The recent ruling of the National Court (s. 19-02-2016) and the report of the General Directorate of Employment of the Ministry of Labor (01/03/2016) have come to interpret art. 35.5 of the Workers' Statute (5. For the purposes of calculating overtime, each worker's working day will be recorded day by day and totaled in the period set for the payment of wages, giving a copy of the summary to the worker in the corresponding receipt)
This implies that The company has the OBLIGATION to keep an exhaustive control of the hours worked by the workers under its charge., both ordinary and overtime hours, regardless of the type of contract held with the worker (permanent or temporary, full-time or part-time). Having a daily work record, which is provided with essential character in the regulation of working hours, so that failure to comply with them constitutes a violation of the rules on working hours and not a merely formal breach, punishable by a serious infraction.
According to the literal meaning of art. 35.5 of the ET, in order to comply, the employer must articulate it through two elements: a) Daily Work Record and b) Delivery to the worker of the monthly summary of hours, both of which are essential and indispensable.
a) Daily Work Record
It must be a document that includes the worker's specific hours, indicating the time of entry and exit, breaks or rests between shifts, number of effective hours worked in the day, number of overtime hours worked, etc.
It must be a daily log and suitable to ensure the reliability and invariability of the data. It may be in computer format using a magnetic card or similar, or a fingerprint, but only if the necessary records can be obtained from it.
It may also be in paper form through the daily signature of the worker.
The Record of Working Hours must be kept in the Work Center, absence for any reason or cause is not admissible. Absence is considered a complete breach of the obligation.
b) Summary of the Day
It will reflect all the regular and overtime hours worked by the worker during the salary payment period (normally monthly).
It must be delivered to the worker along with the monthly salary receipt (payroll)A copy must also be given to the legal representatives of the workers.
Inspection action for the control of working hours
To verify compliance with working hours, the Labor Inspection has launched a special campaign to control the regulations on working hours, in particular respect for the rules on maximum working hours and overtime, as well as their correct compensation and contribution. This campaign will focus on the sectors in which a higher volume of overtime has been observed or a foreseeable greater existence of overtime that is not paid or paid for. As well as the existence of exceeding the maximum working day and irregular remuneration.
The purpose of the action is to check that companies comply with the formalities required by the Workers' Statute regarding the completion of the Daily Work Record and the delivery of the Monthly Summary of Hours. As well as the control of compliance with the maximum work days, the emergence of irregular overtime and its due contribution. In addition, so that workers can know the total number of hours worked in order to determine if the total calculation, as well as the concepts applied, is adjusted to the reality of the work performed as well as to the legal limits.
The result of the inspection work may lead to serious infractions, both for exceeding the legal limits of the maximum working day, and for the absence of the Daily Working Hours Record and its monthly summary, with each of the infractions being sanctioned by Grav is missingand, with fines that can each reach up to 6,250 euros. In addition to the additional settlements for undeclared and unpaid overtime.
Clarifications:
For the correct calculation of ordinary and overtime hours in working days, the following details must be taken into account:
1.-Maximum working day
The maximum length of the regular working day will be 40 hours per week on average on an annual basis, that is, 1,826 hours and 27 minutes per year. Unless a collective agreement sets a different maximum working day. Collective agreements have been setting a maximum working day of less than 1,826 hours. You should check the working day set in your sector agreement.
For the calculation of the maximum duration of the ordinary working day, only the actual work is taken into account. The actual working day is understood to be the time that, in daily, weekly or annual calculation, the worker dedicates to his or her own work duties. Only the time during which, from the beginning to the end of the daily working day, the worker is at his or her work station is taken into account.
2.-Snack break or coffee break
The break for a sandwich or coffee break is only provided for continuous working days that exceed six hours. It is not provided for in split shifts. And in no case is it considered effective work, unless it is considered effective by collective agreement or individual agreement. Mere company tolerance, even if it lasts for years, does not create a more beneficial condition.
Therefore, when calculating the maximum daily, weekly or annual working day, the time spent on sandwich or coffee breaks should not be taken into account.
3.-Special (generic) prohibitions
Minors: Underage workers may not work overtime. The weekly rest period will be two full days, which must coincide with the weekend. They may not work at night (between 10 p.m. and 6 a.m.)
Contract for training or apprenticeship: Workers under this contract may not work overtime or night work.
Part-Time Contracts: For workers hired under this modality, overtime is prohibited. They may work additional hours that comply with the procedure provided for these cases.
4.-Overtime
Overtime will be considered to be those hours of work that are carried out over the maximum duration of the regular working day.
The number of overtime hours may not exceed eighty per year.
For the purposes of determining the maximum length of the regular working day or calculating the maximum number of authorized overtime hours, the excess hours worked to prevent or repair accidents and other extraordinary and urgent damages will not be taken into account, without prejudice to their compensation as overtime.
Compensation:
Financial compensation: The amount of financial compensation may, in no case, be less than the value of the ordinary hour.
Compensation for time equivalent to paid restIn this case, it does not involve a real increase in working hours, but rather a redistribution of the same. Compensation must be made within four months of the work being carried out.
Recommendations for the correct application of the Daily Work Record
Firstly, it should use computerised methods that automatically control workers' working hours, where workers must clock in at the beginning and end of the working day, as well as during breaks or rest periods between shifts.
Secondly, from the Aseryde office we have prepared a monthly template on paper where workers must sign daily, indicating the time of entry and exit from the workplace, totaling the monthly hours.
These templates are a model that can serve as a guide so that you can create the ones that best suit your company. There is no official model for this purpose, each company can create it as it sees fit, as long as it includes the minimum data such as start and end of the workday, total ordinary and extraordinary hours worked, and their monthly total.
The essential thing is that the Workday Record is kept daily, that it is kept at the Work Center and that the Monthly Summary is given to the worker. All within the maximum working hours limits established by Law.
If you require any further information on the information provided, you can contact us. contact with our office.
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