2023-10-23 17:05:05
The Fourth Chamber of the Supreme Court has declared, in a ruling dated October 10, that the minimum interprofessional wage (SMI) is applicable in the special employment relationship of people who participate in commercial operations without assuming the risk and fortune of said transactions. , such as insurance brokers.
It all goes back to a case in which an insurance company fired a worker who was dedicated to marketing these products for, supposedly, not having reached an agreed sales goal.
The employee filed a lawsuit against the company in the Social Court number three of Almería, which upheld the lawsuit to declare the dismissal inadmissible, so that the company either reinstated the worker or had to compensate him with a total of 1,281.28 euros. To arrive at this figure, the court based itself on the fact that the daily SMI amounted to 58.24 euros.
However, the insurance company presented a new appeal against this ruling in the Superior Court of Justice of Andalusia, which was partially estimated so that the optional compensation for unfair dismissal was recalculated at 801.46 euros, almost 500 euros less than the first sentence.
Discrepancy in calculations
And the thing is, the Superior Court of Justice corrected the social court in Almería, pointing out that the minimum daily wage applicable in compensation was 36.43 euros, according to royal decree 1438/1985. Even so, the amount was higher than the worker’s salary, which stood at 32.99 euros.
It is here that the Supreme Court has confirmed the Granada ruling and has declared that the minimum wage is applicable to the special employment relationship of people who intervene in commercial operations on behalf of one or more businessmen without assuming the risk and fortune of those and, specifically, also in the calculation of compensation for unfair dismissal.
Firstly, the Supreme Court starts from the constitutional significance of the salary (article 35.1 of the Constitution), as well as its relevance for the Law of the European Union. It also emphasizes that the annual royal decrees set the SMI for “any activities in agriculture, industry and services.”
It also points out that Royal Decree-Law 3/2004, of June 25, for the rationalization of the regulation of the interprofessional minimum wage, defined the SMI as the “minimum wage guarantee for employed workers established in article 27 of the Statute of Workers”, expressly referring to the link of the interprofessional minimum wage with “labor relations of a special nature.”
The ruling reaches the conclusion that, in accordance with the aforementioned regulations, the notion of legally established remuneration logically presupposes the obligatory respect for the amount of the SMI.
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