Spain: Employees Working Remotely are Not Entitled to a Transportation Bonus foreseen in the related CBA
Authors: Iván Suárez and Pablo Samsó Sánchez
In the last two years the number of companies and, consequently, employees who have embraced teleworking has been gradually increasing. This modality of work has caused that our law and caselaw outline how to apply the employee’s entitlements to this new reality.
At the beginning, the tendency of companies, due to the lack of foresight in the collective bargaining agreements, was to continue paying the allowances that were originally intended for face-to-face work; among them, the transportation bonus. However, currently, Law 10/2021 on teleworking requires companies to pay their employees the expenses incurred by working remotely. The foregoing has caused companies to stop paying the different allowances, initiating some legal disputes in this regard.
Thus, this article analyses a recent ruling of the Supreme Court of Spain which deals with the issue of whether an employee under the teleworking regime should be entitled to the transportation bonus granted by the applicable Collective Bargaining Agreement. In this regard, the Collective Bargaining Agreement contemplates a transportation bonus for those employees who start or end their working day from midnight and up to 6:00 a.m.
The problem arises because the employees’ representatives understand that this concept is of a salary nature, while the Court argues that the reason for establishing it in the CBA is to compensate the expenses incurred by the employees when they start or end their working day at times when public transportation does not operate or does so with much less regularity than during daytime hours.
Therefore, when the collective bargaining agreement includes the compensation for transportation, it is not establishing a second night shift bonus to compensate for the hardship of working at night, since there is already a night shift allowance in the agreement, but rather it establishes an extra-salary bonus whose purpose is to compensate for the different frequencies of public transportation.
Consequently, it is concluded that it is in fact an extra-salary bonus, which excludes it from being paid to remote workers who do not render services at the company’s work center and who do not have to commute there.
Key Action Points for Human Resources and In-house Counsel
The recommendation would be to analyse what is the real purpose of the benefit that is being paid to the employee in order to determine if the employee is working remotely; this payment is still justified as a compensatory benefit.