Key Benefits:
Having regard to the judgment of Judgment No 078/2015 of the National Court (Social Chamber), dated 30 April 2015, relapsed in proceedings numbers 361/2014 and 64/2015 (accumulated), followed by the demands of the trade unions ES-UGT, CC.OO. of Construction and Services, USO and CIG against the business associations APROSER, FES, AESPRI, AES, AMPES, ACAES and UAS, the union ELA and the Fiscal Ministry, on the challenge of collective agreement,
And considering the following:
Fact Background
First.
In the "Official State Gazette" of 12 January 2015, the resolution of the Directorate-General for Employment of 23 December 2014 was published, in which it was ordered to register in the relevant Register of Conventions and Agreements working collectives through electronic means of that Steering Center and publish in the "Official State Gazette", the state collective agreement of security companies by 2015 (Convention code n. 99004615011982).
Second.
On May 7, 2015, the Court of Justice of the National Court, in whose judgment the annulment of Article 45.2 of the State Collective Convention, was granted entry into the General Register of the Department of the Social of the security undertakings for 2015, as well as the inclusion in the remuneration of the holidays, in addition to the concepts of the table of remuneration of the Annex to the said Convention, the other work complements contained in its article 66.2.
Fundamentals of Law
First and only.
In accordance with the provisions of Article 166.3 of Law 36/2011 of 10 October, the regulator of social jurisdiction, where the judgment is annulling, in whole or in part, of the contested collective agreement and that It shall also be published in the official gazette in which it was inserted.
Consequently, this Employment General Directorate resolves:
First.
Order the registration of that judgment of the National Court, dated April 30, 2015, relapse in the proceedings numbers 361/2014 and 64/2015 (accumulated) and relative to the collective state agreement of the companies of security for 2015 (BOE of 12 January 2015), in the corresponding Register of Conventions and Collective Work Agreements with operation through electronic means of this management center.
Second.
Arrange for publication in the Official State Gazette.
Madrid, May 13, 2015. -Director General of Employment, Xavier Jean Braulio Thibault Aranda.
NATIONAL AUDIENCE
Social Room
Secretary of Dona Marta Jaureguizar Serrano.
Statement number: 078/2015.
Date of judgment: 29/04/2015.
Date: 30/04/2015.
Auto Clarification Date:
Procedure number: 361/14.
Procedure Type: Demand.
Accumulated Procedure: 064/2015.
Matter: Contestation of Collective Agreement.
Rapporteur I. Mr.: Don Ricardo Bodas Martin.
Statement index:
Statement content:
Plaintiff:
Federation of Services of the General Workers ' Union (FeS-UGT).
Construction and Services Workers ' Commissions (CC). OO.).
Workers ' Union Union (USO).
Galician Interunion Confederation (IGC).
Co-plaintiff:
Respondent:
Professional Association of Private Security Services Companies (APROSER).
Spanish Business Federation for Security (FES).
Comprehensive Private Security Companies Association (AESPRI).
Spanish Association of Security Companies (AES).
Association of the Mediana and Small Business Security (AMPES).
Asociación Català d' Empresés de Seguretat (ACAES).
ELA.
Union of Private Security Associations in Spain (UAS).
Co-defendant: Fiscal Ministry.
Statement resolution: Partial estimate.
Brief summary of the judgment: Order the nullity of the remuneration scheme of the holidays, regulated in the collective agreement, as well as the inclusion in the remuneration of holidays the job-add-ons, whose In the case of holidays, no provision is made for the applicable convention, the lack of action to claim the nullity of the conventional regulation of the agreed contract, due to the absence of an object. The pretenses referred to in the current agreement are considered, although the case law has traditionally validated that the agreement may include or exclude the remuneration of the concept during the holidays without infringing the provisions of the article. 7.1 ILO Convention 132, which becomes a subsidiary rule to the Convention in this field, although its aim was to ensure that workers receive their average daily wage during the holidays. The demand is estimated, because the CJEU, interpreting the provisions of the art. 7.1 Directive 2003 /88/EC has established in a clear way that any national provision or practice, which prevents the worker from receiving commissions during the holidays, is contrary to that provision, in the case of an interpretation linking the latter to the Court on the basis of the principle of supremacy of Community law, as interpreted by the CJEU, as well as in application of the principle of interpretation according to.
NATIONAL AUDIENCE
Social Room
Procedure number: 361/14 and 64/15 (cumulative).
Procedure type: Convention challenge demand.
Statement index:
Statement content:
Plaintiff:
Federation of Services of the General Workers ' Union (FeS-UGT).
Construction and Services Workers ' Commissions (CC). OO.).
Workers ' Union Union (USO).
Galician Interunion Confederation (IGC).
Co-plaintiff:
Respondent:
Professional Association of Private Security Services Companies (APROSER).
Spanish Business Federation for Security (FES).
Comprehensive Private Security Companies Association (AESPRI).
Spanish Association of Security Companies (AES).
Association of the Mediana and Small Business Security (AMPES).
Asociación Català d' Empresés de Seguretat (ACAES).
ELA.
Union of Private Security Associations in Spain (UAS) -Fiscal Ministry.
Rapporteur I. Mr.: Don Ricardo Bodas Martin.
STATEMENT NUMBER 078/2015
IImo. Mr President: Don Ricardo Bodas Martin.
Ilmos. Mr Magistrates:
Dona Emilia Ruiz-Jarabo Burned.
Don Ramon Gallo Llanos.
Madrid, a thirty de abril de dos mil quince.
The Social Room of the National Audience composed of Messrs. Magistrates cited on the sidelines and
ON REY NAME
You dictated the following
STATEMENT
In the procedure n. º 361/14 and 64/15 (accumulated) followed by demands of the IGC (lawyer donates Rosario Martin Narrillos), Workers ' Commissions of Construction and Services (CC). OO. Services) (lawyer don Juan José Montoya), Federation of Services of the General Union of Workers (FES-UGT) (lawyer don Félix Pinilla Porlan), Union Workers Union (USO) (lawyer don José Manuel Castaño Holgado); against Professional Association of Private Security Services Companies (APROSER) (lawyer Don Gabriel Vázquez Duran), Spanish Business Federation of Security (FES) (lawyer Don Luis Tejedor Redondo), Union of Private Security Associations of Spain (UAS) (lawyer donates Eva) Farsio Orsi), ELA (lawyer donates Rosario Martín Narrillos), Asociación Española de Security Companies (AES) (lawyer Dona Eva Facio), Asociació Catalana d' Empresés de Seguretat (ACAES), (latrada Dona Eva Facio), Asociación de Empresas de Seguridad Privada Integral (AESPRI) (no comparison), Asociación de la Mediana y Pequeña Empresa The Committee on Security and Defence Policy (AMPES) and the FiscaL Ministry on the subject of the Convention have been Rapporteur. Mr. Don Ricardo Bodas Martin.
