Can personal days be compensated for by holidays?
The case
A case arises in which, after the merger of two companies, the integration of both workforces takes place by applying the collective agreement for engineering companies and technical studies offices, which establishes a total of 23 working days of paid annual leave.
As some of the workers only receive 22 working days’ holiday, one of the trade union representatives asked the company to grant all workers a minimum of 23 days’ holiday.
The company replies that the workers concerned have 28 days off:
- 22 working days’ holiday and
- 6 days for own affairs.
It is considered that the requested increase is not appropriate because of the application of the absorption and compensation clause.
The workers’ representativesconsidered that the own business days were paid leave, the nature of which was different from that of holidays, and therefore there was no need to compensate for them, and brought an action for collective conflict.
To resolve the appeal
The Supreme Court recalls that with regard to the requirement of homogeneity between the working conditions to be compensated or absorbed, it has stated that this must be in accordance with the terms, manner and extent in which the conditions have been agreed, especially if it does not imply having a necessary right or one of those recognised as indispensable by the collective agreement.
It has also considered that for compensation to take place, it is not essential for there to be strict homogeneity, but that the neutralisation of conditions can also operate between generic concepts.
The collective agreement
It provides for the absorption and compensation as a whole and on an annual basis of all the conditions established therein, whether or not they are of a wage nature, and they can be compensated and absorbed as a whole and on an annual basis with the improvements of any kind that were previously paid by the companies.
Likewise, with regard to holidays, it establishes that when companies that have established more favourable conditions may apply the previously established compensation and absorption provisions.
Contrary to the judgment of the Audiencia Nacional
These are paid days which the worker can take and which do not require any motivation or justification of any kind; they are days off which the worker can devote to rest and to whatever he or she wishes, just like holidays.
Furthermore, the collective agreement does not appear to have established any limitations in regulating the possibility of compensatory leave. On the contrary, it has expressly included the possibility that the 23 working days of holidays may be compensated with improvements already enjoyed by the workers affected by the conflict, including the enjoyment of 6 paid and non-recoverable days by unilateral decision of the worker.
In conclusion
The appeal is upheld, annulling the judgement handed down by the Social Division of the Audiencia Nacional and declaring that it is possible to compensate for these own business days up to the legal limit of 30 calendar days of holiday, which means 22 working days.
If you have any doubts regarding this issue, please do not hesitate to contact us, by telephone to Úrsula Olivares Lamela or by e-mail to uol@btsasociados.com, we will be delighted to help you.