Spain: Alerts On Employment Issues In Spain - May 2019

The European Court of Justice has ratified the obligation for Spain to implement an employee´s working hours record system. In parallel, the Ministry of Labour published the official guide on how to implement the record system.

As of May 12, 2019 all companies are required to register employees´ working hours. The obligation affects all companies, regardless of their size. Non-compliance with the obligation to record working time has been defined as serious infringement, the amounts of the administrative fines being between €626 and €6,250.

In parallel, the European Court of Justice (ECJ) established in its sentence issued on May 14, 2019 that all the companies operating in EU member states must set up a system to record the working time of their members of staff.

The ECJ states that Community regulations oblige Spain to impose on employers the obligation to implement an objective, reliable and accessible system that allows recording of the daily workday performed by each worker. Through its press release no. 61/19, the ECJ added that "it is for the member states to define the specific arrangements for implementing such a system, in particular the form that it must take, having regard, as necessary, to the particular characteristics of each sector of activity concerned, or the specific characteristics of certain undertakings concerning, inter alia, their size."

In Spain, the obligation to register working hours has been established through the Royal Decree-law 8/2019. This Royal Decree-law has raised many concerns from both employers and workers regarding its implementation.

On May 13 the Ministry of Labour, Migration and Social Security published a guide on the registration of working hours, in order to facilitate the practical application of the regulation, all this "without prejudice to the interpretation of the corresponding standard of the Social Courts and Tribunals."

The hourly record applies to all workers, regardless of their category or professional group, to all sectors of activity and to all companies, whatever their size or organization of work, as long as they are included in the scope of application defined in Article 1 of the Workers´ Statute. Currently, the only admitted exemptions are:

  1. Labour relations of a special nature, in particular:
    1. the senior management personnel referred to in article 2.1.a) Workers' Statute, in which case the provisions established by the applicable regulations must be followed;
    2. workers who, although they are not strictly senior managers, such as middle managers, with positions of trust or special responsibilities, have agreed on a regime of free availability or whose full-time availability forms part of their contractual obligations. In this case, the ministry advises all companies to "avoid abusive or disproportionate situations" that may occur.
  2. Employees with a specific system for registering working hours, such as part-time employees or mobile workers, and those with labour relations excluded from the scope of application of the statute, such as worker members of cooperatives or self-employed workers, among others.

The implementation of time control does not admit exceptions beyond those that the ministry itself has recognized through its guide. However, remember that this is a practical guide and that the courts will have the final word.

In case the corresponding collective or individual agreement establishes flexible working hours, freely distributed by the worker, the ministry underlined that it is possible to use a different calculation, not a daily one. Long daily hours will not count as overtime so long as during the whole month the hours worked do not exceed the legal limit.

Regarding part-time workers, it is important to keep in mind that, in line with the article 12 of the Workers´ Statute, they cannot count extra hours. Thus, the hours that exceed the agreed time, would be registered as complementary hours, without being considered as overtime.

As for remote work, including telework, the ministry states that there are "affordable formulas" that ensure the recording of the daily working day through "telematic registers or similar". In any case, if there is conventional self-regulation in this regard, through collective bargaining or the company agreement, or if the employer accepts the signing by the worker of leaves or similar instruments of self-management of the working time, such will count as valid instruments to comply with the legal obligation.

Regarding displacements, these must be computed as working hours in the cases of workers with a fixed work place who, due to the duty imposed by the company, have to move to perform their functions in a place other than the work centre.

The record system should be aligned with both the form and extent to which the working day is regulated in the agreements that the company formalizes with the workers or their representatives. If these agreements do not exist (note that the rule prioritises agreements with the representatives of the workers in this matter), the companies can opt to regulate them by stating that the worker agrees to do extra hours requested by the employer (within the legal limits). Everything that surpasses the agreed working time would be considered overtime. In this case, the companies should consider and agree on the compensation, in additional time off or in additional payment, having noted that there are maximum limits in quarterly and/or annual computation. In any case, the employers shall comply with the provisions of the applicable collective agreement regarding the calculation of working time, annual limits, compensation of overtime, breaks, displacements, etc. For instance, some collective agreements establish the summer workday, which implies fewer hours worked per year.

The regulation leaves the employers the freedom to use the means to implement the workday registration system. Thus, any specific system, manual records or digital platforms that guarantee the traceability and reliable and invariable tracking of the daily work once registered, will be valid.

In case the collective bargaining does not regulate it or a company agreement is not reached, the implementation of the system has to be carried out by the decision of the employer after consultation with the legal representatives of the workers. In this sense, the article 64.1 ET states "consultation means the exchange of opinions and the opening of a dialogue between the employer and the works council on a specific issue, including, where appropriate, the issuance of a prior report by the same."

Once implemented, the records should be preserved for four years and during this entire time shall be made available to the workers, their legal representatives and the Labour and Social Security Inspectorate in the sense that it is possible to access them at any time they might be requested.

With regard to the calculation of the working day, the provisions of the collective bargaining Agreement or the employment contract regarding breaks, absences, etc. must be complied with.

The Ministry of Labour has pointed out that during the first few weeks the Inspectorate will not impose fines and will only take into account whether the company is working on the implementation of a method. Nevertheless, Dentons recommends to all companies the immediate implementation of a workday record system, since it will be required in the case of an inspection, although the inspection may have been motivated by another matter.

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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