If as a business owner you have employees, you may have received communications from your Advisors to implement a method to register your employees regular work hours as well as overtime as per Royal Decree 8/2019, 8th March, to be enforced from 12th May 2019. Why has this come about and what is the point of registering employee work hours?
All of this derives from a law passed back in 2015 that required employees on part-time contracts to record the time they enter and leave the workplace in a bid to prevent fraudulent contracts and non-payment of overtime. After this 2015 law was passed, the Supreme Court determined in April 2017 that these records were no longer necessary and even the Social Security Work Inspection Department stopped pursuing this matter but all of this has changed once again as further information came to light showing that at least 53,7% of overtime hours worked in Spain are not recorded, which is obviously detrimental to employees as they are being deprived of their rights, hence the reason for the above-mentioned 2019 law being approved and the obligation to record employee daily hours reinstated.
Applicable Law: EU Law under Article 3 of Directive 89/391 states, “Member States shall take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period”, Article 4 (1) continues “Member states shall take the necessary steps to ensure that employers, workers and workers’ representatives are subject to the legal provisions necessary for the implement of this Directive”, Article 5 states, “Member States shall take the measures necessary to ensure that, per each seven-day period, every worker is entitled to a minimum uninterrupted rest period of 24…” Article 6 (1)goes on to say, “…the employer shall take the measures necessary for the safety and health protection of workers, including prevention of occupational risks and provisions of information and training, as well as provisions of the necessary organization and means”, and finally, Article 6 of Directive 2003/88, provides, “… the average working time for each seven-day period, including overtime, does not exceed 48 hours.” These directives are also in conjunction with articles contained in the Spanish Workers’ Statutes.
A dispute arose back July 2017 which was taken to court and has been concluded in a ruling issued by the Court of Justice of the European Union on the 14th May 2019, in a case brought by the Spanish Trade Union, Federación de Servicios de Comisiones Obreras (CC.OO.) seeking judgement by Audiencia Nacional (National High Court) against Deutsche Bank SAE for not fulfilling their obligation to set up a system for recording the time worked each day by each member of staff which would correctly verify compliance with stipulated working times and to provide union representatives with information on any overtime worked each month.
CC.OO. claims this obligation is not only derived from national law but also from the Charter of Fundamental Rights of the European Union and the Working Time Directive as detailed above. Deutsche Bank however, contends that in line with a case-law of the Spanish Supreme Court, Spanish law does not mandate such an obligation, stipulating only, except where there is an agreement to the contrary, that a record be kept of only overtime hours worked, specifically in the case of part-time and mobile workers, and the communication is sent to the employees and their representatives (union). They also mention this mandate infringes on personal data with the risk of unjustified interference in the private lives of workers.
The National High Court has its doubts of this interpretation and whether it complies with EU law because the determination provided by the Supreme Court deprives workers of essential evidence that would prove they have worked in excess of maximum limits as well as depriving their union representatives of the necessary means of verification. In essence, in order to determine whether overtime has been worked, it is imperative to know the precise number of normal hours worked.
The Court highlights another factor in that the employee must always be regarded as the weaker party in the employment relationship. This is a matter I struggled with when I first read Social Security’s intention to record working hours in 2015 because how can you be sure the employer won’t prevent workers from registering the true number of hours worked if it does not benefit them? Where there is no system in place, under Spanish procedural rules, other sources of evidence such as witness statements, emails or mobile phone/ computer records could provide sufficient proof, however, these methods still do not verify the number of hours worked each day nor are they objective or reliable (witnesses could be coerced or be fearful of losing their own jobs by corroborating a co-workers claim against their employer).
The Court of Justice of the EU concluded on this matter, “the Member States must require employers to set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured”, where each Member State must define the specific arrangements for implementing such a system depending on the characteristics of each sector of activity etc.
According to Spanish legislation applicable from 12th May 2019, ALL employees must record the hours worked in either paper or digital form, and of course penalties apply in the event of non-compliance by the employer. Non-fulfilment of this requirement could incur fines from 60 to 625 euros for minor infractions (admin related) or from 626 to 6.250 euros for serious infractions (not adhering to working hour limits, obligatory rest periods, holidays, registration of said working hours…). Besides a monetary penalty, if registry of working hours is not done at all or found incomplete, the Inspector will automatically convert a part-time employee’s contract to a full-time contract. It is the employer’s responsibility to ensure all employees use whatever system they choose to implement correctly to avoid fines.
In the last couple of weeks, I have received commercial emails from companies that are now taking advantage of this new legislation by providing apps and other digital methods of recording employee working hours if this is the preferred system. In any case, it is vital these records are kept, a summary provided each employee along with their monthly payslip and that these records are preserved for a minimum of four years.