Spain: High Court ruling abolishes recording of daily working time

The High Court has ruled that companies no longer need to keep a record of their employees’ daily working time, although they must still record overtime worked. This ruling, confirming an earlier initial ruling, has led to controversy between the social partners and forced the Labour Inspectorate to change its inspection criteria.

Background

The main regulations on working days and working hours in Spain are included in the Workers’ Statute.

• Article 35.5 states that employers must count and record overtime. It stresses that each worker’s overtime must be recorded on a daily basis and totalled for the period in which it takes place and for which payment has been agreed. A copy of this record must be given to the worker.
• Article 20.3 states that employers may adopt whatever supervision and control measures they deem the most appropriate  to verify that workers have met their obligations and duties.
• Article 34 regulates the ordinary working day (length, hour distribution, settlement).

The Third Additional Disposition of the Royal Decree 1561/1995 states that workers’ representatives have the right to be consulted on working hours and to be informed monthly by the employer of the amount of overtime that has been worked.

However, there is no clear or specific regulation on the issue of recording working hours, and this has led to many judicial disputes. Nevertheless, the Spanish Labour Inspectorate, the public body which monitors compliance with social and labour legislation, has traditionally been clear on this issue, as reflected in its Instruction 3/2016 on the intensification of control in terms of work and overtime (PDF). Annex II sets the following requirements on employers.

• It is mandatory to keep a record of the working day, whether overtime is performed or not.
• This record must be made on a daily basis and include the exact entrance and exit times of each worker, irrespective of any posting of the company’s general schedule.
• Inspectors must be able to verify the records’ existence at the workplace (to avoid any possibility of subsequent changes or manipulation).

Spanish High Court puts an end to working day control

Initial ruling did not significantly change Labour Inspectorate practice

On 23 March 2017, the Spanish High Court (Tribunal Supremo) made a first judicial decision on the working day control issue, stating that employers did not have to keep records of the working day as there is no legal precedent for this (and arguing that the judicial power cannot substitute that of the legislature). However, the Labour Inspectorate did not change its criteria and continued to require records to be shown, fining employers who did not obey. Several employers complained about this, attacking the legal uncertainty created by the Labour Inspectorate continuing to demand the records despite the decision of the High Court. The unions also sought clarity in the decision in order to avoid the abuse of overtime.

High Court makes definitive decision

The High Court’s ruling of 20 April 2017 (Sentence STS 1748/2017) definitively solved this long-running dispute which began on 30 December 2015, when the Galician Inter-Union Confederation (CIG) went gone to court to oblige the Spanish bank, Abanca, to establish an effective work-day register system in order to check compliance with the timetable of work agreed with employees.

On 19 February 2016, the judge favoured the trade union’s opinion and stated, among other things, that Abanca should establish a system to record the daily effective working day of its staff to allow checking of its compliance with the agreed timetables and to record overtime practices.

Abanca appealed against this ruling to the Spanish High Court and won. The High Court concluded in its ruling of 20 April 2017 that Article 35.5 of the Workers’ Statute had been misinterpreted and that it did not require employers to keep a record of the working day of their entire staff. The High Court’s ruling applied the same reasoning as used in its previous judgment of 23 March 2017. It stressed two main elements.

• Article 35.5 refers exclusively to overtime. Therefore, the employer is obliged to record only overtime, noting the number of such hours worked each day and giving a copy of these notes to the worker at the end of the month.
• The legal obligation to register the working day in Article 35 is described under the section entitled ‘Overtime’. The ruling states that this specific location is highly relevant, as the legislation limits the employer’s duty to recording daily overtime only. The purpose is to control the performance of overtime to avoid exceeding the limits established, not to implement control of the ordinary day. The ruling points out that, otherwise, this provision would have been included in Article 34, which regulates the ordinary working day.

Reaction of the Labour Inspectorate

The Spanish Labour Inspectorate has been forced to change its monitoring criteria. On 18 May, it issued Instruction 1/2017, concluding that Instruction 3/2016 will remain in force with the exception of the requirement on employers to record the working day. However, the Labour Inspectorate emphasised that employers are still obliged to respect the limits applicable to working days and overtime, and that it will continue checking company records for any infringements.

Commentary

The High Court ruling is a crucial decision that definitively clarifies the issue of recording working days, which has created a heated controversy between unions and employers. Moreover, the ruling has forced the Labour Inspectorate to stop asking to see the daily work register. Nevertheless, the High Court ruling stresses the need for legislative reform clarifying the obligation to keep a record of the working day, as the relaxation of the rules could lead to the risk of fraud.