Until just recently, the maintenance of a working days
register was considered as a business obligation that must be respected
regardless of the type of contract (part-time or full-time). This
interpretation came from the Labor and Social Security Inspection,
according to the Statute of Workers’ Rights. The objective was to check whether
the working day had been correctly fulfilled or whether any additional hours
have not been declared, and in that case the lack of payment or contribution
for extra hours.
Indeed, it
was essential that each working day had been registered regardless of the
method used, indicating the starting hour and the finishing hour. At the end of
each month, the Company had to disclose to each employee a pay slip summarizing
monthly working days, and to inform them of the total of ordinary hours they
completed during the month, or mention any additional or extra hours. This
monthly summary was signed by the employee to confirm the receipt and must be
kept for 4 years.
The non-compliance
with the obligation to keep a register or to deliver the monthly summary can
impact the Company, and was punishable with a 625 to 6250 euro fine; further,
concerning part-time employees, it gave rise to a presumption of a full-time
working day, except if the Company proved the contrary, meaning that the
Company was responsible in cases such as contribution for Social Insurance,
that can consider the employee as a full-time employee.
But today, what about this obligation for every company to keep a working days’ register?
The Labor and Social Security Inspection’s interpretation v. the Labor Court’s interpretation
On 23 March
2017, something surprising happened: the Labor Court ruled that
keeping a register for every worker is no longer an obligation; this
concerns full-time jobs. That is to say, companies must keep a register only
for extra hours and part-time contracts.
The origin
of such a decision emerged from a conflict between Bankia and the Union. The
bank made an appeal in cassation of the judgment granted in 2015, and
succeeded. For the Labor Court, there is no need to oblige companies to register
full days. This interpretation made by the Court is a very strict and
literal interpretation of the article 35.5 of Workers Statute« For calculation of overtime, every worker's extra hours will be recorded day by day and will be totaled in the fixed-period for the payment of the remuneration, in delivering to the worker a copy of a summary in the corresponding receipt ». It rules that only extra hours are concerned by this article, and if the legislator had wanted to include regular hours, he would have created alongside it another legal provision. The Court also justifies the ruling on the basis of the Constitution that provides the principle of freedom of enterprise (article 38).
The decision
goes against the purpose of the Workers Statute, to protect every worker and
ensure them a means of proof for overtime work. Also, the ambiguity of such a
surprising sentence is the absence of control on workers workdays. How to check
whether hours are additional or not without controlling them? Indeed, full working
days registration is one of the best means of evidencing extra hours. If you
don’t provide the full hours an employee must do, how can you distinguish extra
from regular hours? In addition, the judgment seems not really adapted to the
evolution of the way of working nowadays. That is to say, it doesn’t go in favor
of flexible working practices.
By this
article, we would like to underline and remind the importance of legal
monitoring and watch of Labor matters to provide an updated support! Thus, despite
this final sentence, our role is to advise you to register full working days
to permit a better control on your workers thanks to time sheets.
Sandra Schramm Fanny Renaud
Abogada · Rechtsanwältin Juriste (Universidad de Derecho Nantes)
Voelker & Partner S.L.
Avenida Diagonal, 421 – 3º
08008 Barcelona
Fax: +34 932 180 948
Mail: s.schramm@voelker.es
Web: www.voelker.es
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