Having regard to the judgment of the Judgment dated November 3, 2016, delivered by the Chamber of the Social of the National Court, which was followed by the procedure n ° 258/2016, followed by the demand of the General Confederation of Labor and by the Federation of Services of the General Union of Workers (FES-UGT), against the Spanish Association Contact Center, the Confederation Interunion Galega, the Federation of Services of Workers ' Commissions, the Eusko Langileen Alkartasuna and Langile Abertzaleen Batzordeak, and the Fiscal Ministry, on the challenge of Collective Convention,

And considering the following

Fact Background

First.

In the Official Gazette of the State of 27 July 2012, the decision of the Directorate-General for Employment of 12 July 2012 was published, in which it was ordered to register in the relevant Register of agreements and agreements working collectives through electronic means of this Steering Center and publish in the Official State Gazette, the collective agreement of the state sector of the sector of contact center (formerly telemarketing) (Convention Code) number 99012145012002).

Second.

On November 15, 2016, the Court of Justice of the National Court, in which the annulment of Article 50 (b), paragraph 2, was declared invalid, was entered in the General Register of the Department. Collective agreement published in the BOE of 27 July 2012.

Fundamentals of Law

First.

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 in whole or in part nullified from the contested collective agreement and that published, it shall also be published in the Official Gazette in which it was inserted.

Accordingly,

This Employment General Address resolves:

First.

Order the registration of that judgment of the National Court of Justice of November 3, 2016, relapse in the procedure n. º 258/2016 concerning the collective agreement of state within the sector of contact center (before telemarketing), in the corresponding Register of collective agreements and agreements working through electronic means of this management center.

Second.

Arrange for publication in the Official State Gazette.

Madrid, November 22, 2016. -Director General of Employment, Xavier Jean Braulio Thibault Aranda.

NATIONAL AUDIENCE

Social Room

Secretary D. Marta Jáureguizar Serrano

Statement n. º: 163/2016

Date of Judgment: 2/11/2016.

Date Statement: 3/11/2016.

Auto Clarification Date:

Type and No. Procedure: Impeachment of Conventions 0000258 /2016.

Proc. Accumulated:

Rapporteur: Don Ramón Gallo Llanos.

Plaintiffs: General Confederation of Labor, Federation of Services of the General Workers ' Union (FES-UGT).

Defendants: Asociación Española Contact Center, Confederación Interunion Galega (Cig), Federación de Servicios de Comisiones Obreras, Eusko Langileen Alkartasuna (Ela), Langile Abertzaleen Batzordeak (Lab), Ministerio Fiscal.

Statement of Judgment: Partial Estimatoria.

Brief summary of the statement: The SSAN partially welcomes the demands of the collective agreement of FES UGT and CGT against the Spanish Association of the Contact Center. The art is considered. 50 in paragraph b, in order to regulate the amounts to be paid as a holiday, it has a deterrent effect on the enjoyment of the holiday, and it must therefore be annulled. The second of the requests contained in the pleas of the deduced claims cannot be accepted since the Chamber is requested a pronouncement concerning to cover the void caused by the challenge to exceed the object of the procedural modality of the challenge of collective agreement.

AUD. NATIONAL SOCIAL ROOM

Goya 14 (Madrid).

Tfno: 914007258.

Team/User: BLM.

NIG: 28079 24 4 2016 0000276.

Model: ANS105 Statement.

IMC challenge of Conventions 0000258 /2016.

Rapporteur Ilmo. Sr: don Ramón Gallo Llanos.

Statement 163/2016.

Ilma. Madam President, Mrs Emilia Ruiz-Jarabo Quemada.

Ilmos. Mr/Mrs Magistrates:

Don Ramon Gallo Llanos.

Doña Maria Carolina San Martín Mazzucconi.

In Madrid, three November two thousand sixteen.

The Chamber of the Social of the National Audience composed by the Messrs. Magistrates cited on the sidelines and

ON REY NAME

You have dictated the following

STATEMENT

In procedure no. Claim 000258/2016 and accumulated 280/2016 followed by demands of UGT (lawyer don Félix Pinilla) and CGT (lawyer don José M. Mª Trillo-Figueroa) on the challenge of collective agreement against Asociación Española Contact Center (lawyer don Jesus David García Sánchez), Confederation Interunion Galega (latrada dona Rosario Martin), Federation of Services of Workers ' Commissions (lawyer donates Sonia de Pablo), Eusko Langileen Alkartasuna (not to appear), Langile Abertzaleen Batzordeak (does not appear) The Ministry of Public Health has been a stakeholder, the Ilmo has been the Rapporteur. Mr. Don Ramón Gallo Llanos who expresses the opinion of the Tribunal.

