The Labour Inspectorate has published a new technical criterion aimed at establishing the guidelines to be adopted in the inspection proceedings, in relation to the provisions relating to the Registration of working hours. These criteria refer to full-time contracts and establish that the registration system must be reliable, truthful, objective, which guarantees the non-alteration of the data a posteriori, and respect the regulations on data protection.
Interpretation of the obligation to register working hours by the Labour and Social Security Inspectorate (ITSS)
The Labour and Social Security Inspectorate has issued a new technical criterion (criterion 101/2019) which aims to establish the guidelines for the performance of the inspection actions that are carried out from May 12, 2019 (date of the entry into force of RDL 8/2019) in relation to the provisions relating to the mandatory registration of working hours.
These performance criteria, which relate to full-time employment contracts, are as follows:
1. Mandatory registration of working hours
Keeping a day record is not an option for the employer, but is a duty. The employer has the obligation to guarantee the existence of a working day register,since it is not a mere power of the employer. This obligation has been confirmed by the Court of Justice of the European Union (CJEU), stating that, in order to guarantee the rights in the field of working hours laid down in Community legislation (Dir 2003/88/EC and CDFUE art 31), it is mandatory member states and companies implement an objective, reliable and accessible system that allows the daily working day performed by each worker to be calculated.
2. Purpose of the day registration
The Labour and Social Security Inspectorate (ITSS) interprets that what must be recorded is the working day worked on a daily basis. Although the standard does not expressly require the recording of interruptions or breaks between the beginning and end of the daily working day that do not have the character of effective working time, the ITSS states the following:
(a) By collective bargaining, an enterprise agreement or, failing that, the decision of the employer after consultation with the workers’ representatives in the undertaking; andHe day registration can be organised in such a way that include the interruptions or breaks that are considered, provided that the registration necessarily includes the start and end time of the day.
(b) The reading of the register when determining the possible non-compliance with the limits on working time must be done in a comprehensive manner, taking into account all the possibilities permitted by the labour law in the area of the distribution of working time.
(c) It is considered desirable that the registration used in the undertaking should offer a adequate and complete vision of effective working time. Failure to do so may be presumed to be the time elapsed between the start and end time of the registered working day and the proof that this is not the responsibility of the employer.
(d) Collective bargaining or enterprise agreements relating to the organization and documentation of registration should be the appropriate instrument for clarifying how to consider all aspects related to the registration of interruptions, breaks or flexibility of working time.
3. Obligation to register daily
The Labour and Social Security Inspectorate establishes that the registration of the working day must be daily and considers that it is not valid to prove compliance by displaying:
- the general schedule of application in the company;
- the work schedule;
- or the time quadrants elaborated for certain periods.
These elements are formulated in advance and what they determine is the forecast of work for a certain period, but not the hours actually worked; which can only be known later as a result of the keeping of the day record. This is the way to determine the working day actually carried out, as well as, where appropriate, the performance of hours above the ordinary working day, legal or agreed, which will be those that have the status of extraordinary.
4. Validity of other registrations and specialties
The day register coexists with the other registers established by current regulations that remain functional and in accordance with their own provisions or legal regime. They are as follows:
(a) The daily recording of part-time contracts (ET art. 12 (c)).
(b) Registration of overtime (ET art. 35.5). The ITSS considers that daily recording of the working day can be used by companies to comply with the obligation to record overtime without prejudice to the fact that, in case of overtime, additional obligations are established (RD 1561/1995 disp.adic 3ª).
c) Records of working and rest hours on mobile workers, merchant marine workers and workers performing cross-border interoperability services in rail transport (RD 1561/1995). The ITSS points out that, if they allow a real reading of the working day carried out, these records are kept on their own terms since their content is included in the specialties indicated in et art.34.
(d) Working hours in transnational travel (L 45/1999).
5. Conservation of the day record
The company is obliged to keep the records for 4 years,remaining at the disposal of the workers, their legal representatives and the Labour and Social Security Inspectorate. In this regard, the ITSS establishes criteria on:
a) Themethod of conservation,the ITSS considers that any means, physical or otherwise, is valid, provided that it guarantees the reliability and veracity with respect to the data recorded daily. Furthermore, since the rule does not establish it, this retention of the daily records does not imply the obligation to total them (if it is mandatory in the case of part-time contracts and in the case of overtime).
(b) The permanence at the disposal of workers, their legal representatives and the ITSS, which entails:
- That it is possible to access records at any time, when requested by the workers, their representatives and by the ITSS.
- That records have to be and remain physically in the workplace, or be accessible from it immediately.
- That it is allowed that if they have been originally instrumented in paper format, for the purpose of their conservation they can be archived in computer support by scanning the original documents, being stored electronically with due guarantees. This file must also remain available.
- That it must be possible to verify the existence of the register at the workplace, without prejudice to the fact that such records may also be requested for presentation at the inspection offices or referral to this body.
(c) The specific form of making it available. In the absence of express reference and for reasons of legal certainty, the ITSS interprets the permanence at the disposal:
- it does not imply the obligation to provide copies (unless provided for by the collective agreement or there is an express agreement to the contrary).
- a copy of his or her daily register, without prejudice to the facilitation of personal consultation, or to the workers’ legal representatives, should not be given to each worker, which does not prevent the latter from taking cognizance of the workers’ records.
