The Time Registration was already confirmed the technical inspection criterion. We recently published in our blog a guide from the Ministry of Labour. As well as the draft of the Technical Criterion, on which the Labour Inspection was working. All of them as guidance documents to meet the demands of the Inspectors in terms of regulation and control over the Time Registration.
Finally, the ITSS (Labour and Social Security Inspectorate) published its Technical Criterion 101/2019 on 10 June 2019. On the performance of the labour and social security inspection in the matter of Time Registration. In which it is established how it will act before the new regulations. Thus confirming some of the points indicated in the initial draft.
In order to have a more specific view on the content of this criterion, the experts of our Labour Consulting Department break this criterion down into five large groups.
Time Registration. Technical Inspection Criteria
Compulsory
We must all be clear that the Time Registration is not an alternative for the entrepreneur. It is an obligation that will guarantee the existence of an objective, reliable and accessible register. That allows to compute the daily workday carried out by each worker.
We recall that this obligation has been confirmed by the ECJ ruling of 14 May. And also regulated in section 9 of article 34 of the E.T.
Contents
The main purpose of registration shall be to collect the start and end time of the actual service provision. Records of breaks between the beginning and the end of a working day which do not have the character of effective working times shall not be required.
However, under collective agreement or legal representatives of the workers, or failing this by decision of the employer, the record may be agreed so that it includes the interruptions that are considered. It must contain the start and end times of the working day.
With respect to the methods used to keep records. The need to implement a system that offers a concrete and complete vision of the effective working time is confirmed.
If systems are used that do not offer an adequate vision and give rise to doubts regarding their validity in terms of manipulation possibilities, they will be subject to inspection.
Similarly, the interpretation of these records in determining effective working time must be comprehensive.
Finally, it should be borne in mind that the existence of such a requirement does not exempt the records already established in the current standard.
As examples we can cite the control of part-time Time Registration in article 12.4.c of the ET. The recording of overtime in its article 35.5 of the ET constitutes a second example, as well as the daily records of transactional movements.
Keeping of the Time Registration
The Time Registration must be available to workers. Also of their representatives and of the Labour and Social Security Inspectorate. It may be accessed at any time upon request.
These records must remain physically in the workplace and be immediately accessible from it for four years.
For conservation purposes, in the case of paper Time Registration. It can be scanned and archived digitally, ensuring its conservation and being available at any time.
Likewise, and sticking to the framework of inspection action starting with a visit. The verification of the information must be able to be carried out at the time and in the work centre. Avoiding therefore that the employer has possibilities of manipulation.
This provision of information does not imply the delivery of copies nor should it be given to each worker. Without prejudice to facilitating access for personal consultation.
Organisation and documentation
As we commented previously, the Time Registration must be documented. Although in those cases in which the record is made by electronic means such as fingerprinting or similar, the Labour Inspectorate will require in the inspection the records of a specific period or their download in legible and treatable computer support.
If these records are made by physical means, the inspection required original documentation or a copy thereof. In case of inconsistencies, it will be possible for the inspection to take as proof the original documents as a precautionary measure included in article 13.4 of Law 23/2015, of 21 July, Ordinance of the Labour and Social Security Inspection System.
Time Registration. Sanctioning regime
Only in the Time Registration will the actual working day be determined. And in its case the accomplishment of hours over the legal established day, taking into consideration of overtime.
After the modification of section 5 of art. 7 of the law on Violations and Sanctions in the social order. Infringement of the obligations regarding Time Registration is classified as a serious infraction. It is possible to apply the sanctioning system from the date of entry into force, twelve May. However, the inspection will assess the existence of an action of the company and a negotiation between the parties under the principle of good faith.
This means that, if the inspection were to be certain that the regulations are being applied in terms of working time or that overtime is not being carried out, despite the fact that the Time Registration is not being carried out, the inspectors could take the decision to initiate an injunction instead of an initial sanction. With the aim that employers can provide and ensure the daily Hourly Register.
Conclusions
On the other hand, it also reaffirms the non-acceptance by the inspection of the display of the company’s general schedule as a form of accreditation of the Time Registration. Since these schedules or quadrants, they are elaborated with the objective to foresee the works for certain periods. But they do not accredit the number of concrete hours that are used for the attainment of these works.
Only in the hourly registers will the actual working day be determined and, if applicable, the performance of hours above the established legal working day, taking into account overtime.
We are aware of the start of the first sanctioning proceedings in the hotel and vehicle workshop sector. In this sense, before the opening of a sanctioning file, there is always the possibility of making allegations before the sanctions take place. The Labour Inspectorate has transferred the granting of a certain delay. The objective is for employers to prove the existence of a negotiation in the implementation of methods to carry out the Time Registration.
However, as the Technical Criterion presupposes, a sanction would only be applied for non-compliance with the time limits at the end of the year. However, it is possible to compensate for excess working hours with periods of less working hours throughout the period. Remember that in case of compensation for overtime, this must be done within four months of its completion.
Arrabe Integra
Labour Consulting Dept.
