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The Supreme Court upholds the appeal for unification of doctrine filed by JL Casajuana

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El Tribunal Supremo estima el recurso de casación para unificación de doctrina interpuesto por JL Casajuana

The Supreme Court upholds the appeal for unification of doctrine filed by JL Casajuana

Article published in Lawyerpress NEWS

The Supreme Court issues a ruling and upholds the appeal for unification of doctrine against the claim of early retirees, so it is not obliged to carry out the extraordinary contribution to pension plans for the amount of the value of those suspended at the time of retirement

Recently, the Supreme Court has handed down ruling 42/2023, of January 18 (RCUD 1805/2021) in which the appeal for unification is upheld doctrine prepared by the JLCasajuana Labor Law team.

This long process, which began in 2013, affects one of the most important financial entities currently in Spain, which was the product of the merger of several regional savings banks through the Institutional Protection System (SIP)

The admission of an appeal like this is usually complicated due to the very demanding requirements to determine the identity of cases between the sentences that are appealed and those that are provided as contradictory to those.

In this case, after disparate sentences in different social courts and the dismissal of the claims prevailing, the Superior Court of Justice of Castilla-La Mancha</strong >, in which most of the issues had fallen as one of the banks involved had a greater location in said Autonomous Community, had estimated the appeals of the early retirees and dismissed those filed by the bank in cases where the claims of this group have been upheld in the instance.

Origin and evolution of the facts

  1. After an ERE ended in January 2011, a large number of workers access early retirement, among whose conditions is the maintenance of contributions until the date of effective retirement or, at most, until the age of 64 .
  2. The application of the conditions proceeds normally until, in December 2013, and with effect from January 1, 2014, a collective agreement is reached whereby, among other measures, contributions to the pension plans are suspended. pensions from the beginning of the term of said agreement until June 30, 2017.
  3. This measure applies to both active workers and early retirees who had, at that time, the employment relationship terminated as a result of an agreed early retirement and with the commitment to maintain the contributions until the time of effective retirement or turning 64 years old.
  4. The early retirees oppose, on the one hand, that the aforementioned measure be applied to them since they are not registered workers in the company and, on the other, that the agreement by which they decided to take advantage of early retirement is affected, of the that only three years had elapsed, since they understood that they had guaranteed the maintenance of contributions until the agreed date.
  5. The Pension Plan Control Commission did not include what was agreed upon in collective bargaining in the corresponding specifications.
  6. In the case of the early retirees belonging to one of the entities that merged, with a large location in Castilla-La Mancha, an old agreement was also brought up by which their contributions to the Pension Plans were guaranteed until the fulfillment of the 65 years, which were calculated up to that moment, for which the so-called additional contributions, exclusive to this entity, were created.
  7. And to conclude, which meant another added difficulty, the December 2013 agreement provided for the recovery of contributions at the time of retirement, which the early retirees understood should be applied to them and from what they understood they had to recover them when they decided to retire, which, finally, was the nuclear issue.

And with all these ingredients, finally the full Supreme Court has upheld the appeal for unification of doctrine filed by the bank through the JLCasajuana labor law team, which resolves to set aside the sentence and, consequently, the employer is not obliged to carry out the contribution for the amount of the value of those suspended at the time of the actor’s retirement.

What conclusions can we draw from the ruling?

a) Possibility of modifying the recognition of benefits related to contributions to pension plans.

It is a reiterated doctrine of the Supreme Court that the recognition of benefits related to contributions to pension plans does not constitute an immutable right, but is subject to the possibility of its modification, in particular through collective bargaining procedures or substantial modification of working conditions, and for this reason the mere expectation of receiving contributions must always be subject to the specific regulation that exists at each moment in time.

b) Substantial modifications can be applied to workers with an terminated employment relationship.

There have been many courts that have ruled that the measure of suspension of contributions to pension plans is applicable to workers with an terminated employment relationship, which has caused the controversy derives from the right to recover contributions when workers agree to effective retirement.

