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Is it possible to correct the working day with the register?

| News | Employment Law and Social Security

Alfredo Aspra analyzes the Sentence that validates the establishment of corrective factors as a measure to unite the rigidity of the recording of working hours in relation to flexibility and organizational autonomy in Expansión

The Labour Court of the National Court has once again pronounced on the record of working day - judgment No. 126/2016 of 23 October 2019 - although, this time, on the content of an Agreement adopted in compliance with the legal framework established by Royal Decree-Law 8/2019, specifically, that of the companies of the Zurich Group.

Thus, the ruling analyzes a lawsuit filed by the UGT Union challenging one of the points of the Agreement for the registration of the working day subscribed between the Companies and the CCOO. Specifically, the establishment of a corrective factor of 2 hours per day for split-day staff and 30 minutes for full-time staff, in order to accommodate the set of breaks (including the time allocated to meals) and any other type of breaks that workers may take throughout their daily working day, without these being considered as overtime.

However, the petitioner union considers that this factor would ultimately constitute, beyond the purpose for which it was regulated, a modification of the working hours and hours regulated in the applicable collective bargaining agreement and, consequently, would not have followed the legal channel provided for that purpose.

In the light of the above, the following question should be asked: would the establishment of this type of corrective factors be valid as a measure to combine the rigidity that the new obligation to register working hours may imply in relation to the flexibility and organisational autonomy that characterises the 21st century labour relations model?

The Audiencia Nacional resolves this question in an affirmative sense, since after resorting to the canons of interpretation of collective rules, it considers in its ruling that the agreement reached in the matter of registration of working hours does not imply a modification of the collective agreement, proceeding to the rejection of the lawsuit, being three of its main arguments:

1. At no time does the Agreement refer to a modification of the working hours and schedules stipulated in the Convention.

2. In addition, the agreement does not impose any obligation on workers to extend their working hours, as it provides for the express possibility of reaching an agreement with the responsible command in order to reduce mealtimes.

3. Furthermore, under the collective agreement reached, the registration of working hours would not necessarily have negative consequences for workers, either in terms of wages or in terms of the imposition of sanctions.

Therefore, it seems that the Audiencia Nacional chooses to reinforce the validity of formulas negotiated between the company and the legal representatives of the workers, in line with the guidelines also established by the Technical Guide of the Ministry of Labour, as well as by the Instruction of the Labour and Social Security Inspectorate, who are resolutely committed in this matter to consensual solutions between the parties.

Precisely for this reason, in company agreements and agreements, more and more formulas are beginning to be glimpsed that combine compliance with the law without renouncing flexibility.

You can read the article in Expansión.

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