This is a ruling following a lawsuit filed by CCOO against the company Gal Energía España, which can be appealed before the Supreme Court, which will have the final say.
The Social Division of the National Court has supported the right of companies to make their workers clock in when they take breaks to smoke, have coffee or have breakfast, with the aim of deducting this time from the hours actually worked. In the same ruling, this court has also supported two other clarifying issues regarding the recording of working hours related to work trips or the prior authorization of overtime.
The Court's support for these three questions is based on the fact that, in the case on which it is ruling – the implementation of the workday register at Galp Energía España – the changes experienced by the employees of this company as a result of the new register do not entail a substantial change in the working conditions of the employees. Therefore, the company can implement these changes in the new register unilaterally if it does not reach an agreement with the legal representatives of the workers, without resorting to the negotiation procedure for the substantial modification of conditions.
The origin of this conflict is a lawsuit filed by Comisiones Obreras against the company Galp Energía España, considering that "on the occasion of the implementation of a system for recording working hours, it has fraudulently and disregarded the procedure established in article 41.4 of the Workers' Statute, modifying the working conditions existing prior to the implementation of the time recording to the detriment of workers."
For this reason, the union demanded that the National Court declare null and void three of the changes communicated by the company in an email sent to the staff on September 26, 2019, in which it detailed what the implementation of the new time recording control system would entail.
The court considers that Galp has the right not to count overtime hours that have not been authorized
However, in a ruling of December 10, 2019, now published by the General Council of the Judiciary (CGPJ), the court has ruled in favor of the Galp company, rejecting CC OO's claims for annulment, considering that the changes derived from the new registry are not a substantial modification of the working conditions included in article 41 of the Workers' Statute.
Fundamentally, the Court argues that for the application of the register to be considered a modification of the working conditions and, therefore, its effects to be annulled, it should be possible to prove “the existence of a previous working condition established in the employment contract, in a non-statutory collective agreement or unilateral decision of the employer with collective effects”. In addition, it should also be possible to prove that the employer, taking advantage of the legal requirement to implement this register, “in a crooked manner” altered the previous working conditions. And, according to the National Court, these situations do not occur.
According to the court's arguments, in the specific case of the control of coffee, smoking or breakfast breaks, the Court says that it has not been proven that before the search, the company considered these guidelines as working time, since "there was no effective control and monitoring of the workday carried out by each worker." The company only had "access control, using turnstiles, which was only used for security purposes."
In addition, the ruling cites two Supreme Court rulings, which also argue that prior consideration of these coffee, breakfast or smoking breaks could not be considered as acquired rights, nor could the principle of the most beneficial condition for the worker be applied.
The Court therefore supports the decision of the company Galp to require workers to sign in when they leave for these types of breaks and to specify, with a code, which one it is, since, as the company specified in its email to the staff to explain the new control system, "these incidents will not be counted as effective working hours."
The court considers that Galp has the right not to count overtime hours that have not been authorized
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