In this regard, art. 6 of RD 1588/1999, of October 15, which approves the Regulation on the implementation of company pension commitments with workers and beneficiaries, establishes that the implementation of pension commitments will affect the commitments assumed by the company with its active personnel, and adds that any natural person who voluntarily provides paid services by virtue of an employment relationship will be considered active personnel, including within that concept of active personnel for the purposes of this regulation, workers with that the company maintain commitments for pensions, even when the employment relationship with them has been terminated, a criterion that supports the jurisprudence in this matter, for all the judgment of December 20, 1996 of the Supreme Court, which upholds the validity of the modification of measures corresponding to pension plans for workers whose employment contract has been terminated, and the legitimacy of worker representatives to intervene in negotiations on behalf of not only workers with a current contract, but also those who are not active due to having gone into retirement or early retirement.

And that is why by way of art. 41 ET, the rights of workers who had previously terminated the employment relationship can be modified, and even more so when the conditions subject to modification come from the prior existence of that employment contract and are maintained beyond its validity.

c) The rights recognized in a collective agreement are subject to modification by subsequent collective agreement.

The conflict originates when the collective agreement of December 27, 2013 modifies, by suspending contributions to pension plans, the previous one of January 3, 2011, in the that it was agreed that workers who took advantage of early retirement would maintain that right until they retire and, at the latest, until they turned 64 years old.

We are certainly dealing with a matter of succession of agreements, which is governed by articles 82.4 and 86.4 of the Workers’ Statute, according to the first of which “the collective agreement that succeeds a previous one can dispose of the rights recognized in that one. In this case, what is regulated in the new Agreement will be fully applied”. For its part, the second article establishes that “the agreement that succeeds a previous one repeals the latter in its entirety, except for those aspects that are expressly maintained.” In this way, the general principle of succession of legal norms is applied to the case of Collective Agreements, according to which the later norm repeals the previous one. Thus, jurisprudence has declared that the subsequent agreement repeals the previous one in its entirety, so that the principle of irregressivity in the succession of collective agreements does not apply (sentences of the Supreme Court of 12/16/1994, 6/22/2005, between others), without, on the other hand, it can be understood that the clauses repealed from the collective agreements generate more beneficial conditions (for all Judgment of 11/5/1992 -rec. 1918/1991-). In this way, the maintenance of certain aspects of the previous Agreement must be carried out expressly by the new one, which does not happen in our case.

d) Terminating effects of early retirement

In the Supreme Court ruling that we are discussing, full extinction power is attributed to the pre-retirement situation, which is decisive when discussing the right to recovery of contributions that were suspended, since the maintenance of the labor relationship should not be confused with the maintenance of the active situation in the pension plan, perfectly differentiated situations that, as we have said, decisively influence the resolution adopted by the Chamber, since it interprets that leaving the company is not due to retirement, which would give the right to recover contributions, and this is because the agreement of December 27, 2013 states in the clause included in point 6 of letter C: “… for those who have been terminated during the suspension of ordinary and additional contributions, or before the end of the aforementioned period of extraordinary contributions, due to retirement, collective dismissal (art. 51 of the ET) and for objective reasons (art. 52 of the ET) they will be made an extraordinary contribution equivalent to the contributions that would have been made up to the date of said event without the suspension of contributions provided for in this agreement…”</em >

And the Chamber maintains that the extinction occurred well in advance of the suspension of contributions and, of course, it did not occur due to retirement, since when he retired he already had an employment relationship extinguished from the moment he took early retirement.

And in this sense, the traditional jurisprudential doctrine on the matter establishes that «the suspension carries with it the expectation of restarting the labor benefit, while early retirement supposes the rupture contract, although the company is linked to the worker through a series of commitments that arise as a result of the agreement in which the conditions of early retirement are established and, therefore, supposes a contractual termination < strong>definitive included in art. 49.1 a) of the ET, which is replaced by a new contract to establish the future conditions that must govern between the parties, specifically in order to pay the deferred payment compensation and the maintenance of the worker’s rights both in the field Social Security, as well as in the pension plans of the employing entity.»


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