Labour Relationships

SPAIN. New working day record "Registro de jornada"

Spanish Royal Decree-Law 8/2019 of 8 March on urgent measures of social protection and the fight against job insecurity in the workplace introduces the company's obligation to keep a record of the working day.

Below are some of the features the record must comply with, according to the guidelines published by the Spanish Ministry of Labour:

The check will be run daily and include clock-on and clock-off times.

Any hard copy or electronic system or method providing

information that is reliable and cannot be subsequently modified or manipulated is deemed valid. To that end, the

working day information must be logged in a written or digital instrument or a

mixed system (manual records, digital platforms, shifts, etc.).

Although the daily working hours and overtime record are independent and compatible legal obligations, they may be implemented simultaneously.

In the case of employees with flexitime agreements (fairly standard for sales representatives), work hours can be accredited through the working time agreement based on the interpretation that the wage earned by the employee proportionally offsets the greater demand in working time. The above also applies to employees who can be called on to work at any time.

Senior management is excluded from the control.

We advise not installing time tracking programs or control systems until a reasonable period has passed in order to evaluate which systems are most appropriate and cost-effective.

Until now, time tracking has been based on the principle of good faith, giving rise to an informal system that worked reasonably well.

The new law is a break from the status quo, probably without having considered the other side of the coin that comes into play in this matter, i.e., employee productivity.

In fact, the employee’s obligation in this sense is not limited to complying with a schedule, but to meeting performance indicators at work. That's why the response of businesses to the working day control will probably be to control performance.  In short, the measure may be counter-productive for employees, especially in SMEs.

Performance reviews will be conducted freely and optionally by all companies that wish to do so and there are different ways to assess productivity, including the following:

• Evaluation based on previous work activity statistics
• Work sampling
• Time-keeping
• Standard times
• Predetermined times

However, the introduction of systems to measure productivity must be subject to agreement between business and employee.

Spanish Royal Decree-Law 9/2017, of May 26, which transposes European Union directives on financial, trade and healthcare areas, and on the displacement of workers

The transposition of the EU Directive on matters of worker displacement has two clear purposes:

The first is to establish a more comprehensive and operative system of penalties.

The second is to create the requirement for the designation of two items:

·         The physical or legal entity in Spain that is designated by the company as its representative to serve as an intermediary with the competent Spanish authorities and for sending and receiving documents or notifications, when necessary.

·         The person that can act in Spain in representation of the company providing services in procedures for informing and consulting workers, and in negotiations, which affect workers that have moved to Spain.

Spanish Supreme Court (Tribunal Supremo): Companies can change break times if not most beneficial condition

In this important judgement, the Supreme Court ruled that the fact that a company ‘tolerates’ a coffee break at a certain time during a work shift does not mean that it is consolidated benefit, so not considering it as ‘effective work’ does not entail a substantial modification to working conditions.

The court found that a company can unilaterally and without union agreement, where applicable, adapt the distribution of the working day so that the hours stated in the collective bargaining agreement are worked.

In the case covered by the Supreme Court, eliminating the coffee break meant that the employees would have worked 6.75 hours overtime. The solution proposed by the company was for each employee to take this time off whenever they felt was most convenient, after seeking the company's approval.

The company’s decision, which was rejected by a lower court, was finally upheld by the Supreme Court.