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Working Day Register

| News | Employment Law and Social Security

José Antonio Sanfulgencio analyzes in El Graduado the current issues concerning the daily register, the judicial doctrine of obligatory knowledge that plans on its scope and the effects of this new regulation, as a result of a training session in which he participated last May 24, at the headquarters of the Official College of Social Graduates

There is no doubt that keeping a record of the working day is a duty of employers and not simply a competence, and this in the inclusion of the specific time of the beginning and end of the working day. Based on this assertion, many questions arise, especially when the Directorate General of Labour has published a "Guide on the registration of the working day" and the Labour and Social Security Inspectorate has drawn up "Technical Criteria", of which we are now aware of a proposal.

Last Friday, May 24, at the headquarters of the Madrid Official College of Social Graduates, we analysed certain current issues relating to the daily registry, and exposed judicial doctrine of obligatory knowledge that plans on the scope and effects of the new regulations. We will now analyse the most relevant points dealt with in this training session.

1.- In general, it is compulsory to refer to collective agreements or company agreements regarding working time.

It is necessary to start from the premise that in the matter of working day, in its broadest sense of the expression (duration; irregular distribution of the day and term for compensation differences; typification genesis overtime; Feasibility of a maximum legal working day in two sections, one of pure ordinary hours of obligatory performance and paid with the agreed annual salary and the other of possible additional hours up to the maximum annual working day of 1826 hours and 27 minutes [translation 40 hours per week] that would not be considered overtime to be paid in the agreed form; consideration of effective working time or simple hours of presence due to trips, displacements, etc.), it is necessary not only to comply with the provisions of the Workers' Statute, but more specifically with the content of the Collective Bargaining Agreement applicable to the company in question and/or the Company Agreement. In this way and by way of example, if the Collective Bargaining Agreement marks 1688 hours per year, can it be agreed that those that exceed 1,826.27 hours are or are not overtime and its price? The answer is yes:

Above the legal minimum (i.e. for agreed working days of less than 1,826.27 hours per year) there is freedom of negotiation to configure the concept of overtime and its price (in this case, always respecting the SMI (official minimum wage), which cannot be unknown) [STSJ (High Court Sentence) Castilla y León, Valladolid, 28-12-12, RS 2192/12].

Respecting the SMI, nothing prevents negotiators from agreeing that hours worked above a certain annual figure without exceeding the legal maximum do not count as overtime and, therefore, can be paid below the value of the ordinary hour. What is required is that this be expressly stated in the agreement:

In this sense, the jurisprudence of the Fourth Chamber of the Supreme Court has been pronounced in sentences such as 8-10- 03 (RCUD 48/03); 20-2-07 (RCUD 3657/05); 1-10-08 (RCUD 3135/07) or 9-12-10 (cassation 46/09), in which the possibility has been affirmed that the agreement may establish supplementary hours or flexible working hours above the ordinary working day and exclude them from the remuneration regime for overtime, provided that the sum of these hours -ordinary and complementary- did not exceed the limit of the maximum legal working day, after which we are already faced with overtime whose minimum remuneration is that of the value of the ordinary hour.

Legally, overtime is that which exceeds the maximum working day fixed in the collective agreement, this being the instrument which, within the legal limits, may specify such a concept and, therefore, it would be hypothetical for the collective agreement to form, within the legal maximum working day, two sections, one of pure ordinary hours, of obligatory performance and remunerated with the agreed annual salary, and another of additional or supplementary hours up to the maximum legal working day, which could be paid in the form agreed in the collective agreement, always above the SMI (STSJ Castilla y León, Valladolid, 7-11-12, RS 1838/12).

2.- On the control of the breaks made by the worker during his working day.

The legal obligation is to guarantee the daily record of the working day which must include the specific start and end times of each worker. It does not also have to carry out a control of each and every one of the breaks at work (time elapsed between clocking-in and clocking-out with presence at the workplace, absences for eating, drinking coffee, leaving the centre to smoke, going to the toilets, chatting with colleagues, etc.). While it is logical in industrial and manufacturing activities that each one of the breaks are perfectly defined and valued, however, the same does not happen in other sectors. In our opinion, in these cases, and let us simply think of the tertiary sector of offices and offices, the fundamental right to privacy and the very rules on the protection of personal data, cannot lead to the "obligation" for workers to record each and every one of the daily incidents related to going to the service, having a coffee, smoking a cigarette, etc. Wouldn't their fundamental right to privacy be flagrantly violated?

