Salary supplements and minimum wage (II) – Warehouse of Law

By Pedro García Román

Greater than six months in the past I wrote on this identical weblog concerning the interpretation that the Judgment of the Nationwide Courtroom of Might 24, 2019 product of the Royal Decree 1462/2018 which established the interprofessional minimal wage for 2019. And I did it to determine and argue my place opposite to such an interpretation. Since then, and as already illustrated in that article with numerous hyperlinks, the bulk place coincides with that defended by the aforementioned Judgment of the Nationwide Courtroom within the sense that It’s potential to offset and take in wage dietary supplements with the SMI. One thing that’s inexplicable to me, as I argued on the time. That sentence was appealed to the Supreme Courtroom by the unions and we’re nonetheless awaiting a decision to make clear the completely different contradictory pronouncements of decrease courts. And so what’s new in relation to this matter that warrants a brand new article? Effectively, it truly is nothing new, however previous, very previous. It seems that, regardless of a lot confusion and contradiction, our Supreme Courtroom already made it clear, again in 1989, that wage dietary supplements comparable to seniority, night time work, hardship, toxicity, and many others., can’t be absorbed by the SMI.

It is concerning the STS of April 13, 1989, ECLI: ES: TS: 1989: 11165, which states that:

“a) The minimal interprofessional wage ensures an irreducible “flooring” to reward the supply of providers within the labor relationship. Its evaluate, offered for every annuity at the least by the corresponding Decree, should not have an effect on, nevertheless, the construction or the quantity {of professional} salaries when these, as an entire and annual computation, are greater than mentioned remuneration “flooring” thought of. additionally in its annual dimension, Though in an entire means, because the minimal interprofessional wage shouldn’t be solely built-in with the strict worth by which it is going to be fastened, however with the results of including to it these enhances talked about in article Three of the respective Decree, which, in flip, have to be calculated on a module made up of the aforementioned strict worth.

It means the uncovered that for the assure of the minimal interprofessional wage to function, it is going to be obligatory that, after a previous judgment of comparability between remuneration that, for regular working hours and for all ideas, the employee is receiving in accordance with the relevant wage regime, and that different that will end result from the efficiency of a brand new worth of the minimal interprofessional wage and dietary supplements to be added to it, it is going to be appreciated that the worth of the previous is decrease than that of the latter, since, in any other case, each the construction and the quantity {of professional} revenue must be undamaged, as the upper worth thereof compensates for the rise skilled by the various occasions quoted minimal interprofessional wage.

That is the results of the provisions of article 27 of the Employees’ Statute, article 10 of the Decree of August 17, 1973 and articles Three and four of the successive Royal Decrees on minimal interprofessional wage.

b) Indemnity earlier than highlighted relating to the construction and quantity {of professional} revenue that total and annual computation have been greater to the minimal interprofessional wage, absolutely thought of, reveals the error that the appellant makes when he maintains that the worth of the bottom wage can’t be lower than the strict interprofessional minimal wage and that, subsequently, mentioned base wage have to be changed by it, regardless of the complete quantity of revenue was professionals. It’s clear that this substitution doesn’t happen when the guarantee wouldn’t function that’s examined…”.

Our Supreme Courtroom handles with absolute naturalness two ideas of minimal interprofessional wage. The one who calls “worth strict”Which is established in artwork. 1 of the completely different Royal Decrees that set the SMI yearly –the 950 euros for this yr, in order that we perceive every other-, and the one known as “full”, Which is the results of including the aforementioned wage dietary supplements to it. That is crystal clear when he says

“… though in a means full, because the interprofessional minimal wage shouldn’t be solely built-in with the strict worth by which it is going to be fastened …”.

And he provides that, to ensure that the assure offered by the SMI to function -that is, for the SMI to have an effect on the quantity of the wage upwards-, it is going to be obligatory that within the comparability between the entire wage that the employee has been receiving and the strict SMI plus the extra enhances –that’s, the whole SMI-, the previous is decrease than this, since, in any other case, such assure wouldn’t be required to function.

It additionally affirms that, when the SMI assure is to not function – we reiterate, when the entire compensation of the employee is greater than the complete SMI -, it’s not potential to substitute the bottom wage for the strict SMI later, sensu opposite, These instances by which the SMI assure should function will essentially suggest that the bottom wage can’t be lower than the strict SMI.

Subsequently, as early as 1989 our Excessive Courtroom made it clear that sure wage dietary supplements couldn’t be absorbed by the SMI and that the bottom wage was recognized with the strict SMI when the SMI assure needed to be activated. However what has been mentioned, somebody might – and rightly – increase doubts about whether or not this doctrine can be relevant at present, bearing in mind that the judgment resolved a case that occurred whereas the 1980 Workers’ Statute and relative to royal decrees RD 3238/1983 Y RD 2299/1984 that set the SMI of 1984 and 1985 respectively. Effectively, let’s get out of doubt.

