Labor Law Newsletter - May 2022

Accrual and holiday pay

The amount of holidays taken in advance without having accrued them cannot be deducted from the severance payment. Judgment of the Superior Court of Justice of Santa Cruz de Tenerife of July 20, 2021, Rec. 297/2021.

There are two legal reasons: (i) no maximum holiday period has been legally established, as opposed to the minimum legal limit, and (ii) such early holiday has been taken by "voluntary" concession of the company.

Therefore, it would be advisable either not to grant the possibility of early enjoyment, or to establish by agreement the possibility of deducting the days of salary of those holidays enjoyed in the event of termination of the contract prior to full accrual (as occurs in cases of not granting the notice provided for in the collective agreement in the event of resignation).

Calculation of the SMI (Minimum Interprofessional Wage) 

The amount of the three-year salary is included in the calculation basis of the Minimum Interprofessional Wage (SMI). Judgment of the Supreme Court of January 26, 2022, Rec. 89/2020 and April 1, 2022. Rec. 60/2020.

The calculation basis is comprised of: (i) the specific salary for the level (base salary), (ii) the accrued three-year salary and/or seniority supplement, (iii) the standard bonus and benefits payment.

Transportation bonus and travel expenses are not included because they are non-wage.

If the resulting amount is less than the established SMI, it must be supplemented until the amount is reached.

For the year 2022, an SMI has been set at 33.33 euros/day or 1,000 euros/month to be paid in 14 payments, on a full-time basis.

ERTE vs. ERE

It is not possible to individually dispute an ERTE if it has ended with an agreement. Judgment of the Supreme Court of November 18, 2021, Rec. 157/2021.

If an ERTE ends with an agreement, an employee, in an individual dispute, cannot question the existence of the cause, since its concurrence is presumed.

On the contrary, in collective dismissals, it is admissible to discuss its existence in the individual process, given that the legislator has not expressly included this presumption in the regulations (STC July 12, 2021, Rec. 5508/2021).

As a result, litigation and legal uncertainty will increase due to the lack of a homogeneous response (contradictory judgments issued by different courts).

Collective bargaining

The parties may freely agree on the collective bargaining agreement to be applied when there is no agreement in which to subsume the main activity of the company. Judgment of the Supreme Court of January 25, 2022, Rec. 1565/2020.

When the company's activities can be subsumed under several collective bargaining agreements, the one that corresponds to the company's predominant activity must be applied.

However, if there is no agreement that fits the main activity of the company, the parties are free to agree on the agreed standard that will be applicable to them in the negotiating vacuum.

Hence the importance of determining which is the main activity and which is the secondary or ancillary activity in companies that carry out different activities.

Dismissal of employees' representatives

Right of option in the unfair dismissal of an alternate member of the Works Committee due to the resignation of a regular member. Judgment of the Supreme Court of March 15, 2022, Rec. 1816/2019.

The acquisition of the status of member of the Works Committee is automatic, once the previous representative has been removed, without the need for any further requirement.

Upon the dismissal of the alternate (after the resignation of the representative), and when this is deemed to be unjustified, the right of option in favor of the new representative corresponds, even if this circumstance was not known or notified to the company, since it is not a legal or regulatory requirement to accede to the position of representative.

Working time

The right of residents to a rest of 36 hours, or 72 hours in a period of 14 days, and not just 24 hours, when 24-hour shifts are performed on a Saturday or on the eve of a public holiday. Judgment of the Supreme Court of March 30, 2022, Rec. 63/2020.

In the absence of legal regulation of weekly rest and public holidays for this group of MIRs, the WS must be applied in a supplementary manner, which guarantees: (i) an uninterrupted weekly rest of one and a half days - accumulable up to 14 days - without allowing this rest to be transferred to days after Saturday or public holidays, and (ii) the enjoyment of 14 public holidays per year.

It is not possible to justify a reduction in rest, neither in the concurrence of a health emergency that has not been proven, nor in the training.