trabajador nocturno alt

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Night worker status has been controversial, because although there have been no changes to article 36.1 Spanish Workers Statute regulating it since 1980, court interpretation has not been consistent, because the organization of shift work, and thus night work during the night shift, has not been uniform. Under the rotating night shift scheme, one-third of the yearly working day may take place at night, the so-called “European shift,” in which every 35 days workers spend 7 days on the day shift, 7 days on the evening shift, and 7 days on the night shift, with 14 rest days interspersed; or 18-day periods in which they work 4 days on the day shift, 4 days on the evening shift, and 4 days on the night shift, with 6 rest days interspersed.This theoretical or scheduled work shift structure had a special bearing on the classification of night shift workers, because, to round out the definition of a night worker, in its judgment of December 10, 2004, Spain’s Supreme Court held that what mattered was not the number of hours worked at night but the work scheduling or planning, i.e., the shift pattern in effect over the normal course of work, the finding issued by Spain’s Central Criminal and Administrative Court in its judgment of October 4, 2012, based on the mentioned Supreme Court ruling.

The Supreme Court’s recent judgment of July 9, 2018 (REPSOL Case), upheld the ruling by the Central Criminal and Administrative Court on May 23, 2016, reiterating that night worker status is to be assessed on the pattern of the normal course of work. The situation considered in the REPSOL case was 211 working days yearly allocated into three shifts: 182 effective working days plus an additional 5 training days—all in the day shift or the evening shift—and 24 days on call.

The labor union maintained that the on-call days should in the normal course be declared to be part of the night shift that, when added to the 182 days and divided by 3, exceeded one-third of the working days, and, therefore, the workers should be classified as night workers.

However, in calculating whether one-third of the working days were exceeded, the Supreme Court reasoned as follows: 182 days were effective working days, and thus, for purposes of shift work, night work was performed on 60.6 days; the 5 training days took place during the day or evening shifts and, thus, were neutral for these purposes; this left only the 24 days on call.

Standby days on call are exceptional, which means that not all will be performed, nor will a significant proportion have to be performed at night; in addition, the collective bargaining agreement specified that if no work was performed on these on-call days over the course of the year, they would be considered effective days and the worker would not owe the company anything.

Therefore, if workers must perform at least one-third of the 211 effective working days to be considered night workers, i.e., 67 days, given that only 60.6 were night days, 5 were training days during the day or evening, and the 24 remaining days are not assigned to the night shift, not even a third of them, the workers were not night workers under the definition in article 36.1 Spanish Workers Statute.

This is not contrary to article 2 of Directive 93/104 regulating the scope of the concept of night work, in that the content of article 36.1 Spanish Workers Statute taken in relation to the collective bargaining agreement in no way differs from the provisions of the directive in relation to the time that is or can be counted as night work.



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