3.- The reflection of a superior daily signing between the record of entry and exit superior to the 8 hours (in theoretical day of 40 weekly hours) does not entail per se the realization of overtime.

Indeed, if the company does not have a system in place to record absolutely all the breaks in work, it is well known that overtime cannot be simply credited with the hours of arrival and departure from the workplace. The Judicial Doctrine warns so:

The “peacking” system was a mere control of the people who were in the company, both workers and visitors, for security reasons, that the extraordinary work actually done cannot be credited with the hours of entry and exit to the workplace and that the actor did not have a schedule, carrying out his work freely and at his convenience (STSJ Andalucía, Sevilla, 7-3-18, RS 577/17).

It is not enough to justify the eventual performance of overtime the indication of the opening and closing of services, which distinguishes the corresponding waiting times or availability, in addition to relying on parts made up by the information provided by the worker himself, being that overtime should remunerate the actual working time and not the availability or waiting (STSJ Navarra, 29-4-15, RS 22/15).

It is recommended that in such cases, the ITSS (Inspectorate of Work and Social Security) play at least with the prudential margin of one hour a day as effective non-work time, in generalized measurement of work breaks.

That is to say, in a day of 9 to 14 hours and 15 to 18 hours, if less than 9 hours were thrown between the clock-in and clock-out, one would have to assume that the "excess" hour is due to all the pauses that, as ineffective working time, occur generally daily.

4.- Obligatory reference to the possible existence of a protocol or prior authorisation instructions for the performance of extraordinary services.

Technically, overtime does not arise from a simple extension of the working day, even though there has really been effective work.

Peaceful Judicial Doctrine establishes that for its existence there must be prior knowledge and consent of the employer, as opposed to an excess of working hours voluntarily performed by the worker. Thus

In the company's Employee Manual it is expressly stated that "the worker must respect his established working hours, communicating any variation in them sufficiently in advance"; therefore, there is an express instruction, with a procedure, and he had to communicate in advance any excess of working hours that he was going to carry out, without it being left to the discretion of the plaintiff to carry out a schedule superior to the ordinary one. In addition, this is a position of responsibility and independence when it comes to carrying out the functions of project manager, performing the functions of commercial manager, which allows flexibility and compensation for their workday (STSJ (High Court Sentence) Madrid 6-3-19, RS 1339/18).

First of all, there is no evidence of any overtime since (...) the plaintiff has not accredited that it received an express order or order from the management of the company to use more hours or carry out activities outside its ordinary working day (STSJ Cataluña 23-11-09, RS 5669/08).

Overtime is voluntary in its performance for the worker, but its effectiveness requires an order, or at least, the express or tacit consent of the employer. (...) it cannot be estimated that the actor would carry out the overtime that he manifests, since he would be unilaterally substituting the will of the employer which, without having agreed for the conventional reason that overtime would be carried out, would be obliged by the unilateral action of the worker (STSJ Castilla y León, Valladolid, 12-2-01, RS 78/2001).

Although (...) it is acknowledged that the plaintiff frequently extended his working day outside the usual time, it is nevertheless (...) it is ruled out that he did so by order of the company, since such excess working day was done voluntarily (STSJ Murcia 16-5-00, RS 1402/99).

In this way, the existence of a Protocol or Instructions for overtime is an essential element to assess the existence of an extension of the "obligatory" working day on the part of the employer with the other inherent legal effects.

On the other hand, faced with those cases in which the employer knows, consents and allows employees to remain in their job after the end of the ordinary working day, to preserve the probable existence of a "tacit business consent" for overtime, it would be advisable for the company to act accordingly, preventing it from voluntarily extending its working hours and reminding it of the existing express instructions to that effect.

5.- Will a higher overall wage than the collective agreement compensate for possible overtime?

The possibility of compensating the remuneration of overtime with other remuneration concepts has traditionally been admitted by the Supreme Court.

It is desirable that such agreements be documented in writing in order to provide them with adequate security and fixity, but it is obvious that lack of written form does not preclude the possible existence of such an agreement or its validity (STSJ Asturias, 7-2-17, RS 2516/16).