Fact Background
First.
According to the present case, on the day 23-12-2014 and 06-03-2015, demands were filed by the Federation of Services of the General Workers 'Union (FeS-UGT), Workers' Commissions for Construction and Services (CC). OOl), Workers ' Union (USO), Galician Interunion Confederation (IGC); against Professional Association of Private Companies of Security Services (APROSER), Spanish Business Federation of Security (FES), Association of Security Companies Private Integral (AESPRI), Asociación Española de Empresas de Seguridad (AES), Asociación de la Mediana y Pequeña Empresa de Segurid (AMPES), Asociación Catala d' Empresés de Seguretat (ACAES), ELA, Union of Private Security Associations in Spain (UAS) and the Public Prosecutor's Office of the Collective Convention.
Second.
The Chamber agreed to the registration of the complaint and appointed rapporteur, the result of which was indicated on the day 29-04-2015 for the acts of attempted conciliation and, where appropriate, judgment, while also accessing the request of the other if test.
Third.
Arrived the day and the hour marked took place the celebration of the act of judgment, previous attempt failed of compromise, and in which the tests were practiced with the result that appears collected in the record lifted to the effect.
Fourth.
Giving compliance to the provisions of Article 97.2 of Law 36/2011 of October 10, Regulatory of Social Jurisdiction must be highlighted, which the parties discussed on the following ends:
The Federation of Services of the General Union of Workers (UGT from here); Workers ' Commissions for Construction and Services (CC). OOl from now on) and the Union Workers Union (USO from here) ratified their demand for the impeachment of the convention, through which they intend to declare the nullity of the art. 45.2 of the security undertakings agreement for the period 2012-2014, since it was agreed there that the holiday would be paid only with the concepts contained in the table of remuneration in the Annex, not including the allowances of work, regulated in art. 66.2 of the agreement, in the average annual amount collected by each worker, in respect of such remuneration as the rule. 7.1 of Directive 2033 /88/EC, in the interpretation given by the CJEU.
The Galega Interunion Confederation (IGC) has ratified its demand for the impeachment of the Convention, which is intended to annul the article. 45.2 of the 2015 Convention for the same reasons for the accumulated demand, to which it adhered, also adhering UGT, CC. OO. and USO to the demand for IGC.
The Professional Association of Private Companies of Security Services (APROSER since now) opposed the accumulated demands and excepted lack of action of the demand promoted by UGT, CCOO and USO, as the convention The contested decision was not valid on 31-12-2014, and the dispute has been lost over its object, on the basis of these effects on STS 8-062014, inter alia, since it is a budget for the challenge of an illegal convention, which the is in force at the time of the trial, in accordance with the provisions of art. 163.3 LRJS.
He opposed, in any case, the pretensions of both demands, as soon as the art. 7.1 of Directive 2033 /88/EC does not properly establish a system for calculating the remuneration of annual leave, nor does the case-law of the Court of Justice of the European Union, as it could otherwise be, as regards the rule of law. 151 of the Treaty on the Functioning of the European Union expressly prohibits the use of the directives by the Directives on the basis of Article 4 (1) of the Treaty. 31 of Law 25/2014.
Maintained, in any case, that the acting pretension violates the principle of collective autonomy, as well as the principle of good faith, demanded by art. 89.1 ET for collective bargaining, since there had never been collective and individual conflictivity about the pay of the holidays in the sector, as it shows that the art. 45.2 of the current convention reproduced that of the previous convention, even though at the time of its signature the plaintiffs knew the doctrine of the CJEU in the matter.
Emphasized, in any case, that the payment of holidays, agreed upon in the agreement, does not deter the enjoyment of holidays to the workers, as it grants them 31 days of vacation, exceeding the legal minimum and pays them the plus of transport and the plus of costumes, thus proving the equilibrium achieved in the convention.
The Spanish Business Federation of Security (FES from here); the Spanish Association of Security Companies (AES from now) and the Asociació Catalana d' Empresés de Seguretat (ACAES from here) opposed the demand for the reasons already exposed.
The applicants objected to the proposed exception, since they filed the complaint on 28-12-2014, when the 2012-2014 agreement was in force, denying that there was a lack of object overcome, as soon as the workers, who enjoyed holidays in 2014, have the right to be paid their holidays according to the average remuneration, which is blocked by the art. 45.2 of the abovementioned convention, the nullity of which is intended to be unlawful. -They stressed, in any case, that the case law was not applicable to STS 18-06-2014, rec. 187/2013, because there the new convention expressly repealed the previous convention, which does not happen here.
The Fiscal Ministry opposed the proposed exception, because the lawsuit was filed during the term of the agreement and the claims, promoted in it, constitute legitimate interests.
Defended, in any case, the illegality of both precepts, because the exclusion of the remuneration concepts, perceived by the workers throughout the year, is objectively dissuading them from enjoying holidays.
Fifth.
Fulfilling the command of the art. 85.6 of Law 36/2011 of 14 October, it is meant that the controversial facts were as follows:
Controversial facts:
There have never been any conflicts or individual or collective conflicts over the subject matter in this lawsuit.
Peaceful Facts:
The 2015 Convention began to be negotiated in September 2014.
The sector holidays are 31 days and in them are included the plus of transports and the plus of costumes.
Resulting and thus declared, the following
Facts tested
First.
UGT and CC. OO. accredit the status of more representative unions at the state level and are implemented in the sector of security companies, whose Conventions 2012-2014 and 2015 have subscribed. ELA and CIG have the status of more representative trade unions at the regional level and demonstrate sufficient implementation in the sector. USO is a state-wide union, sufficiently implemented in the sector reiterated, whose agreements 20122014 and 2015 have subscribed.