6. Organization and documentation of the Registry.
The form of organization and documentation of the registration system must be determined by collective bargaining, by company agreement or, failing that, by decision of the employer after consultation with the workers’ representatives. Regarding the organization,the registration system, in any case, must be: objective, reliable and truthful, must not allow the alteration of the data a posteriori and must respect the regulations on the protection of personal data (RGPD; LO 3/2018).
With regard to the registration documentation:
a) If it is done by electronic or computer means (recording system by means of magnetic card or similar card, fingerprint or computer): the ITSS may require during the visit the printing of the records corresponding to the period under consideration, or their download or supply in computer support and in a readable and treatable format.
b) If it is carried by manual means (signature of the worker on paper): the ITSS can collect the original documents or request a copy of them. If no means are available for copying them, notes or samples may be taken by means of photographs, as well as, if considered appropriate on the basis of the incongruities observed between the day registration, and the declared day or time, take the original of the day registration as a regulated precautionary measure.
It is also the responsibility of the ITSS to verify that the form of organization and documentation has been preceded by the corresponding procedure of negotiation or consultation with the workers’ representation. The verification can be carried out through the minutes of the meetings held in the negotiation process.
7. Sanctioning regime
The Law on Infractions and Sanctions in the Social Order (LISOS) classifies as a serious infraction the violation of the obligations regarding the registration of working hours.
Although sanctioning procedures can be initiated from May 12, 2019 (entry into force of RDL 8/2019), it is noted that the acting inspectors:
- they must assess the existence of negotiations between the parties under the principle of good faith;
- they must take into account the rest of the circumstances of the case, therefore, if there is certainty that the rules on working time are complied with or that overtime is not carried out, even if the registration of the working day is not carried out, after the assessment of the inspector acting in each case, the initiation of the sanctioning procedure can be replaced by the formulation of a requirement to comply with the legal obligation to guarantee the daily registration of the working day.
This new Criterion (101/2019) has annull Instruction 1/2017 on intensification and control in the field of working time or overtime.
Interruptions and breaks between the start and end of the daily working day
- mandatory medical examinations;
- the snack/coffee break when it has been recognized as effective working time in the employment contract, in a collective agreement or is permitted by the company;
- downtime not attributable to the worker;
- paid permits;
- time devoted to training, if it is the result of technical changes in their workplace;
- performance of trade union functions;
- the movement from the workplace to a different place where the provision of services is ordered, and their return;
- in the case of workers who do not have a place of work, the movement of the worker’s home and the centres of the first and last client;
- time spent putting on the mandatory personal protective equipment;
- time spent picking up the uniform.
- time spent on sports activities with voluntary clients organized by the company outside the working day;
- time spent handing over and picking up the weapon (security guard);
- home guard or in center when no other activity can be performed.
They are not working time,and therefore, they do not compute in the daily working day:
- travel to the company’s dining room;
- time of mere presence;
- access and exit times of work;
- coffee break/snack time, unless considered working time;
- times of grooming and changing clothes;
- time used in transport to the workplace;
- time needed to sign;
- travel times from the garages where the company’s vehicles are to be collected to the workplace;
- the time spent on travel from the company’s registered office to the places where the works actually take place;
- leave for own affairs when its enjoyment requires, in order to achieve the annual calculation of the conventional working day, the recovery of the hours of absence;
- the time (15/20′) that in the shift change are invested in transmitting the necessary information about the situation of the patients;
- watchable if you should not arrive early at the meeting point.
If you still do not have the Mandatory Day Registration
From 12 May all companies (regardless of their size and sector) are obliged to record the working hours of all their workers (regardless of their professional group, the type of contract and whether they work part-time or full-time).
Despite this, some companies do not yet have the registration.
- Full-time contracts:If the Inspectorate requests registration and it is not provided immediately, it may impose a penalty of between 626 and 6,250 euros (even if the company insists on providing it in a few days). eye! Because the law obliges to have the register at the disposal of the Inspectorate, the workers and their representatives, and to keep it for four years. Therefore, the records must be physically in the workplace or be accessible from it immediately (to prevent their future creation or manipulation).
- Part-time contracts: if the registration of the part-time worker is not carried out or facilitated, in addition to a fine, it will be presumed that his contract is concluded full-time. This, unless there is evidence to the contrary that proves the partial nature of the services (with time quadrants that reflect that only one shift works, with the opening and closing hours of the center if it only opens in the afternoons, with the declaration of workers… etc.).
If a company is not yet carrying out the Compulsory Working Day Register, and does not have workers’ representatives, you must take this obligation into account and implement a daily working day register as soon as possible.
In case of having representatives, you must immediately meet with them to inform them of the implementation of the registry (manually, with digital platforms …), so that they can send their opinion (the law obliges the entrepreneur to make this communication).
It is advisable to document all communications made in meetings with representatives. In this way, if the company receives an inspection, it will be able to prove that they have begun the procedures to comply with the new standard.
The Inspectorate is going to start asking companies for daily working time records. If a company does not have them, it is advisable that it has at least started consultations with the workers’ representatives.
If you want more information, you can consult the document here
If you have any questions or need any clarification about the obligation of the Day Registration, you can
our labor advisors so that we can help you resolve it.