Fact Background

First.

According to the present case, on 20 September 2016, a complaint was filed in the name and representation of FES-UGT on the challenge of collective agreement.

The Chamber agreed to the registration of the claim under the number 145/2016 and appointed rapporteur by pointing out the day 2 of November 2016 for the acts of conciliation and, where appropriate, judgment.

Second.

On October 13, 2,016, a lawsuit was filed against the same defendants and with identical object by CGT, with the registration of the same with the number 280/2016, agreeing the accumulation of the same to the previous one by Auto The date of 14-10 2016 at which the planned date for the conclusion of the acts of conciliation was maintained and, where appropriate, the case.

Third.

The acts of conciliation and trial, took place on the day intended for its celebration, and resulting in the conciliation without compromise, began the act of judgment in which:

-The lawyer of FES-UGT after signing and ratifying in his letter of application requested a sentence in which the nullity of the art is declared. (b) of the contested collective agreement and declare the right of the workers to whom the said convention applies, to the sum of the amounts received in the year in question by the salary supplements of public holidays, Sundays, special public holidays, plus language and language holidays, divided between 330 days or, where appropriate, between 333 days, multiplying the amount resulting from the 32 days of holiday, or the corresponding proportional share in the case of the provision of services lower than the year, in support of such requests argued that the precept in question was contrary to the provisions in the arts. 7 of Directive 88/2003 in relation to art. 7 of the 132 ILO Convention, in the interpretation that has been made of them by the CJEU-Ss from 22-5-2014 and 12-6-2014.

-The lawyer of CGT, after asserting itself and ratifying itself in his letter of application, requested a ruling in which the annulment of the article is declared. 5b of the Collective Convention, in the calculation of the average of the amount of the allowances for public holidays, Sundays, special holidays, plus of the night and the languages and the right of the workers concerned to pay the average, either by dividing the set of emoluments received in the year by 330 days (in case of calculation on a type basis) or by 333 days (in case of non-holiday counting) and multiplying the same by the 32 days of established holidays, To reiterate the arguments put forward by the co-plaintiff.

-CIG and CCOO adhered to the plaintiffs ' requests.

-The employer association demanded against the claims deducted from the contrary, requesting the dictation of a ruling of the same, alleged that the wording of the precept invoked, brought cause of the wording of the IV Convention which was the result of a mediation procedure promoted by CGT in the year 2007 in which it was intended to include in the payment of holidays the concepts that already consist, being its calculation perfectly adjusted to the reasoning of the TS in SSTS of 8-6-2016 and later.

It was then agreed to receive the trial trial by proposing and practicing the documentary, after which the parties made their findings definitive, requesting the Fiscal Ministry to estimate the demand, leaving the cars seen and completed for the sentencing dictation.

Fourth.

In accordance with the provisions of Article 85.6 LRJS it is necessary that the facts at issue were as follows:

-A pre-agreement was formalized on 22/11/07, in which the same wording was given to the art. 50 of the convention.

Fifth.

All legal formalities have been observed in the handling of these proceedings.

Facts tested

First.

The Federation of Services of the General Workers ' Union (FeS-UGT) is integrated into the General Union of Workers, a union that is more representative at the state level, according to Article 6 of the LOLS, and also has a important implementation in the Contact Center sector (formerly known as Telemarketing).

CGT is a trade union organization with sufficient implementation in the Contact Center sector.

Second.

The Contact Center Collective Agreement (published in BOE No. 179 of 27 July 2012) establishes an initial duration until 31.12.2014.

It is currently in force in its normative content, having been denounced and in application of the art. 6, which provides the following: "Denunciations of the Convention, and until no express agreement is reached, for the purposes of the provisions of Articles 86.3 and 4 of the ET, it shall be understood that the validity of its normative content is maintained".

Third.

This Collective Agreement regulates in Article 50 how, during the annual holidays, the various wage supplements provided for in the Convention are paid out as follows:

" The workers affected by this Convention will receive, as remuneration for their annual leave, the average of what they have received for the allowances of public holidays, Sundays, special holidays, and language and language plus indicated in the convention.

