Although collective bargaining agreements establish the payment of special payments on certain dates, it is not uncommon for companies to pay their employees the amount distributed over 12 monthly installments, instead of on the dates established in the collective bargaining agreement.
This practice is common and does not generate a major problem when there is an agreement with the employee or with the legal representatives of the employees authorizing it. However, there are cases in which the agreements expressly prohibit the pro-rata payment of such extraordinary bonuses.
Until now, the Social Division of the Supreme Court established that when the collective labor agreement prohibits the proration of special payments, this form of payment does not release the employer, who is obliged to pay them on the dates established by the agreement.
This jurisprudential doctrine left companies open to possible claims, especially in the case of dismissal and the possibility of being forced to pay double the extra payments previously paid on a prorated basis.
In a recent ruling issued last May in unification of doctrine (STS no. 452/2022 of 5/18/2022), the Social Division of the Supreme Court revokes its previous doctrine and establishes that the acceptance by the employee of the monthly proration of the extraordinary payments, despite the express prohibition contained in the collective bargaining agreement, exempts the employer from its obligation to pay them again on the scheduled dates.
Non-compliance with the provisions of the agreement may be sanctioned administratively, but cannot justify an unjust enrichment of the employee.
In the case under study, the plaintiff provided services in a residential center for the elderly and received monthly, in addition to the corresponding salary, the pro rata of extraordinary payments.
The applicable agreement (Convenio Colectivo Marco Estatal de Servicios de Atención a las Personas Dependientes y Desarrollo de la Promoción de la Autonomía Personal) provides for the payment of two extraordinary payments, accrued every six months and paid on June 15 and December 15 of each year, and expressly prohibits the payment of such bonuses pro rata monthly, except in contracts of less than 6 months or when there is an agreement with the unit or union representation, but does not associate any consequence to non-compliance with this prohibition.
The SC held that, since the agreement does not expressly provide for any penalty for failure to pay the extra payments on the respective dates, the payment of the payments pro rata in the monthly paychecks cannot be denied validity.
According to the High Court, the contravention of the provisions of the Convention could constitute an administrative infringement, and this would be the way to channel possible claims. That is to say, by going to the intervention of the Labor Inspectorate which, after the verification proceedings, could, if necessary, issue the corresponding infraction report.
Otherwise, imposing on the employer the obligation to pay again the extra payments already paid on a pro rata basis would generate a duplicity in the payment, especially if the employee has accepted and consented to the monthly payment -which is maintained until the termination of the employment relationship- so that a new recognition of the right to the extra payments thus received would generate an unjust enrichment for the employee.
How many extra payments are there in the construction agreement?
According to the UGT: you are entitled to two mandatory extra payments per year, to be paid one in June and one in December. (See the question on the proration of extra payments)."
