Entry into force of the daily working day register

Since May 12, 2019, all companies are required to record the daily working hours of their workers. Failure to comply with this obligation constitutes a serious infraction punishable by the Labour and Social Security Inspectorate with financial fines ranging from 626 to 6,250 euros.

New corporate obligation

After the end of the transitional period of 2months, from May 12, 2019,companies are obliged to record the day of their workers on a daily basis. This Register must include the specific start and end times of each worker’s working day, without prejudice to flexible working hours.

The organization and documentation of this Register must be established through collective bargaining, or by agreement of the company; or failing that, by the employer, after consulting the employees’ representatives.

The register must be kept for 4 years in which it will remain available to workers, their legal representatives and the Labour and Social Security Inspectorate.

It is envisaged that the Ministry of Labour and Social Security may establish specialities in the obligations to register working hours for certain sectors, jobs and professional categories that, due to their peculiarities, require it.

Failure to comply with these day registration obligations constitutes a serious infringement punishable by fines between 626 and 6250 euros.

In order to establish criteria to guide companies and workers in the application of the standard, the Ministry of Labour and Social Security has published a practical guide on the registration of working hours, and among others, has established the following considerations (
See the guide
)

a) As of May 12, 2019, companies must already have organized the time registration system for their availability to the Labour and Social Security Inspectorate, the legal representatives of the workers and the workers themselves with respect to their personal registration.

(b) The companies must have agreed with the legal representatives of the workers,through collective bargaining or company agreement, on the model for the registration of working hours. In case of not reaching an agreement, it is the company that must decide the corresponding modality that is considered suitable for the legal purposes. If there is no legal representation of the workers, it is the company that must determine how the registration of the day is organized and documented. However, if the company agrees, an ad hoc committee can be created to negotiate the registration system or agree it with each worker in his employment contract.

(c) The model of registration should:

provide reliability and prove that it cannot be manipulated, nor can it be modified a posteriori, in order to avoid fraud, abuse or simple improprieties;
accredit the start and end time of the day;
record the existence of internal configurative elements (pause, breaks, others) to consider that not everything between start and end automatically corresponds to effective working time.

d) Although from 12 May 2019 the Labour and Social Security Inspectorate must monitor the proper fulfilment of this obligation, exceptionally, companies that do not have the agreed model will not be sanctioned if they prove that the relevant negotiations are being carried out in order to comply, as immediately as possible, with the obligation to register daily working hours.

You can consult here the technical criterion on the action of the Labour and Social Security Inspectorate in the field of Working Day Registration

Infractions and Sanctions (LISOS. Article 7(5)

Article 7, point 5 of the Law on Infractions and Sanctions in the Social Order (LISOS) establishes:

Until May 11, 2019

The following are serious infringements:

The violation of the rules and the legal or agreed limits in matters of working hours, night work, overtime, additional hours, breaks, holidays, leave and, in general, the working time referred to in articles 12, 23 and 34 to 38 of the Workers’ Statute.

From May 12, 2019

The following are serious infringements:

The violation of the rules and the legal or agreed limits in matters of working hours, night work, overtime, additional hours, breaks, holidays, permits,

registration of working hours

and, in general, working time referred to in Articles 12, 23 and 34 to 38 of the Workers’ Statute.

Amendment of the Workers’ Statute (art. 34)

Article 34 of the Workers’ Statute establishes on working time:

Until May 11, 2019

Article 37. 7: The Government, on proposal of the head of the Ministry of Employment and Social Security and after consulting the most representative trade union and employers’ organisations, may establish extensions or limitations in the organisation and duration of working hours and breaks for those sectors and jobs that by their peculiarities require it.

From May 12, 2019

Article 37. 7: The Government, on proposal of the person in office of the Ministry of Labour, Migration and Social Security, and after consulting the most representative trade union and employers’ organizations, may establish extensions or limitations in the organisation and duration of working hours and breaks, as well as specialties in the obligations of registration of day, for those sectors, works and professional categories that by their peculiarities require it.

Article 37. 9 (NEW PRECEPT): The company shall guarantee the daily recording of the working day, which must include the specific start and end time of the working day of each worker, without prejudice to the flexibility of hours established in this article.

By means of collective bargaining or company agreement or, failing that, a decision by the employer after consultation with the legal representatives of the workers in the company, this working day record shall be organised and documented.

The company shall keep the records referred to in this provision for four years and shall remain at the disposal of workers, their legal representatives and the Labour and Social Security Inspectorate.

Evolution of the obligation to register working hours

Legal regulation from May 12, 2019
(according to Royal Decree Law 8/2019)

Workers’ Statute: art.34. day

7. The Government, on the proposal of the head of the Ministry of Labour, Migration and Social Security and after consulting the most representative trade union and employers’ organizations, may establish extensions or limitations in the organisation and duration of working hours and breaks, as well as specialities in the obligations to register working hours. , for those sectors, jobs and professional categories that due to their peculiarities require it.

9. The company shall ensure the daily recording of the working day, which shall include the specific start and end times of the working day of each worker, without prejudice to the flexibility of working hours established in this Article.