This will be calculated in accordance with the following formula:

(a) Summarize the amounts received by the salary supplements indicated in the preceding paragraph, of the current year that each worker has received.

(b) Split this amount between 360 days (12 months of 30 days each month as a type) and multiply it by the 32 days of holiday fixed in this Convention, or the corresponding proportional share in the case of the provision of services less than year.

The amount resulting from this formula will be made cash in one time on the payroll of January of the following year, except in the event that the worker ceases in the Company, for any cause before the end of the year natural, which will be paid within the corresponding end receipt.

Those companies that, prior to the signing of this agreement, came to pay during the enjoyment of the annual leave period any of the supplements or pluses mentioned in the first paragraph of this article, will maintain this system, applying that formula exclusively for the remaining add-ons. "

Fourth.

The 17-8-2007 was presented by CGT as a mediation ballot on holiday pay, which, although it concluded with disagreement in the SIMA, subsequently signed on 17-11-2007 a pre-agreement of pay for holidays that happened to be part of the Fourth Sectoral Convention, being the wording of the Article. 50 of the current precept, the same one that was agreed on at 17-11-2007.

Fifth.

Having promoted mediation by FES-UGT, the act of disagreement was extended on 3-10-2016.

Fundamentals of Law

First.

The Chamber of the Social of the National Court is competent to know about this process in accordance with the provisions of Articles 9, 5 and 67 of the Organic Law 6/85, of July 1, of the Judicial Branch, in relation to the established in Articles 8.1 and 2 (h) of Law 36/2011 of 10 October, Regulatory of Social Jurisdiction.

Second.

In accordance with the provisions of Article 97, 2 of Law 36/2011 of 10 October, the wording of the factual result of this resolution has been carried out as follows:

-Facts 1. º to 3. º are compliant;

-The fact 4. is deduced from the documentary presented in the act of the view by the employer's association demands, in particular from documents 1 to 4-request for mediation, act of disagreement, pre-agreement and text of the IV Convention;

-The fact 5. º of the only document presented by UGT in the act of the view.

Third.

As has been outlined in the factual background to this resolution, the declaration of nullity of art is sought. 50 of the Convention, since when it comes to the way in which the various supplements to be taken into account are taken into account for the payment of holidays, the normal or average remuneration is not guaranteed, since the whole of the allowances received is divided into the previous financial year, divided between 360 and multiplied by the number of holiday days, when such a calculation would require the ratio to be 330 or in its case of 332, as it is during that number of days when the In addition to the above mentioned supplements but not of 360, since during the month of holiday there is no perceived quantity for these concepts, but the so-called pay for holidays. This in the opinion of the trade union organisations generates a deterrent effect for the enjoyment of the holidays, which is proscribed by the arts. 7 of Directive 88/2,033 and 7 of ILO Convention 132, as they have been the subject of interpretation by the Community case-law and the TS IV of the Ss.TS of 8 June 2.016.

By the defendant company it is argued that the system, furto of collective bargaining, is in line with the legal and jurisprudential parameters, having accommodation in what the case-law of the IV of the TS calls " halo of uncertainty likely to be negotiated. "

Fourth.

The art. 38 ET provides that the annual paid leave period, which is not substitutable for economic compensation, shall be the agreed collective agreement or individual contract. In no case will the duration be less than 30 calendar days, and therefore, the concepts must be integrated into the concept of the remuneration, and the case-law has therefore been resolved in the various cases that have been raised, Remuneration concepts should integrate the remuneration of holidays.

Thus, on STS 26-07-2010, which confirmed SAN 9-10-2009, it has synthesized its position on which remuneration concepts should integrate the annual leave remuneration in the following terms:

" 1. The Convention No. 132 of the ILO (dated 29 June-1970), on 'paid annual leave', was ratified by Spain by means of instrument dated June 16-1974 (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.

2. In the art. 1 it is established that ' national legislation shall give effect to the provisions of this Convention in so far as 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 entire 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 a matter of 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. '

3. 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 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 ordinari day ''.

4. In a systematic analysis of the case-law, STS/IV 25-April-2006 (rcud 16/2005) points out that art. 7.1 of the Convention No. 132 of the ILO, 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 by 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 this holiday pay material 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 required right inavailable ''.

