Castellán

Some conceptual distinctions: "paid", "common", "labor" and "non-working" holidays.

It is necessary to distinguish the "paid holidays" from the "simple" or "common" holidays, since our law has provided that in the former it is necessary to pay for the work in a special way. In this sense, the "paid holidays", redundant as it may sound, are those days qualified by the law -in a broad sense- as "paid". Regarding this, Law 12,590 established in its article 18: "On the days 1st of January, 1st of May, 18th of July, 25th of August and 25th of December of each year, every worker will receive remuneration as if they were working; and in case of working, they will receive double pay". According to the above, there are two alternatives to distinguish: if you work that day, or if you don't. Monthly workers who do not work on a paid holiday will receive their usual salary (since both business days and non-business days are understood to be included), and on the other hand, if they work, they must be paid the full month's salary "plus one day". On the other hand, daily workers receive the daily wage as if they had worked even if they do not, and in the case of working, they receive double the daily wage. As for pieceworkers, they should receive a salary equal to the average of the daily wages received in the last 12 working days (if they rest) or double the same (if they work).

In contrast to the above, the "simple" or "common" holidays, do not deviate from the general principles regarding work remuneration (unless by arbitration, collective agreement or contract it has been established otherwise). In these cases, monthly workers receive their usual salary whether their activity is interrupted or not, and daily workers will only receive the daily wage if they work on the holiday, following the criterion of "effective work" that characterizes them. Common permanent holidays are the days: January 6, Monday and Tuesday of Carnival Week, Monday to Saturday of Tourism Week, April 19, May 18, June 19, October 12 and November 2; and exceptional holidays may also be established.

It should be noted that the previous classification of holidays should not be confused with that of "working holidays" and "non-working holidays". This is because, the fact of being declared a non-working holiday does not mean that it is a paid holiday. That is, the mere declaration of the character of "non-working" does not necessarily imply the obligation to pay, but on the contrary, the regulations must expressly provide for it to be paid. On this point, it has been understood that there is no prohibition on working on a declared paid holiday, but a special remuneration must be paid if it is done. On the other hand, when the intention of the regulation is that the worker is not obliged to work (except for justified reasons), the holiday is declared as "non-working", because the characteristic of "non-working" is to discourage work. The legislator prefers rest on that day, assimilating it to the weekly rest day, hence the importance of not confusing both concepts. Examples of non-working holidays, which were also declared paid holidays, are March 1 every 5 years, coinciding with the inauguration of the President of the Republic, and the day set by the Executive Power to conduct the Population and Housing Census throughout the national territory. However, in those activities that, due to the characteristics of the production process or the nature of the tasks performed, do not allow interruption, the employer may call workers on that day classified as "non-working".

What are the particularities of work remuneration on "paid holidays"?

Despite the previous development, some clarifications should be made regarding the remuneration of paid holidays. For example, if the paid holiday coincides with the worker's weekly rest day, it is not paid "triple" or "quadruple" for being both a weekly rest day and a paid holiday, but it is paid "double" only once (as established by article 29 of the Decree of April 26, 1962). This has an exception in the hypothesis that by arbitration, collective agreement or contract, a higher payment has been established, in which case they will be entitled to it.

A different scenario is when only part of the holiday workday is worked, in which case the hours not worked must be paid at a simple rate, and the hours worked at double the rate, as long as they do not exceed the usual working hours limit of the worker. Regarding the payment of overtime hours, while those worked on business days should be subject to a 100% surcharge, the extra hours worked on non-business days (those days when work is not usually done, such as holidays) should be subject to a 150% surcharge.

What happens in cases of redistribution of the sixth workday?

Another aspect of interest is what happens when holidays fall on a Saturday, in companies that have agreed to redistribute Saturday's work hours on other days of the week, consequently increasing the working hours from Monday to Friday. In this regard, a resolution of the MTSS in 1980 expressly stated that if any of the five paid holidays established by Law No. 12,590 falls on a Saturday, the working hours between Monday and Friday corresponding to that day will be paid double.

As a result of the above, we understand that if the company's intention is not to pay those hours as "worked holiday", the hours corresponding to Saturday should not be worked in the week prior to the paid holiday. The "redistribution" should not operate during those other days. In this scenario, workers will receive the hours corresponding to Saturday at a regular hourly rate (precisely because it is a paid holiday), but not double, as they did not work them.

The so-called "special holidays" by branch or sector of activity

It is also worth mentioning the role played by the Collective Agreements of the Wage Councils in the current holiday regime of our country, as through them "special holidays" are established that are exclusive holidays for certain branches or sectors of activity. For example, the Day of the Domestic Worker -August 19-, the Day of the Fisherman -January 2-, the day of the meat industry -May 28-, and both November 2 and the third Monday of October, are paid holidays in the Construction Industry.

Special forms of remuneration have also been established for workers in a specific sector who work on certain holidays, such as in the Metallurgical Industry (group 08 subgroup 01), where a special form of "triple" remuneration has been provided for the days January 1, March 14, May 1, July 18, August 25, November 2 and December 25, and "double" for January 6, Monday and Tuesday of Carnival, and Thursday, Friday and Saturday of Tourism (when working on these dates), departing as can be seen from the general legal regime.

In light of the above, it is extremely important to always consider the agreements and Collective Bargaining Agreements of each sector of activity.

Final reflection

As can be seen from the above analysis, in our holiday regime there are certain particularities from the perspective of labor law that are essential for companies and organizations to know when evaluating the economic and organizational convenience of working normally during holidays.

Montevideo, October 11, 2018.