4 useful tips to adapt to the compulsory working day register in Spain
When it seemed that the labour market was taking revenge on old paradigms of presentialism and old-fashioned production systems, the legislator has approved in extremis a reform which entails the registration of working hours that generates certain nervousness among most of our clients.
Impact on companies
The workday record is a corporate liability, not a workers’ right. Therefore, the company will be the one who has to articulate this record. By the way, workers must have the register at their disposal at all times, so that they can check its veracity and oppose to the data collected as the case may be.
Furthermore, this obligation will not have the same impact on all companies. It depends on the type of services provided. Thus many companies will have particularities and more flexible ways of working, so the requirements to be applied may differ for inspection processes (for example, lawyers, consultants, economists, auditors, etc.). The workday record will be the evidence to support and justify compliance with their obligations before the Labour Authorities. There should be, at least, one centralized register per company and not one per workplace as it might seem. Sanctions for non-compliance with this obligation range from 626 and 6,250, depending on the type of company and type of infringement.
Reform content and entry into force
The Royal Decree-Law (the “Reform”) has modified Article 34 of the Employee Statute (“ET”), establishing the obligation for companies to record the daily working hours for each of their employees on a daily basis. The Reform aims to end unpaid overtime and, at the same time, guarantee workers right to digital disconnection.
The Reform enters into force next 12 of May. As per our understanding, the register is going to be compulsory for companies without workers representation on that day. The Company must have previously agreed the form of registration with workers through a company agreement or, in its absence, taking the corresponding decision.
Our recommendations
1. Be clear about working day register that best suits your company
The Reform does not impose a specific form on the system register. We must ensure that the method chosen serves to justify our business situation.
We have to keep the record for 4 years in case of possible inspections.
2. Record content
We could use analogical systems, such us an Excel spreadsheet that includes entry and exit time and the effective work time done, or digital systems for computing the whole day.
The important thing is to keep in mind that we need to register the effective working time. There may be cases in which the on-site presence in the workplace is longer than the services provided and the effective working time, so we must take these differences into account to properly comply with the standard.
The Reform does not require the registry to have the consent or signature of the recorded employees. However, this signature or self-declaration of compliance is strongly recommended as it will help strengthen our position in case of inspection.
3. Take into account the annual workday, not the daily one.
The Reform should always be interpreted in terms of how the workday record in the Employee Statute or in the collective agreement applicable is structured. Generally, the maximum working hours are measured in annual terms, according to the methods set out in collective bargaining. The fact that a worker spends one day longer in his job than he theoretically should does not imply the existence of an infraction or overtime (provided it is well documented). It must be taken into account the annual computation of hours and the maximum workday agreed by agreement, in the Employee Statute, the collective agreement or in the company.
Nevertheless, mandatory daily rest and between workdays must always be considered. Otherwise the company might face sanctions regarding this related topic not initially foreseen in the Reform.
4. Issue an instruction about overtime working hours and amend future contracts
We will see what will happen in the coming months with the elections, the regulatory development of the precept, the performance of the inspection and Courts interpretation.
López-Hermoso Abogados proposal is to strengthen the voluntary character of extraordinary hours in any business. For this reason, we suggest issuing a formal instruction by the management of the company informing workers that overtime will require (i) the worker’s justified written request and (ii) the company’s prior written authorization.
In this way, the effective working time of each one of our workers is always controlled, avoiding complications related to unnecessary overtime and possible contingencies with the inspection.
These instructions must be hand delivered to the employers collecting their signature in receipt, via email, bulletin board, etc. The important thing is that there should be a record of the reception of the instruction and of the worker’s obligation to request authorization to work these overtime hours.
In addition, a contractual clause for each new employee in this sense can be included to strengthen the obligation.
We will see what the first phases of applicability of the standard provide in the following months. What is clear is that its entry into force has not left anyone indifferent and that it does not seem to be the ideal means to achieve the objectives it intends.
If you have any questions or comments, do not hesitate to contact us.
Susana Lázaro | Partner of the Labour Department.
*** This note does not constitute a recommendation or legal advice of any kind on the part of the Signatory. The Firm does not assume any responsibility for its content. For a legal advice on the matter will require the individualized study of the case.