Second.
The collective agreement of the security companies sector for the period 1-01-2012 to 31-12-2014 was published in the BOE of 25.04-2013. Amendments to the abovementioned convention were published in the BOE on 24-01; 21-03 and 2-04-2014.
Third.
On 10-09-2014, the negotiating commission of the security companies sector agreement was established, composed of APROSER, FES and UAS on the one hand and UGT, CC. OO., USO and CIG on the other. The Commission met on 18, 24 and 25-09, 2 and 16-09-2014, with minutes of work being carried out in cars and reproduced, without any reference to the remuneration of the annual leave. The 23-10-2014 agreement was finally reached between APROSER, FES and UAS by the business associations and by UGT, CC. OO. and USO by the trade unions. Minutes were signed on 25-11 and 11-12-2014, which are in cars and are reproduced with modifications to the agreement.
The 12-01-2015 was published in the BOE the sector agreement, which runs from 1-01 to 31-12-2015.
Fourth.
Security company workers enjoy a thirty-one day annual vacation.
Legal forecasts have been met.
Fundamentals of Law
First.
According to the provisions of Articles 9, 5 and 67 of the Organic Law 6/1985, of July 1, of the Judicial Branch, in relation to the provisions of Articles 8.1 and 2.h) of Law 36/2011, of 14 October, the knowledge of the process to the Social Room of the National Audience.
Second.
In compliance with the provisions of Article 97.2 of the Law on Social Jurisdiction, it is stated that the above proven facts have been obtained from the following means of proof:
The facts, which were proven, were not controversial, repudiating them, in accordance with the provisions of the article. 87.1 LRJS, with the exception of the third party that has been deducted from documents 1 to 10 of APROSER (descriptions 62 to 71 inclusive of cars) that were recognized as being contrary.
Third.
The defendants excepted a lack of action to challenge the art. 45.2 of the 2012-2014 agreement, since that convention was not in force since 1-01-2015, which brought about a manifest lack of object, stressing, in any event, that such a circumstance would not prevent individual actions, which they may be affected by the workers, who shall consider the remuneration of the holidays agreed in that provision to be non-adjusted. -As we anticipate above, the plaintiffs and the Prosecutor's Office objected to that exception, because they contested the agreement during its validity and the maintenance of the precept blocked the workers ' right to pay their salaries. (a) holiday according to its average remuneration, according to the interpretation given by the Community case-law. 7.1 of Directive 2033 /88/EC.
The art. 163.3 LRJS provides that the contestation of the duly registered and published collective agreements may be directly affected by the persons entitled to it by the collective conflict procedure, while the validity of the corresponding standard standard.
The case law, for all STS 18-06-2014, rec. 187/2013, which confirmed SAN 6-03-2013 has ruled out that a collective agreement, which has lost validity, can be challenged by illegality, although the demand will be filed during its term, since it does not make sense to expel from the conventional standard, which has already been repealed. The reasons, defended by the Chamber, are as follows:
' Well, the question raised by the Court of Appeal, in respect of which the other parties have not raised an objection, has already been decided in the affirmative by the judgments of this Chamber of 23 June 2010 (appeal 44/2009) and 15 September 2010 (appeal 51/2009). In fact, we decided in paragraph 3 of the third legal basis of this second sentence that:
" 3. With regard to the question concerning whether or not there is a lack of the object of a collective agreement in force at the time of the application, which ends its validity during the procedure, which has been appreciated by the Auto appealed, the appeal is not welcome, for the reasons set out below.
As this Room (STS) points out. 19/09/20006 -rec. 6/2006-), ' the norm that arises from collective bargaining, is used to have a conjunctural vocation or limited in time, conditioned on many occasions, among other things, by the circumstances of the market or by the position of the parties In the case of the Commission, the Court of First Instance held that the Court of First Instance held that the Court of First Instance held that the Court of First Instance held that the Court of First Instance held that the all its period of validity; on the contrary, this may be the guarantee of its obligation and permanent "respect for the Laws" (art. 85.1 ET) and of its necessary accommodation to the system of sources of our labor order (art. 3 ET). "
The case-law of this Chamber has been uniform in this same thesis and thus, from clear general pronouncements in this regard, such as, for example, when we recently decided, reiterating the traditional doctrine of the TCT, which "... the direct challenge of the Convention which is based on illegality is not subject to a deadline ... and can be made throughout its duration" (TS 15 -3-2004, R. 60/03, FJ 3. º "in fine"); after which, as stated in the STS May 23, 2006 -rec. 116/2005-there will be a lack of action.
The Third Chamber of this Supreme Court has upheld in numerous judgments the doctrine according to which "the disappearance of the object of the appeal has been considered by this Chamber ... as one of the modes of termination of the process." With regard to this doctrine, the judgment of that Chamber of 19 May 1999 states: ' singularly in the direct actions against general provisions, the subsequent repeal of those provisions-or their declaration of invalidity by a previous judgment-has The Commission has taken the view that the Commission is not in a position to take the necessary measures to ensure that the rules of procedure are not complied with. " this same cause of process termination has been applied to resources whose object was not the The Court of First Instance held that the Court of First Instance held that the Court of First Instance held that the Court of First Instance held that the Court of First Instance held that the Court of First Instance had failed to fulfil its has been subsequently deprived of effectiveness ". These criteria are also followed by the judgments of that Court's Third Chamber of 25 May 1990, 5 June 1995, 24 March and 28 May 1997, 29 April 1998 and 21 May 1999, inter alia. Thus, on the 22 April 2003 (rec. 2800/1998), points out how: ' In its recent judgments of 19 and 21 May 1999, 25 September 2000 and 19 March 2001, it recalled that the Court of First Instance found that the disappearance of the object of the appeal was considered in many cases. others, as one of the modes of termination of the litigation-administrative process; both when the contested were general provisions, in which the subsequent repeal of these, or its declaration of nullity by previous judgment, has determined the Failure to estimate the resource, not because it was not founded at the time, but because the repeal The rule of law deprives the controversy of any real interest or utility (thus in sentences of 24-3-1997, 28-5-1997 or 29-4-1998); as in resources directed against singular resolutions or administrative acts, in which it has been considered which disappeared their object when later circumstances deprived them of effectiveness, to the point of determining the actual disappearance of the controversy (thus in Sentences of 31-5-1986, 25-5-1990, 5-61995 and 8-5-1997) ".
