SUMMARY OF THE CRITERIA ESTABLISHED IN THE TECHNICAL CRITERIA No. 101/2019 (06-10-2019)
The Directorate of the State Agency for Labor and Social Security Inspection has issued the TECHNICAL CRITERION No. 101/2019 on the performance of the Labor and Social Security Inspectorate in matters of registration of working hours as of the modification of the Workers' Statute established by Royal Decree-Law 8/2019 i which entered into force on May 12, 2019. The actions that are subject to the interpretation of this Technical Criterion refer to contracts for full-time work, without prejudice to what is indicated below regarding part-time contracts.
Mandatory daily record day
The new section 9 of article 34 of the ET establishes that "the company will guarantee the daily record of the working day, which must include the specific starting and ending hours of the working day of each worker, without prejudice to the flexible hours" that It is established in articles 34.2 and 3 of the ET.
The literal interpretation of the new paragraph to suggest that keeping the record day It is not an option for the employer, but It is a duty which derives from the term “guarantee”, that is, subject to the obligation to guarantee the existence of said registry, and not as a mere power of the employer.
Content of the daily log:
One must understand that what should be registered is the working day held daily.
It is not expressly required the recording of interruptions or pauses between the beginning and the end of the daily shift, which do not have the character of effective working time.
Reading log is made determining a possible breach of certain limits on working time should be integrally, considering all the possibilities that the labor law allows in terms of distribution of working time.
In any case, it would be convenient that the register used in the company offers an adequate and complete view of the effective working time. Otherwise, it could be presumed that it is all that which elapses between the start time and the end of the registered working day, and it is the employer who would be accredited that this is not the case.
In this sense, the collective bargaining agreements or company Regarding the organization and documentation of the registry, they should be the ideal instrument to specify how to consider all the aspects related to the registry of interruptions, pauses or flexibility of working time.
The record of the day must be daily, although not acceptable for accreditation of compliance display general schedule of application in the company, Work calendar o los quadrants times prepared for certain periods, as these are formulated "ex ante" and will determine the work forecast for said period but not the actual hours worked on it, which will only be known "ex post" as a consequence of keeping the working day record.
Records that remain current:
The new daily record of day does not weaken the established records, which are maintained current:
- The daily record of part-time contracts of article 12.4 c) of the ET
- The registration of overtime hours of article 35.5 of the ET. Although the daily record of working hours and the record of overtime are independent and compatible legal obligations, it must also be considered that the diary of day can be used by businesses to comply with the registration requirement overtime, Notwithstanding that, in the event of overtime, the additional obligations established in its specific regulations operate.
- The records of hours of work and rest contained in Royal Decree 1561/1995 on mobile workers, workers in the merchant marine and workers who perform cross-border interoperability services in rail transport.
- The records of the working day in transnational trips of article 6 of Law 45/1999 in the wording made by RD Law 9/2017.
Conservation daily record of day
The company will preserve daily records of day during 4 years and will remain available workers, their legal representatives and the Labor and Social Security Inspectorate.
The standard does not establish the mode of conservation of the records, so it must be understood as valid any medium, physical or of any other kind, as long as it guarantees the reliability and veracity of the data recorded daily.
The judgment of the CJEU, of May 14, 2019, indicates that the system implemented must be accessible.
As the rules do not establish it, this conservation of the daily records does not imply the totalization of them, as it is established in the case of part-time contracts and for the fulfillment of obligations in case of overtime.
The fact that the records must be available to workers and their representatives necessarily implies that they should be or accessible since center of work in which the workers or their representatives are.
For the record day has been instrumented originally in paper format, for purposes of conservation may be filed in electronic form by scanning the original documents, being stored electronically with due guarantees.
In the absence of express reference and for reasons of legal certainty, it must be interpreted that remaining available It does not imply an obligation to provide copies, unless as provided by a collective agreement or there is an express agreement to the contrary, nor should surrender to every working person copy of your diary, without prejudice to facilitating their personal consultation, nor to the legal representatives of the workers, which does not hinder the possibility of the latter to take cognizance of the workers' records.
Organization and documentation time daily record
The shape organization and documentation of the registry, will be the HE determined through collective bargaining, company agreement, or, failing that, the employer's decision after consultation with the legal representatives of the workers in the company.
However, the existence and obligation of the daily record It does not depend on whether there is a specific provision or regulation in collective bargaining or company agreement, It is required in all circumstances.
In any case, it should be a system of registration target, that guarantee reliability, veracity and no subsequent alteration data and respects the rules Data Protection.
It is up to the Inspection not only to verify the existence of a working day record, but also that its form of organization and documentation has been preceded by the corresponding negotiation or consultation procedure with the representation of the workers, an aspect that podrá ser objeto de comprobación a través de las actas de las reuniones celebradas en el proceso de negociación.
Transgression of the obligations registration day is classified as Serious offense. El inicio de procedimiento sancionador por el incumplimiento de la obligación de registro diario de jornada es posible desde el 12 de mayo de 2019.
El registro es un medio que garantiza y facilita el control del cumplimiento de la normativa en materia de tiempo de trabajo, pero no es el único. Si hubiese certeza de que se cumple la normativa on working time or not overtime is workedAlthough the registration of working hours is not carried out, after the assessment of the acting inspector in each case, the initiation of the sanctioning procedure could be replaced by the formulation of a requirement to comply with the legal obligation to guarantee the registration daily workday.
Instruction 1/2017 remains without effect, complementary to the Instruction 3/2016, on the intensification of control in matters of working time and overtime, and the latter in relation to the interpretative criteria of the same referred exclusively to the record of the working day, as opposed to this technical criterion.