Collective agreements or the transformation of temporary contracts into permanent contracts do not prevail if there is a valid request for reinstatement and a vacancy of the same or similar category.

The Supreme Court has rejected the appeal for the unification of doctrine filed by the defendant company, confirming the ruling handed down by the Social Chamber of the Superior Court of Justice of Catalonia (remedy no. 6794/2024), which resolved the instance procedure no. 129/2020, regarding the recognition of rights and claim for amounts.

The case is about a worker who started working in a company in December 1989. In September 2004, he began a voluntary leave of absence.. In August 2006, the worker requested to be reinstated to his position, but the company limited itself to "taking note", without giving him a clear answer or reinstating him. In October of that same year, he reiterated his request, obtaining the same response.

The worker filed a lawsuit for dismissal, but it was dismissed due to the inadequacy of the procedure.. In October 2007 he requested reinstatement again. and, in November, the company responded that there were no vacancies available, however, recognizing its preferential right to re-entry when they occurred. The subsequent lawsuits were also dismissed.

Between 2004 and 2019, company collective agreements included an agreement to transform temporary contracts into permanent ones when they exceeded 7% of the workforce. In June 2016, the company and representatives signed an agreement to transform seven temporary contracts into permanent ones, of which six became effective in 2019.

Since 2012, there has been no hiring of new permanent workers, except for the aforementioned transformations. During that time, the worker provided services in other companies and received unemployment benefits.In November 2019, he requested reinstatement again, receiving the response that there were no vacancies..

On the other hand, the company carried out several agreed Employment Regulation Files in which it terminated contracts in both 2008, 2009 and 2013, and also suspended contracts from 2007 to 2019.

In the event, the right of the worker to rejoin the company in a job in his professional category and to pay him the amount of 218,367.52 euros was declared. as compensation, an amount that is equivalent to the salaries not received from 2012 to April 2021. This amount is granted without any deduction for earnings obtained in other companies or for unemployment benefits or subsidies received in that period. The Social Court bases its decision on the fact that the lack of re-entry is solely attributable to the company.

The analysis of the Supreme Court revolves around the preferential right to re-employment of the surplus worker compared to the transformation of temporary contracts into permanent ones, even when such conversions were covered by collective agreements..

Voluntary leave does not entail the obligation for the employer to reserve for the worker the job previously held. The employer can dispose of the vacant position, either by hiring another person, reorganizing functions or even amortizing the position, all in the legitimate exercise of his management and organizational powers. Therefore,To assess the preferential right to re-employment of the worker on leave, it must be analyzed in each specific case. the procedure followed by the company to fill existing vacancies after the reinstatement request.

The company defended that the positions occupied by temporary workers, later converted into permanent ones by collective agreements, could not be considered "vacant" for the purposes of the preferential right of re-entry of the surplus worker.. He alleged infringement of art. 46.5 of the Workers' Statute, which establishes that the worker on voluntary leave retains only a preferential right to reinstatement in vacancies of the same or similar category to his or her that exist or occur in the company.

The Court applies consolidated jurisprudenceespecially STS 989/2020 of November 11 (which in turn follows the line of STS February 12, 2015 rec. 2405/2018), which establishes that said preferential right is maintained from the moment re-entry is requested, without the need to periodically reiterate it in the event that there are no vacancies at that time. Therefore,Following the unified doctrine, the company should have given priority to the worker's request before transforming temporary contracts into permanent ones in equivalent positions..