Castellán

It is common at this time of year, on the eve of the end of the year, for companies to increase their inquiries related to certain practical aspects of the license. This is largely because those who manage the Human Capital of organizations must resolve and plan various aspects related to this issue. For this reason, we have sought to disseminate the following article of interest with some of the guidelines that we consider most important to take into account.

Annual Leave for Dependents

Our Law expressly regulates the annual leave of dependent workers. This benefit is established as a certain number of days of paid rest, in which dependent personnel have the right not to perform tasks and also continue to receive their usual remuneration (including all salary items they normally receive). The regulations not only provide for the mandatory enjoyment of leave, but also for the payment of that period as if it were time worked (so that they are actually paid vacations). All this, without prejudice to the “vacation pay” or “sum for better enjoyment of the leave” that must be paid in all cases before the start of the leave. We can then say that vacation time is paid “twice”. On the one hand, a sum is paid for the enjoyment of the leave (which is called vacation pay), and on the other hand, the days of absence for this reason must also be paid. This latter is what conceptually is called “leave” and is the subject of this article.

Is it mandatory to take vacations?

The mandatory nature of vacations is established in public order regulations, which are non-waivable. Annual vacations are mandatory for both the employer and the worker, and any agreement to the contrary will be invalid and will impose the obligation to pay them again (because they will not be considered paid). This ultimately means that it is not possible to “work during vacation in exchange for money”.

Duration of the Leave

All workers hired by individuals or private companies of any nature, including domestic service, are entitled to a minimum annual paid leave of 20 days, having worked 12 months, 24 fortnights, or 52 weeks in the calendar year (January to December). The duration of annual vacations is then linked to the time worked, and if those minimums are not reached, their duration will be set proportionally.

Calculation of the number of days

In the case of monthly workers, the number of days of leave will depend on the months worked. In a complete year, there will be 20 days; and otherwise, it must be prorated at a rate of 20 days divided by 12 months (which means that there are 1.66 days of leave for each month worked). On the other hand, in the case of daily workers, the number of days worked in that calendar year must be verified and then multiplied by the coefficient: 0.066 (which is the result of dividing 20 days by 12 months and then by 25 days worked). Thus, for example, a worker who only works three days a week is entitled to 10 days of paid leave per year.

Seniority Supplement

As seen, 20 days are due for each complete calendar year worked. However, after completing the fifth year of work, an “extra” day is added for every four years of seniority. Therefore, after five years, the worker is entitled to 21 days of leave, and subsequently, after eight years, another day is added. Those who completed their fifth year of seniority in 2015 enjoy 21 days of leave in 2016 and then continue to add days (one every four years), successively and without limit.

How should the days be counted?

Paid annual vacations, according to our regulations, must be taken as a general rule in a single period, within which Sundays and holidays (whether paid or common) are not counted. Tourism week is not counted as leave, nor are the Monday and Tuesday of Carnival (as they are holidays, “marked in red”). However, Saturdays must be considered as part of the days of leave, even if they are not normally worked, either by redistribution or because the company's work schedule is from Monday to Friday (40 hours).

Splitting Agreement

The leave must be taken, as mentioned, in a single continuous period without counting holidays or Sundays. However, the law allows for a Collective Agreement to be reached to divide the leave into two periods (splitting), the shorter of which cannot be less than 10 days, as well as the possibility of counting holidays, including Carnival and tourism week. For this, a written agreement must be signed by the company and at least half plus one of the workers, in order to regulate and agree on the aforementioned aspects. This agreement is renewed annually, and a copy must always be kept in the Labor Registry Book, to be exhibited in case of an inspection by the Ministry of Labor and Social Security (MTSS).

Communication of Leaves

The dates on which each worker will take their leave must be communicated, by legal provision, through a “Leave List” in which the dependent personnel are notified of the start and end date of the leave, with sufficient notice (prior to the start of each leave period). Regarding the setting of the date to enjoy this benefit, it should be noted that it must be established by mutual agreement between the employer and the workers, considering the preferences of both parties, and taking into account the organization's possibilities and production needs.

A common mistake: registration

Strikingly, it is common to come across errors in registration, that is, in the documentation of Leaves in Payslips. The payment of the leave must be made before starting to enjoy it in the case of daily workers. In this sense, when it comes to registration, in the case of hourly or daily workers, there is no major difficulty. However, monthly workers receive their leave pay at the end of the corresponding month. This means that upon their return, they “get paid as if they had worked” (unlike vacation pay, which everyone must receive before the start of the break). It is common in the exercise of the professional practice to encounter mistakes in the documentation. The most repeated one is the omission of correctly registering the payment of the leave, with the serious consequences that this can imply for the company (in an inspection visit from the MTSS, or in case of facing a labor claim). For these purposes, it must be taken into account that the proof of the enjoyment of the leave is its duly documented payment. For example: if a monthly worker enjoys their annual leave in the next month of January, they will receive the vacation pay in advance, and then in the payslip for that month (which they receive in February), the sum paid for days of salary and the sum paid for days of leave must be registered in detail and separately. Both “items” or “categories” must appear on the payslip. Otherwise, there is a risk that in a judicial claim the company will have to pay again.

Is it possible to advance Leaves? All the leave generated in a given calendar year must be taken within the immediate following year. Only the leave not taken or accumulated can be compensated in money in case of termination by dismissal or resignation before the enjoyment of the vacations. Therefore, the leave generated in 2015 must necessarily be taken in 2016. Neither before nor after. The pending leave must be exhausted between January 1 and December 31. For this reason, it is common to inquire about what happens when at the end of the year, due to reasons such as machinery maintenance, production decrease, etc., the company carries out a shutdown or “stop,” as often happens in some sectors of our industry. A practical example: closure from next Monday, December 30 to January 10. The solution for this, when the workers have exhausted the leave from the previous year (in our hypothesis it would be from 2014), is to agree to an “advance” of days of leave that must be taken in 2015. For this, an agreement with the workers must be reached and registered with the Labor and Social Security Inspection.

Final Considerations

In light of the above, the following are highlighted as a synthesis: the non-waivability of the right to enjoy leave; the need to have a Splitting Agreement to proceed with its division; the impossibility of the fraction being less than ten days; the requirement of the “List” of Leaves; and the non-computability of holidays (unless otherwise agreed); for all of which we recommend always having specialized advice in labor matters. Finally, it should be noted that there is the possibility that through Wage Councils, or company agreements, greater benefits or more favorable regimes may be established. If there is no provision, the general regime analyzed in this document applies.

Montevideo, December 4, 2013.