The Superior Court of Justice of Catalonia has sentenced a company to compensate a retired worker with 20,324.70 euros who was working for 44 years in a service area of the AP-7 motorway, for which she should receive retirement compensation included in the Catalan hospitality agreement. The Social Chamber therefore rejects what the court of first instance said, which had dismissed the employee’s claim, and recognizes her right to receive what is known as the “connection award”, established in the hospitality agreement.
The key to the sentence (can be consulted in the Judiciary page) was not in the seniority, which was not questioned, but in what the collective agreement that should apply in this case really was. As it was a service area, there was debate between the trade agreement, which is what the company defended, and the hospitality agreement, the application of which involved the payment of 7 monthly payments at the time of retirement.
It all started when the worker, who started working on August 1, 1978 as a waitress in the AP-7 service area, agreed to voluntary retirement on June 30, 2022. After more than 4 decades linked to the same workplace, she requested payment of the employment award included in the article 37 of the Interprovincial Collective Agreement of the Hospitality and Tourism Industry Sector of Catalonia.
In 2001, the employee had taken the position of sales manager in the establishment’s store, at which time she was assigned to the sales contribution account and the convenience store collective agreement began to apply to her. However, the center simultaneously carried out restaurant and store activities, located in the same physical space, “with only one meter of separation between the two.”
Furthermore, it was demonstrated that, at times of greater influx (weekends and holiday periods), the worker punctually helped in the restaurant by performing tasks such as clearing tables, preparing sandwiches or collecting cash at the register.
The main activity of the company was a restaurant
In its ruling, the Court recalls that the applicable collective agreement depends on the functional scope and, therefore, on the actual activity carried out by the company. Citing doctrine of the Supreme Court, the Chamber emphasizes that what is relevant is the “real activity” of the company and that, when several occur, attention must be paid to which is the “main or preponderant activity.”
In this case, it was decisive that, for Corporate Tax purposes, the company declared CNAE code 5610 as its main activity, corresponding to restaurants and food stalls.
The Chamber reasons that, once it was proven that both activities were carried out in the same center, it was up to the company to prove that there was no predominant activity or that it was not hospitality, as it was the one that had the greatest facility of proof regarding the billing and turnover data, in accordance with article 217.7 of the Civil Procedure Law.
Since this evidence was not provided, the court concludes that the hospitality agreement should be applied.
Right to 7 monthly payments for retirement
Article 37 of the hospitality agreement establishes that, when a worker aged 50 or over stops working in a company in the sector and is able to demonstrate that he has been working in the company for a long time, he has the right to financial compensation that can reach up to 7 monthly payments.
In this case, it was not controversial that, if the claim were upheld, the amount amounted to 20,324.70 euros. For this reason, the Superior Court of Justice of Catalonia upholds the worker’s appeal, revokes the initial sentence and orders the company to pay the full amount of said amount.
The resolution is not final and an appeal can be filed against it for the unification of doctrine before the Supreme Court.
Beyond the specific case, the ruling reinforces the doctrine on the application of the agreement corresponding to the main activity of the company in work centers with mixed activities, a common reality in many service areas of Spanish highways.