Practical aspects of the new obligation to register working time

In light of the many questions that have arisen in view of this new obligation, and in order to clarify doubts and unify interpretative criteria, the Ministry of Labour has published a Guide on the recording of working days (the "Guide”), and the Labour Inspectorate the Technical Criterion 101/2019 (the "Technical Criterion”), on the performance of the Labour and Social Security Inspectorate with regard to the recording of working time. The content of both publications addresses three main issues:

• Scope of application

The obligation to record the working time of employees binds all companies, irrespective of their size, sector or work organisation. In this way, companies must record the daily working hours of all their employees, among which temporary employees, those who work from home and salespeople are included. With regard to special employment relationships, the Guide states that preference will be given to what the specific regulations establish on the matter.

Exceptionally, and according to the Royal Decree 1382/1985, of 1 August, which regulates the special employment relationship of senior management personnel; senior management personnel are expressly exclude from the obligation to register. However, this exclusion does not cover middle management or positions of trust that do not have the legal status of senior management personnel, in accordance with the provisions of Royal Decree 1382/1985.

With regard to flexible working hours (longer working days compensated with shorter working days), compliance with a specific agreed weekly, monthly or longer working day shall be taken into account for the purposes of computing the working day, and hours worked that exceed those agreed on specific days without exceeding the agreed weekly or monthly number of hours to be worked will not be considered overtime.

• Content of the register

The Royal Decree establishes that employees' time of entry and exit must be register. However, it does not establish a specific registration system, but refers to what is agreed in the collective bargaining agreement or in the company's collective agreement and, in the absence of such agreements, to what is decided unilaterally by the employer, after consultation with the legal representation of the workers. In theory, and except where expressly provided for in a collective bargaining agreement or in a company agreement, any digital or paper system that provides reliable, unmodifiable information that cannot be manipulated a posteriori shall be valid. Specifically, the register must contain, by express reference to Article 34.9 of the Workers' Statute, "the specific time at which the working day begins and ends".

However, the registration of working time may be organised to include any interruptions or breaks, in order to register what is considered "effective working time" and not to compute those "rest time" periods. If such rest periods are not included, "effective working time" will be presume to be any time between the start time and the end time of the recorded working day. Given this presumption, it is up to the employer to prove which periods correspond to rest time and, therefore, should not be compensated as overtime. In this sense, the European Union defines working time as any "period during which the worker remains at work, at the disposal of the employer and in the exercise of his activity or duties, in accordance with national laws and/or practices"; as opposed to rest time, which is define as "any period other than working time". This distinction is particularly relevant in the case of posted workers, who provide services outside their usual place of work, as the intervals at the disposal of the undertaking are not considered actual working time, and therefore should not be recorded (without prejudice to their compensation by allowances or replacements).

• Conservation of the register

Companies must keep a record of working time for at least 4 years (3 years for mobile workers). To this end, any means of preservation is valid as long as its preservation and the reliability and a posteriori invariability of its content are guaranteed, whether it is in a physical medium or any other that ensures identical guarantees. In this sense, the register must be physically located in the centre of the workplace (or be immediately accessible from the centre) so that workers, their representatives and the Labour Inspectorate can consult it at any time.

Finally, it should be noted that labour inspectors have already opened the first proceedings for breach of the rules of registration of the working day, which, if they result in sanction, will be qualified as serious and will involve a fine of between 626 and 6,250 euros per workplace. It is therefore essential to adapt the regulations to the provisions of Royal Decree 8/2019 and the guidelines contained in the Guide and Technical Criteria. This obligation presents special difficulties that are still unresolved in certain labour relations (salespeople, posted workers and/or workers without a habitual place of work), since in many of these cases the barrier between "working time" and "rest time" is blurred. Therefore, it will be the Courts and Tribunals of the social order who will make the true and binding interpretation of the rule.