Workday Control and Registration obligatory since May 12, 2019, when the modification of article 34 of the Workers Statute came into force.
… … “establishing the company’s duty to guarantee the daily record of the working day, which must include the specific starting and ending times of each worker’s working day, without prejudice to the existing flexible hours”.
In view of the controversy that is being generated, the lack of regulatory development and the multiple consultations raised, the Ministry of Labour has published a guide. Intended for employers as an aid to the implementation of the registration systems of the days. This guide can be accessed via the following link (in spanish)
Workday Control and Registration
In addition, the Labour Inspectorate is developing a technical criterion on the performance in terms of recording working time. For the inspectors and deputy directors themselves, it serves as a guide for employers in determining what requirements they must meet.
Our Labour Consulting Department has had access to this text, which clarifies the criteria that officials will follow when demanding the time control indicated below.
Labour Inspection. Technical Criteria
- Labour inspectors are clear that the keeping of the hourly register is not an option but an obligation included in the law.
- Under this technical criterion, inspectors will require to “physically” locate hourly records in the workplace. And not in other places such as the company’s headquarters, agencies or auxiliary companies. This location responds to the requirement that this register be “accessible” as has well marked the High Court of Justice of the European Union.
- This obligation on the part of the employer to allow immediate consultation of the record of working time could avoid any possibility of alteration of the data in the interval between the visit of the Inspectorate and control by the authority in charge.
- The obligation regarding the immediate availability of time registers shall not prevent the labour inspectorate from requesting the employer to appear later at the Inspectorate’s offices providing the records made.
- Unless expressly regulated in a collective agreement, the employer is not obliged to give copies to his workers. Without prejudice to continuing to deliver with the receipt of wages the record of overtime or the hourly record in partial workdays.
- In the case of an electronic computer record, the Inspectorate may require the records to be printed during the visit. Or its download or supply in legible computer support.
- In the case of manual searches, the Inspectorate may obtain the original documents or request a copy of them. If copies cannot be made during the visit, the inspector may take notes or even take photographic samples. If inconsistencies are detected, the inspector may take the original as a precautionary measure.
- The inspectors will not accept as a document of hourly registration the general schedule of the company, work calendar or the quadrants of schedule elaborated for certain periods.
Workday Control and Registration. Sanctions and Recommendations
With respect to the consequences or possible sanctions for non-compliance with this regulation, the following issues are established to take into account.
- Failure to comply with the law will be considered a serious violation.
- However, the management of the Inspectorate indicates that the penalty will not be automatic if the official inspector detects that the company has already acted to negotiate with workers a registration system. Or even if the inspector were certain that the standard is met in working time or no overtime is done. After the assessment, the sanctioning procedure may be replaced by a requirement to implement the registration.
Finally, some recommendations are established to take into account when preparing the registers.
- It is recommended to implement a system of hourly control that offers an adequate and complete vision of the effective work. Therefore, recording the breaks that may occur, for example, meal breaks. If this is not done, the employer shall be responsible for accrediting the actual working times.
- The BOE published a collaboration agreement between the TGSS and the Directorate General of the Police with the aim of intensifying collaboration in the fight against fraud.
Once the main aspects that will be taken into account by each inspector have been indicated, we recommend compliance with the regulations. Making the hourly registers using licit tools that allow us to provide concrete and truthful information. With the objective of avoiding that the acting officers initiate possible sanctioning procedures.