Every worker has the constitutionally granted right to take regular annual holidays. Spanish labour legislation provides that every employed worker has a period of annual paid leave of not less than 30 calendar days which can be improved in the collective agreement.
This is an overriding, unwavering and essential principle of European Community law aiming to protect the safety and health of workers. Agreements, individual or collective ones, as well as any unilateral decision, implying the replacement or substitution of paid leave in exchange for money are null and void. Exceptionally, case-law has accepted a compensation payment in the event that the worker cannot enjoy this right in natura for reasons beyond his/her control and the employment relationship has been terminated.
Spanish legislation establishes that during the holidays the worker must perceive a normal or average remuneration. The Spanish High Court consider, based on criteria of regularity and dependency, that the leave payment must include those salary items related to the normal and regular work performance (seniority, night work, monthly sales commission, etc. excluding extraordinary items such as incentives, allowances, etc.).
In order to determine the holiday pay it is necessary to analyze all salary items taking into account covenants, the collective agreement, or alternatively, the International Labour Organisation (ILO) conventions, all this in combination with judicial interpretation.
Raquel Buendia – Dr. Frühbeck Abogados Barcelona