We will ask whether the payment could be prorated vacation for the duration of the employment contract, in cases of temporary employment contracts concluded by shorter than the year in which it is expected that the period of work activity will not coincide with the period of annual holiday enjoyment.
In general, we note that paid leave is a right provided for in Article 38 of the Statute of Workers (hereinafter ET), in implementing Article 40 of the Constitution. The statutory provision states:
"1. The period of paid annual leave, not be replaced by financial compensation will be agreed in the collective agreement or individual contract. In no case shall be less than thirty calendar days.
2. The period or periods during which enjoyment is fixed by agreement between employer and employee, in accordance with the provisions of applicable collective agreements in the annual planning vacations.
In case of disagreement between the parties, the competent court shall set the date of the leave allocated and its decision shall be final. The procedure shall be summary and preferred.
3. The holiday schedule is set for each company. The worker should know the dates that correspond to two months earlier, at least the first entitlement.
When the period of leave set out in the holiday calendar of the company referred to above coincides in time with a disability time resulting from pregnancy, childbirth or breast feeding or the period of suspension of employment contract under Article 48.4 of this law, entitled to enjoy the holidays in far different from the temporary disability or enjoyment that permit application of that provision applies, when the period of suspension, but have completed the corresponding calendar year.
This legal regulation is that annual leave is a right of workers not being possible to replaced by financial compensation, unless the termination of the employment relationship have not enjoyed these.
To interpret the brief regulation of ET holiday, we must turn to supranational or Community provisions. Within international holidays are regulated by ILO Convention No 132. In this arrangement there are two provisions that will allow us to be taken into consideration to argue for a solution to the question. In Article 4 of Convention No 132 provides that in the case of services less than a year the holiday will be entitled to a period proportional to the period worked. On the other hand, Article 11, for the case of termination of the employment relationship without enjoying the holidays, provided that the worker shall be entitled to
"a compensation or equivalent holiday credit. "Within the Community law.
the European Community law, Article 7.2 of Directive 2003/88/EC of November 4, states that" the minimum period of paid annual leave may not be replaced by financial compensation, except in case of termination of the employment relationship. "
Thus the general rule is the right to really enjoy the holiday, on duty necessary, fitting only your arrival compensation where the termination of the labor, have not been able to enjoy. Consequence of this allowance in lieu of leave not enjoyed the termination of the employment relationship is that the post of leave, which must be stated on the certificate of business, is an equivalent situation in
Social Security (Article 125 of the General Safety Law Social-forward LGSS-), old-fashioned that the legal status of desempleoy the birth of entitlement to benefits will occur after such period. Period of leave, which is to be subject to Social Security contributions by an additional assessment for the month of termination of contract (Article 109 of the General Social Security Law), which will include additional assessment day
duration of the leave accrued but not taken, even if it also achieved the following calendar month or start a new relationship work for the same, established as an exception, holidays not listed shall be prorated for the period of delivery services when, by law or in pursuance of this, it is established that worker's compensation should include, along with the salary, the proportion for accrued vacation (article 109 of the LGSS
).
With regard to the apportionment of holiday pay during the term of employment, our legislature contemplated two specific cases of assessment. On the one hand, on temporary contracts lasting less than one hundred twenty days, and secondly, in determining the mode of calculating remuneration of workers employed by a company mission Temp.
First, Article 4.1 of Royal Decree 1795/2010 of 30 December on the fixation of minimum wage for 2011, indicated that the amount of the minimum wage, casual and temporary contracts for temporary inferior services to one hundred twenty days in the company, must include the share of rental, there is always
coincidence between the dates for the holidays and the period of performance of work.
Secondly, Article 11.1 of Law 14/1994 of June 1, as amended by Law 35/2010 of 17 September, states that the remuneration of workers in firms mission temporary work must include the proportional part of the holiday.
In both cases we are dealing with workers that there is no overlap between the period of holiday enjoyment and time of the contract, so that is contemplated or authorizing the apportionment of remuneration for legal holidays.
Thus, these provisions could defend the possibility of apportionment of the amount of leave during the period of validity of temporal contrast, if the working period will not coincide with the period fixed for the enjoyment of the holidays.
The Supreme Court ruling of April 30, 1994 held that the apportionment of leave during the period worked in construction contracts or service lasting between six and eight months, does not contravene Article 38 of ET saying " the proportion of leave not to be understood as a compensation to the waiver of the right
vacate [which does not allow the first paragraph of that provision, nor the ILO Convention 132, also invoked], then, given the retributive nature of the rental period vacacional.la proportion in the case of contracts below the year is not only a form of advance payment of the same. "
Thus, we may conclude by noting that the proportion of pay for holidays annual leave would be admissible in the case of less than one year, where it is reasonably foresees the impossibility of real enjoyment. This was also the reply in writing on June 18, 2009 by the Directorate General of Labour in consultation raised.
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