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Obligation To Register Workdays As Of 12.5.2019

Newsflash: the EU Court has ruled today, the 14th of May, that all EU countries are obliged to adopt a similar system as that of Spain, to comply with the European Directives on work and obligatory rest periods for employees.

As of the 12th of May, all businesses, small or big, working from offices, with tele-workers or employees who are out on the road travelling to clients, need to register the workdays of their employees. Until now, that obligation only existed for part time workers and to register extra hours worked.

Every week of 2018 there were 6.4 million overtime hours in Spain, and practically half (46%) was not paid, which also means that employers have not paid those hours into the social security system either. The labour inspection ensures that they will put the focus on uncovering the excess hours mainly in the trade, hospitality and construction sector, which is where they believe that fraud is concentrated and also where people are most unprotected.

The new law has been incorporated into the Statute for Employees and involves registering the start and finish of the workday of each employee. The way this happens can be decided by the convenio in place, by agreement within the company or by unilateral decision from the employer. The records must be kept by the employer for 4 years and employees, their legal representatives and the Inspection for Work and Social Security are entitled to access them.

The purpose of this new regulation is to put an end to overtime without getting paid, guarantee the right to digital disconnection (not having to respond to electronic messages, whatsapps, or calls outside working hours) and ensure that there is a minimum break of at least 12 hours between working hours.

There is one big BUT, and that is that the regulation itself doesn’t mention that employees need to sign the records or approve of them in any way, so, unless the convenio in place mentions this obligation, or there is an agreement within the company that the employer has actually signed, there is none. That is why a Podemos representative has accused the Minister of being 100% on the side of the employers (whose labour costs could rise significantly, at least in the sectors as mentioned above), without protecting the workers’ rights at all.

The Unions argued that employees should get at least be informed regularly about the registration of their worked hours, but this obligation has not made it into the law either.

Evaluation in one year, according to the Podemos representative, who also voiced doubts whether this regulation is even in accordance with EU law.

A GUIDE FROM THE DIRECCIÓN GENERAL DE  TRABAJO – IN SPANISH

The Guide above includes one exemption, for those of ‘alta carga’. Translated the definition in the Statute for Employees art. 3.c is as follows: “The activity that is limited, purely and simply, to the mere performance of the position of director or member of the administrative bodies in companies that have the legal form of society and provided that their activity in the company only involves the performance of tasks inherent to such charge”.

Please note: The information provided is based upon our understanding of current legislation. It is not legal advice but is provided freely to enable you to be properly informed. We recommend that if you are considering taking action, you should seek professional advice.

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