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Regional High Court Judgment on the employer's obligation to provide a canteen

| Publications | Employment Law and Social Security

Employer's obligation to provide a canteen (or alternative) if employees do not have two hours off.

The title of this article may sound surprising as it shows that employment regulations from the Franco era are still in force today, but the fact is that a judgment has once again shown the continuing validity of the regulations on works canteens (Decree of 8-06-1938 and Ministerial Order 30-06-1938).

It should be recalled that the Employment Section of the Supreme Court in judgments dated 26 December 2011 (ref. RCUD 1490/2011) and 19 April 2012 (ref. RCUD 2165/2011) declared that the Decree of 8 June 1938 and the rules developing it remain in force, reversing a number of rulings of the Regional High Courts that they had been repealed by the Constitution of 1978.

Article 3 of the Decree and articles 3 and 4 of the Order lay down a duty on the part of employers with permanent premises where at least 50 people work to provide not merely canteen premises but an actual canteen for lunch at a "modest" price on the basis of cooperation with the employer, with detailed rules being contained in article 4 of the Order.

The Order specifies that the employer is obliged to pay the cook according to custom and the number of workers who use the canteen, and to pay for fuel, suitable kitchen equipment (pots and pans, etc.), simple aluminum, porcelain or enamel plates and glasses, and to advance to employees the sums necessary to acquire the necessary food items wholesale (or provide a company store).

A recent judgment of the High Court of Justice of the Basque Country of 7 March 2017 (Indra; ref. RS 291/2017), overturning the decision of a lower court, holds that employers are obliged to provide a canteen if workers do not have at least two hours off for lunch, as the Decree of 8 June 1938 and the Ministerial Order of 30 June 1938 remain in force, and this may not be replaced by vending machines, not only because the cost is borne exclusively by the employee, but also because daily consumption of that type of food does not guarantee a healthy, balanced and varied diet of the type the employer is obliged to provide, apart from the risks associated with deterioration of the products and other problems daily consumption of this type of food causes.

The judgment of the High Court of Justice states: "upholding the collective dispute claim brought by the unitary workers' representative against (...) we declare the right of workers physically working at the site to a works canteen, ordering the defendant to abide by this declaration and its inherent legal consequences".

And what are these inherent legal consequences? Simply the right of workers at the site with a two-part working day to have the company provide a canteen, pay for a cook, fuel, kitchen equipment and tableware, and advance the amount necessary for the workers to be able to acquire the necessary food wholesale.

The background to the case according to the judgment was as follows:

At the site in Baracaldo of the 89 workers on the payroll 58 physically work at the facility in a two-part working day with a lunch hour in between.

The site has an eating area equipped with tables, chairs, tableware, microwave, toaster and sink. There is also a vending machine for hot and cold drinks and snacks.

The site is 9 minutes' walk from a shopping centre in which there are various cafes and restaurants.

The premises are leased from an owner who does not allow the works necessary to install a canteen with a kitchen. The licence from the Town Hall is only for office space.

The Preamble to the Decree of 1938 states that the rule seeks to improve workers' conditions and preserve their dignity, avoiding them having lunch "sitting on the pavement or around factories or workshops, exposed to inclement weather and without the decorum and sense of order which all acts in life should have".

What sense does this rule, issued at a time when working conditions were very different, have in modern times?

Article 3 of the Civil Code provides that laws must be interpreted according to the social reality of the time in which they are to be applied, and the circumstances of the time in which this rule was issued were very different to those of today, but it is also true as the Regional High Court stated:

1º) This change has not been reflected in reform of the law, not even in recent years despite the findings of the judgments of 2011 and 2012.

2º) The courts are constitutionally obliged to apply laws and subordinate legislation.

3º) Evolutionary interpretation, which takes into account a variety of factors (social, cultural, moral ...) of the historical context in which the rule is to be applied, does allow the courts to take these circumstances into account, but it does not allow them not to apply the rule if it has not been repealed or amended unless it is contrary to the Constitution, the law or higher-ranking regulations, which is not the case here.

4º) There is the possibility of adapting the 1938 rule to the present day by accepting alternatives to the opening of a canteen on the premises, something which was viable at that time in view of the type of company which employed 50 people or more and the type of premises in which they worked, but which is now more difficult for various reasons such as lack of space, opposition of the owner of the premises (as is the case here), refusal of necessary licences, etc.  or its being excessively burdensome.

The judgment stresses that it makes no difference to the employer's obligation to provide a canteen if 54% of the employees in the case use their own transport to come to work and the others have accessible and frequent public transport, or there are various cafes and restaurants close to the workplace.

And the providing of vending machines is not a valid alternative. A service of the kind the employer refers to does not discharge its obligation, as the cost is borne exclusively by the employees, and daily consumption of that type of food does not guarantee a healthy, balanced and varied diet of the type the employer is obliged to provide, apart from the risks associated with deterioration of the products and other problems daily consumption of this type of food causes.

There is however an admissible alternative to providing a canteen in the form enjoyed by two employees at the site in Baracaldo as an "ad personam" condition (lunch vouchers).

Finally the judgment states that this benefit, as regards workers having a two-part working day subject to flexible time, currently serves the following objectives:

1º) Having lunch at the workplace, or nearby, which avoids the stress caused by having to go home, whether in private or public transport, and return to work in a short space of time, which in turn helps to improve mental balance and productivity, as well as saving on transport costs.

2º) Reducing the length of the break in the working day and bringing forward the time for leaving work, in order for all employees to leave at 18.00, which significantly helps to reconcile the demands of work and home life, break down gender roles and create joint responsibility.          

3º) Having lunch at a lower price than in bars and restaurants, which at a time of pay restraint such as the present is of particular importance.

4º) Having a healthy, balanced and varied diet, which helps preserve health and reduce sick leave.

Readers may draw their own conclusions while waiting for the Supreme Court to rule on this case if it reaches that level.

The comments made above contain information and do not constitute a professional opinion or legal advice, and do not necessarily include the opinion of the author.   


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For more information, please contact:

Alfredo Aspra


José Antonio Sanfulgencio



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