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Since December 2015, the obligation—or not—for companies to keep a record of the daily working hours has been one of the main questions of labor relations, as it has been the subject of opposing judgments with consequences on corporate management, the Administration’s interpretive criteria, and on the legislative initiative level. We experienced the first chapter of this matter when the Court of Appeals delivered its judgments of December 4, 2015 (Bankia case), and on February 19, 2016 (ABANCA case), by which it established the obligation of keeping a record of daily working hours to calculate overtime, according to the Court of Appeals interpretation of article 35.5 of the Spanish Workers Statute. In addition, the Inspectorate of Work and Social Security (“the Labor Inspectorate”) issued guideline 3/2016 on increased supervision of working hours and overtime.

At the beginning of 2017, the Supreme Court annulled both judgments (Supreme Court Judgments of March 23, [Bankia case] and April 20 [ABANCA case]), ruling that, in general, companies are not obliged to keep a record of employees’ daily working hours and that “the employer is only obliged to record overtime worked.” We reviewed both judgments were in previous blog posts (see here and here).

Following these judgments, the Labor Inspectorate issued guideline 1/2017 in May 2017, supplementing guideline 3/2016, in which it clarifies that not keeping records of working hours does not generally constitute an infringement. (This guideline was also commented on in this post).

The next chapter of the saga took place in June 2017, when the Spanish Socialist Parliamentary Group presented a draft bill to the lower house of the Spanish Parliament, amending article 34 of the Spanish Workers Statute, including the specific entry and departure time of each employee. This draft bill is now at the amendment stage, which has been extended several times.

The last chapter on the matter, for now, is that on January 19 the Court of Appeals made an order—in advance of the possible legislative reform, and at variance with the case law established in the Supreme Court’s judgments above—in which it refers the question to the Court of Justice of the European Union (CJUE) for a preliminary ruling to resolve whether the Spanish regulations on this matter are contrary to European Union regulations.

In particular, the Court of Appeals requests the CJUE for a preliminary ruling on the following questions:

1) Has Spain, through articles 34 and 35 of the Spanish Workers Statue, adopted the necessary measures to guarantee effective limitation of working hours and rest?

2) Do articles 34 and 35 of the Workers Statue infringe Union Law, when according to the Supreme Court’s interpretation they do not require a record to be kept of the daily working hours?

3) Is the mandate contained in the Union Law that limits the duration of working time for all employees in general ensured in articles 34 and 35 of the Workers Statute, under the case law that interprets it?

So we have before us a new chapter in recording daily working hours that we must follow closely, not only the parliamentary process of the draft bill to amend article 34 of the Spanish Workers Statue, but also the outcome of the preliminary ruling.

What is certain is that there will be new changes in the matter, although for the moment, we can only ask questions about some of the consequences those new changes may bring:

  • Will the Labor Inspectorate issue a new guideline?
  • Could a new change have retroactive effects on how article 35.5 of the Spanish Workers Statute is interpreted?
  • Will proceedings be resumed in those cases where the infringement is not time-barred?

 

We will continue to follow the upcoming events closely.

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maria.delgado@cuatrecasas.com