Accumulated nursing leave must be calculated based on the hour of absence from the workplace and not on the half hour of reduced working hours

The accumulation of nursing leave on full working days must be based on an entire hour of absence from the workplace, and not on the working day reduced by a half hour

Judgement delivered by the Supreme Court on 19 April 2018 [JUR\2018\126997] 

The Collective Agreement of the defendant company stipulates that employees shall have the right to “one hour per day of absence, divided in two half-hour breaks or a reduction in the working day by a half hour. Possibility of enjoying accumulated time”.

Therefore the issue for the Supreme Court to resolve revolved around determining if the accumulation of nursing periods during full working days in the collective agreement must be calculated based on each hour of absence from the workplace, or based on the half-hourreduced working day as per company practice. 

The Supreme Court understands that setting the terms of the right to accumulation, of course cannot be left to company practice. Similarly, nor could it be understood that the will of the employee, despite being the owner of the right, may define the terms of the right in absence of specification in the collective guidelines. 

That said, the Court highlights that the following is established in the new collective agreement: “in case of accumulated time, the calculation shall be based on one hour per working day”. With regard to the foregoing, the view of the Supreme Court is reiterated which declares that subsequent regulation, although not applicable to the case for temporary reasons, fulfils an obvious guiding function, with the declaration being able to influence an interpretation in accordance with the inspiring principles of the subsequent regulation. 

Therefore, regarding the accumulation in full working days, the right to nursing leave is identified with the absence of an hour from the workplace. The nursing, with the employee being absent from the workplace, can be replaced by other methods and therefore it has been envisaged that it could be replaced by the reduction in the working day, in which case it is identified with a specific duration -a half hour- One form or another to exercise the right is a minimum of relative mandatory law. The legislator has highlighted that the collective bargaining may allow the right to be accumulated in full working days. Given that this right consists in being absent from the workplace, this is what is accumulated and is therefore calculated on the hour of absence. 

Moreover, the Court understands that in the statutory regulation “accumulate” clearly refers to being absent from work and not to a reduction of the working day. Therefore, what is addressed in collective bargaining is the accumulation of the hours absent, unless the legal provision is exceeded by another more beneficial provision or the legal or conventional regulation is improved via a bilateral agreement between the employee and the company.