And in the same debate, it is worth recalling the ruling of the Constitutional Court dated March 27, 2006, STC. 84/2006-rec. 2454/2001-, as it points out that: " (...) The disappearance of the object of the process, even if not expressly contemplated in the art. 86.1 LOC, has been admitted by this Court as a form of termination of the various constitutional processes. We have considered this in the cases where, in the procedure that gave rise to the appeal, the judicial bodies themselves have repaired the injuries of the right invoked at the constitutional seat, or when the repair has occurred. for the disappearance of the cause or act initiating the procedure (SSTC 151/1990, 4 October, FJ 4; 139/1992, 13 October, FJ 2; 57/1993, 15 February, single FJ; 257/2000, 30 October, FJ 1; and 10/2001, 29 January, FJ 2; and ATC 945/1985, 19 December, single FJ).
In particular, we can say that, constituting the application of amparo, a judicial remedy suitable only for the repair of singular and effective injuries of fundamental rights, without being able to be enforced by means of of this way other pretensions than those directed to the restoration or the preservation of those rights (art. 41.3 LOC), when that claim has been satisfied outside the amparo process itself, it can only be concluded, in principle, that the latter does not have since that time the object on which this Court is to decide (for all, ATC 156/2003, 19 of May, FJ 5). In such cases, the application for protection ceases to be the object of the judgment, since the repair of the injury of the right by another different instance, before the Court gives its decision, makes sense to lose meaning to the judgment of the Court of Justice. In the case of the Court of Justice of the European Parliament, the Court of Justice of the European Court of Justice of the European Court of Justice of the European Court of Justice of the European Court of Justice answer (for all, SSTC 39/1995, 13 February, FJ 1; 87/1996, 21 May, FJ 2; and 13/2005, 31 January, FJ 2). (...) "
The Supreme Court then concludes that there was a manifest lack of object, and therefore considered the lack of action, and then stated that that circumstance ' does not prevent the workers from exercising their right to exercise their rights. their possible rights deriving from the provisions of that rule, as we already specified in our aforementioned judgment of 23 June 2010. ' -The same criterion has been maintained at STS 2-07-2014, rec. 131/2013, therefore, in the case of a peaceful case-law, which binds this court, in accordance with the provisions of Article 4 (1) of the Treaty. 1.6 CC.
Thus, accredited that the convention 2012-2014 lost its validity on 31-122014, since the following convention entered into force on 1-01-2015, we must agree with the defendants that there has been a lack of object, As soon as the rule has been repealed, it does not make sense to expel a rule that has already been repealed, in accordance with the provisions of art. 86.4 ET, where it is emphasized that the convention that happens to an earlier one repeals in its integrity to the latter, except for the aspects that are expressly maintained, so we must estimate the exception of lack of action to contest the art. 45.2 of the 2012-2014 agreement, since that provision has been repealed by the following convention. -that conclusion does not, in any way, injure individual or collective claims, which may be promoted, to claim that the holiday, enjoyed during its term, is paid on the basis of the average remuneration, in accordance with the provided in the art. 163.4 LRJS, except those cases where the claim was prescribed, and thus ensures the right to effective judicial protection, guaranteed by art. 24 CE.
Fourth.
The art. 38 ET on a general basis for holidays, developing the term of the 40 EC, where the public authorities are entrusted to ensure the necessary rest by means of a series of measures, including holidays Remuneration shall be paid. -The purpose of the holiday break is twofold, guaranteeing, on the one hand, that the workers replenish the forces consumed during their work and providing them, on the other hand, the necessary free time for them to develop activities outside the work. -The aforementioned purposes-rest and leisure-are guaranteed by the remuneration of the holidays, which cannot be replaced by their economic remuneration.
Convention No. 132 of the ILO (dated 29 June-1970), on " "paid annual leave", was ratified by Spain by means of date 16June- 1974 (BOE 5-July-1974); being its arts. 1 and 7.1 the precepts that have had the most impact in our case law on the issue of holiday pay. In the art. 1 it is established that " national legislation shall give effect to the provisions of this Convention to the extent that this is not done by means of collective agreements, arbitration awards, judicial decisions, legal procedures for the fixing of wages or otherwise compatible with national practice that is appropriate to the conditions of the country "; and its art is available. 7.1 that every worker during the holiday will receive ' for the whole period of such holidays, at least his normal or average remuneration (including the cash equivalent of any part of that remuneration which is paid in kind, except if it is permanent benefits enjoyed by the person concerned independently of paid leave), calculated in the form determined by the competent authority or the appropriate body in each country. " This international standard has been used to integrate legal regulations (arts). 10.2, 40.2, 96.1 CE, art. 1.5 Civil Code), the specific statutory (in particular, art. 38 ET) and that of multiple collective agreements, reflecting in the case-law of social appeal (among many others, SSTS/IV 1-october-1991 resource 667/1991, 21-January-1992 resource 792/1991, 4-November-1994 rcud. 3604/1993), interpreting, as a rule and in the terms that we will analyze, that the reward of vacations must understand the "average of the totality of emoluments that correspond to the ordinary day".
