Companies still continue the practice of paying the vacation bonus on the anniversary of the employee’s time on the job, which does not allow employees to enjoy this income on their vacations.
With information by Oscar De la Vega
In recent days, the Senate of the Republic approved a reform to the Federal Labor Law denominated ‘Proper Vacations’. This reform consists of making a substantial increase to the number of vacation days to be enjoyed by workers; to this end, the reform amended Articles 76 and 78.
However, in regard to the vacation bonus, a benefit incorporated into the Federal labor Law in the reform of the year 1970 made to Article 80, it did not undergo any modification despite the increase in the number of vacation days.
Article 80 establishes that workers have a right to a bonus of no less than twenty-five percent of the wages that correspond to them during the vacation period.
Since 1970, this benefit has had the objective of allowing the workers to effectively enjoy their vacations, by having an income that allows them to have an extraordinary income so that they do not become indebted or make expenses that exceed their normal incomes.
Companies give the bonus on the employee’s anniversary
According to Oscar De la Vega, some companies, as an administrative simplification, pay the vacation bonus when the worker completes a year of service. This, regardless of the fact that the employee is not enjoying his vacation period at that time and even after the workers have enjoyed said vacation period.
De la Vega points out that these practices contradict the spirit of Article 80 of the Law and they have never been sanctioned by the labor authority or by the Conciliation and Arbitration Boards.
Therefore, the fact that the vacation bonus is paid does not constitute proof that the vacations have been granted to the worker. In the same manner, if the vacations have been granted, that does not exempt them from proving that they have actually paid the bonus.
Given the above, the worker could validly question the company so that his vacation bonus is paid when he decides to take his vacations and not on the day of his anniversary as an employee.
The increase of vacation days and the new reform.
As already mentioned, the Senate of the Republic approved the reform to Articles 76 and 78 of the Federal Labor Law with the objective of increasing the number of days of vacations for the workers and, therefore, those articles were initially modified to read as follows:
“Art. 76. Workers who have more than one year of service will enjoy a paid vacation period, which at no time may be of less than twelve working days and which will increase by two working days, up to twenty days, for each subsequent year of service. From the sixth year forward, the vacation period will increase by two days for every year of service.”
“Art. 78. Workers must enjoy twelve consecutive days of vacations, as a minimum.”
SMEs and Microenterprises are the most affected ones
The last article, however, was the subject of discussion, as there were those who believed that it was very onerous for SMEs and Microenterprises, as they do not have sufficient personnel to grant twelve uninterrupted days of vacation.
Thus, when the Senate Opinion reached the Congress for its review, an amendment was made to said article to establish that six consecutive days would be granted and the other six could be enjoyed in the manner agreed to by the parties.
“Art. 78. Workers must enjoy a minimum of six consecutive days of vacations, out of the total period that corresponds to them in accordance with the provisions of Article 76 of this Law.
“In any case, workers will have the power to agree with the employer on the way and times in which they will enjoy the vacation days that they have in their favor, either consecutively or separately.”
The Senate highly criticized this last wording, and it was announced that it would not be approved by said Chamber. After some negotiation between the two legislative bodies, a consensus was reached that was approved both by Congress and by the Senate, to finally set the wording of Article 78 as follows:
“Art. 78. Of the total time corresponding to the worker in accordance with the provisions of Article 76 of this Law, the worker will enjoy twelve consecutive days of vacation, as a minimum. Said period, at the control of the worker, may be distributed in the manner and time that he requires.”