The Labour Inspectorate pronounces itself
The Labour and Social Security Inspectorate (ITSS) has published a new technical criterion on its performance with regard to the recording of working hours, recalling that the monitoring and control of the rules and limits on maximum working hours and overtime is one of its essential tasks since its creation.
The criterion refers to full-time employment contracts, so it does not affect other already established registers that must continue to operate under their own legal regime:
- Daily registration of part-time contracts (ET art.12.4 c).
- Register of overtime (ET art.35.5): in this case, the register of working hours could be used to comply with the obligation to record overtime, provided that the rest of the specifications are met.
- Records of working and rest hours for mobile workers (merchant navy workers and those carrying out cross-border interoperability services in rail transport (RD 1561/1995)).
- The registers of working hours in transnational postings (L 45/1999 art.6)
The ITSS brings up the publication of the Ruling issued by the TJUE, which establishes the obligation to carry out the day‘s record, emphasizing the need to implement an objective, reliable and accessible system that allows the daily working day performed by each worker to be computed (TJUE 14-5-19, C-55/18).
With regard to the content of the register of working hours, there is no express requirement to record interruptions or breaks between the start and end of the daily working day that are not in the nature of effective working time. This is only a minimum standard that can be developed and specified by collective bargaining or company agreement or, failing that, by decision of the employer after consulting the legal representation of the workers in the company, so that it includes the interruptions or breaks that are considered. However, in the absence of registration of such breaks, and unless there is evidence to the contrary, the entire period from the beginning to the end of the working day could be considered as effective work to be paid.
Without a doubt, this will be the consequence that is giving more work, beyond the ways of making irregular working hours more flexible, and the compensation of overtime with breaks. What is considered effective work, and how can these small coffee or cigarette breaks be “discounted” to compensate for the so frequent extensions of the working day, have been the object of debate since the validity of the working day register.
In this regard, a recent Supreme Court ruling was handed down, in which Judge Lourdes Arastey was the speaker, establishing that voluntary attendance at an event by a salesperson outside of his or her working day should be considered effective working time.
The ITSS is ahead of the business picaresque, and already denies compliance with this obligation by simply showing the “official” working hours of workers, or their relevant monthly quadrant. As I have stated in previous publications, the register must be daily, objective and reliable, and although there is no obligation to provide workers with immediate copies, it must always be accessible at the workplace for consultation.
As regards the organisation and documentation of the register, it must be agreed in such a way as to guarantee the reliability, veracity and non-alteration a posteriori of the data, complying in all cases with data protection regulations. The register must be documented both in cases where it is carried out by electronic or computer means and by manual means. In the first case, ITSS may require that the data be printed, downloaded or supplied in computer format during the visit. In the case of manual means, it may collect the original documents or request a copy, take notes, photographs or even the original as a precautionary measure. You may also verify that the implementation of the register has been preceded by the corresponding negotiation or consultation procedure.
The first inspections relating to the obligation and registration have already begun, although with this criterion, the ITSS wishes to state that, despite the obligation to register the working day, the flexibility and internal rules of organisation of companies may continue to be valid as long as this does not violate the limits on working hours, rest and overtime provided for in the applicable labour and sectoral regulations.
So much so, that it adds that if it were certain that the working time regulations were being complied with, and no overtime was being performed, even if no recording of the working day was being carried out, the Inspector could decide to replace the initiation of the sanctioning procedure with the formulation of a requirement for the installation of a working day recording system.
Therefore, and after so much commotion, it can be said that the situation has not changed as much as it was before the obligation to record the working day. Those companies that violate the regulations on rest and remuneration for overtime continue to be in check, although the different burden of proof in the event of a claim by workers before the social courts for overtime continues to affect all companies.