The company shall keep the records referred to in this provision for four years and shall remain at the disposal of workers, their legal representatives and the Labour and Social Security Inspectorate.

Workers’ Statute: art.35. Overtime

For the purposes of calculating overtime, the working day of each worker will be recorded day by day and will be totaled in the period set for the payment of remuneration, giving a copy of the summary to the worker on the corresponding receipt.

Law on Infractions and Sanctions in the Social Order (LISOS): art.7. Serious infringements

The violation of the rules and the legal or agreed limits in matters of working hours, night work, overtime, additional hours, breaks, holidays, leave, registration of working hours and, in general, working time referred to in articles 12, 23 and 34 to 38 of the Workers’ Statute.

Jurisprudence (National High Court)

AN 4-12-15 >> For the effective control of overtime it is necessary to record the daily working day since to qualify the hours as overtime must be carried out over the maximum duration of the working day. If the daily recording of the working day were only compulsory when overtime is being performed, the content and purpose of this obligation would be emptied, since without the daily recording of the working day, it is impossible to control the performance of overtime.

DG ITSS, Instr. 3/2016 >> In case of absence of daily working time registration: the inspection makes a request for compliance with the obligation and extends the report of infringement for serious infringement (RDLeg 5/2000 art.7.5). A new infringement report may be issued in the event of a repetition.

Jurisprudence (Interpretation Supreme Court)

TS 23-3-17 (Bankia case) >> The TS exempts companies from the obligation to keep a record of the daily working day of the entire workforce to verify compliance with the agreed schedules. It considers that the ET only obliges, unless an agreement is made, to keep a record of the overtime worked and to communicate at the end of the month to the worker and to the legal representation of the workers their number, if they have been carried out.

The judgment has three individual opinions that indicate that the obligation to record overtime is emptied of content if the working day is not monitored or controlled, and that the ruling does not guarantee that the worker has a means of documentary evidence.

TS 20-4-17 (Abanca case) >> Companies, in general, are not obliged to carry out a record of the daily working day and the employer’s obligation to record (register) extends only to overtime worked.

This judgment does not have individual opinions, and since it is the second judgment handed down in ordinary cassation, it constitutes jurisprudence (ET art. 1.6 CC).

TS 20-1-17 (Sabadell > > case) Companies, in general, are not obliged to carry out a record of the daily working day and the employer’s obligation to record (register) extends only to overtime worked.

DG ITSS Instr 1/2017 >> Not being an obligation required of companies in general, the omission of the registration of daily working hours does not constitute an infringement of the social order.

Reference for a preliminary ruling to the Court of Justice of the European Union

AN auto 19-1-18 >> The lack of an objective and effective system for calculating working hours, such as the hourly recording of working hours, prevents both workers and their legal representatives from verifying compliance with the limitations imposed by the aforementioned provisions on the organisation of working time, and the mandates established in Directive 2003/88 (Articles 3, 5, 6 and 22) are not effectively guaranteed, since there is a lack of an appropriate instrument for verifying compliance with them. Refers questions to the CJEU for a preliminary ruling.

Day registration: now you are obliged

A recent regulation obliges companies to record the daily working hours of all their workers

With specific schedule

In particular, and regardless of the size of the company, you must make a daily record of the working day of all employees (permanent, temporary, part-time and full-time) that includes the specific start and end time of the day. If you have employees with a split day, you have to reflect the time of entry and exit, both in the morning and in the afternoon.

To comply with this obligation:

The agreement – or a company agreement with workers’ representatives – may indicate how to document this record.
Failing that, you can unilaterally decidehow to comply with this obligation. For example:by means of a system of signings (with card, fingerprint…), or by means of a manual registration that documents the time of entry and exit. In any case, if you have workers’ representatives, you must consult them in advance how to implement the registry (even if you are not obliged to reach any agreement).

Failure to comply with the obligation to register the day is a serious offence typified with fines of between 626 and 6,250 euros.

In practice

In practice, the way in which part-time employees keep records and those hired full-time are kept is regulated differently (although, in both cases, it is mandatory to keep the records for 4 years):

Part-time:
Regarding part-time employees, you must total the hours worked monthly and deliver a copy of the record to the employee, where you can see the summary of the hours worked each month (whether ordinary or complementary).
Full-time:
The new obligation to record the working day of all employees does not impose the totalization or delivery of a copy to those affected. It only obliges to include the schedule, and that the register is available to the workers, the workers’ representatives and the Inspectorate (so that any of them can request a copy). Anyway, we recommend totaling in the document the hours of the month (adding them) to prove that the maximum day is not exceeded.

Recommendation: If you are going to keep the day record manually, with a document prepared by your own way, you must make each worker sign the document to reflect that it gives its conformity to the data entered. In this way, you can prove the veracity of said data. In other words, the daily hours worked that are recorded are those that have actually been lent.

Starting in May 2019, your company will also be required to record the working day of full-time employees. You can keep a manual record that indicates the schedule of each day, with the signature of the worker giving his acceptance.

If you have any questions or need any clarification about the obligation of the Day Registration, you can
contact
our labor advisors to help you resolve it.