Examples of judgments in favour of companies:

Payment by the company of the hours worked under the system of payment agreed verbally, accrediting its existence, according to which the worker receives a global annual salary higher than that established in the collective agreement applicable to the employment relationship. Principle of more favorable norm in consideration that the hours worked were paid under the system of payment agreed verbally, and the calculation made by the defendant company that starts from the real salary paid and from the one that would have corresponded according to the worked. SJS (High Court) nº 1 Avilés is confirmed, which condemns to the payment of the amount recognised by the company € 2,965.72. During the claimed period (April 15 to March 16), 928 hours of overtime were performed and 12,128.96 € were claimed (STSJ Asturias, 7-2-17 RS 2516/16).

The excess time over the normal working day carried out by the plaintiff must be compensated, at least, with the amounts indicated for concepts not provided for in the collective agreement, which were periodically paid to him (gross supplement), in the amount of € 2,808.56 (STSJ Castilla-La Mancha 2-11-07, RS 805/06).

The accrued for excess of workday is a complement of amount of work and credited, that the company paid to the actor over the agreed, nothing prevents that this excess is imputed to the payment of the overtime. It would be different if a worker were to receive an excess remuneration over what is legally or conventionally provided for free of charge or as a more beneficial condition, as a result of an ordinary working day, in order to compensate for such excess or benefit with the future performance of overtime (STSJ Andalucía, Sevilla, 23-4-02, RS 3451/01).

Although, as the plaintiff himself states in the statement of claim, during the months from August 1998 to July 1999, he received certain amounts as voluntary remuneration, he will proceed, as the trial judge rightly maintains, to apply the institution of compensation and absorption, ex art. 26 of the ET, discounting from the amount that would correspond to the plaintiff for overtime the amounts already received as voluntary remuneration (STSJ Aragón 10-5-01, RS 338/01).

On the contrary, examples of rulings in favour of workers (for lack of compensation provision):

There is no record whatsoever of the origin, the legal nature or the remuneration concept to which the so-called voluntary supplement must respond, not included in the applicable collective agreement, and which the claimant has been receiving on a periodic basis...". 3. Since the plaintiff had the status of coordinator, and there is no agreement from which it could be inferred that the voluntary gratuity he received compensated for the possible overtime worked, we understand that it was by this condition that he received the said emolument and we do not understand, in contrast to what was indicated by the sentence of the instance, that such gratuity served exclusively to remunerate the possible overtime (STSJ Comunidad Valenciana 18-2-19, RS 1296/18).

The stipulation of a global salary must be made prior to payment; this requirement corresponds to that of its express nature, and overtime hours normally, apart from the possibility of their realization in the abstract, it is not known in advance if they are going to be worked and what number will be carried out or compensated with rests, so it is not possible to admit the compensation claimed either with the global salary, nor with the guaranteed minimum wage (STSJ Cantabria 18-2-19, RS 40/19).

It is therefore recommended that when signing an employment contract or even during its validity, the parties agree that a certain concept(s) and economic amount(s) exceeding the framework of the applicable collective agreement will serve to compensate for any extensions of the working day.

6.- Promote the irregular distribution of the working day as opposed to overtime.

In general, it is not possible to ignore the obligatory nature of an irregular distribution of the working day as opposed to the voluntary nature of overtime (except for collective bargaining agreements or force majeure).

On the other hand, it is no less important to remember that the viability of irregular distribution (art. 34.2 ET (Worker’s Statute)), unless otherwise agreed, is 10% of the annual working day (thus in a 1700-hour working day: 170 hours of possible irregular distribution) as opposed to a maximum of 80 overtime/year.

The subsequent recommendation is obvious: the regulation and strengthening of the irregular distribution of the working day in a Collective Bargaining Agreement or in a Company Agreement with the legal representation of workers, as opposed to overtime.

I trust that the comments and recommendations made will be of practical interest to readers. And I end with a special thank you to those in charge of the College for inviting me to the last training session and giving me the opportunity to address and greet former students, now recognized professionals, after the longed-for stage in which I was a teacher at la Escuela Social of Madrid.

For more information please contact:

José Antonio Sanfulgencio

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