Pursuant to Royal Decree-Law 8/2019, of 8 March, from 12 May 2019, companies in Spain are obliged to keep a daily record of the working hours of their workers. This measure is established in order to control that maximum working hours are not exceeded and that overtime is paid. Registration of the working day is compulsory for all companies in Spain, under penalty payments of up to €6,250.
1. Obligation to inform workers’ legal representatives
Before establishing any record-keeping system, the company must agree with the legal representatives of the workers. If there are no representatives, the company may decide which system to implement.
2. What if there is already a time registration system?
Should a record-keeping system already exists, said system should be negotiated and approved by the workers’ legal representatives, if any.
3. Senior management workers
Senior management workers have a special employment relationship and are therefore not required to register their working hours.
4. The working time record may reveal other breaches
The working time record may reveal breaches, either by the company (respect for rest periods, substantial changes in working conditions, etc.) or by the worker (unjustified absences, continued delays, etc.). In the latter case, the company will have the right to exercise the corresponding disciplinary actions against the worker.
5. Formats of the working time record
The record of the working time can be kept in paper or electronic format.
6. Rest time, on-call hours and lunch breaks
The working time record system must register the actual hours worked. For this purpose, annual leave, rest time, on-call hours or lunch breaks are not considered effective working hours. The system should also register these periods for the purposes of risk prevention at work.
7. Flexible workers
Companies are obliged to comply with the working time record, also in respect of flexible workers. Given that in these cases the daily working time can be variable, companies can set a longer reference period to determine whether overtime was worked. This reference must be agreed upon in advance with the workers’ legal representatives, if any, and may be a month or even a year. Consequently, an excess of working time may not be considered as overtime if, within the reference period, the maximum working time is respected.
Companies are obliged to comply with the teleworkers’ working time record. Workers can record their working hours and send daily information by e-mail to the company. Registration can also be carried out electronically.
9. Digital disconnection
In accordance with Article 88.3 of Law 3/2018 on the protection of personal data, the company is legally obliged to establish an internal policy on the right of digital disconnection outside working hours.
10. Record maintenance
Working time records must be kept for four years at the workplace, and available upon request from employees, the authority or workers’ representatives.
11. Subcontracted workers
The company must not comply with the record of working hours of subcontracted workers. It is the responsibility of the subcontracted company to comply with all legal labour obligations, including the proper recording of working time.
12. Registration of working time as proof of overtime
A working day record that does not show overtime does not mean that overtime does not exist. The company must comply with two independent recording obligations. On the one hand, the record of working hours, and on the other, the record of overtime, if any.
Although in the case of overtime, the burden of proof falls on the worker, if the company has not established a record of working hours, it will not be difficult for the worker to present evidence of overtime before the Court.
13. Data protection
The company should treat the working time record as protected personal data. In light of the above, it is advisable to explicitly inform employees that the working time record system may lead to disciplinary action by the company in case of non-compliance with working time obligations.
14. Access to the register
The Labour and Social Security Inspectorate will have access to the working time register. Workers’ legal representatives will also have access, but limited to the workplace they represent. Finally, workers will only have access to their own working time records.
15. Communication of results
The company is not obliged to communicate the results of the working time register, nor to provide a monthly report to its workers, however mandatory in the case of overtime.
Only in the event that workers request their records, the company will be obliged to show them without the delivery of a copy being necessary.
This article is not considered as legal advice