2023-12-12 16:30:40
The Supreme Court (TS) has endorsed the custom of leaving work early on December 24 and 31, in response to the case of a bank branch in Galicia where the company intended to unilaterally end this Christmas tradition, something that the magistrates have rejected considering that this is a substantial change in working conditions that should have been consulted with the legal representatives of the workforce.
The ruling, to which Europa Press has had access, explains that “traditionally for more than 20 years, BBVA workers who provide services in the work centers of the four Galician provinces” whose usual hours were from 8 a.m. to 15 hours they closed to the public at 12:30, advancing their departure an hour, either to go home, or to “go for a drink all together” to celebrate the Christmas holidays.
On the occasion of the implementation of the legal obligation to record effective work hours, BBVA included a frequently asked questions section on its intranet where it indicated that the hours of those two days would be the usual ones, Monday to Thursday, and from 9 a.m. to 3 p.m. , if they fell on Friday.
The Galician Inter-Union Confederation (CIG) sent an email to the banking entity requesting that the reduced hours be maintained on those special days “as there are no causes that justify its suppression nor have the company initiated the procedures of article 41 of the Workers’ Statute ( ET)”. BBVA responded by recalling that “a collective agreement was signed in 2001, by which in addition to the paid leaves contemplated in the collective agreement, one more day of paid leave was incorporated to be enjoyed alternately by the staff on the indicated days”, “which is why the schedule established for said days is the one corresponding in each case to a normal work day.”
The CIG took the matter to the Superior Court of Justice of Galicia (TSJG), which ruled in favor of the Galician union. The bank appealed this ruling to the TS, essentially alleging that this special schedule could not be considered “a more beneficial condition” – subject to dialogue with the workers’ representatives – because “it was not really authorized, admitted or consented to by the company, but only tolerated in some way by the directors of such offices.
A recognized and “beneficial” right
The TS points out that “it is about deciding whether there was actually a consolidated practice for more than 20 years consisting of closing all the offices of the network at 12:30 p.m. on December 24 and 31, and if the situation can be attributed to that situation. legal nature of the most beneficial condition of a collective nature”.
The Social Chamber of the TS resolves that, although “it is evident that the claimed right does not emerge from the collective agreement”, it is also “undoubted that workers have been closing their offices to the public for more than 20 years at 12:30 p.m. to enjoy the Christmas appetizer”.
For the Fourth Chamber, this “evidence the existence of a widespread practice (…) that was not only known, but also admitted and consented to by the employer, to the point that it has finally been configured as a more beneficial condition incorporated into the body of workers’ rights”.
“The large number of offices in which it was carried out and the enormous extension of time of this practice prevents it from being considered as an unknown action carried out behind the company’s back, based on the mere and simple tolerance of the respective directors of each of the offices,” he explains.
Having established this premise, the Supreme Court maintains that it was “a more beneficial condition of a collective nature whose suppression by the company would have required resorting to the procedures of article 41 ET for the substantial modification of working conditions”, which is why it rejects the appeal. from BBVA.
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