The elements of the worker’s remuneration which remunerate the expenses incurred in the performance of the tasks incumbent on the worker under his contract do not form part of the remuneration for the holidays. Therefore, although they are usually perceived, when it is proven that the allowances compensate for these expenses, they are not included in the holiday pay.
Remuneration for holidays
The trade union representation of a company filed a collective dispute lawsuit requesting that the right of workers to receive in the remuneration of the holidays the average of the maintenance bonuses breakfast, lunch, and / or dinner be declared.
Considering that it is a salary remuneration of habitual perception by the workers concerned, regardless of whether they incur these expenses of breakfast, lunch and / or dinner. In addition, it is taken into account for the calculation of severance payments, being subject to contribution and taxation for Personal Income Tax.
Faced with this situation, the doctrine of the Supreme Court (TS) on the remuneration of vacations establishes that, during them, the worker must receive ordinary remuneration and comparable to periods of work.
Likewise, contrary to what was established in its traditional doctrine, the current doctrine opposes the absolute freedom of collective bargaining, to fix the amount of the remuneration of the holidays. Although a certain discretion is allowed, it cannot distort the concept of normal or average remuneration until it becomes unrecognizable.
Regarding regularity or habituality in the monthly perceptions,although their amounts were variable, the Supreme Court and the Court of Justice of the European Union (CJEU) have declared that they are not part of the normal or average remuneration of the holiday pay. And therefore, the elements of the worker’s overall remuneration are intended to cover occasional or incidental expenses arising in connection with the performance of the tasks incumbent upon him; discarding that they are integrated into the holiday remuneration, remuneration concepts that, although they are usually perceived, have a compensatory character.
In the case prosecuted,from the reading of the collective agreement, it follows that the agreement establishes that the room considers that the remuneration for lunch/breakfast/dinner is compensatory in nature since:
- It is paid by cash per day worked in shifts, without it being stated that it accrues neither on rest days, nor on paid leave, nor that it is taken into account in the compensation for dismissals and contractual terminations.
- The very name “diet” shows the willingness of the parties to configure it as a perception of an extra-salary nature.
- The variable nature of the remuneration according to the hours of breakfast, lunch or dinner; evidence that it does not remunerate effective work, but compensates for the fact that you are providing services in the period of time in which they are performed.
For all these reasons, the application is dismissed.
Paid annual leave. Frequently asked questions:
Duration of holidays
Holidays have a minimum of 30 calendar days (including Saturdays, Sundays and public holidays). Although this number of days, can be improved by collective agreement.
Reduction of holiday duration
Situations in which the duration of the holiday may be reduced:
- A leave of absence for part of the year.
- The suspension of the contract by mutual agreement of the parties.
- A temporary ERE of suspension of contracts.
- Unjustified absences during the year.
- Suspension of employment and salary for disciplinary reasons.
- During the period of inactivity of a dismissed worker who is subsequently reinstated.
Situations that do not have to reduce the duration of the holidays:
- Temporary Disability due to common or professional contingencies, or in situations of maternity or paternity.
- Extension of Temporary Disability.
- Enjoy paid leave.
- Temporary ERE of reduction of working hours.
- Impossibility of providing services for reasons attributable to the employer.
- Reduction of working hours for the care of relatives.
- Part-time contract.
Calculation of vacation days
If they are set in calendar days:it includes both holidays and working days. If the first day coincides on a Sunday, this should not be computed because it corresponds to weekly rest.
Workers in companies with itinerant centres:they are entitled to the expenses and the necessary time to return home to start the annual leave.
Fixing of holiday days
The days of leave are fixed by common agreement between employer and worker, andin accordance with the provisions of the collective agreement.
In case of a disagreement, a claim must be filed with the Social Order.
Remuneration for holiday days
The remuneration of the vacation days will be that agreed in the collective agreement. Failing that, the normal or average remuneration.
A. It includes:
- base salary
- antiquity
- production premiums and incentives
- commissions
- workstation complement
- plus shift and assistance
- plus night shift of workers assigned to night shift permanently
B. Not included:
- excessive working hours
- plus availability and guard
- currency break
- transport plus
- travel allowances
- night time bonus if excluded by collective agreement or in non-permanent nighttime services
Temporary disability and holidays
If the holiday period set in the company’s calendar coincides with a Temporary Disability (IT) derived from pregnancy, childbirth or lactation: the worker can enjoy them at the end of the IT, even if the calendar year to which they correspond has ended.
If the holidays coincide with the rest of the Temporary Disability situations (before or after the start of the holidays): the worker can enjoy the holidays at the end of the IT with a limit of 18 months after the end of the year in which they have accrued.
Change of working day
Changes in working hours throughout the year, with reductions or extensions, do not affect the duration of the holiday. It does affect, on the contrary, their remuneration, and the salary to be paid must be adjusted to the percentage of working hours accrued during the year.
Financial compensation
Exceptionally, in case of termination of a contract without the worker having been able to enjoy the holidays, he will receive financial compensation for each day of vacation not taken.
Case Study: Calendar Changes
You run a company in which, every year, it closes for three weeks in the month of August. But this year you must attend to a series of orders and keep the business open during those weeks.
How should you manage the situation?
Fixation: Your employees have the right to enjoy 30 days of natural vacation each year, unless their agreement extends its duration. For this purpose:
- The period of entitlement must be fixed in agreement with the workers. If there is no agreement, you can set it unilaterally (yes, those affected could claim before the courts through a special and urgent procedure).
- Once the holidaysare set, your employees must know the dates of enjoyment at least two months before the start (or the term set by their agreement, which may even be higher).
Modification: If once the holidays are set you need to modify them (for an unexpected order, for example) and there are still more than two months left for the enjoyment, keep in mind:
- Unilaterality: It acts in the same way as for the initial fixing of the holidays. That is, try to reach an agreement on the new dates of enjoyment. But if those affected do not accept, you can fix them unilaterally.
- Resource: You should keep in mind that workers will be able to challenge this decision. Our recommendation is to justifiably accredit economic and/ or productive causes that evidence that decision.
Less than two months in advance: If there are less than two months left before the start of the holidays,you can only implement the change in the dates if the workers accept it voluntarily.
eye! By law, companies are required to announce the dates of enjoyment of the holidays at least 2 months in advance (to be able to share them with the family, plan trips,… etc.). Therefore, a change in dates cannot be implemented unilaterally, even through a substantial modification of working conditions.
If you are faced with a similar case, you can contact our expert team in labor advice to help you solve any doubt.
