Rights of workers in ERTE: Own affairs according to collective bargaining agreement

The Supreme Court has declared that by virtue of the application of the principle of proportionality to workers whose contracts have been suspended due to an ERTE, they are not entitled to take the full number of days of personal leave, but rather it will be reduced in proportion to the time of suspension of employment relations.

An issue that has been controversial for companies in ERTEs is whether workers in ERTEs are entitled to take the corresponding days for own business.

National Court

At the time, the judgment of the Audiencia Nacional (AN) 161/2021, of 30 June (appeal 518/2020) declared the right of these workers ‘to enjoy the days of their own affairs [...] in their entirety, without proportionality to the time during which their employment relationship was suspended due to an ERTE’.

Therefore, for the NA, the worker has the right to enjoy the totality of the own business days recognised in the collective agreement.

Supreme Court

For its part, the Supreme Court in its judgment of 14 November 2023 (Appeal no. 312/2021) corrects the National High Court, and indicates that it is an acausal leave consisting of a right divisible according to the working time, which means that the principle of proportionality must be applied.

The disputed issue consisted in determining whether the workers to whom the IV State sectoral collective agreement for external auxiliary services and customer service in railway service companies applies, whose contracts have been suspended under art. 47 of the Workers' Statute (hereinafter ERTE), are entitled to enjoy in full the six days of own affairs provided for in this collective rule or whether they have to enjoy them in proportion to the time of service provision.

The ruling states that a distinction must be made between causal leave, granted in relation to specific events that justify the worker's absence from work, such as illness or maternity, and acausal leave, such as personal leave, which is not linked to any justification or reason.

Therefore, it considers that during the time of ERTE workers can rest or engage in leisure activities, so the principle of proportionality has to be applied and the number of own business days has to be reduced. Therefore, workers will not be entitled to take the full amount of leave, but it will have to be proportional to the time spent working.

Therefore, in the absence of any regulation in the collective agreement, the principle of proportionality must be applied to calculate the number of days of own affairs that workers on ERTE have been entitled to.

The opposite argument would lead to the fact that, if the suspensive ERTE were to last for the greater part of the calendar year, the entitlement to the six days' leave for personal matters could coincide with the only days on which a worker has to provide work services, which would undermine this acausal leave which is freely available to the worker. We cannot agree with the argument of the judgment under review regarding the fact that the literal wording of the provision means that ‘the entitlement to own business days is not conditional on the employee's previous time of actual service during the year in which the own business days are requested’. If an employee is hired by the company one week before the end of the calendar year, he/she will not be entitled to request six days of own affairs leave in the same year. The solution is the same if this worker has had his contract suspended due to an ERTE.

In short, the application of the principle of proportionality to workers whose contracts have been suspended due to an ERTE leads to the conclusion that these workers do not have the right to enjoy this six days' leave for personal matters in its entirety, but that it will be reduced in proportion to the time of suspension of employment relations.