27 Oct Elements of remuneration during the annual leave period – modal allowances – inclusion
Elements of remuneration during the annual leave period – modal allowances – inclusion
date: 27.10.2020
Area: Employment, Benefits and Industrial Relations
With Order no. 22401 of 15 October 2020, the Superior Court expressed its opinion on the economic conditions to which the worker is entitled during the period of paid leave pursuant to art. 7, no. 1, of Directive no. 88/2003, art. 2109, paragraph 2, Civil Code, art. 10, Legislative Decree no. 66/2003 (applicable to the case being examined by the Court ratione temporis n.d.r.).
The Superior Court recalls that the right to annual leave is established by Article 7 of Directive no. 88/2003 and Article 31, no. 2 of the Charter of Fundamental Rights of the European Union, to which Article 6, no. 1 TEU recognises the same legal value as the Treaties.
Specifically, with regards to the payment of annual leave, the Superior Court refers to the Court of Justice which, since its ruling of 16 March 2006 in Joined Cases C-131/04 and C-257/04, Robinson-Steele and others (paragraph 50), has had the opportunity of specifying that the expression “paid annual leave” in art. 7(1), Directive No 88/2003, is intended to mean that, for the duration of the annual leave, remuneration “must be maintained“; in other words, the worker must receive ordinary pay for that period of rest (see also CJEU C-350/06 and C-520/06, Schultz-Hoff and others, paragraph 58).
Furthermore, referring to the judgment of the Court of Justice of 15 September 2011 in Case C-155/10 Williams and Others (paragraph 21), which states that “any inconvenience intrinsically linked to the performance of the tasks which the worker is required to perform under his/her employment contract and which is offset by a monetary amount included in the calculation of the worker’s total remuneration … must necessarily be taken into account for the purposes of the amount due to the worker during his/her annual leave“.
On the contrary, “elements of the worker’s total remuneration intended exclusively to cover occasional or incidental expenses arising in the performance of the worker’s duties in accordance with his/her employment contract” must not be taken into account in the calculation of the amount. ”
Therefore, the Superior Court concludes that it is the task of the judge of the merits to assess, firstly, the functional relationship between the various elements making up the worker’s total remuneration and the tasks entrusted to him/her in accordance with his/her employment contract and, secondly, to interpret and apply the relevant rules of domestic law in accordance with EU law, to verify whether the remuneration paid to the worker, during the minimum period of annual leave, corresponds to that which is fixed, imperative and unconditional under Article 7 of Directive No 88/2003.
In the present case, the worker obtained the inclusion in the calculation of the working week’s pay, of the sum paid and itemised as “Straits of Messina shipping allowance”.
Elements of remuneration during the annual leave period – modal allowances – inclusion
date: 27.10.2020
Area: Employment, Benefits and Industrial Relations
With Order no. 22401 of 15 October 2020, the Superior Court expressed its opinion on the economic conditions to which the worker is entitled during the period of paid leave pursuant to art. 7, no. 1, of Directive no. 88/2003, art. 2109, paragraph 2, Civil Code, art. 10, Legislative Decree no. 66/2003 (applicable to the case being examined by the Court ratione temporis n.d.r.).
The Superior Court recalls that the right to annual leave is established by Article 7 of Directive no. 88/2003 and Article 31, no. 2 of the Charter of Fundamental Rights of the European Union, to which Article 6, no. 1 TEU recognises the same legal value as the Treaties.
Specifically, with regards to the payment of annual leave, the Superior Court refers to the Court of Justice which, since its ruling of 16 March 2006 in Joined Cases C-131/04 and C-257/04, Robinson-Steele and others (paragraph 50), has had the opportunity of specifying that the expression “paid annual leave” in art. 7(1), Directive No 88/2003, is intended to mean that, for the duration of the annual leave, remuneration “must be maintained“; in other words, the worker must receive ordinary pay for that period of rest (see also CJEU C-350/06 and C-520/06, Schultz-Hoff and others, paragraph 58).
Furthermore, referring to the judgment of the Court of Justice of 15 September 2011 in Case C-155/10 Williams and Others (paragraph 21), which states that “any inconvenience intrinsically linked to the performance of the tasks which the worker is required to perform under his/her employment contract and which is offset by a monetary amount included in the calculation of the worker’s total remuneration … must necessarily be taken into account for the purposes of the amount due to the worker during his/her annual leave“.
On the contrary, “elements of the worker’s total remuneration intended exclusively to cover occasional or incidental expenses arising in the performance of the worker’s duties in accordance with his/her employment contract” must not be taken into account in the calculation of the amount. ”
Therefore, the Superior Court concludes that it is the task of the judge of the merits to assess, firstly, the functional relationship between the various elements making up the worker’s total remuneration and the tasks entrusted to him/her in accordance with his/her employment contract and, secondly, to interpret and apply the relevant rules of domestic law in accordance with EU law, to verify whether the remuneration paid to the worker, during the minimum period of annual leave, corresponds to that which is fixed, imperative and unconditional under Article 7 of Directive No 88/2003.
In the present case, the worker obtained the inclusion in the calculation of the working week’s pay, of the sum paid and itemised as “Straits of Messina shipping allowance”.