5. It continues to recall the STS/IV 25-April-2006 that " The judgment of the Supreme Court of October 1, 1991 (rec. No 667/91) stated: According to the Convention No. 132 of the ILO ... every worker must be perceived as 'at least his or her normal or average remuneration' (starting point of art. 7.1), which is to be understood as the average of all emoluments corresponding to the ordinary day. It also lays down that rule below. 7. (a) that such remuneration 'shall be calculated in the manner determined in each country by the competent authority or the appropriate body'. 7. º in fine) ''. It adds that ' ... the judgment of 30 September 1992 (rec. No 465/92) specified that the art. 7. the ILO Convention No. 132, when establishing that during the holidays the worker will be charged 'for at least his normal or average remuneration calculated in the manner determined in each country by the competent authority or the appropriate body' in relation to the art. 1. of the same Convention which provides that the legislation will give effect to the provisions of the said convention no. 132, insofar as this is done or done by means of collective agreements, which it carries, as the rule of art. 5.1 of the LOPJ is to be interpreted in accordance with the constitutional principles and in the light of the binding force of collective bargaining, as a source in art. 3. ET ''. Concluding that ' This doctrine has been reiterated by many other judgments of this Chamber, among which we can mention those of 6 November 1992 (rec. No 2295/91), 29 December 1992 (rec. No 1623/91), 22 September 1995 (rec. No 1348/94), and 14 June 1996 (rec. No 1339/95), among others. Similar doctrine is currently being maintained in the judgments of 16 December 2005 (rec. No 4790/2004), 29 December 2005 (rec. No 764/2005) and 14 March 2006 (rec. No 998/2005) ''.

6. In interpretation of the concept of '' normal or average remuneration '' included in art. 7 of the 132 ILO Convention and on the question of whether the integrity or the average of the extraordinary remuneration should be computed, STS/IV 21-October-1994 (rcud 3149/1993) understood that '' the art. 7 of ILO Convention 132 ... provides ... that it shall be collected for the entire period of such holidays, at least its normal or average remuneration, including the cash equivalent of any part of that remuneration which is paid in kind ... The appeal considers that normal remuneration is only that which is usually perceived, and as all the supplements, which the judgment considers to be computable even though they refer to the normal working day, they pay some exceptional circumstance, they must not be (a) the terms of the transfer. Without doubt, the expression 'normal' or 'average' remuneration used by the precept, which is the subject of the appeal, has a non-precise character and is of a rather indicative nature. This Chamber, in its judgments of 20 December 1991, 13 March 1992, and 20 January 1993, has stated that the remuneration of the holiday must include all the salary concepts in its average, not including it and being the exception of the extraordinary salary concepts established to pay for extraordinary activities. Thus, in order for a wage concept to be excluded from the remuneration of holidays, it is not enough for this concept to be due to an unusual circumstance in the work done, but it is necessary that the work itself to be remunerated is also extraordinary. This interpretation does justice to the expression used in the first paragraph of Article 7, which refers to normal and average remuneration, which indicates that extraordinary remuneration for the work carried out during the normal working day to be computed on your average, and not on your integrity, as is obvious ''.

7. Identical interpretative doctrine had been followed in the name of the 'continuous care complement' of the statutory staff, understanding that it had to be passed on to the holiday pay. Thus in STS/IV 27-January-2004 (rcud 3574/2002) it is reasoned that '' This question has also been unified by this Chamber in sentences of 8-4-03 (rec. 2090/02), 15 -4-03 (rec. 2626/02) and 22-7-03 (rec. 3461/02). The last of these ... adds that as the judgment of 18 March 2003 is charged, the assumption of holiday days is different and, as you will see below, it is regulated differently. The art. 110 of the Staff Regulations of the Non-Optional Health Insurance Staff (OM 26-4-1973) orders that during the holidays the employees in their field of application shall receive in full the emoluments which they normally correspond to. for all concepts that are recognised. It must be considered as normal for the worker to be paid for the provision of his services in the usual working hours. This implies the inclusion in the case of the complement of continuous care, which constitutes in the concrete circumstances of the delivery of services of the actor a regular perception. This solution is, moreover, fully in line with the provisions of art. 7.1 of the ILO Convention 132 (ratified by Spain 30 June 1972), which in principle requires the calculation of the remuneration to be paid during the holiday period in accordance with at least the normal or average remuneration. In the same sense, STS/IV 30-september-2003 (rcud 2824/2002) was also pronounced.

