The keys to the new Record of Day
Regarding the entry into force on May 12 of the amendment to art. 34 of the ET (new section 9) by art. 10 of RDL 8/2019 on the registration of working hours, it is interesting to analyze practical issues raised by companies in the last month.
The analysis of the Guide on the Record of the Day published by the Ministry of Labor begins to clarify some existing doubts up to now.
This short article aims to capture the main keys resolved so far and leave open the uncertain solutions that have been met through the entry into force of the new regulations.
Is the registration of the working day mandatory for all workers? Are there exceptions?
With the entry into force of the new regulations regarding registration of working hours, the obligation to register working hours is clear. The Ministry’s Guide expressly provides that the registration of working hours applies to all workers “regardless of their category or professional group, to all sectors of activity and to all companies, whatever their size or organization of work”, specifying even more so when stating that all atypical work situations such as “mobile, commercial, temporary, remote workers or any other situations in which the labor benefit does not take place, totally or partially, in the company’s workplace ”, are also included within the scope of application of the standard.
The exceptions provided so far are limited by the existence of labor relations of a special nature, specifically those contemplated in art. 2 of the ET, so it will be necessary to comply with the regulation provided for in each standard and the supplementary rules established for the application of the ET.
Until now, the exception of registering working hours for senior officials is the only and exclusive exception. Consequently, it does not apply to workers who, by reason of the position they occupy, may have a regime of free availability of work time by virtue of the contractual agreements signed for this purpose. For this reason, and for such cases, there should be no exception regarding the registration, collecting the interpretative criteria in the Guide: “In general, under the premise that behind these modalities situations of abuse of rights are not hidden, the daily work of These workers must be subject to registration, without prejudice to the accreditation of their work time through the hourly availability agreement, interpreting that the remuneration obtained by the worker already compensates in a proportionate manner for this greater requirement of work time.”
Finally, it should be taken into account that those work relationships not adjusted to the parameters provided in art. 1.1 LET, since there is no contractual employment relationship, art. 34.9 LET, such as worker members of cooperatives and self-employed workers.
In the case of subcontracting, who is responsible for recording the working hours?
In cases of subcontracting contemplated in art. 42 ET, the person responsible for recording the working hours will be the employer, that is, the contractor or subcontractor company. However, it should be taken into account that on many occasions the provision of services by their personnel is carried out within the scope of the main company, for which reason the Ministry’s Guide calls for an agreement between both so that the subcontracted company can make use of “the daily registration systems used in the principal for its workers”, regardless of whether it is the employer’s responsibility to keep the documentation.
Should split shifts and work interruptions be recorded? What about trips during working hours?
Some of these issues are common among companies and entrepreneurs and leaves the door open to uncertain solutions in each field.
The imperative of the new regulations imposes the obligation of companies to guarantee the daily record of the working day, including the specific start and end times of each worker, but it does not say none of those breaks or interruptions that occur in daily work life. The fundamental question provided by the Ministry Guide is the consideration of the pause or interruption as effective working time.
Working time includes, either effectively or added as presence time, the rest to which the worker is entitled, and it may also happen that there are certain interruptions of the working day for cases regulated as rights of the worker. As an example, the 20-minute break for breakfast of a worker with a continuous shift is considered effective work time, so he should not register more than one entry and one exit throughout his day. Breaks to go to the bathroom or similar would not be counted either.
On the other hand, the split days with an hour break for lunch, for example, if they must be registered with a start and a start in the morning and another in the afternoon. Similarly, if a 15-minute coffee break is scheduled within this day, this would generally be considered effective working time and should not be recorded.
The Ministry Guide, aware of the multiple and varied situations of working life, only recommends in the case of breaks not included in the labor regulation that “the applicable registration model contains measurable parameters that give daily value, where appropriate, to those other pauses”, all with the purpose of creating “legal certainty” in the relations between the subjects of the contractual employment relationship and to facilitate control by the ITSS . In any case, to dispel any existing doubts about the obligatory fulfillment of the registration obligation, it should be emphasized that the legally imposed documentary duty does not exempt registration due to “the existence of flexible hours, daily or at higher intervals, which will have to be subject to systematic and integrated consideration to provide a reliable account of effective compliance with the rules relating to working time.”
Lastly, with respect to commuting during working hours, reiterated jurisprudence has understood that when the worker makes travel, other than those corresponding to the outbound and return to work from your home or residence, these must be considered as working hours. Therefore, they must be registered for the purposes of working hours. However, the new regulation on working hours does not dispel doubts regarding workers who do not have a fixed workplace or those who remain available at the employer’s disposal.
To conclude, it must be remembered that the time that is considered effective work will affect remuneration, the limits of the maximum legal working hours, the legal minimum breaks between days and the limits of annual overtime, all regardless of whether or not the company pays the expenses and allowances.
Therefore, the means must be provided to workers so that they can sign the employee
start the displacement that must be considered as work time, and establish compensation for breaks when the legal time limits are exceeded.
Is it mandatory to provide the worker with a written summary of the record?
The standard does not indicate how mandatory the delivery to the worker of a written summary of the record, however, it must remain available for possible access to it at any time that is requested by the workers, by their legal representatives or by the Labor and Social Security Inspectorate.
According to the Ministry Guide, that the records “remain available” must be interpreted in the sense of being and physically remaining in the workplace, or being accessible from it in any way immediate way. With this, the possibility of subsequent creation, manipulation or alteration of records is also avoided.
Finally, it should be noted that the recorded data must be stored for a period of four yearsand can only be accessed by authorized data controllers. the company and the worker himself.
What sanction could there be for not implementing the record of the day?
The regulation classifies as a serious infraction failure to register the working day, with fines ranging between 626 and 6,250 euros, depending on the classification of their infringing degree, minimum, medium or maximum and that are imposed by workplace.
From JL Casajuana Abogados we can help you resolve any doubts in the matter and, likewise, in the elaboration of a regulation of company policy in the matter of control of working hours.
If you wish, you can consult here the Guide from the Ministry of Labor on the registration of working hours.