The case-law has therefore argued that the general rule is the average remuneration of the holidays, being understood as such to the average of all the emoluments corresponding to the ordinary day, including the variable remuneration (STS 17-12-1996, rec. 1321/1996 and 19-04-2000, rec. 2980/1999. -Now, when the remuneration of the holidays is regulated in collective agreement, it has been validated that the agreement includes or excludes the remuneration concepts it deems appropriate, provided that the minimum annual calculation is observed Inavailable right of right. -So on STS 26-07-2010, rec. 199/2009, the following was held:
" By carrying out a systematic analysis of social case law, STS/IV 25April-2006 (rcud 16/2005) points out that art. 7.1 of the ILO Convention No. 132, in relation to its art. 1, " has been interpreted repeatedly by this Chamber in the sense that the collective agreement may depart from such a normal or average remuneration rule, by virtue of the binding force of the collective agreements that the art proclaims. 37-1 of the Constitution, based on the respect and application of the principle of collective autonomy "; collecting, by way of conclusions, the sit-ins in STS/IV 21-enero-1992 (rcud 792/1991) in which they are established pointing out that:" 1. The rule of art. 7.1 of the ILO convention number 132 of pay for holidays under 'normal or average remuneration' is the general rule on the remuneration of the same; 2. The collective agreement has as a typical function in (a) the question of the accuracy or specification of the factors for calculating the remuneration of the holiday, complementing the general rule of normal or average remuneration; 3. The collective agreement may depart from such a normal or average remuneration rule for the holiday period, as long as they are respected in calculation Annual minimum available duty minimums. "
The same sentence has emphasized the primacy of the wage regulation of the convention as opposed to the rule of art. 7.1 ILO Convention 132 in the following terms:
" When the form of payment of the holiday has been established in the applicable regulations or in the collective agreement, which is permitted by the said Convention 132 ILO, the interpretation of the aforementioned rules should be considered. In this regard:
(a) STS/IV 8-june 1994 (rcud 347/1993), reasoned that the collective agreement may depart from the general rule of normal or average remuneration ex art. 1 Convention 132 ILO when it complements it, specifying and specifying the factors for calculating the remuneration of the holidays, noting that ' The two judgments of this Chamber which are said to be contradicted by the appellant have decided that the plus more dedication in RENFE, in the pay of the holiday period. And they both analysed the appeal ... which the appellant denounced in the art. 7 of the ILO Convention number 132, which was declared not to have been committed since the collective agreement may depart from that general rule of normal or average remuneration when it complements it, specifying and specifying the factors of calculation of the Article 1 of the Convention 132 remarks the preference given to the collective agreement or agreement as regards the regulation of the right to holidays, as it is required that national legislation will give effect to the the provisions of this Convention in so far as this is not done through collective contracts, The Court of First Instance, in its judgment of 20 December 1991, which recalls that of 7 De cember 1991, the Court of Justice of the European Communities, the Court of Justice of the European Communities, The Court of Justice held that the Court of Justice held that the Court of Justice held that the Court of Justice held that the Court of Justice held that the Court of Justice As has also been stated in the judgment of this Chamber of 13 April 1994, the amount of remuneration is established-in other words, the collective agreement-in art. 7 of ILO Convention 132 on annual paid leave. But in our case the Regulation Agreement, which is said to be infringed, contains a sort of order on the matter ... ".
b) Does not contradict the above doctrine STS/IV 26-January-2007 (rcud 4284/2005), in which it is argued that " The question is to determine whether, for the purposes of calculating the remuneration of the holidays, only the wage concepts which the Collective Convention has between those which it regulates or must be taken into account must be taken into account the same rules and does not exclude, expressly, from the computation to give back the holidays, as well as if the first solution is contrary to the art. 7 of ILO Convention 132. The controversy must be resolved in favour of the solution which gives the judgment of contrast, since Article 38-1 of the ET provides that the remuneration of the holidays will be that which has been agreed in the Collective Agreement and is the case that the Convention It lists the concepts of remuneration to be taken into account for that purpose, which is equivalent to excluding those who do not quote. The argument that all the concepts that the Convention does not expressly exclude is not accepted because, in other words, the Collective Agreement makes it clear that the intention of the signatories is to take account of these and the It is not to be forgotten that the intention of the parties is the main interpretative rule, according to art. 1.281 of the Civil Code. Such a solution does not violate the provisions of art. 7 of the ILO Convention, Convention of which Art. 1 has already reviewed the possibility of compliance by means of collective agreements, agreements for which the payment of holidays will be regulated, provided that they respect the inavailable minimum necessary rights. This is the case in the case of the Court of Justice in its judgments of 22 September 1995. 1348/94), of 29 October 1996 (Rec. 1030/96) and 9 November 1996, where the doctrine has been unified and pointed out: it does not seem possible to negate the validity of the collective clauses which will result from the remuneration of the salary supplement holidays which may correspond to a The Convention may depart from the general rule as long as the minimum necessary and that this solution is not necessarily incompatible, but complementary to the general rule of law. of ILO Convention 132. "
The case law has consistently maintained the primacy of the conventional regulation of pay on holidays, even understanding that the provisions of art. 7 of the ILO Convention is of subsidiary application to the conventional regulation which, as we anticipate above, may include or exclude the remuneration concepts that the negotiators deem appropriate, except the inavailable minimums of law required, for all STS 3-10-2007, rec. 2083/2006 and 6-03-2012, rec. 80/2011.
Fifth.
The Community Directive 2003/2008/EC has regulated in Article 7.1 of the remuneration of holidays in the following terms:
" 1. Member States shall take the necessary measures to ensure that all workers have a period of at least four weeks ' paid annual leave, in accordance with the conditions for obtaining and granting them laid down in the national laws and/or practices.
2. The minimum period of paid annual leave may not be replaced by financial compensation, except in the case of termination of the employment relationship. '
The Room in SAN 21-07-2014, proced. 128/2014 has examined the impact of the article cited in the remuneration scheme for the holidays, reaching the following conclusions:
" And also with community law. It should be noted that the art. 31.2 of the Charter of Fundamental Rights of the European Union, with the legal value of the Treaty, recognises such a right to paid annual leave and that Article. 7.1 of Directive 2033/88 states that: Member States shall take the necessary measures to ensure that all workers have a period of at least four weeks ' paid annual leave, in accordance with the conditions laid down for obtaining and granting established national laws and/or practices.
The law enforcement of this right to pay on holiday has been highlighted by the CJEU, for all in the sentence of 22-5-2014, Case Lock C539/12, which states: according to settled case-law, the right of every worker to to enjoy paid annual leave should be regarded as a principle of the Union's social law of particular importance, in respect of which no exceptions can be established and the application of which by the competent national authorities may be carried out only in compliance with the limits expressly laid down by the Directive 93/104, which has been codified by Directive 2003/88 (see KHS, C-214/10, EU:C: 2011:761, paragraph 23 and the caselaw cited).