8. With regard to the non-computable concepts for the purpose of determining the remuneration of the holidays, STS/IV 4-November-1994 is excluded from the so-called 'currency break', provided for in a collective agreement on road transport between the wage concepts to be taken into account for the purpose of fixing the remuneration for holidays, arguing that ' The currency break is an economic concept of payment ordered to compensate for the risks and, where appropriate, damages arising from the carrying out operations with money, such as, among others, errors in charges and payments or losses, involuntary. It is not, therefore, an economic consideration for the work carried out, whether it is considered to be in itself, considered in any of the aspects that may be present for the purposes of its assessment or assessment (performance, penalties, etc.). Thus, it is not of a wage nature, and that is why the rules on the management of wages define the bankruptcy of currency as true compensation, thus excluding it from the legal consideration of the salary ''; and stating, Under the terms of the 132 ILO Convention, " The expressed conclusion does not constitute an infringement of ILO Convention 132. This convention, already integrated into the Spanish positive order, once ratified and published in the 'BOE' of 5 July 1974 (arts). 96 EC and 1.5 CC), it prescribes that every worker must receive, in respect of holiday pay, 'at least his normal or average remuneration' (initial point of art. 7.1), which is to be understood as the average of all emoluments corresponding to the ordinary day (see Sentences of 1 October 1991 and 21 January 1992). The inclusion in the calculation, therefore, requires that the concept that is questioned, in this case the bankruptcy of currency, is of a salary character, as retribution or consideration of an effective labor activity, which is not the case, according to This was the first reason It is not in breach of the case-law of the Chamber that, in the light of the interpretation of the ILO Convention, it has never included concepts of pure indemnity, or in any case similar to that of the currency, in the forecasts of Article 7, already quoted ''.

9. Similarly, the case-law has excluded from the calculation of the remuneration of the holiday the so-called 'travel allowance' or 'late allowance' established in certain collective agreements, arguing that ' irrespective of (a) the remuneration of the holiday on what is not called into question, it must be noted that, while it is being enjoyed, it cannot be considered to be displaced on behalf of the company to the worker, as it may be found in the place of appropriate, without at any time being able to accept that it is displaced; whereas the (i) the removal of the place of residence, giving rise to the agreed conditions or regulations, to carry out an activity in order of the undertaking, the holidays represent a period of rest, on the basis of which it is unnecessary recall, but of course it is opposed to the carrying out of any work on behalf of the company at whose cost they are enjoyed, because the foundation of the purpose of the same would be broken. They are concepts that are counterposed as antithetical to the existence of displacement and the enjoyment of vacations; while during this suspended period the obligation to work is clearly incompatible with the idea of displacement, because during that time, no specific residence can be imposed on the person who enjoys them ' (SSTS/IV 22-december-1994 -rcud 1234/1994 and 2-June-1995 -rcud 3394/1994).

10. Where the form of payment for holidays has been laid down in the applicable legislation or in the collective agreement, which is permitted by the said Convention 132 ILO, the interpretation of those rules should be interpreted. 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, pointing out that ' The two judgments of this Chamber which are said to be contradicted by the appellant have decided not to include 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 ordination on the matter ... ''.

b) Does not contradict the previous doctrine STS/IV 26-January-2007 (rcud 4284/2005), in which it is argued that '' The question raised is to determine whether, for the calculation of the remuneration of the holidays, are only the wage concepts that the Collective Convention has among those which it regulates or must be taken into account all that it regulates and does not exclude, expressly, from the computation to give back the holidays, as well as if the first solution is contrary to 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 pay 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 ''.

11. Finally, social case law has determined the form of pay for holidays when it has not been set out in the relevant collective agreement applying in these cases the full Convention No. 132 of the ILO. In this respect, among others, it should be noted:

