Miércoles, 07 Junio 2017

The Supreme Court establishes that there is no obligation to keep a record of the number of hours effectively worked each day

VolverFrom the Department of Labor Law department of Belzuz Abogados, we would like to offer our comments on the well-known sentence of the Supreme Court plenary session dated 23 March 2011 regarding companies not being obliged to keep a record of the hours effectively worked by their employees each day, which has reversed the ruling of the Spanish High Court at the end of the 2015.

On 4 December 2015, in a widely-reported and notable sentence, the High Court, in its interpretation of the provisions of Article 35.5 of the Statute of Workers, ruled that it was obligatory to keep a record of daily hours effectively worked since this would allow the working hours agreed to be properly checked, as well as providing a valid and necessary way of proving compliance with overtime arrangements, and ensuring that, if worked, these were duly paid.

However, the Supreme Court has overturned the High Court’s judgment, on the basis of the following legal arguments:

Firstly, it examines the literal wording of Article 35.5, which refers exclusively to overtime, that is, the obligation to keep a record of hours worked established in that article relates only to overtime worked, and not the number of hours worked in the course of the day, a broader interpretation of this article not being permissible on the grounds that the Law only requires these records in special cases such as part-time working or certain special working days. That is, it concludes that if the legislature had wanted to establish a general rule for keeping a record of working hours, it would have worded the law expressly to that effect, and not established rules for special cases.

Secondly, the Supreme Court examines the applicable EU legislation, in particular Directives 93/104/EC and 203/88, and concludes that neither does EU law establish a general obligation that enterprises should record working hours, although it does so for certain special working hours, as in the case of Directive 2000/79 on air navigation, Directive 1999/63 on work at sea, and other similar provisions on special working hours. Finally, it considers that failure to keep, or inaccurately keeping a record of overtime is typified as a minor infraction in the Act concerning Violations and Sanctions in Corporate Affairs, and that a broader interpretation of article 35.5 is inadmissible, by application of the principle of law of restrictive interpretation with regard to rules that restrict rights and impose sanctions.

On the basis of the legal arguments set out above, the Court overturned the existing obligation to keep a daily record of the hours worked, although the ruling states literally that: “it would be advisable to reform the legislation to clarify the obligation to keep a record of hours and provide employees with proof of overtime worked”.

In its conclusions, the Supreme Court also advises that this system of recording hours should not be limited to entry and exit records, because in practice there are many variations in working hours, such as absences from the workplace, working from home, flexible hours or irregular distribution of working hours when these are agreed. It also recommends that these records should conform to the new EU Regulation 2016/679 on the protection of personal data, since they will extend enterprises’ oversight of the provision of services, and must respect the employees’ fundamental rights of freedom and privacy.

In conclusion, as lawyers specialising in Labour Law, we doubt that this judgment will end the discussion about recording working hours, since it calls on the legislature to reform the law on the subject.

We should remember that since the beginning of 2016 the Labour Inspectorate has, together with the General Treasury of Social Security, been engaged in an inspection campaign relating to records of working hours and overtime, the main aim of which is to ensure that overtime not declared by companies is subject to Social Security contributions, because according to the data from the Survey of Spain’s Working Population, more than 280 million overtime hours are worked each year of which barely half are paid to workers and subject to Social Security.

For all these reasons, in our view, as specialists in labour law, we think that although this Judgment relaxes the enterprises’ obligations in relation to keeping records of working hours, the issue will be the subject of a forthcoming legislative reform and we will be interested to see what criteria the Labour Inspectorate establishes in the wake of this Supreme Court Judgment in the many inspections it is currently pursuing in relation to records of working hours.

Pedro-Gomez-Rivera  Pedro Gómez Rivera

Director del Departamento de Derecho laboral | Madrid (España)

 

Belzuz Abogados SLP

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