The Supreme Court has declared that the system of time exchange established by the collective agreement constitutes a case of irregular distribution of working hours and, consequently, the clause which, in certain circumstances, allows the period of notice to be reduced to 24 hours, is null and void. It considers that, except in cases of force majeure, the 5-day period established in the Workers’ Statute must be complied with in any case.
Nullity of provisions of the agreement
On the part of the representation of one of the unions stands in the way application for challenge to the collective agreement requesting that certain provisions of the collective agreement of iberia’s ground staff be declared null and void, including the one that provides for the possibility for the company to use a bag of hours. For its use, the agreement establishes that the company must give workers as far notice as possible from the moment of identification of the need (un foreseeable variation in the workload). In addition, in certain unforeseen cases and with justification to the representation of the workers, it establishes the possibility of notifying with a period of less than 24 hours. The union considers that, as regulated in the agreement, the time exchange is a case of irregular distribution of working hours in which the minimum notice must be 5 days, without it being possible to establish a lower notice.
At the instance, the National High Court declares the validity of the regulation of the agreement and the trade union therefore lodges an appeal in cassation with the Supreme Court.
The issue under discussion it consists of determining whether the so-called bag of hours can fall within the so-called irregular distribution of the working day and, consequently, whether the 5-day notice period must be applied or whether it is a different regulation from the one in which the notice period fixed therein applies.
The Supreme Court considers that in the case prosecuted, through the system of time exchange, the agreement establishes an instrument of flexibility in the organization of working time, with a detailed regulation regarding its use, settlement, remuneration and notice that responds to the provisions of ET art.34, allowing the company, depending on un foreseeable variations in the workload , extend or decrease the duration of the daily working day or the addition or reduction of days, without changing the annual working day. Furthermore, it considers that the following circumstances do not preclude the following circumstances from considering that there is a situation of irregular distribution of working hours:
- (a) The fact that the application of the time exchange requires the existence of an un foreseeable variation in the workload does not mean that an immediate intervention of the workers is necessary, since it is a habitual activity in the company that does not have the character of urgency that prevents the workers from being given 5 days’ notice. In addition, the regulation of notice does not prevent the company from breaching this deadline in cases of force majeure.
- b) That the application of the time exchange is governed by the principle of voluntariness since, by means of the collective agreement or the agreement between the company and the workers’ representatives, the worker’s voluntariness may be established in order to accept or not the irregular distribution of the working day.
- (c) That the worker can make use of these hours for personal reasons and family reconciliation, since in this possibility it can be foreseen in the irregular distribution agreement and, in addition, since 8-3-2019, et art. 34.8 recognizes the right of workers to adapt the duration and distribution of their day to make effective their right to the reconciliation of family and work life.
- (d) Nor is it contrary to the regulation of the irregular distribution of working hours, the provision that the worker may have his working day reduced or contracted without any economic loss.
Therefore, Supreme Court concludes that, regardless of the name given to it by the negotiators of the agreement, since it is a case of irregular distribution of working hours, the obligation to give the worker notice of the day and time of the provision of the work resulting from the irregular distribution of the working day with at least 5 days must be fulfilled. Requirement that is not met in the provisions of the agreement (communication as far in advance as possible and with less than 24 hours in certain cases).
In the the same demand, the representation of the union has also requested that the provisions relating to the obligation for maintenance personnel to take the holidays in the months of less activity (from June to August), considering that there is a case of inequality with other groups of the agreement, and the one that establishes the possibility of extending the days from 8 to 12 hours when considering that there is a case of split day. In both cases, the Supreme Court dismisses the grounds of appeal.
For all the foregoing, the appeal of cassation raised is considered in part, and the prior notice established for the case of making use of the bag of hours is declared null and void.
Irregular distribution of working hours
Taxpayers must provide the Tax Administration with information on the assets and rights located abroad of which they are the holders. In particular, they are obliged to provide:
- a) Information on accountslocated abroad opened in entities engaged in banking or credit transactions of which they are holders or beneficiaries, or in which they are listed as authorized or otherwise have the power of disposal.
- b) Information of any securities, assets, securitiesor rights representing the share capital, own funds or assets of all types of entities, or the transfer to third parties of own capital, of which they are holders and which are deposited or located abroad; as well as life or disability insurance for those who are policy-makers and for annuities or temporary incomes of which they are beneficiaries as a result of the delivery of capital in money, movable or immovable property, contracted with entities established abroad.
- (c) Information on the immovable propertyand rights therein owned by it, located abroad.
These obligations extend to those who are regarded as actual holders. Failure to comply constitutes a serious tax violation and carries a minimum fine of 10,000 thousand euros.
These are three different information obligations that are articulated through the same information model, form 720, which is submitted electronically via the Internet, between 1 January and 31 March of the year following that to which the information to be supplied relates and, in cases where for technical reasons it is not possible to make the presentation via the Internet within the statutory declaration period , such presentation may be made within four calendar days of the end of that period.
Validity of irregular distribution of working hours
- it makes the working day more flexible throughout the year as an internal organizational tool;
- it allows the adaptation of schedules to improve productivity by adjusting the existing work needs at all times, increasing working time in peak periods of production or work, with compensatory rest in other periods of lower volume.
