As a reminder and given the beginning today of the longest vacation period of the entire year, we detail a summary of the main characteristics of this workers' right.
Application of the right to vacation
The right to periodic paid vacations is a constitutionally recognized right for workers. Similarly, article 38 of the ET recognizes employed workers' right to a period of annual leave, at the expense of the employer, which can be improved by collective bargaining or the individual contract itself.
Rights and obligations of workers and employers in relation to vacations
Agreements, whether individual or collective, and any unilateral decision that involves the replacement of vacations for an amount of money are void.
For workers, the right to vacation is inalienable and unavailable and, in principle, cannot be replaced by economic compensation (except in cases of termination of the employment relationship).
The employer is obliged to grant vacations within the year. Jurisprudence has established that vacations must be enjoyed within the year to which they correspond. Therefore, unless otherwise agreed, it is prohibited to accumulate the periods in successive years or transfer them beyond the calendar year.
Duration and setting of workers' vacations
The ET establishes that the duration of the vacation can in no case be less than 30 calendar days. The applicable collective agreements or individual workers' contracts may establish a greater number of vacation days.
In the cases of workers who provide their services for a period of less than a year, they obviously have the right to the proportional part of vacations.
Vacations must be set by mutual agreement between the company and the workers, always in accordance with what is established, where applicable, in the collective agreements on annual vacation planning. Now, there is a part that the company can establish for all or part of the workers depending on their production or the needs of the activity they carry out.
The first day of vacation cannot be a holiday or non-working day. If the first day falls on a Sunday, it should not be counted because that day is a rest day already earned by the workers for the activity carried out during the preceding week, thus overlapping the weekly rest with the vacation on the same day.
Holiday calendar
Annually, all companies must establish a vacation calendar, at least two months before starting to enjoy them.
In case of disagreement between the parties, they will have to go to the Social Court to set the date of enjoyment. The procedure will be summary and preferential and there is no appeal against the sentence. And it cannot be used to resolve disputes over the duration or number of days of vacation rest.
Calculation of the vacation period of workers
The vacation period is accrued for the effective provision of services and can be enjoyed proportionally to the time worked, without waiting for the year to pass. Periods of absence from work for reasons not attributable to the worker's will, such as illness, accident or maternity, must be counted as part of the period of service.
The calculation of the accrued period is normally done considering that if the complete vacation period is 30 calendar days per year of service, 2.5 days of vacation corresponds to each month.
Incidents during the holidays
Labor regulations allow postponing the vacation period in the following cases:
1.-When the vacation period set in the company's vacation calendar coincides with:
- A leave due to temporary disability (TI) resulting from pregnancy, childbirth or breastfeeding.
- With suspensions of the employment relationship due to maternity and paternity leave.
The worker has the right to enjoy vacation on an alternative date at the end of the suspension period even if the calendar year to which it corresponds has ended.
2, Regarding the rest of the IT situations, coinciding totally or partially with the vacation, it being irrelevant whether the IT begins before or during them, the worker can enjoy his vacation once his disability ends as long as no more than 18 months have elapsed. from the end of the year in which they originated.
Vacation compensation
As a general rule, it must be established that compensation during vacations corresponds to the salary that the worker receives during his or her regular work day.
In this regard, collective agreements must specify or specify the calculation factors for vacation pay. In this sense, the agreement may deviate from the general rule and list the remuneration concepts to be taken into account.
Again on these dates, close to the enjoyment of the well-deserved vacation period, the Supreme Court has issued two rulings, which resolve two appeals, on the remuneration of the vacation period, while interpreting the international regulations contained in article 7.1 of the ILO Convention 132 and article 7 of Directive 2003/88, on the matter and taking into account that the CJEU has already ruled in two rulings (case C-539/12 “Lock” and C-118/13 “Bollacke” ) establishing a doctrine that must be observed by national judges and courts.
In these two rulings, numbers 496/2016 and 497/2016, both dated June 8, Chamber IV of the TS establishes that both those concepts that are charged on a monthly and fixed basis and those others that, although variable, are received habitually, would form the ordinary remuneration that must be taken into account for the payment of the vacation period, while other payments of an extraordinary nature, such as an annual salary bonus, should not be paid on vacation.
Vacation payment time
Collective agreements must establish the time at which vacation pay must be paid. In the absence of regulation, it is established that the corresponding cash remuneration is paid before the start of the vacation and the remuneration in kind, if any, must be paid as usual or adequately compensated.
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