The Supreme Court has confirmed the right of the 1,600 workers of Fujitsu Technology Solutions in Spain to receive the Christmas basket of the year 2016, unilaterally suppressed by the company , considering that the repetition in the time of its delivery and with extension to the entire staff made it the most beneficial condition of the employment contract, without being able to take it as an act of mere liberality of the company.

According to the ruling made public on Monday by the Social Chamber of this body, the suppression for exceptional cause in a specific annuity of the shipment of the basket, which was not fought by the social part of the company, does not eliminate the right to the same. In the case of Fujitsu, the basket was not remitted in 2013 claiming a cost reduction plan, which was not contested by the unions, which did claim the reinstatement of the shipment as of 2014.

The Supreme explains that to appreciate that the Christmas basket is a more beneficial condition, two conditions must be met: a succession of the acts on which it is based and an unequivocal will of the company as the origin of the aforementioned condition, which improves the legal framework or conventional applicable. And the consequence of its appreciation is the incorporation of it to the mandatory package of the employment contract.

In the case of Fujitsu, with about 1,600 workers throughout the national territory , it has been proven that, from the beginning of its activity until 2012, the company had delivered the indicated basket to the affected workers - with the exception of the year 1997, when it was replaced by a gift voucher. It was in 2013 when the company decided to suppress such delivery, without such decision being challenged, according to the judgment under appeal.

Since then, delivery has not been made; noting, however, that, in the years 2014, 2015 and 2016, the trade union representations - of the applicant or USO union - requested its establishment.

From the beginning

The Supreme Court therefore values ​​that said basket had been delivered from the origin of the company's activity without a continuity solution until 2013, "and it cannot be denied that in that act of the company the defining notes of the controversial condition are appreciated more beneficial

Not only is it a delivery on a regular, constant and repeated basis every year, but it is clear that such an offer was made with full and conscious will to benefit the workers of the workforce, all without exception or conditioning, "they point out The magistrates

"The distribution of the Christmas basket - adds the sentence - is not produced by a mere tolerance of the company, since it is clear that, given the volume of the workforce, that delivery implies an economic outlay that necessarily has and must be approved and financed, and, in addition, it requires a certain organization and logistics activity - the company must determine the number of baskets it needs, acquire them in the market and organize its distribution or the system by which the baskets arrive at the hands of each of Workers".

Contract condition

In sum, the Supreme Court indicates, we are faced with a working condition that was incorporated into the employment contract of the affected workers and, therefore, required the creditor of said benefit - the employer - as part of the content of said contract.

Regarding the suppression in 2013, the Supreme Court emphasizes that the company's decision had a clear conjunctural vocation, by expressly adhering the measure to said annuity. Precisely, the high court understands, the lack of challenge by the unions, "shows that the social party accepted the punctual sacrifice in response to the circumstances asserted by the company in relation to the situation of said annuity."

In the sentence of which the magistrate María Lourdes Arastey has been a speaker, the Supreme Court recalls that the issue of the delivery of the traditional Christmas basket has motivated several pronouncements of the Chamber in which the question of whether it constituted or not was addressed A more beneficial condition.

Thus, the resolution warns that a general criterion cannot be set for all cases according to which the delivery of the basket always constitutes a right acquired as a more beneficial condition, or, on the contrary, a mere liberality of the company, so The result of judicial solutions can be diverse in terms of the characteristics and proof of the circumstances of each case.

Finally, the Supreme Court recalls that to date, the Chamber has issued four sentences in which it is considered that the delivery of the Christmas basket is a more beneficial condition , while in a fifth resolution he said the other way around and denied the consolidation of the right to its delivery for not being accredited the concurrence of the characteristic and defining elements of the most beneficial condition.

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