A new jurisprudence This has had an impact on the guidelines followed by the Labour Inspectorate, in relation to the controversy over the obligation for companies to keep a record of the hours of all their workers. Recently, a rectification has been made, which has been made known through the new instruction of the inspectorate on the recording of the working day.
The new Instruction 1/2017, from the General Directorate of Labour and Social Security Inspection, is complementary to Instruction 3/2016, on the intensification of control over working hours and overtime.
It includes the arguments of the Supreme Court rulings 246/2017 and 338/2017, highlighting the following:
The obligation to record the working hours of the entire staff (remember that part-time contracts are required) is reduced to recording overtime hours.
The "lack of classification by the LISOS of the lack of or incorrect keeping of the register", which may in any case be a minor, merely documentary, fault.
The courts cannot replace the legislator and impose a time control system on companies when the regulations do not establish it.
It is also mentioned that the company, in order to prove that the worker has worked certain overtime hours, must keep a record of the overtime hours. This could be decisive in a legal process.
Consequently, the action that the Inspection will carry out with respect to the registration of the working day will be based on the following guidelines:
The obligation to record the working day will not be required in general, since it does not constitute an infringement of the social order.
Although the registration of working hours is not required, working hours will continue to be monitored, ensuring that the legally established periods are respected.
The number of overtime hours will be monitored, verifying that the annual legal limit permitted has not been exceeded.
The registration of working hours will continue to be required for part-time contracts, or for mobile workers in road transport, the merchant navy and railways, since there are rules that expressly regulate the registration of working hours for these workers.
It should be noted that the instruction states at all times that, although the extensive recording of the working day cannot be legally required, this fact does not prevent the Inspection from exercising its powers to ensure compliance with the maximum legal times permitted.
To do so, they will be able to “deploy the relevant verification actions in order to reflect the facts.” And paradoxically, all the mechanisms that companies have been installing in recent months can be used as “a possible means of proof wherever they are implemented.”
After reading this instruction, it is finally perfectly clear that it will not be possible to classify the lack of daily recording of working hours as an infraction for the rest of the workers, it will only be obligatory for the cases we have mentioned above.
If you wish to read the full Instruction, you can download it by clicking below:
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