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Many collective bargaining agreements award two, three or more days’ paid leave for the birth of a child, which can be extended when travel is required. The Supreme Court’s Labor Chamber has recently cleared up any doubts regarding the right to this leave in Judgment 98/2021, of January 27 (App. 188/2019).
This leave was initially conceived as paid paternity leave, to allow new fathers to accompany the mother and be present at this personal time. It was included among the various types of paid leave under section 37.3 of the Spanish Workers Statute (Estatuto de los Trabajadores) at a time when only the mother was entitled to sixteen weeks’ maternity leave, as well as the corresponding social security allowance. Many collective bargaining agreements incorporated and even exceeded that statutory leave and maintain it today, despite the fact that, on March 8, 2019, it was removed from the Workers Statute by Royal Decree Law 6/2019, on urgent measures to guarantee equal treatment and opportunities between men and women in employment and occupation. Removing that paternity leave, which fell short of the current aim of ensuring both parents share responsibility for caring for their newborn child, from the Workers Statute was inevitable as it was left devoid of purpose once both parents were granted the right to suspend their employment contract due to the birth of a child (and to social security coverage) for the same duration from January 1, 2021.
The lingering doubt, after removing this leave from the Workers Statute and aligning the position of both parents, is whether companies are still required to grant this leave when it remains in the applicable collective bargaining agreement.
Some lower court rulings had offered differing positions. For example, judgments of High Courts of Justice of the Basque Country, of July 16, 2019 (App. 16/2019) or the Valencian Region, of April 21, 2020 (App. 367/2020) considered the provision on leave for birth of a child tacitly repealed or at least lacking any legal effect and unenforceable for workers, as exercising it (from the birth) would overlap or coincide with the legally envisaged contract suspension.
However, in its judgments of November 29, 2019 (no. 140/2019), March 5, 2020 (Proc. 278/2019) and February 21, 2020 (Proc. 275/2019), the Labor Chamber of the Central Criminal and Administrative Court had ruled that the leave established in the collective bargaining agreement is not automatically eliminated as a result of Royal Decree Law 6/2019 repealing the paid leave envisaged in section 37.3 b) of the Workers Statute, since its regulation remains in force in the agreement, which is a source of law. In the Central Criminal and Administrative Court’s opinion, both rights (legal suspension and paid leave under collective bargaining agreements) must be exercised in full, and the leave regulated in the agreement, whose purpose remains valid, cannot be eliminated. It states that there was nothing to prevent it being taken after the suspension, as the agreement does not establish that the leave must be taken at a specific time. Based on this position, the concept of birth was not limited to the birth date but would extend for the first twelve months of the child’s life.
The Supreme Court has finally had the opportunity to state its position. Specifically, in its Judgment of January 27, 2021 (App. 188/2019), the Chamber clarified what happens to the additional leave envisaged in the collective bargaining agreement, in view of the legally established leave, after it was removed from section 37.3 of the Workers Statute under Royal Decree Law 6/2019.
The case in question analyzed the additional leave for birth of a child recognized in article 30 of the collective bargaining agreement of the Public Company Eusko Trenbideak/Ferrocarriles Vascos, S.A. for 2017-2020 (Official Gazette of the Basque Country of November 28, 2018). The final paragraph of this precept established that: “(…) As well as the legally established leave, [the father] will have 3 calendar days from the birth date.”
The appeals in cassation filed by the trade unions UGT, CCOO and ELA requested the maintenance of this additional leave after the two-day legal leave was eliminated by Royal Decree Law 6/2019, of 1 March, understanding that the expression “from the birth date” used by the collective bargaining agreement could be interpreted as allowing the additional leave to be taken after the employment contract suspension period has ended.
The Court dismissed the trade unions’ appeal on the following grounds:
- First, if the unions’ position were upheld, the parent who is not the biological mother would be granted an even longer period off work than they would be entitled to had they undergone the biological process of pregnancy and labor. This would clearly be contrary to the aim — the equal distribution of the newborn’s care — of a rule that establishes identical leave for both parents.
- The second reason is that the legislator deliberately removed this paternity leave to replace it with a single leave period equal to that of the biological mother (sixteen weeks, of which the six immediately following the birth are mandatory) to ensure that the newborn’s care is shared equally. The Court therefore believes that the leave under the collective bargaining agreement cannot exist if the legal leave, which underpins its validity, has ceased to exist.
- Finally, and from a more practical perspective, the Court offers a more categorical argument regarding the applicability of the leave under the collective bargaining agreement, based on the moment each right must be exercised. On this point, the Court considers that the phrase “from the birth date” in the collective bargaining agreement must be interpreted as the date on which the child is born, and so it is not compatible with the contract suspension period envisaged in the Workers Statute, which is also granted (its first six weeks) for the period immediately following the birth of the child. Therefore, in the words of the Supreme Court, the leave under the collective bargaining agreement is not compatible and cannot be reconciled with the provisions on the start of the employment contract suspension due to birth of a child. The Judgment also adds that, in its initial configuration, the paternity contract suspension commences at the end of the paid leave recognized under law or in the collective bargaining agreement, such that “the paid leave is first and the contract suspension comes after and not the other way around.”
In conclusion, according to the Supreme Court, in view of the current configuration, the provision on the leave for birth of children under the collective bargaining agreement becomes inapplicable based on the legislative amendment on the suspension of the contract for the same reason and, as the Court states in the last lines of the Judgment, the leave due to birth of a child has lost the purpose and scope that was at its origin; if you wish, its “meaning and usefulness.”
Although it is a single ruling of the Supreme Court, which does not constitute an established position, the Chamber has made its stance on this point very clear, allowing many companies to address current requests for this leave with greater legal certainty, and guiding those negotiating collective bargaining agreements in the regulation of these types of leave.
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