Can the accrual system of extraordinary payments be changed?

The Supreme Court indicates that in cases of succession of companies, the acquiring company may impose an annual accrual system of extraordinary payments, instead of the semi-annual that had been applied in the acquired company. However, if an agreement is reached with the representation of the workers who cannot be pejoratively affected by the change in the system, they must be financially compensated in the amount not received in annual calculation.

After acquiring a company in which the sector’s collective agreement had been applied, the purchaser reached an agreement with the representation of the workers to homogenize the conditions of the workers. By virtue of this agreement, as of 1-8-2017, all workers, subrogated or not, become governed by the collective agreement in force in the acquiring company, with the safeguard that the subrogated may not be pejoratively affected by the level gross remuneration that, globally considered, they enjoyed at the time of the transfer of the company. The application of the new agreement supposes, among other issues, the implementation of an annual accrual system of the extraordinary payments, instead of the six-monthly that the subrogated workers had been enjoying. This led the surrogate workers not to collect the full extra Christmas pay, since they received it in the amount of 5/12 of the monthly salary instead of 5/6 of it. For this reason, the union representation files a collective dispute claim requesting that the modification made in the form of calculation of the extraordinary pay be declared null and void and that the company be ordered to pay the part of the extra pay that it has missed.

The TSJ Asturias despite declaring the validity of the homogenization pact, condemns the company to pay the workers the amount that, in annual computation, they will cease to receive as a result of the change in the system. The company appeals in cassation.

The question that arises is not the legality of the annual or semi-annual systems of accrual of the extra pay, which the Supreme Court considers to be in accordance with the law, but the way in which the company has carried out the transition system from one system to another. calculation, which affected the first extraordinary payment paid after the collective agreement.

The Supreme Court analyzes the issue taking into account the general guarantee of remuneration level contained in the homogenization agreement, under which the change in the collective agreement could not pejoratively affect the remuneration level that the subrogated workers had been enjoying at the time of transfer of the company. In short, the company was obliged to maintain the remuneration level as a whole. From this perspective, it considers it proven that the extraordinary pay in December 2017 was of a lower amount and that, therefore, in said annuity, there was a reduction in remuneration. In addition, it considers that there is no justification for the decrease operated since all the affected workers had completed the period of accrual of the extra pay – both semi-annually and annually – and completed the annuity at the time the extraordinary pay of December 2017.