And with a general character as to how the term paid leave is to be understood, you have indicated:
The term "paid annual leave" contained in that provision means that, while the annual leave within the meaning of the Directive lasts, the remuneration must be maintained. In other words, the worker must receive the ordinary remuneration for that rest period. SCJEU case Robinson Steele C 131/04
Directive 2003/88 considers that the right to annual leave and the right to pay for holidays are two aspects of a single right. The obligation to pay the holidays is intended to place the worker, during the said holidays, in a situation which, from the point of view of the salary, is comparable to the periods of work, STJUE case Lock C539/12
... In view of these basic principles, Community case law has fallen further in its precision.
It is relevant in this regard to the STJUE case Lock which has just been cited and which concludes that Article 7 (1) of Directive 2003/88 must be interpreted as meaning that it is opposed to the provisions and to the national practices under which a worker whose remuneration is composed, on the one hand, for a basic salary and, on the other, for a commission the amount of which is fixed on the basis of the contracts concluded by the employer on the basis of the sales obtained by that worker, is entitled only, in respect of paid annual leave, to a remuneration made exclusively for your base salary.
Consequently, the remuneration that the worker has to receive in the holiday period in which he obviously does not provide services and is therefore a period of time in which he does not generate commissions or incentives for sales which only They generate, with their work, to be provided in an effective working time, it must be necessarily integrated, and in proportion to the days of vacation that it is appropriate to enjoy, taking into account the perceived in concept of incentives or commissions for objectives fixed annually.
The basis of the above findings (paragraph 22) is that the exclusion of the fees from the holiday period, as the Advocate General pointed out in point 34 of his Opinion, may have an effect A deterrent to the enjoyment of holidays, which is precisely what art wants to avoid. 7 of the Directive examined.
The judgment of CJEU 22-05-2014, C-139/12 states in its operative part that any national provision or practice, which excludes commissions from the remuneration of holidays, is contrary to art. 7.1 of the repeated directive. -that conclusion is extensible to any other variable remuneration corresponding to the ordinary day, since the right to annual leave and the right to receive remuneration for a holiday are two aspects of a As regards the obligation to pay the holidays, the sole right is to place the worker, during the said holidays, in a situation which, from the point of view of the salary, is comparable to the periods of employment. (Robinson-Steele and others, EU: C-2006/177, paragraph 58 and Schultz-Hoff and others, EU: C-2009, 18, paragraph 60 and Lock C-539/12, paragraph 17).
Arrived here, we must clear whether a collective agreement, subsucible necessarily between national provisions and practices, in accordance with the provisions of art. 3.1.b ET, it can, without infringing the provisions of the art. 7.1 Directive 2003 /88/EC, to exclude average remuneration, in this case, to job allowances, which are due during the ordinary day, to which we now anticipate a negative response. -Our answer must necessarily be negative, since the Community precept, interpreted by the Court of Justice in the terms already set out above, must necessarily prevail by virtue of the principle of supremacy of Community law vis-à-vis the The Court of First Instance held that the Court of First Instance held that the Court of First Instance held that the Court of Justice held that the Court of First Instance held that the Court of First Instance held that the holidays, which must necessarily be extended to any other variable pay which is accrual in ordinary day. " Consequently, if the variable remuneration is not to be excluded, there is no reason for the exclusion of job allowances, the average amount of which should be collected during the holidays, as well as the average amount of the fees or charges. variable remuneration.
So, if a collective agreement is opposed to the provisions of art. 7.1 Directive 2003 /88/EC, in the terms established by the Community case-law already set out above, the provisions of the said Article should prevail, according to the interpretation required by CJEU 22-05-2014, C539/12, on the collective, which must necessarily be subsumed between national provisions and practices, in accordance with the provisions of Article 4 (1) of the Treaty. 3.1.b ET.
The Room has maintained the same criteria in SAN 17-09-2014, proced. 194 and 1112-2014, proced. 286/2014 and 14-01-2015, proced. 284/2014.
Sixth.
The art. 45.2 of the applicable collective agreement reads as follows: "They will be paid for the" total " of the Table of Retributions of the Annex, and for the concepts included in it, plus the Personal Complement of antiquity (Trienios-Quinquenios) the proportional share of the hazard plus for the last 12 months. ' -The concepts, included in the total table of remuneration of the Annex, are base salary, plus dangerousness, plus activity, plus transport, plus dressing room.
In the art. 66. 2 of the current convention, which regulates the structure of the salary, are considered to be additional jobs: Hazard; Plus escort; Plus activity; Plus responsible for surveillance equipment, transportation of funds or systems; Plus night work; Plus of Airport Radioscopy; Plus of Basic Radioscopy; Plus of Weekends and holidays-Surveillance and Plus of Residence of Ceuta and Melilla.
The job add-ons are described in Article 69 of the convention as follows:
(a) Hazards.-The operational personnel for the surveillance and transport of funds and explosives which, for the special purpose of their function, are legally obliged to carry a firearm, shall receive monthly payments for this purpose. concept, the salary supplement referred to in this Article or in the Annex to this Convention.
1. The Transport and Explosive Safety Guards, Transportation Security and Explosives Transportation Security Vigilant and Explosives Vigilators, will receive monthly amounts, for this purpose, of the amounts shown in the remuneration of the Annex to this Convention.
The amount of the hazard plus for the Transportation Safety Vigilants and Transportation Safety Vigilants will be 139.72 euros in 2015.
The amount of the Hazard Plus for the Explosives Transport Safety Vigilants, Explosives Transport Safety Vigilants will be 148.79 euros for the year 2015.
The Explosive Security Watchdog will receive this concept of 163.53 euros per month for 2015.
2. The Surveillance Security Guards when performing a service with a statutory firearm will receive a hazard plus of EUR 139.72 per month or an hourly price of € 0.86 during the year 2015.
3. Without prejudice to the nature of the hazard plus functional plus, all security guards of the surveillance service are guaranteed to carry out services without a weapon the perception of a minimum hazard plus equivalent to 18.71 Euro monthly, payable also in overtime and holidays, for the year 2015.
In the event that they perform part or all of the service with a weapon, they shall receive the amount corresponding to the hours made with a weapon, provided that this monthly amount exceeds the guaranteed minimum amounts In the preceding paragraph, these subsuds are subsumed in that monthly quantity. That is, you will receive the highest amount of the two amounts, never the sum of both.
