -the computerized mechanism that allows forecasts and decisions to be made in the workplace based on objective data-, although they must provide algorithmic information on automated decisions without human intervention that affect workers, as well as the parameters on which these formulas are based.
Some companies use artificial intelligence to make decisions on personnel selection, shift management and even possible staff adjustments.
However, in the “Practical guide and tool on the business obligation to provide information on the use of algorithms in the workplace”, presented this week, Labor considers the possibility that there is also an obligation to negotiate that algorithm.
The document, prepared by the Commission of experts on algorithms in the labor field, indicates that “it is possible that the Workers’ Statute is subject to improvements through collective bargaining, for example, introducing the obligation of the company not only to inform, but also to negotiate with the legal representation of the template the variables, parameters or other characteristics of the algorithm”.
However, there is still no date to address the renewal of the Workers’ Statute, although the Minister of Labor, Yolanda Díaz, has stated on several occasions the need to update the “dear old” Workers’ Statute, as referred to this law at the beginning of the month.
Díaz wants to delegate the initial phase to an “absolutely plural” Commission of Experts and then take it to social dialogue, a process that he has repeated in the initiatives promoted from his portfolio. The minister has already warned that this will be a long process, which deserves “time, reflection and meeting places.”
Although companies are not obliged to negotiate the algorithm, they must do so in the event that it is used in the framework of a collective dismissal, as the Work Guide recalls. The negotiation of this algorithm should be part of the consultation period established by the Workers’ Statute.
In addition, with the current legislation, the negotiation of the algorithms is also essential in its application for collective measures of modification or suspension of the contract or in any other matter “in which there is a legal obligation to negotiate with the representation of the staff”.
In the same Guide it is also pointed out that the collective agreement can introduce the responsible use test, in the event that the algorithm can affect employment.
The Committee of Experts considers that the use of algorithms should be part of collective bargaining, to the extent that their application may affect the main working conditions, such as salary, working hours or professional promotion.
The minister also pointed out on Thursday that an algorithm is being designed, from the public sphere, to control the fraudulent use of overtime.
“We are designing an algorithm from the Ministry of Labor, of a public nature, which is going to be applied immediately to address the fraudulent use of overtime,” he confirmed during his appearance at his own request in the Labor Commission of the Congress of Deputies .
And he recalled that in Spain there is an “abuse” of overtime, with more than 6.6 million a week and with a clear gender bias, since they do more additional hours but they are not paid for what they do.
