When this time of year arrives, it is common to see increased consultations on vacations, their fixation, duration and enjoyment. In this article we will address the basic issues in this area and the main problems with which we find ourselves.
First, we must bear in mind that art. 40.2 of the Spanish Constitution collects the right to the workers to a "periodic holidays remunerated".
Likewise, we will look at the forecast contained in art. 38 of the Workers' Statute, which regulates annual leave, and Convention No.132 ILO, adopted the 24 of June of 1970, on paid annual leave. This ILO Convention has been and is customary consultation and referral to the lack of a more specific regulation in our Statute, setting the jurisprudence in the same to resolve different disputes.
One of the main issues that we must keep in mind is that the agreements that substitute vacations for a sum of money are null.
In other words, the worker must enjoy the vacation time provided for in the Collective Agreement that is applicable to him or in his absence, in the Statute of Workers, being an inalienable and unavailable right. It is only possible to be replaced by economic compensation when the contract expires before its enjoyment, being entitled to collect the days of leave that remain pending. Equally and consequently, it is prohibited the discount of any permits that would have been granted to the worker during the year.
Another relevant aspect is the duration of the holidays, which can not be in any case less than 30 natural days, and can be extended by the Collective Agreement that is applicable to the company and, if applicable, by the employment contract.
However, it should be noted that if the worker does not provide his services during the whole year, he will only enjoy the proportion proportional to the time worked. To calculate this proportional time, 2.5 days of vacations are usually spoken for each month worked, since it is the fraction that corresponds to one month worked if one is entitled to 30 natural days of annual vacations.
Likewise, we must not forget that there will be other assumptions or situations in which the company can reduce the length of vacation to the worker, being those in which the contract of employment is suspended, either: (i) by mutual agreement between the Parts; (Ii) by a regulatory file of temporary employment of suspension; (Iii) on leave of absence; (Iv) by application of a disciplinary sanction of suspension of employment and salary. Likewise, the vacation time will be reduced by the unjustified absences of the worker during the year. However, there will be other cases of suspension of the contract or absences of the worker that will not allow to reduce the duration of the vacations, such as situations of temporary incapacity, maternity or paternity, or paid leave.
More than the duration of the holidays, what creates a greater conflict in practice is the date of its enjoyment, since the Workers' Statute is limited to indicating that it must be fixed by mutual agreement between the employer and the worker, following, where appropriate, the provisions set forth in the Collective Agreement applicable. The problem arises if the Collective Agreement does not establish any provision, since the date of enjoyment is subject to the existence of agreement between the parties, deriving the Statute itself otherwise, to the competent jurisdiction for its claim.
In any case, we must keep in mind that in each company will be set the corresponding work and vacation schedule, and must be known by the worker at least two months before the start of their enjoyment.
Equally conflicting are the questions as to whether holidays should be counted as holiday days or not. Before this, we must indicate that if the holiday period is in natural days it will comprise as many holidays as the non-festive ones.
Special consideration should be given to the Inability Temporary (IT) of a worker and the enjoyment of his vacation. Thus, if the vacation coincides with an IT derived from pregnancy, childbirth or breastfeeding or a period of suspension of the contract due to childbirth, premature birth, adoption, foster care or paternity, the worker will have the right to enjoy vacations as of Other than IT or to the enjoyment of the permit even though the calendar year to which they correspond has ended. Likewise, in the event that they coincide with an IT for contingencies other than those indicated above and that make it impossible for the worker to enjoy them in the year that corresponds to them, the latter can perform once the IT situation ends and as long as there are no more than 18 Months from the end of the year in which they originated.
There are also recurring doubts about the splitting of holidays or enjoyment in different periods. In this sense, and in the absence of provision in the Collective Bargaining Agreement, we recommend that you go to Convention No.132 ILO, which states that one of the fractions will be at least two uninterrupted working weeks. This means that the worker has the right to enjoy annual leave in two periods.
Finally, if there is no possibility of agreement between company and worker, arts. 125 and 126 of the Social Jurisdiction Regulatory Law provide for a special and urgent process for disputes arising with respect to the date of enjoyment of the holiday, being able to present individually or collectively and establishing two types of terms depending on whether the date of vacation Is not needed.
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