The obligation to record the working day, hitherto only compulsory if workers were working overtime; it is extended to all workers in the company. For its implementation, a transitional period of 2 months is established so it will not be enforceable until May 12, 2019.
Obligation to register the working day
Royal Decree Law 8/2019 modifies Article 34 of the Workers’ Statute to extend the obligation to register the working day,which until now was only mandatory when workers work overtime; to all workers in the company.
To this end, from 12 May it will be compulsory for companies to record the working day of their workers on a daily basis. This register must include the specific start and end times of the working day of each worker, without prejudice to flexible working hours.
The organization and documentation of this Register must be established through collective bargaining or through an agreement between the company and the workers.
And this register must be kept for at least 4 years, in which it will remain at the disposal of workers, their legal representatives (if any) and the Labour Inspectorate of the Social Security.
Although it is possible for the Ministry of Labour, Migration and Social Security to establish specialities in the obligations of registration of working hours, for certain sectors, jobs and professional categories, which, due to their peculiarities, so require.
However, for its implementation by companies, a transitional period of 2 months has been established, so it will not be in force until May 12, 2019.
Failure to comply with these obligations to register working hours will constitute a serious infringement before the Labour Inspectorate (LISOS art.7.5 redacc RDL 8/2019)
It should be borne in mind that the obligation to register working hours for all workers was declared by the National High Court: subsequently, the Supreme Court ruled otherwise, although stating that a legislative reform would be desirable to clarify the obligation to keep a time register and to make it easier for workers to prove that they had overtime. Referred for a preliminary ruling before the Court of Justice of the European Union, the Advocate General, in his Opinion, has expressed his support for that question registration.
Violations and sanctions
Specifically, the article that talks about infractions has been modified with this Royal Decree Law. Article 7.5 of the Law on Infractions and Sanctions in the Social Order (LISOS), until now, included the following:
Article 7. Serious infringements
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.
As of May 12, 2019, Article 7.5 shall read as follows:
Article 7. Serious infringements
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
Article 34 of the Workers’ Statute has also been amended or added to this new obligation.
Article 34. day
- 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. - (…)
- New precept
As of May 12, 2019, Article 34 shall read as follows:
Article 34. day
- The Government, on proposal of the person in office of the Ministry of Labour, Migrationand 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.
- (…)
- 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 working 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 precept 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
Regulation from May 12, 2019 – RDL 8/2019
Workers’ Statute – Art.34. day
- 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.
- (…)
- 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 working 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.
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
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 of the Supreme Court)
TS 23-3-17 (Bankia case)
The Supreme Court 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 Workers’ Statute 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 European Court of Justice
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.
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