During holidays, the remuneration received must be similar to that received during actual service. The NA does not consider that the employer's practice of paying holiday pay on the basis of the initial working day in periods when the extension of working hours for the needs of the service is not in force is contrary to the law.
Trade union representatives have filed a class action lawsuit against the contact centre company's practice of paying holiday pay to its part-time workers who extend their working hours at certain times of the year due to production needs in the following way.
- if the holiday period coincides with extended working hoursThe remuneration is calculated on the basis of the extended working hours.
- if the period of leave coincides with periods in which no there is extension of working hoursIn the case of the employment contract, the holiday pay is calculated on the basis of the hours agreed in the employment contract without taking into account any extensions of working hours that may have taken place during the year.
Trade union representation seeks recognition of the right of workers to have their extended working hours throughout the year included in their holiday entitlement.
The time module determining the normal remuneration including holiday pay must be determined in order to resolve the dispute.
In order to resolve the conflict, it is necessary to determine the time module that is to determine the normal remuneration which, in accordance with case law, must be included in the holiday pay.
According to the NA, the concept of "normal or average remuneration" is intended to ensure that the worker can enjoy the right to rest with a period of leave without it being attractive for him to give up all or part of it in exchange for financial remuneration.
Therefore, the remuneration must be similar to that received during the service rendered and, furthermore, the NA does not consider the extension of the working day to reduce the remuneration received during the holiday period to be fraudulent.
The NA therefore dismisses the action brought by the trade union representatives.
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Should the holiday pay received during periods of extended working hours be similar to the service presentation or not?