- company-worker agreement;
- collective agreement;
- decision of the company: in case of lack of agreement.
- daily and weekly breaks established by law;
- in the absence of a pact: maximum 10% of the working day;
- it cannot be applied to workers with reduced working hours due to legal guardianship with a certain time limit.
- Agreement between the company and the workers’ representatives. In the absence of a pact: it is possible to distribute 10% of the working day throughout the year;
- minimum notice of 5 days, in this regard it is necessary to take into account:
- it is possible to improve the term by collective agreement, extending it, but not to make it worse (TS 16-4-14);
- collective notice by means of communication on the bulletin board is not possible.
- As agreed in a collective agreement or, failing that, by what was agreed between the company and the workers’ representatives. Throughout the year in which they are performed. It is not possible to defer it to successive years (*);
- in the absence of an agreement: within 12 months of their occurrence.
*Although the collective agreement allows it, the company cannot compensate for the pockets of hours caused by the irregular distribution of the day in the year following its realization (TS 3-2-15)
- applicable by the company even if there is no prior agreement or collective agreement;
- it does not modify the days established in the work calendar as working days, nor the total number of annual hours to be performed, only their distribution.
Validity of irregular distribution of working hours
A company of 15 workers performs an annual day of 1,750 hours distributed in 8 hours a day from Monday to Friday in morning and afternoon shifts from 05:00 to 14:00 and from 14:00 to 22:00 hours
Of these workers, 2 of them perform only day in morning shift from 7:00 to 14:00 to have this specificity of time as a result of a reduction in working hours for the care of minor children.
In the months of July of each year, there is an excess of production that forces the company to temporarily hire 5 workers for 8 hours a day, which means a total of 920 [5 x (8 h x 23 días laborables] hours.
The company intends to avoid the cost of hiring these workers through the irregular distribution of the working hours of its 15 workers.
Can you forewarn the distribution collectively? Can it include all workers?
The company can agree with the legal representatives of the workers the irregular distribution of the working hours of its workers to deal with this overwork. However, it must exclude workers with reduced working hours who have a certain specificity of their working hours.
Likewise, the communication must be made individually and by means of a means that records the realization of a 5-day notice. It is not valid to give notice collectively by means of a communication on the bulletin board, since it does not record not of its celebration or of the period in which it has been made.
Irregular distribution by semesters
Your company has more work in the second half of the year. For this reason, it is proposed to incorporate a part-time worker from January to June, and full-time from July to December. Can that be done?
Because of the needs of your business, you are interested in hiring a part-time worker during the first half of the year, and full-time during the second half. Is it valid to agree on this annual time distribution? What options do you have?
Option 1: compact
In these cases, nothing prevents you from agreeing in the employment contract that your employee will provide his services at the rate of 50% of the day from January to June, and that from July to December he will do so at 100%.
As this is a structural need, formalize an indefinite contract. And since the annual working day will be less than the maximum, this contract must be part-time. In practice:
- If your agreement provides, for example, for an annual working day of 1,752 hours, reflect in the contract that in the first semester the affected will work 438 hours (1,752 / 2 x 50%) and in the second, 876 (1,752 / 2 x 100%). Thus, the annual working day will be 1,314 hours (it will have a part-time ratio of 75%).
- As in this case the working day is at least ten hours per week in annual calculation, you can agree to the mandatory realization of additional hours, with a limit of 30% of the ordinary hours (expandable to 60% by agreement). That is, you can make him work 394 more hours a year.
- In addition, being a fixed contract, it may offer the realization of voluntary additional hours, with a limit of 43 hours. In this sense, the sum of ordinary and complementary hours must be less than a full-time day (1,314 + 394 + 43 reaches 1,751 hours).
In any case, you must keep a record of the hours worked during the year. But remember that the Law requires such a record to be kept in part-time contracts.
When it comes to paying the salary and making contributions, the most comfortable thing is to agree to pay 75% of the salary throughout the year (so that the affected person charges the same when working part-time and full-time), and also to contribute at the rate of 75% throughout the period. Another option is to pay you the salary according to the percentage of working day in each semester. However, so that there are no discrepancies with the contribution, in this case it is also advisable to adjust the contributions, so you must modify the working day ratio reported in Treasury during each semester.
Option 2: Changes of working day
Some companies choose to initially hire the part-time worker, and to sign a full-time extension for the second half of the year (and so on each year). However, this option has drawbacks:
- Converting a part-time contract into a full-time contract, and vice versa, requires the worker’s consent. Therefore, it will not be able to adopt such a measure in the middle of the year if the person concerned refuses (not even through a substantial modification).
- If the affected party agrees to the change of working day, the measure will be valid. However, you must document each change of day in a separate document, and make the communication to the Treasury.
Nothing prevents you from agreeing that a worker will provide his services part-time during the first semester, and full-time during the second. In this case, the most comfortable thing is to pay 75% of the salary throughout the year.
If you have any questions or need any clarification regarding the irregular distribution of the day, you can
any of our advisors to help you solve it.