Royal Decree-Law 8/2019 of 8 March on urgent measures for social protection and the fight against precarious work during the working day amends Article 34 of the Workers’ Statute by adding paragraph 9, which imposes an obligation to keep a working time register.
A. Questions relating to the scope of the working time register governed by Article 34.9 of the Workers’ Statute
The working time register applies first of all, to all workers and companies falling within the scope defined by Article 1 of the Workers’ Statute. However, there are some exceptions:
- Special employment relationships, i.e. senior managers are excluded from the working time register according to Article 2.1.a) of the Workers’ Statute. However, workers who do not have the status of senior manager, even if they have a system of free availability of working time, are not excluded from the working time register, but without prejudice to the justification of their working time by means of the hourly availability pact
- Workers who have a specific or special regime for the registration of working time, i.e. workers on part-time contracts and those who benefit from specific registers, governed by Royal Decree 1561/1995 of 21 September on special working time
- Employment relationships excluded from the scope of the Workers’ Statute (worker-members of cooperatives whose employment contracts are subject to the cooperative’s internal regulations, self-employed workers)
- In the case of workers who benefit from flexible working time arrangements and an irregular distribution of their working time (teleworking or teleworking), the working time register would make it possible to monitor the working time actually worked. However, the monitoring will not be carried out on a daily basis and will have to be globalized. Any overtime will not grant overtime hours.
In addition, in the specific case of temporary employment agencies, Article 15(1) of Law 14/1994 of 1 June 1994 provides for a control of the professional activity throughout the period of the provision of services in the user company. In view of this, the user company will be required to establish a working time register, as provided for in Article 34.9 of the Workers’ Statute, and to keep it for 4 years. The temporary employment agency and the user company will continue to establish the procedures for making the registers available in order to comply with their obligations. With regard to subcontracting, the contracting company must establish a working time register because of its responsibility for compliance with all labour obligations.
B. Questions about the content and system of the register
In addition to the precise start and end of the day schedule, the working time register must contain the mandatory break times. More specifically, if these breaks do not appear clearly in the contract or collective agreement, it is recommended to add them to the daily register. This allows a control by the Labour and Social Security Inspectorate, thus guaranteeing legal security. The working time register also allows for the recognition of overtime and its compensation.
For workers who travel outside their workplace, they will have to record their actual working time. However, the register will not include the intervals made available to the. More precisely, times other than those provided for in Article 34 of the Workers’ Statute shall not be taken into account.
In addition, there is no specific working time register, but it must be kept daily and indicate the start and end of the workday. The system may be in paper or computer format and must allow reliable records that cannot be modified or manipulated afterwards.
Ultimately, companies can establish their own working time registers, although collective bargaining or company agreements must serve as a basis for the organisation and documentation of the register, in order to integrate the specificities of each company. In any case, each system will have to be approved by the legal representatives of the workers.
C. Questions about retention and access to the working time register
Any means of preservation may be effective as long as it guarantees the preservation, reliability and subsequent invariability of its content. Storage extends to daily records.
In addition, any person, namely workers, their representatives and employees of the Labour and Social Security Inspectorate, may access the registers at any time at the workplace. In this way, there is no obligation to provide copies.
D. Questions about the overtime record
With regard to the legal regime for overtime provided for in Article 35.5 of the Workers’ Statute, the working time register and the overtime register are legal, independent and compatible obligations. In this sense, a single register may be used to fulfil both obligations simultaneously.
Overtime resulting from force majeure shall be calculated and paid as overtime.
This is a résumé of the working time register’s guide published by the Spanish Government, in force since May 12th 2019.
This article is not considered as legal advice