21

Sep

2022

Does the pro-rata payment of extra pay prohibited in the collective labor agreement release the employer?

Does the pro-rata payment of extra pay prohibited in the collective labor agreement release the employer?

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 collective labor agreement may be sanctioned administratively but cannot justify an unjust enrichment of the employee

 

Acceptance by the employee of the monthly proration of the special payments, despite the express prohibition contained in the collective labor agreement, exempts the employer from its obligation to pay them again on the scheduled dates. Non-compliance with the provisions of the collective labor agreement may be sanctioned administratively but cannot justify an unjust enrichment of the employee.

The SC in its ruling of May 18, 2022, emphasizes that since the collective labor agreement does not expressly provide for any penalty for failure to comply with the employer’s obligation to pay overtime payments on time, it considers that the channel for channeling possible breaches of the provisions of the collective labor agreement is the administrative channel, with the intervention of the Labor Inspectorate. Imposing on the employer the obligation to pay the extra payments again would generate a duplicity of payment.

The Chamber reiterates that the acceptance and consent to the monthly payment – which is maintained until the termination of the employment relationship – extinguished the correlative obligation of the employer (CC art.1156 and 1126) and a new recognition would generate an unjust enrichment for the worker.

The SC revokes its previous doctrine in which it considered that, if the agreement expressly prohibited the pro rata payment of the extra payments, the remuneration received monthly by the worker for such concept corresponded to salary concepts other than such extra payments, maintaining the employer’s obligation to pay them at the time provided for in the agreement (SC 19-1-22, EDJ 501063).

With this change of criteria, the employee will have the right to claim the amount of the payments “when the agreement had not expressly foreseen the consequences of the non-fulfillment of the obligation”.

For further information, please consult with Labor consulting.