The amounts of the hazard plus referred to in point (a) (2) and (3) of this paragraph may be paid by the companies in eleven pages, including the proportional parts of overtime and holidays.
b) Plus escort. -Staff described in art. 22 A. 3 (c), when carrying out the tasks set out in that provision, shall receive at least the amount of EUR 269,72 per month or EUR 1,66 per hour as a supplement for the year 2015.
c) Plus of Activity. -That plus shall be paid to the workers of the functional levels which are listed in the Annex to this Convention, with the following special conditions for the functional levels which below are detailed:
1. Transport of Funds staff (Transport Safety Monitoring and Transport Safety Monitoring): The activity plus is set at 163.27 euros for the year 2015. This plus compensates the activities of the sector of the transport of funds with regard to transfer boxes, ATMs, malls, IT management of the routes and the methodology of the customer service, the changes in the activity resulting from the abolition of branches of the Banco de España and the creation of the S.D.A.
2. Accountant-payers. In relation to the paying accounts, the plus of the activity in compensation of the new activities which may affect this functional level referred to in the first subparagraph of paragraph 1 (c) of this article payable in payment Extraordinary and holiday is fixed at 62.37 euros for the year 2015.
3. For the remaining functional levels, the activity plus for the year 2015 shall correspond to that shown in the remuneration tables in the Salarial Annex.
d) Plus for Surveillance Team, Fund or Systems Transportation. The worker will be paid who, in addition to performing the tasks of his or her functional level, develops a work of coordination, distributing the work and indicating how to perform it, making the appropriate parts, anomalies or incidents that are produce in the services in the absence of the Inspector or other Chief, having the responsibility of a team of persons. Personnel carrying out duties as a team manager shall receive a plus for this purpose, of a ten per cent of the basic salary set out in this Convention, corresponding to their functional level, as long as they are assigned to them and perform them.
e) Plus of Airport Radioscopy.-The security guard who uses Airport Radioscopy in the provision of his services at the airport facilities, will receive as a complement to such a job, while doing the same, the amount of EUR 1.28 per effective hour of work during the year 2015.
It will be required, as a prerequisite for access to this job, that the worker accredit a specific training course on the use and operation of the Airport Radioscopy, given by personnel. technical knowledge in this type of equipment, without which it will not, in any case, be able to carry out the said service.
f) Plus Basic Radioscopy. The Security Vigilator using the radioscopy in jobs other than airport facilities will receive the amount of € 0.19 per working hour as a complement to such a job during the year 2015, while perform that service.
g) Plus Night Work. A working hour of night work is fixed per hour. According to the art. 41 of this Collective Agreement, night work shall be understood to be between twenty-two hours and six hours on the following day. If the hours worked at night are four or more hours, the plus corresponding to the working day shall be paid, with a maximum of eight hours.
Each worked night time will be paid, according to each functional level, according to the following tables:
Nightly hours 2015
| 2015 | |||
|---|---|---|---|
|
Administrative |
| ||
|
A) Administrative: |
| ||
|
| |||
| 1.34 | |||
| First | 1,15 | ||
|
| |||
| Azafata/o | 0.98 | ||
| Auxiliary | 0.98 |
||
|
| 0.82 | ||
| Applicant | 0.71 | ||
| B) Technical and Office Specialists: |
| ||
|
Programmer |
|||
| Operator/Writer Computer | |||
|
Technical Training/tec. Intermediate Prevention | |||
| Projected Delineant | |||
|
Outline | |||
| C) Commercial: |
| ||
| Sales Manager | |||
| Commercial Technician | |||
|
| 1.20 |
||
| Mandos |
| ||
|
Manager | 1,32 | ||
| of Surveillance | |||
| of Services | |||
| Head of Chamber or Treasury | |||
| Inspector | |||
|
| |||
| 1,27 | |||
| Operational Staff |
| 1.22 | |
|
A) Enabled: |
| ||
|
Driver And Driver Transport Security Monitor Driver Explosives Transport | |||
|
| |||
| Explosives Watcher | |||
|
| 1.08 | ||
|
Escort | |||
| B) Not Enabled: |
| ||
| CR Alarm Operator | |||
|
-Pager | 0.90 | ||
|
Electronic Mechanical Security Personnel |
| ||
| 1.54 | |||
| 1.54 | |||
|
Reviewer | |||
|
| |||
| Second | |||
| 1,11 | 1.11 |
||
| Specialist | |||
|
Support Operator |
| ||
| Apprentice |
|
| |
|
First | |||
| Second | |||
|
0.82 | |||
| 0.82 | |||
| 0.82 | |||
| 0,71 | 0,71 | ||
|
| |||
|
| |||
| Ordinance | |||
| Store | |||
|
-cleaner | 0.82 |
h) Plus Weekend and Festivals.
Considering that the weekends and holidays of the year are usually normal working days in the quadrant of the security guards of the Surveillance Service, it is agreed to pay these workers a Plus for effective time worked during Saturdays, Sundays and holidays of 0.86 € for the year 2015.
For the purposes of counting, it will be from 00 '00 hours of Saturday to 24' 00 on Sunday and on the holidays of 00 '00 hours at 24' 00 hours of those days worked. It is not payable to those workers who have been expressly hired to work in those days (Ej. Parcial Time contracts for weekends).
For the purposes of public holidays, account shall be taken of the national, regional and local authorities identified for each year, corresponding to the place of work where the security guard provides the service, regardless of the job center where you are discharged.
i) Plus of Ceuta and Melilla Residence.
