Spain: Are common law partners entitled to paid leave in case of marriage as regulated in the collective agreement for married couples?

The issue before the Supreme Court of Spain was whether common law partners “pareja de hecho” are entitled to paid leave in case of marriage, as regulated in the collective agreement for married couples?

Article 58, paragraph a) of the III Collective Agreement of the Spanish Post and Telecom (Correos y Telégrafos) provides for a paid leave of 15 calendar days in case of marriage, which has to be taken within the pre-defined period and can begin five days prior to the date of the wedding or may be enjoyed in its entirety afterward. The workers’ representation filed a claim for collective conflict requesting equalisation of said rights, so that common law partners and new models of continuous familial cohabitation, other than marriage, would be entitled to this benefit. The claim was dismissed by the National High Court. The union representatives thereafter appealed to the Supreme Court.

In its decision, the Supreme Court agreed with the interpretation of the National High Court. The wording of article 58 is extremely clear; it not only talks about marriage leave, but it also sets the wedding date as the reference point to determine the exact time period in which to enjoy the leave. In addition, if the aim of the provision had been to extend the leave to other couples, i.e. to those whose circumstances are different from that of married couples, it would have expressly stated so. Instead, the willingness of the negotiating parties to extend to common law couples the right to enjoy the leave granted to married couples cannot be found anywhere in article 58.

The Supreme Court recognises the fact that the collective agreement only grants the leave to married couples and not to those constituting common law couples or any other form of cohabitation, which, consequently, does not imply unequal treatment. According to constitutional doctrine, the difference in regulatory treatment between married couples and those who live together without marrying is perfectly compatible with the principle of equality (article 14 of the Spanish Constitution) since they deal with different realities which are not equivalent.

The Supreme Court therefore dismissed the claim and confirmed the judgment of the National High Court, concluding that the current language describing the leave afforded to married couples does not allow for any ex-novo judicial extension to cases other than those conventionally provided for, and is an issue that concerns only the negotiating parties to the agreement.