The plenary session of the social section of the Supreme Court passed two judgments about the remuneration applicable to the holiday period, in view of the doctrine of the Court of Justice of the European Union on its judgments of 22nd May 2014, case C-139/12 “Lock”, and of 12th June 2014, case C-118/13 “Bollacke”. The courtroom, rectifying the previous doctrine, considers that the usual or average remuneration must be paid to the workers during their annual rest period and it must fix the collective negotiation in each case according to the rules contained in Article 7.1 of the collective bargaining agreement 132 OIT and in Article 7 of the Directive 2003/88. However it must be taken into account the purpose of effective rest that the paid holidays have and it cannot discourage its enjoyment. The workers’ remuneration must take place during the whole annual holiday period and they keep receiving their usual remuneration.
For this reason in the case of companies as contact centers, which are considered in the first of two simultaneously deliberated judgments, a concept such as commissions and/or changeable production incentives and perceived with some regularity by workers of such sector must be included in the usual or average remuneration that they should receive during their holidays.
In the second case, which is referred to Telefonica Moviles España SAU, the courtroom considers that from the three controversial concepts in the case, the annual income bonus based on the objectives is an extraordinary concept and pays itself the holidays included in the corresponding annual period, so it is not added to the amount to be received during the holiday period.
On the contrary, the career complement is a fixed concept of monthly accrual and the availability complement is mandatory for the staff in places where it is necessary a permanent maintenance or operation, so both supplements should be included in the remuneration to be received in holidays. This last judgment has two dissenting votes, coinciding with the judgment but disagreeing with the reasoning set forth in the majority decision.