In companies, there are usually positions in which the worker is required to attend to incidents or emergencies that may occur at any time outside of ordinary working hours. To address these issues, a salary item called availability is usually paid to staff.
Availability compensates the worker for the personal or family inconveniences derived from remaining expectant and reachable in the event of any eventuality that may occur outside of the ordinary working day, but not for the activities or tasks carried out outside of working hours, which must be compensated like all work outside the working day, through the payment of overtime.
In this regard, the Second Chamber of the Supreme Court of Justice has indicated:
"It was developed in previous rulings that availability is a regime that forces the worker to be expectant and reachable at any time to perform extraordinary tasks. From this, it follows that the fact that a worker is paid by availability - salary component - does not automatically mean that he is working day and night for his employer. Obviously, the availability is canceled as compensation for temporarily limiting the availability of free time between days. This does not mean that he was deprived of the enjoyment of time for personal matters, because as long as he was not required to attend to a case in the office, he could attend to personal and family matters.(…) Now, with respect to payment for availability, this extreme as its purpose is to compensate for the expectant situation -which, without a doubt, constitutes a limitation on the activities of the private life of those who are subject to the regime-, it is remunerated independently of the remuneration for the hours actually worked. In this way, the worker can receive only the availability payment, which remains constant even when the worker is not required to work -comply with judicial procedures in kind-, or, they can receive two joint payments -availability and payment for overtime- as long as for the latter, you perform the tasks during the time you are available. That is, when the worker is required to perform a task outside the ordinary working day and during the availability shift.” (Resolution 2015-864 of the Second Chamber of the Supreme Court of Justice of 09:30 on August 19, 2015) (underlining is mine)
On the other hand, hours worked outside the ordinary limits of the working day (overtime) must generally be paid at 150% of the ordinary value of the hour. The preceding by the provisions of the first paragraph of ordinal 139 of the Labor Code, which reads:
"The actual work that is carried out outside the limits previously established, or that exceeds the working day less than these that is contractually agreed upon, constitutes extraordinary working hours and must be remunerated with fifty percent more than the minimum wages, or the salaries higher than those that have been stipulated."
However, if the specific tasks carried out are performed on holidays or weekly rest days, they must be remunerated with the same rules with which overtime is paid on those same days, at 300%.
Availability payment should not constitute an acquired right. Still, it should be conditional on the company's need to have personnel to attend to certain alterations of the production process or the service offered to customers. Hence, the need to perform it should be regulated between the parties through a contract, which establishes the conditions under which the worker will remain available, the amount to be paid, and the scenarios in which the availability payment would no longer be received.
Indeed, although availability must be paid even if an event does not occur that requires specific tasks from the worker, there is no such obligation in those periods of time in which the contract is suspended for reasons of disability, vacations, etc.
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