Individual superminimum: absorption is the rule without contrary agreement

Pay and benefits
Individual superminimum: absorption remains the rule absent a specific contractual provision to the contrary
Court of Cassation, Labour Division

The dispute arose from a claim brought by a number of workers challenging the company’s decision to absorb the individual superminimum (superminimo, a contractual top-up element above the minimum pay scale) recognised at the time of hiring, and seeking restitution of the amounts withheld. After the claim was upheld at first instance, the Court of Appeal dismissed it and the Court of Cassation confirmed that decision.
The Supreme Court reaffirms that the individual superminimum is, as a general rule, a component of remuneration that may be absorbed by subsequent pay increases. That rule may be departed from only where there exists a specific provision, whether individual or collective, conferring a non-absorbable character on the superminimum.
It therefore falls to the worker to demonstrate the existence of the agreement or other source justifying the full retention of the element. The prolonged failure to apply absorption is not, in itself, sufficient to establish the existence of a company practice; what is required is consistent, uniform, and generalised conduct on the part of the employer. Furthermore, clauses in subsequent renewals of the collective agreement do not automatically alter the regime of superminima already granted, unless there is an express provision to that effect.