(a) STS/IV 13-april-1994 (rco 511/1993) in which it is noted that ' The infringement ... is not ... for the misinterpretation of Articles 82 and 85 of the Staff Regulations in conjunction with Article 7 of the Convention 132 of the ILO. Their argument ... is that by not including Article 18 of the collective agreement the amount of the holiday wage, but only its duration and the dates of its enjoyment, the non-fixing of that amount must run at the expense of the employees, be new obligations not covered by the same. This thesis would also, in short, lead to the total abolition of the pay of the break for holidays, forgetting that the holidays are, by their very nature, paid (art. 40.2 Constitution and art. 38 ET). The single fixing of the collective agreement of a remuneration clause for the first year and the salary revision for the second year of validity of the agreement leads to the provision of the various salary items corresponding to the workers. The amount of remuneration is established-in other words the collective agreement-in Article 7 of the ILO Convention 132 on annual paid leave, ratified by Spain by the Instrument of 16 June 1972 (BOE). 5.7.1974), according to which 1. Any person taking a holiday in accordance with the provisions of this Convention shall, for the entire period of such holidays, at least pay his or her normal or average remuneration (including the cash equivalent of any part of that holiday). remuneration ...), calculated in the form determined in each country by the appropriate authority or body. 2. The amount due under paragraph 1 shall be paid to the interested party before their vacation, unless otherwise provided for in an agreement that binds the employer and that person. This precept must be fulfilled, as argued by the judgment under appeal, which has not incurred the legal breaches that are reported. '

b) Doctrine that is reiterated, among others, in STS/IV 2-june-2007 (rco 57/2006), stating that '' in the case at hand, the convention (art. 28) regulates only the aspects relating to the duration of the holidays and the time of their enjoyment, but nothing provides for the remuneration concepts which must be taken into account and does not verify any exclusion. Consequently, in view of the silence of the agreement, it is not possible to go to the general rule of remuneration according to the normal or average remuneration obtained by the worker at the time of the activity, which is in line with its purpose: to guarantee the The right to a holiday is effectively enjoyed by the continuity of the perception of the income from the usual work, and it cannot be argued, as the judgment under appeal, that the art. 47 of the Convention refers to the annual amounts shown in the salary tables contained in Annex I to the Convention, deducing from this that in these quantities 12 natural endowments are included and the for the holidays, excluding from this any other supplement, as the aforementioned art. 47 of the Convention refers to the additional maturity allowances per month, that is, the extraordinary payments, and not the holidays, which as we have seen are regulated in the art. 28 referring only to aspects relating to the duration and time of their enjoyment. ''

Fifth.

The Community Directive 2003 /88/EC has regulated in Article 7.1 of the remuneration for 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 judgment of 22-5-2014 case Lock C-539/12, 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 period 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 aimed at placing 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 7. '

Sixth.

In view of the Doctrine held by the CJEU in the so-called "Locke" matter-and in the later resolution of 12-6-2,014 (C-118/2013). Mr Bollacke's case, the Fourth Chamber of the TS in the very recent resolutions of the General Chamber, 8-6-2,016, numbers 496 /2016-rec. 112/2,015 which resolves the appeal against the SAN of 11-12-2014 ("Collective Convention of Contact Center") and 497 /2016-rec. 207/2,015, which resolves the appeal against SAN 18-32,015 ("Telefónica Moviles") and has clarified the doctrine that has been maintained to date regarding the remuneration of the holidays in the following sense, which expresses the second of the Cited resolutions:

"For this reason, although to date we have maintained that the Collective Agreement can validly limit the salary elements of the" ordinary "day that they have to give back on holidays, thus departing from the" remuneration " 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 comply with the of the CJEU-an interpretative element of our normative and conventional regime-, such as art. 7.1 Convention 132 cater for "normal or average remuneration", although -art. 7.1 cited-"calculated in the form" that could be agreed-among other possibilities-collective bargaining.

Well, it seems reasonable to us to understand that although the fixing of that ['' normal or average ''] payment by collective bargaining allows for an understandable degree of discretion, for this is undoubtedly the case. alludes the expression "calculated in the form ..." that the art. 7.1 of the Convention 132 uses, in all ways the same cannot achieve the distortion of the concept '' normal or mean '' to the point of making it unrecognizable, since it is an indeterminate legal concept and as such offers:

a) What has been called '' core ''-zone of certainty-which seems to be integrated, in its "positive" facet by the concepts that integrate the "ordinary" pay of the individual worker, such as, for example, the salary basis, the concepts-add-ons-due to 'personal conditions' of the worker [seniority, qualifications, languages ...] and circumstances of the 'business activity' ' [toxicity; penosity; dangerousness ...], which are always perceived by the workers individually considered; and in their "negative" facet, by general terms, extraordinary remuneration concepts [in general and without prejudice to their exception in exceptional circumstances, bonuses; certain incentives; overtime ...].

