Spain: Is the paternity leave included in collective agreements still valid?

Article 30 of the CBA of business sector applicable from 1-1-2017, states that, in addition to the paternity leave established in the WS, workers shall have a leave of 3 calendar days from the date of the child’s birth. When the CBA entered into force, article 37.3-b) of the WS recognised 2 day-leave after the birth of the child. This way, the right recognised by the WS was improved by the CBA.

This situation was modified by the entry into force of Royal Decree 6/2019, which introduced two changes in this matter: (i) the abolishment of the 2-day leave for the birth of a child (article 37.3.b WS) and (ii) the equalisation of the time for both parents to enjoy the leave for birth and adoption. Therefore, every progenitor will be allowed to take 16 weeks of leave. Until now, article 48 of the Workers’ Statute provided for 5 weeks of paternity leave and 16 weeks for maternity leave.

According to the Regulation, the term “paternity” has been replaced by “partner leave”. This last term refers to the parent other than the biological mother. The Regulation foresees a gradual application during the following years for partner leave:

• As from 1 April 2019, 8 weeks of partner leave will be recognised; 2 of these weeks must be taken immediately after the birth.
• As from 1 January 2020, 12 weeks of partner leave will be recognised, 4 of these weeks must be taken immediately after the birth.
• As from 1 January 2021, 16 weeks of partner leave will be recognised; 6 of these weeks must be taken immediately after the birth.

After these regulatory modifications, the company considered that article 30 of the collective agreement that improves the derogated legal paternity leave is no longer in force. Dissenting from this interpretation, the workers’ representatives submitted a claim for collective dispute, requesting the workers’ right to continue enjoying the 3 days of paternity leave as stipulated in the collective agreement, plus the new partner leave.

The High Court of Justice recalled that Royal Decree 6/2019 had two consequences: the elimination of the legal paternity leave, which the collective agreement improved, and the implementation of a new regime that exceeded the meaning and usefulness of article 30 of the collective agreement. According to the High Court of Justice, the improvement of a legal right that no longer exists, cannot be accepted as valid in the collective agreement. Furthermore, the Court does not accept the idea that workers can benefit from two different sources (the agreement and the new law), in relation to the same matter and right.

Therefore, the High Court of Justice dismissed the claim for collective dispute. Otherwise, this would result in an overlap between the 3 days of paternity leave, which must be enjoyed immediately after the birth, and the first 3 days of contract suspension for partner leave, since, during the 16 weeks of contract suspension, 6 of these weeks must be taken immediately after the birth.