A Plus of Residency equivalent to 25% of the Salario Base of its functional level will be paid to the workers residing in the provinces of Ceuta and Melilla. This plus will not be payable in the extraordinary rewards of Christmas, July and Benefits, and will not be able to be absorbed or compensated, totally or partially, but with another perception of the same nature and the same purpose, all according to (a) the provisions of the OOM of 20 March 1975. '
The simple reading of the transcribed article allows us to conclude, that the job supplements are perceived by the effective performance of the jobs or by the realization of the agreed activities, being treated, in any case, significant remuneration, which substantially increases the total amount of the salary annex, which includes two job-related allowances, such as the danger and the activity, but excludes all the others, which allows us to reach a first conclusion, according to which the remuneration of the holidays, regulated in art. 45.2 of the current convention, it is much lower than the average annual remuneration of the workers, which is precisely what the art wants to guarantee. 7.1 of Directive 2003 /88/EC, which has been repeatedly interpreted by the Community case-law cited above, which binds the Court of Justice in accordance with the principle of interpretation, which obliges the national court to take into account the set of rules of that law and interpret it, as far as possible, in the light of the letter and the purpose of the directive before it to achieve the outcome which it pursues, by all STS 18-07-2014, rec. 303/2013, since it is incumbent upon it to ensure, within the framework of its powers, that the remuneration of the holidays laid down in that Community legislation, the interpretation of which by the CJEU is absolutely unequivocal, is fulfilled. the total estimate of the demand, since it is opposed to the art. 7.1 of Directive 2003/88, any national legislation, which includes the collective agreement, which prevents workers from receiving on holiday the average of their variable remuneration or fees.
Therefore, proven that the art. 45.2 of the current convention does not ensure that workers receive the average of their annual remuneration during their holidays, their cancellation is appropriate, as well as the recognition that the remuneration for holidays must include, in addition to the conventionally determined, the job-add-ons listed in the art. 66.2 of the convention, which are not included in the nullified article.
Such a conclusion cannot be energized by the provisions of art. 151 of the Treaty on the Functioning of the European Union, which must prevail over any other rule of national law in the event of a conflict with them, except for the rules of constitutional rank, in accordance with the provisions of art. 31 of Law 25/2014 of 27 November, on Treaties and other international agreements, because its simple reading allows the conclusion that the interpretation given by the case law of the CJEU on art. 7.1 of Directive 2003 /88/EC not only does not object but is fully harmonised by the Treaty.
In effect, the art. The Treaty states the following: " The Union and the Member States, taking into account fundamental social rights such as those set out in the European Social Charter, signed in Turin on 18 October 1961, and in the Community Charter of The aim is to promote employment, to improve living and working conditions, in order to bring about a level playing field in the field of progress, to ensure adequate social protection, and to ensure that the social protection of workers is improved. social dialogue, the development of human resources in order to achieve a high and lasting level of employment and fight against exclusions.
To this end, the Union and the Member States will take action to take account of the diversity of national practices, in particular in the field of contractual relations, as well as the need to maintain the competitiveness of the economy of the Union.
consider that this development will result both in the functioning of the internal market, which will promote the harmonization of social systems, and the procedures laid down in the Treaties and the approximation of the laws of the Member States. legal, regulatory and administrative provisions ".
We cannot admit that the acting pretense violates the right to collective bargaining, as guaranteed by art. 37.1 EC, since the collective agreement is subject to the law, in application of the principle of normative hierarchy, in accordance with the provisions of the Article. 9.3 EC, in relation to art. 3 ET, it is perfectly legitimate for the trade unions or employers, who consider illegal a collective agreement that they have signed, to challenge it before the courts for the procedure provided for in the article. 165 and following LRJS, without prejudice to the credibility they may have for their partners in future collective bargaining.
It is also irrelevant, in our view, that the remuneration of the holidays has not ensured in previous agreements the average of the annual remuneration, as well as the lack of collective conflict in the matter, since the relevant thing is whether or not the agreement is in line with the law in force, concluding by the Chamber, supported by the report of the Fiscal Ministry, that the art. 45.2 of the existing sectoral agreement has infringed the provisions of the Article. 7.1 of Directive 2033 /88/EC, the interpretation of which by the CJEU has been further developed.
Viewed the cited legal precepts and other general and relevant application,
FALSE
In the demand for collective agreement, promoted by UGT, CC. OO., USO, to which the IGC joined, we consider the exception of the lack of action, alleged by the defendants, in what affects the nullity of article 45.2 of the agreement of the sector of security companies 2012-2014, so we absolve the defendants of that claim.
We estimate the demand for the contestation of the convention, promoted by the IGC, to which UGT, CC. OO. and USO and annul the art. 45.2 of the security companies sector agreement for 2015 and we condemn APROSER, FES, AESPRI, AES, AMPES and ACAES to be and to go through such nullity, as well as to include in the pay of the holidays, in addition to the concepts included in the Table of Retributions of the Annex, the other job additions contained in the art. 66.2 of the Convention.
Notify the parties of this judgment by warning them that against the same is the case of the Court of Cassation before the Fourth Chamber of the Supreme Court, which may be prepared before this Chamber of the Social of the National Court within the period of five working days from the notification, being able to do so by means of a demonstration of the party or its Letter to the notified serle, or in writing filed in this Chamber within the period specified above.
At the time of preparing before the Social Room of the National Court the Appeal of Cassation, the appellant, if he does not enjoy the benefit of free Justice, must prove to have made the deposit of 600 euros provided for in the art, 229.1.b of the Regulatory Law of the Social Jurisdiction, and, in the case of having been condemned in judgment to the payment of some quantity, to have entered the quantity object of condemnation in accordance with the art, 230 of the same legal text, all in the current account that the Chamber has open at the Banco de Santander branch of street Barquillo 49, if it is transfer under number 0049 3569 92 0005001274 by stating in the observations the number 2419 0000 00 0361 14; if it is cash in account number 2419 0000 00 0361 14, it is possible to replace the cash entry for the insurance by bank guarantee, in which the liability of the guarantor is established.
It is also noted that the parties to prepare the Action for Cassation against this judicial decision, which, as provided for in Law 10/2014, of 20 November, as amended by the RDL 3/13 of 22 February, for which they are regulated certain fees in the field of the Administration of Justice and of the National Institute of Toxicology and Forensic Sciences, with the written application of the appeal, shall be required to provide proof of payment of the fee for the financial year the judicial authority to which the rule of law is concerned, provided that no such rule is (a) the grounds for exemption for objective or subjective reasons referred to in that standard, which shall be met by means of self-settlement in accordance with the rules laid down by the Ministry of Finance and Public Administrations in Order HAP/2662/2012 ,of 13 December.
Take evidence of this statement to the original cars and incorporate it into the statement book.
So by our judgment we pronounce, send and sign.
