The Social Chamber clarifies that the right to adequate remuneration prevails over individual contractual agreements that exclude these supplements from vacation remuneration. It also recognizes the annual average of a salary supplement received for 6 months in a period of 11 months.

The ordinary appeal is resolved filed against the ruling handed down by the Social Chamber of the TSJ of Catalonia 46/2023, which had recognized the right of certain workers to include a salary supplement in their vacation pay, procedure 22/2023, in matters of Collective Conflict.

The conflict affects the staff who teach activities directed at the company centers in Barcelona and Sant Cugat and who usually receive this supplement for each session actually carried out.The company maintained that this concept should not be paid in the salary during vacations, based on the fact that it is received as established in individual contractual clauses that expressly excluded its payment during that period.. Furthermore, during vacations the company compensates the remuneration with a “special vacation salary” equivalent to double the fixed daily remuneration.

A union raised a collective dispute considering that the supplement called “Incentius” or incentive, as it is a common concept, should be included in the vacation remuneration through the corresponding annual average.

The TSJ of Catalonia upheld the claim and recognized that right to all workers who had received the incentive for at least six months in the previous eleven.

The company appealed in cassation alleging inadequacy of the procedure (understanding that it was not a collective dispute), lack of jurisdiction, error in the assessment of the evidence and violation of rules on autonomy of will and contractual validity.

The issue being debated consists of determining whether the discussed supplement rewards extraordinary work or compensation for occasional expenses, in which case it would be excluded, or if, due to its frequency and salary nature, it should be integrated into the calculation.

The Supreme Court considered  that it was a collective conflict, since it affected a homogeneous group of workers and could be resolved abstractly, without analyzing individual cases. This includes workers who provide directed activities and receive the “Incentius” supplement. Besides,The question raised is of a legal nature and of general interest, consisting of determining whether said supplement should be included in the vacation compensation. 

Regarding the substance of the matter, the Supreme Court maintains that the incentive is a habitual and periodic concept, linked to the worker's ordinary activity.European and Spanish jurisprudence determines that paid vacations reflect the worker's normal or average remuneration., which includes the usual variable concepts linked to ordinary activity. Therefore, contractual clauses that exclude the payment of the supplement during vacations cannot prevail over the right to adequate remuneration.

In short, vacation pay must correspond to the worker's normal salary. When said salary is made up of several concepts, it is necessary to analyze each of them to determine if they should be integrated into vacation compensation. As pointed out by the Court of Justice of the European Union "in principle, holiday pay must be calculated in such a way that it corresponds to the worker's normal pay..." 

After analysis , the Court concludes that, in this case, the affected workers regularly receive a supplement called “Incentius”, linked to each session of guided activity they teach. The fact that this supplement has been agreed individually in the contract, which is not included in the payment during vacations, does not prevent it from forming part of the vacation remuneration. Nor can it be replaced by the alternative system proposed by the company, the payment of double the fixed salary, since this method can harm the worker: since the real average of the incentive is not calculated, the amount received could be lower than what would correspond according to the number of sessions actually given. Only in cases in which double the fixed salary exceeds the average incentive could such a substitution be admitted.

In conclusion, it is not a concept intended to offset expenses, but rather a salary supplement received regularly, every month or, at least, for more than six months in the annual reference period. Therefore,This amount must be included in the remuneration for vacation days.

Failed: The ordinary appeal filed by the company is dismissed and confirmed, declaring the finality of the sentence handed down by the Social Chamber of the Superior Court of Catalonia.