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Several specialized sources have discussed a recent judgment by the Supreme Court, issued on February 13, establishing the start date for paid leave. Based on that judgment, some of those sources state that leave for marriage, birth and death “will not be calculated for non-working days,” while other more cautious sources state that we are entering into a new phase in the interpretation of legislation in this area.
Throughout our working lives, many of us will benefit from some form of paid leave for different reasons: we get married, a family member is in hospital, a child is born. To take this leave, we will refer to the forms of paid leave established in article 37.3 of the Workers Statute or to the corresponding collective bargaining agreement. Whichever the case, we are faced with the same question: when to start calculating the leave (or legally speaking, when is the dies a quo)?
The Supreme Court resolves this question in relation to the state collective bargaining agreement for the contact center sector, particularly regarding the three forms of paid leave it regulates: for marriage, birth and death. The Supreme Court declares that these forms of paid leave will be calculated from the first working day following the relevant act.
There are several publications by trade union centers announcing their intention to extend that doctrine to all forms of paid leave. Given the potential impact of that judgment, certain questions, although not exhaustive, arise:
- What exactly does the Supreme Court conclude?
The Supreme Court concludes that when the relevant act leading to one of the forms of paid leave on which judgment was passed occurs on a non-working day for a worker in the contact center sector, the paid leave will start on the first following working day. In the case of workers providing services from Monday to Friday, if the birth takes place on a Saturday, the paid leave will start on the following Monday.
According to the judgment: (i) the concept of “paid leave” leads us to understand that the leave is granted to be benefited from on working days, as it would not be necessary to request it on a non-working day—because we do not work on a non-working day—; and (ii) a different interpretation would deprive workers of the leave or of some days of the leave in question when the relevant act occurs at the start of a number of consecutive public holidays, which is contrary to the spirit of article 37.3 of the Workers Statute and of collective bargaining rules.
- Based on this judgment, are we to interpret that where the collective bargaining agreement or article 37.3 of the Workers Statute states “calendar days,” we should read “working days”?
No. The Supreme Court only refers to the day on which the mentioned forms of paid leave should start to be benefited from. The paid leave should be benefited from on working days or calendar days, depending on the wording of the corresponding rule.
However, this interpretation would directly clash with the literal wording of article 37.3 of the Workers Statute and of article 28.1 of the Contact Center Collective Bargaining Agreement in their acknowledgment of a paid leave of two calendar weeks in the case of marriage. More questions could arise based on this judgment in cases in which the collective bargaining agreement does not specify whether calendar or working days should be considered; however, the Supreme Court limits the scope of this judgment on several occasions, making it clear that it is not its intention to reach such a broad conclusion in this case.
- Can this be directly extrapolated to other cases?
No. The judgment was issued in an ordinary appeal to the Supreme Court (not an appeal to the Supreme Court for the unification of doctrine) and, therefore, does not set precedent and does not directly bind our courts or employers or employees not belonging to the contact center sector. We must watch out for the next court rulings on this matter. Doubts are raised, for example, about what would happen if the relevant act happens during holidays or temporary incapacity periods.
The applicable collective bargaining agreement will be decisive but, given the potential conflict this matter could generate in companies’ day to day, it is recommendable to come to an agreement with the companies and to implement company policies that clarify and establish the terms of the paid leave.
This post is also available in: Español