Appellate Labour Court of First Instance, CHH v. TSA for payment of leave not taken and vacation salary, 12 March 1993, Decision No. 475
Holidays with pay
Direct resolution of a dispute on the basis of international law
Holiday leave/ Conditions for obtaining the right to holiday leave/ Prevalence of an international norm when it is more favourable to a worker/ Direct application of international law to waive a lower-ranking domestic provision/ Direct resolution of a dispute on the basis of international law
A worker made application to obtain payment for leave not taken and holiday salary after having been fired without payment of those items. The applicant argued that in his case and with regard to the calculation for determining his right to leave, the undertaking cited had taken into account the days worked by the applicant and later, in accordance with a collective agreement, had considered the first 30 days of absence for illness duly documented by the worker, but not the following days of absence. It should be pointed out that domestic legislation provided for a solution similar to that of the collective agreement.
Given this situation, the applicant made an appeal, stating that, in the current case, ILO Convention No. 132 should be applied as the norm most favourable to the worker. The applicant stated that that Convention provided that in order to create the right to leave, all sick leave should be calculated. However, the judge of first instance opted for the solution contained in the collective agreement. As a result, the applicant appealed.
In order to determine how to calculate the absence for illness in order to create the right to leave, the Appellate Court examined ILO Convention No. 132,2 comparing it with the collective agreement3 and domestic legislation. The Court indicated that the first had precedence because it establishes greater benefits with regard to the calculation of sick leave.
The Court decided as follows:
“The Court decides that the offence is acceptable, in virtue of the provisions of International Labour Convention No. 132, whose legal weight cannot be decreased by the provisions of a collective agreement and which does not take precedence over an imperative heteronym norm that establishes greater benefits than those established by the collective convention.
Thus, the conflict between International Labour Convention No. 132 and a domestic law should be settled in the sense of the norm most favourable to the worker: in this case the Convention, which provides that all the sick leave be calculated in order to create the right to leave, while domestic legislation (Law No. 12.290) provides that duly documented sick leave does not create discounts for the effect of the leave, up to a maximum of 30 days. Decree-law No. 14.407, likewise, establishes that the right to leave and paid vacation shall be established and paid proportional to the period worked.
Although Convention No. 132 accepts that different States adhering to the same Convention can adopt their own provisions (they can even regulate by collective agreement), because although a regulation is a norm of lower hierarchy than the Convention, it cannot be revoked completely or in part, but only make more explicit the form in which it will be applied.”
As a result, the Appellate Labour Court based its decision on interpretation of ILO Convention No. 132, protecting the application to set aside the collective agreement and ordered that all absences due to illness be calculated in order to produce the right to leave.
2 Article 5(4) of Convention No. 132: “Under conditions to be determined by the competent authority or through the appropriate machinery in each country, absence from work for such reasons beyond the control of the employed person concerned as illness, injury or maternity shall be counted as part of the period of service.”