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. www.dentons.com.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions