On 12.05.19 the Royal Decree Law 8/2019 on urgent measures for social protection and the fight against precariousness in the working day (BOE 12 March) came into force and with it the obligation of the companies to guarantee the daily registration of the working day of the workers.
This obligation has also been confirmed by the recent judgment of the Grand Chamber of the Court of Justice of the European Union of 14 May 2019 (Case C-55/2018), which states that it is contrary to European Union law for the national law of a Member State to be interpreted as not imposing on employers the obligation to set up a system for recording the daily working time performed by each worker.
Therefore, at present, the obligation to carry out the announced Day Registry is undeniable. Now, as we advanced in this article of March, many questions have been raised about the practical application of the rule that has forced the Ministry of Labour to develop a Guide on the registration of working days, in order to give certain guidelines that facilitate the implementation of the rule. This guide provides various examples of means that can be used to keep the working day register, as well as for its conservation and access, bearing in mind that the interpretation of the rule will in any case be the responsibility of the social order’s courts and tribunals.
In the aforementioned guide, the Ministry has systematized a series of basic questions and their answers, in order to clarify which companies and workers are affected by the obligation to keep a working day register, its exceptions, as well as other rules of preferential application (register of special working days). It also includes the different means that legally exist to provide flexibility to the organization of work (irregular distribution, flexible hours, teleworking, etc.), types of applications or systems for the registration of working hours, as well as the way in which the Inspectorate will carry out its control and interpretation in specific cases such as the monthly working day and daily excesses.
This rule, which is compulsory for all companies, is a mechanism that allows for effective control of the working day with the aim of safeguarding the right of workers to have a predictable working day and to be paid in proportion to their effective working time, while also allowing for the reconciliation of work and personal life. It also allows companies to control productivity and absenteeism, which, in some cases, will also open up a new spectrum of control actions that until now were unknown in many sectors (imposition of disciplinary sanctions, objective dismissal for lack of attendance, etc.).
The company must have already organised the system of hourly registration to be made available to the Labour and Social Security Inspectorate, to the legal representatives of the workers and to the workers themselves with regard to their personal registration; they must also have agreed with the legal representatives of the workers, by means of collective bargaining or company agreement, the model for the registration of working hours. If no agreement is reached, the company will decide on the corresponding modality, which must be considered suitable for legal purposes.
In the event that there is no legal representation of the workers, it will be up to the latter to determine how the registration of the working day will be organised and documented. However, if the company agrees, an “ad hoc” workers’ commission can be set up to negotiate the registration system or agree it with each worker in their employment contract.
The Ministry of Labour has been quick to announce that the Labour and Social Security Inspectorate will monitor its adequate compliance and, exceptionally, if the company does not have the agreed model, it will be sufficient to accredit that the relevant negotiations for its implementation are being carried out to avoid the imminent sanction.
The agreed registration model must offer reliability and prove that it is unalterable and not subject to manipulation, either by the employer or by the worker himself, and must be available at all times to the worker or, where appropriate, to the Inspection services.
For the resolution of any query or application of both the Law and the guide published by the Ministry of Labour, we guarantee that our professionals will closely follow any new development that may occur in this area and will be able to resolve any doubts that may arise from the implementation of this system.