If the collective agreement requires that the period of enjoyment of the vacation be determined in agreement with the workers’ representation, the fact that this does not exist, does not oblige the company to negotiate each shift and date of vacation individually; rather, the holiday schedule set by the company and with which the majority of workers express their agreement is valid.
As in previous years, a company sets the holiday calendar for year X establishing a system under which each worker is assigned the period of vacation that corresponds to him, in tranches of 10 calendar days, to enjoy in the months established in the quadrant prepared for that purpose.
Of the 43 workers who make up the company, 34 sign a document individually stating their agreement with the method chosen. However, the trade union section, presents a action for a collective dispute requesting that the company’s decision to fix the annual holiday calendar be declared null and void, and the right of each of the workers to fix, in agreement with the company, the shifts and dates for the annual leave must be declared. In the face of the dismissive judgment of the Madrid High Court of Justice, the trade union section appeals in cassation.
The Supreme Court recalls the statutory rule that establishes that the period of enjoyment of holidays must be fixed by common agreement between employer and worker in accordance, where appropriate, with the provisions of the collective agreement (Workers’ Statute art.38.2). The vacation schedule must be fixed in each company, and the worker must know the dates that correspond to him two months before, at least, the beginning of the enjoyment (Workers’ Statute art.38). For its part, the collective agreement State security companies applicable in the company, provides that a rotating shift of enjoyment of the holidays will be established to be determined in agreement between the Companies and the Committee of Companies or Personnel Delegates, having to fix the table of vacations in advance of two months to the beginning of the annual vacation period (art.57.3).
A distinction must therefore be made between the period of benefit from the leave which corresponds to each worker and in respect of which the company must reach an agreement with the individual worker (ET art.38), unless the collective agreement provides otherwise, and the elaboration of the holiday calendar that each company must set, where no agreement is required.
With regard to the holiday schedule, the Supreme Court considers that the collective agreement has not been violated since, although the collective agreement requires agreement with the workers’ representation, this does not exist in the company, and it is not obliged to adopt other measures for the configuration of shifts. What the collective agreement requires is that the configuration of the rotating vacation shifts be consensual, and in the case analyzed it is. The fact that 80% of the workers have signed a document in which they express their agreement with the holiday calendar is an appropriate channel to record that the company has obtained their agreement, without having to obtain the agreement through other channels since article 38 of the Workers’ Statute only goes to the individualized agreement when there is no representation of the workers.
Considering that the company has complied with the conditions of the collective agreement, the Supreme Court dismisses the appeal in cassation and confirms the validity of the contested holiday schedule.
Enjoy the holidays
To be a little clearer about how workers’ holidays should be set and other aspects that you should take into account about this calendar, we detail below some characteristics:
- The one agreed in the contract or collective agreement. (*)
- minimum: 30 calendar days/year.
*Same number of days for part-time work or reduction of working hours.
IF IT ACCRUES
- Effective work;
- Temporary Disability;
- Processing of proceedings for dismissal, if it is inadmissible or null and void;
- Legal strike.
DO NOT ACCRUE
- unjustified absences from work,
- illegal strike.
- By common agreement between the employer and the worker, or by the employer, in accordance with the provisions of the applicable collective agreement.
- Collective bargaining may agree to the compulsory participation of workers’ representatives (Tribunal Superior de Justicia de Castilla-La Mancha 15-9-09); but if this does not exist, the annual leave calendar set by the company and accepted by 80% of the workforce is not null and void (Supreme Court 16-10-19).
- The company may not unilaterally exclude from the holidayperiodthat which coincides with the largest seasonal productive activity of the company when this power has been transferred to collective bargaining (Tribunal Superior de Justicia de Galicia 21-6-19). But you can negotiate with the works council (Supreme Court 24-11-15).
- The unilateral adoption by the worker of the date of taking leave is grounds for dismissal.
- If there is disagreement: special procedure in the social jurisdiction;
- publication of the holiday calendar at least 2 months before its start.
- On the date fixed, within the calendar year;
- on another date, even outside the calendar year, if they match:
- Temporary Disability: limit 18 months following the end of the year;
- Disability arising from pregnancy, childbirth or breastfeeding;
- maternity or paternity leave.
- not substitutable for remuneration (*).
* Exception: termination of the contract without exhausting the holidays, and eventual or seasonal contract.
Each year a company closes three weeks in August. If this year you have to answer an order and open those weeks, how should this situation be handled?
Employees are entitled to 30 days of natural leave each year, unless the agreement extends its duration. For this purpose:
- The period of entitlement must be fixed in agreement with the workers. If there is no agreement, the company may fix it unilaterally (but those affected could complain to the courts through a special and urgent procedure).
- Once the vacation is fixed, employees must know the dates of enjoyment at least two months before its start (or the term set by the agreement).
If once the holidays are fixed you have to modify them (for an unexpected order, for example), and there are still more than two months left for the enjoyment, you must take into account:
- Unilateral: It acts in the same way as for the initial fixation of the holiday. That is, try to agree on the new dates of enjoyment.
- Resource: It is true that the workers could challenge that decision. Therefore, it proves to prove the economic or productive causes that justify this decision. Furthermore, the fact that in previous years the holidays have been taken during the same period of time is not considered a more beneficial condition, so that workers will not be able to claim in their favour that they have always enjoyed them in the same period.
> Less than two months
If there are less than two months left before the start of the holidays, the change can only be implemented if the workers accept it voluntarily. This is because the law requires that they know the dates of enjoyment two months in advance (to be able to share them with the family, plan trips … etc.). Therefore, you will not be able to implement the change unilaterally, not even through a substantial modification of working conditions.
If there are still more than two months to go before the start of the holiday, explain your reasons and try to reach an agreement.
If you have any questions or need any clarification about these action plans, you can contact
any of our advisors so that we can help you resolve them.