Let’s begin by evaluating the precepts of the 1980 Employees’ Statute with the Workers’ Statute in force and that have an effect on the matter that we’re coping with and which can be articles 26 and 27.

It may be simply verified that the wording of artwork. 27 is equivalent in each texts and that of artwork. 26 solely differs, for the needs at hand, in that the present textual content makes specific point out, in a brand new part 3, of the wage dietary supplements that decide the wage construction, whereas the 1980 textual content didn’t even point out such enhances, a distinction that, as we’ll see later, is offset by the completely different wording of the royal decrees of that point.

Allow us to now examine the royal decrees that established the SMI at the moment – for instance, the RD 3238/1983-, with the RD 1464/2018, which established the 2019 SMI, and particularly articles 1 to five of the primary with their present equivalents, that are related for these functions.

From the mere comparability the next could be concluded:

a) Arts. 1 and a couple of of the RD of 1983 have been consolidated in artwork. 1 of the RD of 2018, with the one variations that within the former, wages in variety have been computed inside the SMI and, as well as, an SMI was established – that which the TS refers to as strict -, differentiated by age. Subsequently, no distinction that stops the appliance of the 1989 doctrine established by the Supreme Courtroom.

b) Artwork. Three of the RD of 1983 establishes intimately these wage dietary supplements that have to be added to the strict SMI – that of artwork. 1 of the RD-, thus compensating for the absence of point out of them in artwork. 26 of the ET of 1980. However, that artwork. Three has its counterpart –though with a special method in its drafting-, in artwork. 2 of the RD of 2018 that, as an alternative of detailing these wage dietary supplements, takes benefit of the truth that the brand new part Three of artwork. 26 of the ET in power describes them, thus limiting itself to creating reference to it. Once more, no distinction that denies the present utility of the 1989 doctrine.

c) Articles four and 5 of the RD of 1983, referring to compensation and absorption, turn into artwork. Three of the RD of 2018 with the next nuances:

i) The primary paragraph of artwork. 3.1 of the RD of 2018 is new and, virtually, a replica of the final paragraph of artwork. 27.1 ET, current with equivalent wording within the ET of 1980 and 2015, so it provides nothing to the talk.

ii) The second paragraph of artwork. 3.1 of the 2018 RD can be new, and is restricted to detailing how the comparability must be made between the wage acquired by the employee and the SMI. And its wording shouldn’t be solely not contradictory with the RD of 1983 – it’s an explanatory and clarifying paragraph – however it is usually in line with the interpretation established by the Supreme Courtroom twenty years earlier! As if that paragraph had been launched on account of the 1989 ruling? Certainly! Simply verify the RD 23/1989 established by the 1989 SMI, printed earlier than mentioned judgment, and the RD 170/1990 –And all subsequent ones till today-, which establishes the SMI of 1990, printed after the ruling, to confirm that the addition within the wording is because of the intention of clarifying the mechanism for the compensation and absorption of wage dietary supplements in accordance with the TS doctrine.

iii) Sections 2 and three of artwork. Three of the RD of 2018 are virtually equivalent to articles four and 5 of the RD of 1983 though with different prose.

In case the comparability between the prevailing norms when the doctrine of the Supreme Courtroom was established in 1989 and the present norms has not been sufficiently forceful to defend the appliance of the previous to the present occasions, there are quite a few subsequent judgments of our Supreme Courtroom that consult with that one. judgment and reiterate mentioned jurisprudential doctrine, such because the STS of July 19, 2010, ECLI: ES: TS: 2010: 4886.

By the use of conclusion, and as could be simply extracted from all that has been mentioned, the doctrine established by our Supreme Courtroom in 1989 relating to the therapy that wage dietary supplements should obtain associated to the private circumstances of the employee, with the work carried out or with the outcomes of the corporate in relation to its compensation and absorption by the SMI is completely appropriate with the wording that each the ET and the completely different royal decrees that set the SMI presently have.

Undoubtedly, the decrease courts have each proper – and I might add that even the duty – to specific their disagreement with the jurisprudence established by our TS on any matter and defend mentioned disagreement of their sentences. What for my part shouldn’t be acceptable -among different causes as a result of it solely brings confusion, authorized uncertainty and costs-, is {that a} courtroom intends to show this doctrine 180 levels with out even mentioning it, with arguments which can be greater than debatable and much eliminated. of the forcefulness required to rectify a jurisprudence that comes from 30 years in the past, because the Nationwide Courtroom tried to do in its judgment of Might 2019.


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