As a result of the judgments 207/2015 of 4th December 2015 and 25/2016 of 19th February 2016 issued by the Spanish National Court, the Labour Inspectorate has initiated actions in Spain with respect to the control of working hours and overtime in order to verify compliance with the schedules agreed to with workers.
Companies are required to keep a daily record of the working hours, including the exact hour of entry and exist of each worker, regardless of whether overtime was performed or not. This register should be available and accessible for consultation in the place of work in order to avoid possible manipulations.
Double objective of the control:
- Intensify the control of compliance with the rules regarding work time in general and particularly overtime (maximum 80 hours per year), as well as to ensure that the appropriate remuneration and contribution of the hours worked are carried out
- Monitor compliance to the obligation of registering working hours daily and respect the right of information of the workers’ representatives in the matter.
Companies subject to inspection
The selection of companies subject to an inspection is based on two criteria:
- Number of workers. Companies with between 4 and 50 employees
- Sector of activity. Companies that carry out the following activities:
– Manufacturing industry (in particular, the food industry, textile and garment industry, leather and footwear industry, graphic arts and furniture manufacturing)
– Trade in general (both wholesale and retail)
– Repair of motor vehicles and motorcycles
– Financial services (except insurance and pension funds)
– Heath and social service activities
During the inspection, attention will be given to general issues, such as compliance with the formal obligations (company activities and hours, staff, types of contracts, daily working hours, the completion of overtime, etc.), as well as personal interviews with the workers and in some cases, the trade union representatives.
In Spain, the law obliges companies to keep a register of the working hours of its employees. Whether they are full-time or part time contracts and whether or not the workers do overtime. The company is free to choose the modal or type of registration to comply with this obligation (electronically through a signing system or manually with the signature of the worker). The register should include the following information:
- Identity of the company
- Identification of the worker
- Specification of the hours of work contained in the contract
- Details of the working hours, ordinary and complimentary, carried out and broken down by effective working day
- Signature of the legal representative of the company
- Receipt of the worker
Once the procedure has been completed and the information collected has been analysed, an inspection can present the following results:
- If there is a record and a declaration of overtime, but it exceeds the annual maximum limit of 80 hours: in this case, the Inspectorate will issue an infraction report for a serious infraction, considering an infraction for each year investigated.
- If there is no registration or declaration of overtime, there may be different assumptions:
- In the absence of a daily working register: the Inspectorate will require the employer to comply with the obligation and will issue a record for a serious infraction.
- If there are undeclared overtime hours: the Inspectorate will issue a record of infraction for a serious infraction for exceeding the maximum working day that must cover the period of a calendar year, appreciating an infraction for each work place.
- If there is a masking of the remuneration in different salary concepts or the non- communication to the workers´ representatives regarding the overtime completed, a record of infraction will be issued for a serious infraction.
The fines for non-compliance can amount to significant amounts of money, which is why companies that have not yet done so are urged to implement the appropriate control systems to comply with current regulations.
This article is not considered as legal advice