b) The so-called '' halo '' -zone of doubt-that may well be integrated by add-ons attributable to circumstances related to the concrete '' work done '' [sporadic nocturality; isolated turnicity; the same hours extraordinary, but endowed with a certain reiteration ...], and whose qualification-as ordinary or extraordinary retribution-will depend on the concurrent circumstances [particularly the habituality in its execution], and that is precisely the point in which a certain discretion of collective bargaining can operate.

i would like to make it clear that the Commission is not going to be able to take the necessary measures to ensure that the European Parliament is able to take the necessary measures to ensure that the European Parliament is able to the north of the judicial interpretation-the purpose of the effective rest of the paid holiday figure. "

This doctrine is reiterated in subsequent resolutions of the Fourth Chamber of the TS (Ss.TS of 16-6-2,016-rec. 146/2016-, 15 -9-2016-rec. -, 29-9-2.016-rec. 233/2015).

Seventh.

In the contested Convention, as set out in the HHDDPP, Article 50 sets out how the various wage supplements are paid, during annual leave, and does so as follows:

" The workers affected by this Convention will receive, as remuneration for their annual leave, the average of what they have received for the allowances of public holidays, Sundays, special holidays, and language and language plus indicated in the convention.

This will be calculated in accordance with the following formula:

(a) Summarize the amounts received by the salary supplements indicated in the preceding paragraph, of the current year that each worker has received.

(b) Split this amount between 360 days (12 months of 30 days each month as a type) and multiply it by the 32 days of holiday fixed in this Convention, or the corresponding proportional share in the case of the provision of services less than year.

The amount resulting from this formula will be made cash in one time on the payroll of January of the following year, except in the event that the worker ceases in the Company, for any cause before the end of the year natural, which will be paid within the corresponding end receipt.

Those companies that, prior to the signing of this agreement, came to pay during the enjoyment of the annual leave period any of the supplements or pluses mentioned in the first paragraph of this article, will maintain this system, applying that formula exclusively for the remaining add-ons. "

And this form of remuneration, as the trade unions have shown, is in some way a deterrent effect for the enjoyment of holidays, which makes it contrary to the doctrine of the CJEU. reception by the TS. If the situation of a worker enjoying a holiday is compared, in relation to one who renounces such a right, it is apparent that the remuneration of the first person in his/her annual calculation will be reduced in relation to the second and the application of the quotient of the mathematical formula contained in paragraph 2 of the art.50, since the second-the one who does not enjoy a holiday-will receive during the whole year the salary supplements, the first during the (a) days corresponding to such breaks, shall receive such supplements but merited in approximately one doceavo and this by application of the contested mathematical formula.

Not shared by the sector's business association in pursuit of the dismissal of the lawsuit, because while collective bargaining has filled the so-called "halo of doubt" zone that the Supreme Court refers to the It is time to set out which concepts should be paid on holiday, as we have just stated when it comes to quantifying these concepts, deviates from the concept of normal or average remuneration, producing an effect that, as we said before and now we reiterate, can deter the enjoyment of them,

Eighth.

For the reasons, the annulment of the contested provision-first of the points of the supply of the application-must be declared invalid, without, on the contrary, the second of the requests, that is, the fixing of 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 did not have the right to 37 EC and to be a claim which exceeds the mere total or partial challenge of a collective agreement by illegality, not liable to be accumulated to it (art. 26.1 of the LRJS).

Seen the cited legal precepts and other general and relevant application

FALSE

That partially estimating the claims deducted by FES-UGT and CGT, which CCOO and CIG have joined against Asociación Española Contact Center, Eusko Langileen Alkartasuna (ELA), Langile Abertzaleen Batzordeak (LAB) on Article 2 (b) of the Treaty provides for the annulment of Article 3 (b) of the Treaty 50, paragraph 2. º of the V Collective Agreement of Contact Center (formerly Telemarketing) (BOE OF 27-72,012), and dismissing the second of the requests made in each of the same absolve the defendant regarding the same.

Notify the parties of this judgment by warning them that, against the same action of Cassation before the Supreme Court, you will be able to prepare before this Chamber of the Social of the National Court within five days (a) from the notification, being able to do so by means of a demonstration of the party or its lawyer, social graduate or representative to the notified serle, or by writing in this Chamber within the time limit 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 with the n ° 0049 3569 92 0005001274 by stating in the observations the n ° 2419 0000 00 0258 16; if cash in account No 2419 0000 00 0258 16, it is possible to replace the cash entry by the insurance by means of Bank guarantee, in which the liability of the guarantor is established.

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.