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On January 18, 2018, the Labor Division of the Supreme Court (“SC”) issued a noteworthy judgment (no. 29/2018) on calculating the seniority of workers with permanent intermittent employment contracts (“PIECs”). The ruling’s doctrine was repeated later in judgment of March 1, 2018 (no. 242/2018) in a considerably similar case involving the same senior judge. The first of the judgments deals with a case of six workers with PIECs that had been carrying out support work for the Spanish Tax Agency (“AEAT”), helping taxpayers during the tax return campaigns.
The dispute arose over the impossibility for the affected workers to access (i) a financial promotion based on the system involving a monthly bonus for each three-year period worked with the same employer, and (ii) the internal professional promotion for civil servants and non-permanent workers, given that they did not meet the requirement of providing effective services during at least two years.
The court of first instance, Labor Court No. 3 of Gijón, upheld the workers’ complaint, considering that the entire labor relationship (starting in 2007 for one worker and in 2009 for the other workers) must be considered when establishing the date for acquisition by the workers’ of the rights to the financial and professional promotions.
AEAT filed an appeal, and the Labor Division of the High Court of Justice of Asturias partially upheld it, confirming the right of the workers with PIECs to the financial promotion but revoking their right to the professional promotion.
The matter was referred to the SC which ruled that none of the promotion rights should be recognized for the workers with PIECs, given that the workers’ seniority should be calculated based on the services effectively provided as established in article 67 of the collective bargaining agreement for AEAT’s workers with employment contracts (section on seniority).
In this way, and according to the literal transcription of the collective bargaining rules, monthly bonuses for each three-year period worked with the same employers are calculated once three years of effective service provision are reached; this interpretation adapts to “the original meaning of a seniority award, whose purpose is to award the worker’s greater permanence in the company with the greater experience acquired with the employment stability, as well as the loyalty implied by not changing company and taking the acquired knowledge to the other company.”
Regarding the professional promotion, the SC upholds the interpretation by the High Court of Justice of Asturias revoking the right to the professional promotion, understanding that seniority is calculated as effectively provided services, in that the access to certain positions is based on the greater professional skills acquired through the greater amount of time spent working.
Therefore, and unless the applicable collective bargaining agreement contains wording contrary to that mentioned (even more so if the wording is the same as that of AEAT’s collective bargaining agreement), it is reasonable to understand that the number of days effectively worked by workers with PIECs must be considered for salary and professional purposes, a factor that highlights the complexity of the concept of seniority. As mentioned, this doctrine was repeated by the SC and the same senior judge on March 1 this year, in a considerably similar case in which a worker with a PIEC challenged the AEAT.
This judgment includes a ruling that is relevant when drafting and interpreting collective bargaining rules, particularly considering the large number of workers with PIECs in the Spanish labor market, mainly in hotel trade and agriculture.
Finally, we want to draw the reader’s attention to the possible contradiction between this case law and the SC’s interpretation in its judgment of June 11, 2014. That judgment was on a very similar case to those mentioned in this article and it interpreted article 37 of the collective bargaining agreement for permanent workers in the autonomous region of Madrid (which also talks about “effective services” for the consideration of the monthly bonus for each three-year period worked with the same employer), considering that, in the case in question, the “contractual relationship with the employer is valid from its start date, regardless of the distribution in time of the service provision based on the calls for the service by the company.” In any case, the SC has denied the existence of opposing legal criteria in the two cases on several occasions, focusing on the lack of identity of both cases that make it impossible to resolve on the merits of the case.
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