Post by account_disabled on Mar 7, 2024 0:34:43 GMT -5
The National Court recognizes the right to generate vacations for workers who are in a situation of contract suspension due to temporary disability (TI), risk due to pregnancy, maternity or paternity that coincides with the period of an ERTE. The Court has upheld the lawsuit filed by USO against Ferrovial Servicios in defense of the right to vacations of workers affected by the situation caused by Covid-19. USO filed a collective dispute lawsuit to recognize the accrual of vacations in periods of contract suspension due to IT, risk due to pregnancy, maternity or paternity, regardless of whether the workers were affected or disaffected by an ERTE. The ruling is relevant since when both contract suspensions overlap, the National Court declares the primacy of the situations of IT, risk due to pregnancy and maternity or paternity , which do generate the right to vacation, over the situation of the ERTE in which the worker stops generating vacation days for the duration of the temporary employment regulation file. CJEU and the right to vacations On the other hand, the Court of Justice of the European Union has indicated in various rulings that “the right of each worker to enjoy paid annual leave must be considered a principle of Community social law of special importance, with respect to which no exceptions can be established.
That the worker must normally be able to enjoy effective rest, for the sake of effective protection of his safety and health . ” In this way, the right to vacation is a right that is not available to both parties and, in addition, serves as an instrument for the repair and preservation of the worker's health, the union emphasizes. Thus, the National Court has considered that in terms of the duration of vacations, the overlap of contract suspensions for economic, technical, organizational or production reasons (ETOP) or force majeure with IT situations, risk Australia Phone Number due to pregnancy and maternity or paternity, cannot give rise to a reduction of rights. These situations exclude the possibility of being available to work, so they prevail when determining the cause of the suspension of the contractual relationship for the calculation of vacations. Vacations in the Ferrovial Services agreement Ferrovial Services opposed the lawsuit, indicating that it was forced to carry out the employment regulation files (ERTE) due to force majeure, in two periods from March.
To July, and due to ETOP causes, from July to the present, causing the suspension. of the employment contract, without generating the right to vacations. The first two ERTES were applied to the entire workforce and the third was successively disaffected, depending on the company's resumption of activity. However, article 65 of the Ferrovial Services Collective Agreement determines that “the worker who, being in a situation of temporary disability, begins a vacation period coinciding with it, will not lose the right to enjoy the coincident days. with that one . ” It also states that "when the vacation period set in the company's vacation calendar coincides in time with a temporary disability derived from pregnancy, childbirth or breastfeeding or with the period of suspension of the contract due to maternity, there will be the right to enjoy vacations on a different date even if the calendar year to which they correspond has ended . " Article 38.3 of the ET is stated in that same sense.
That the worker must normally be able to enjoy effective rest, for the sake of effective protection of his safety and health . ” In this way, the right to vacation is a right that is not available to both parties and, in addition, serves as an instrument for the repair and preservation of the worker's health, the union emphasizes. Thus, the National Court has considered that in terms of the duration of vacations, the overlap of contract suspensions for economic, technical, organizational or production reasons (ETOP) or force majeure with IT situations, risk Australia Phone Number due to pregnancy and maternity or paternity, cannot give rise to a reduction of rights. These situations exclude the possibility of being available to work, so they prevail when determining the cause of the suspension of the contractual relationship for the calculation of vacations. Vacations in the Ferrovial Services agreement Ferrovial Services opposed the lawsuit, indicating that it was forced to carry out the employment regulation files (ERTE) due to force majeure, in two periods from March.
To July, and due to ETOP causes, from July to the present, causing the suspension. of the employment contract, without generating the right to vacations. The first two ERTES were applied to the entire workforce and the third was successively disaffected, depending on the company's resumption of activity. However, article 65 of the Ferrovial Services Collective Agreement determines that “the worker who, being in a situation of temporary disability, begins a vacation period coinciding with it, will not lose the right to enjoy the coincident days. with that one . ” It also states that "when the vacation period set in the company's vacation calendar coincides in time with a temporary disability derived from pregnancy, childbirth or breastfeeding or with the period of suspension of the contract due to maternity, there will be the right to enjoy vacations on a different date even if the calendar year to which they correspond has ended . " Article 38.3 of the ET is stated in that same sense.