Employees who telework are not entitled to receive the transportation bonus. This has been confirmed by the Supreme Court in a recent ruling that dismisses the appeals presented by the UGT, CSIF and USO unions against a resolution of the National Court of September 2021 issued in a collective dispute process with the Digitex company.
The unions demanded that the transportation bonus of 5.59 euros per day be maintained for the 41 night shift workers who have been teleworking since April 2020, a supplement that the telephone service or contact center company decided to withdraw nine months later. As already resolved in the previous ruling, the High Court confirms that the payment made by the company during a short period of time for this concept was extra-salary in nature and should not be considered, therefore, as a more beneficial condition.
The origin of the labor conflict dates back to April 2020, at the beginning of the coronavirus pandemic that forced the confinement of the population with jobs considered non-essential. At that time, the company reached individual agreements with numerous workers for the provision of out-of-office services in the teleworking modality. An agreement that included the commitment of these employees to go to the workplace whenever necessary "to attend to the necessary procedures."
The workers assigned to the night shift and who began to telework continued to be paid the transportation bonus established in the agreement that they had been receiving, since the company hoped that the situation "would not be prolonged over time," as stated in the judicial resolution. But, finally, they stopped paying them in January 2021, which the company justified by the fact that the payment for this concept was "an extra-salary and finalist payment, aimed at facilitating the transportation of the employee from his home to the center." of work", so it was considered that it was not appropriate to pay it to personnel who carry out their work activity remotely. After the supplement was withdrawn, the unions sued for a substantial modification of working conditions.
As argued in the ruling, the fact that the unions agreed with the company that night shift employees could continue teleworking while maintaining the rest of their working conditions does not prove that the company wanted to maintain the transportation bonus, that the collective agreement It is established for cases in which work activity requires travel. It is not possible to deduce that the company had the "unequivocal will" to pay the transportation bonus in the teleworking situation, a bonus that is not established as a salary concept, the ruling explains.
This is “the existence of business will to incorporate it into the nexus.”
contractual and that it is not a mere liberality or tolerance of the employer, so it does not
The repetition or persistence over time of enjoyment is sufficient, and proof of the enjoyment is necessary.
existence of this will to attribute the right to workers.”
Furthermore, the payroll payment of this remuneration concept was only maintained for nine months. There is, therefore, the Supreme Court concludes, no more beneficial condition or any acquired right because there is no evidence that the company wanted to grant those who telework the benefit of continuing to receive the transportation bonus without having to go to the workplace. A payment that, the ruling recalls, the company made during a short period of time out of "mere liberality or tolerance." And it asserts that "repetition or persistence over time of enjoyment" is not enough to be considered a right.
