Regulation and remuneration problems relating to holidays in Spain
By Raquel Buendía, Dr. Frühbeck Abogados, S.L.P.
Every worker has the constitutionally granted right to take regular annual holidays. Spanish labour legislation provides that every employed worker has a period of annual paid leave of not less than 30 calendar days which can be improved in the collective agreement.
This is an overriding, unwavering and essential principle of European Community law aiming to protect the safety and health of workers.
Agreements, both individual and collective, as well as any unilateral decision, implying the replacement or substitution of paid leave in exchange for money are null and void. Exceptionally, case law has accepted a compensation payment in the event that the worker cannot enjoy this right in natura for reasons beyond his/her control and the employment relationship has been terminated.
Spanish legislation establishes that during the holidays the worker must perceive a normal or average remuneration.
The Spanish High Court considers, based on criteria of regularity and dependency, that the leave payment must include those salary items related to the normal and regular work performance (seniority, night work, monthly sales commission, etc. excluding extraordinary items such as incentives, allowances, etc.).
In order to determine holiday pay, it is necessary to analyse all salary items taking into account covenants, the collective agreement, or alternatively, the International Labour Organization (ILO) conventions, all this in combination with judicial interpretation.
Raquel BuendíaDr. Frühbeck Abogados, S.L.P., Barcelona, Spain
T: +34 93 254 10 70
Raquel Buendía is the manager of the international law firm Dr. Frühbeck Abogados, S.L.P. in the Barcelona branch office. She holds an extensive experience in labour, corporate, civil and family law as well as in international comparative law.
Dr. Frühbeck Abogados, founded in 1952 by Dr Guillermo Frühbeck, was a pioneer in consultancy and conducive to the internationalisation of the markets. The term “international” is at the heart of their daily work and has been the core of their business philosophy for more than 60 years.
Published: October 2016 l Photo: Colourbox.de