What happens when the collective bargaining agreement that applies to an employee provides for additional and enhanced paternity leave over and above that granted by law, but that law changes and supersedes that enhancement? Is the employee entitled to take both leaves and ‘add them together’? The High Court of Justice of the Basque Country has just ruled on this point, with a decision on sentence which we will analyze in this post and which serves to understand the nature of this type of leave (whether paternity or maternity leave), as well as its scope and characteristics, starting from the legislative reform that extended the duration of paternity leave in Spain this year. Specifically, the Court ruled in favor of the company, which denied an employee two paternity leaves.The enactment of Royal Decree-Law 6/2019, of March 1, on urgent measures to guarantee equal treatment and opportunities between women and men in employment and occupation, entails the tacit repeal of the additional leave that was recognized in the employee’s company agreement.
More specifically, the company agreement had been granting 3 ‘extra’ calendar days with respect to the legal leave established by the Workers’ Statute, but with the enactment of RDL 6/2019 on equal treatment in employment, a new regime is implemented that greatly improves the workers’ leave.
Specifically, this reform, in force since April 1, 2019, extended the paternity leave established in our Workers’ Statute, increasing it to 16 weeks, of which 6 uninterrupted weeks immediately following childbirth will be mandatory. Given this change, the ruling concludes that the improvement provided for in the agreement is no longer in force.
The new legal regulation implicitly annuls or repeals the conventional norm.
It is not possible, as the appellant union claims, to add those 3 days to the legally established leave.
Paternity leave: a reform that absorbs collective bargaining agreement improvement
According to the Court’s conclusion, the improvement established by the company agreement disappears due to the implementation of a new legal regime that greatly extends the previous one, so that the two leaves cannot overlap as the workers claim, i.e., to enjoy first the 8 weeks (for 2019) and then the 3 additional days of the agreement.
The explanation goes on to state that it is not legitimate for the workers to seek to avail themselves of two different sources: the agreement and the law.
“The conclusion must be the dismissal of the claim. It cannot be accepted the validity in the agreement of the improvement of a legal right that no longer exists; nor is it legitimate, in relation to the same matter and right, that the workers seek to avail themselves of two different sources (the agreement and the law)”.
In addition, the judgment recalls that both the leave claimed here and a large part of the contractual suspension for childbirth must be effective from the date of birth, so that “the claim of the plaintiff would imply an overlap or chronological coincidence between the 3 days of leave and the first three days of the weeks of suspension of the contract”.This confirms the unfeasibility of the claim, since, in addition, Article 30 of the agreement does not allow the use of the leave at a later time (which would be at the end of the suspension), nor does the legal regulation of the latter allow the delay of its commencement due to collectively agreed provisions”.
A judgment with a dissenting vote
However, the judgment has a dissenting vote in favor of granting those 3 extra days to the worker. Thus, Judge Butrón Ochoa assures that conventions can complement and improve basic rights regulated in the Workers’ Statute, and that a reform, insofar as it does not go beyond or contradict the improved rights, must imply the maintenance of the rights that are beneficial in accordance with what has already been negotiated.
“We cannot forget that the rules of conventions can complement and improve basic rights regulated in the Workers’ Statute, whose modification or reform, insofar as it does not exceed or contradict the improved rights, those that are beneficial in accordance with what has already been negotiated must remain in force, taking into account the principle of favorability of their positive effects, regardless of the priority and hierarchical application preference”.
In addition, it adds that in the absence of an express provision repealing the agreements, the current sole repealing provision of RDL 6/2019 only conforms the repeal of rules of equal or lower rank that oppose or contradict the provisions of said RDL, but
does not expressly establish any kind of derogation of the conventional rules that improve or exceed the achievement of the acquired rights.If you need help in any case related to paternity leave or maternity leave, contact us without obligation.
