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Payment for holiday under the Working Time Directive must include
an element of commission which the worker would have been entitled to earn had
he continued to work during that holiday.
L was remunerated by a salary and commission on sales.
Commission was paid in the month following the month in which the sales occurred.
Therefore when he took a holiday, he received no commission in respect of the
holiday period, which consequently reduced his commission for the following
month. He claimed he was entitled to an amount by way of holiday pay to
compensate him for the loss of commission during his holiday.
The European Court of
Justice agreed. Even though he received full commission during the month in
which the holiday occurred (because his commission was based on his sales
during the previous month) the commission for the following month should
include an amount, by way of holiday pay, for the commission he would have
earned had he continued working throughout his holiday. It was left to national
courts to determine how that was to be calculated but the court suggested some
sort of average should be taken.