Do hours on call or on call need to be recorded?
Time recording (Part II): Should the hours available or on call be recorded?
Doubts about time registration continue to be the order of the day, causing serious headaches for employers and workers.
Last September we published about the registration of displacements in the workplace< /a>. Below we want to follow our particular guideline to clarify whether the hours on call or on call should be recorded and whether or not they are considered working time.
Disposition of the worker outside the working day
The hours available or on call refer to the period of time outside normal working hours, in which the staff, by agreement or by collective agreement, must be permanently reachable.
By virtue of the foregoing, both the response time to the call and the counting in days must be defined in writing depending on the need for the service. In the event that no specific type of agreement is in writing, as a general rule, the times of disposition or on-call will be working time, even without working as occurs in face-to-face or localized maximum availability on-call.
Hours available or on call
To find out the regulation on the hours available or on call, it is important to refer to what is indicated in terms of working hours in the applicable collective agreement or, if it does not say anything or does not exist, the Workers’ Statute.
The maximum working time established by the Workers’ Statute is 40 hours per week in annual calculation, which is equivalent to 1826 hours per year. However, the collective agreement may reduce this figure by indicating a lower annual amount.
Once it is clear what the maximum annual working day is and according to community regulations, “working time” will be that situation in which a worker has the obligation to remain at home during the on-call period, to be available to the employer and to be able to show up at your place of work within eight minutes. TJUE nº C-518/15 21/02/2018
The art. 2.1 of Community Directive 2003/88, of November 4, defines working time as any period during which the worker remains in the company, at the employer’s disposal and in the exercise of his activity or duties, in accordance with national laws and/or practices. In contrast, it defines rest time as any period that is not working time.
Based on the European concept of “working time”, it is necessary to differentiate between various types of on-call to elucidate their registration and their inclusion in the annual calculation of working hours:
- Localized guard duty in which the worker must simply be available to the employer to locate him, in which case IT IS NOT WORK TIME
- Located on-call in which the worker remains at the disposal of the employer in a place determined by the latter and must respond in a short period of time, in which case IF IT IS WORK TIME.
The difference between both types of on-call is the determination of the specific place in which the worker must remain at the disposal of the company. For this reason, the first on-call case should not be reflected in the time record, unlike the second, which must be recorded and, in addition, must be included in the annual calculation of working hours.
When should hours on call or on call be recorded?
The localized guard will be considered working time and, therefore, must be registered, when the following budgets concur:
- The place of presence is predetermined by the employer
- The required response time is very short
- The performance of activities according to the personal or social interests of the worker is considerably restricted
Special budgets in the transport sector and work at sea
In the transport and work at sea sector, the time spent in the workplace is not considered effective working time, although it must be recorded.
The time of presence will be that in which the worker is at the disposal of the employer without providing actual work, for reasons of waiting, expectations, guard services, travel, breakdown or other similar reasons. In the collective agreements of each sector, the specific assumptions that can be considered as presence time are determined in each case.
As a general rule, attendance times may in no case exceed 20 hours per week on average in a reference period of one month and will be distributed in accordance with the criteria agreed upon collectively and respecting the rest periods between shifts and weekly typical of each activity.
The hours of presence will not compute for the purposes of the maximum duration of the ordinary working day, nor for the maximum limit of overtime. Unless their compensation is agreed with equivalent periods of paid rest, they will be paid with a salary of an amount not less than that corresponding to ordinary hours.
In any case, the hours of presence must be recorded and be reflected in the time record.
Conclusions
- The regulation on the hours available or on call must be established in the collective agreement
- As a general rule, work time will be the availability or on-call times, even without working as occurs in on-call or localized on-call hours with maximum availability.
- The localized on-call time in which the worker remains at the disposal of the employer in a place determined by the latter and must respond in a short period of time, if it is working time and must appear in the record of hours and computes at effects of maximum annual working hours.
- The hours on call or on call that only require the location of the worker, without requiring a short response period, and that allow the performance of activities in accordance with the personal and social interests of the worker, will not be working time nor should they be recorded. .
- In the transport and work at sea sector, the hours of presence must always be recorded.
06/11/2019
