The minimum interprofessional wage (SMI) must be applied to insurance agents as well as to other commercial professionals who belong to the special employment relationship of those who intervene “in commercial operations for one or more entrepreneurs without claiming risk and luck” in it. It was established by the Supreme Court in a recent decision, which concluded that this salary floor for all employees should also apply to this special relationship.
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The ruling was pronounced in the case of an insurance broker from the General Social Security Mutuality of Hogar Divina Pastora, who was fired. The worker appealed his dismissal and also claimed compensation according to the interprofessional minimum wage, which is currently set at 1,080 gross euros per month in 14 payments.
The insurance broker receives a payment below the minimum wage, which consists of a certain amount and sales commissions, on average of 32.99 euros per day. The insurer terminated the special employment contract in April 2020, amid the coronavirus pandemic, “saying, in summary, that the worker did not meet the established minimum sales goals.”
The labor court declared the dismissal unfair and recognized compensation according to the minimum wage. The TSJ of Andalusia re-examined the case in response to the company’s appeal, also ending the application of the minimum wage, although the TSJ corrected the amount due to a miscalculation. Therefore, the compensation is calculated based on a salary of 36.43 euros per day, more than what the employee receives.
The case reached the Supreme Court, and now the high court has approved that the minimum wage must be applied to workers governed by this special employment relationship, which is regulated by royal decree 1438/1985. They can be insurance brokers, perhaps one of the most famous figures, but also “non-banking correspondents” and other salespeople dedicated to promoting or arranging commercial operations for a company “without thinking of the danger and fate of those.””.
Relevance of salary and SMI
The Supreme Court emphasized the constitutional meaning of salary, which according to Article 35.1 of the Constitution recognizes the right to “adequate wages”, and the increasing relevance of the minimum wage in European Union law.
The magistrates also warned that the royal decrees regulating the interprofessional minimum wage (SMI) agree on the value of said wages “for any agricultural, industrial, and service activities.”
The judgment also recalled that Royal Decree-Law 3/2004, of June 25, for the rationalization of the regulation of the interprofessional minimum wage, “expressly maintains the link of the interprofessional minimum wage to the worker’s salary under the established terms and conditions of regulations governing special labor relations.”
And, although the existence of a decision from the Supreme Court in February 1983 “rejecting the application of the common regulations on the minimum wage of trade representatives” was noted, the magistrates now think that “that statement was made in previous regulation on the regulation of the special employment relationship of trade representatives (RD 2033/1981, of September 4), and not the current RD 1438/1985, without expanding the analysis to constitutional and legal norms which we refer to in this decision.”
