Finally 12 May 2019 arrived, and Article 34.9 of the Workers’ Statute, not free from controversy, resulted in many companies, perhaps due to a lack of control when the policy was drafted or approval of the corresponding implementation regulation, did not yet know how to organise and document that daily record until 12 May itself.
Twenty-four hours after the regulation entered into force, the Ministry of Labour, Migration and Social Security, reacted: it criticised the regulation’s audience that should have been sufficiently insightful and intuitive when understanding and knowing how to apply an obligation that only occupies three paragraphs, reacted by publishing “Guide to Recording the Workday” (Guía del Registro de Jornada). In said guide the Ministry attempts to clear up some of the uncertainties that surround the regulation in order to facilitate its application. .
Without prejudice to the fact that, faced with a lack of implementation regulations, it may finally be case law itself and inspection actions that probably shed the most light on the scope of application (and penalty) of Article 34.9 of the Workers’ Statute and Articles 7.5 and 40.1 b) of the Law on Infractions and Penalties in the Public Order (Ley sobre Infracciones y Sanciones en el Orden Social or “LISOS”), below are certain conclusions following the reading of the guide published by the Ministry:
- The regulation does not exclude any company or any worker included in the scope of application of Article 1 of the Workers’ Statute, independent of his/her category or professional group or whether he/she enjoys scheduling flexibility or provides his/her services through teleworking.
- The regulation expressly excludes special personnel belonging to Senior Management (Alta Dirección), governed by Royal Decree 1382/1985, of 1 August.
- Special labour relationships would also be excluded (lawyers, professional athletes, domestic workers, sales representatives, performance artists, disabled workers, prisioners, residents in the health care field) without taking into account, among other aspects, the supplementary rules that may apply in each case.
- That for the purposes of legal security it is advisable to regulate, within the workday, what is considered effective working time and what is not, since not all time in between the start and the end of the workday should implicitly imply that effective work is being carried out.
- Any means/system may be used, either on paper or computerised, to fulfil the recording obligation.
As we indicated previously, these are some of the points which the guide intends to answer. Perhaps it would have been advisable to include certain references or clarifications regarding the penalising criterium that the Work and Social Security Inspectorate will apply, since there are numerous companies and legal professionals who do not know whether the fine foreseen in Article 40.1 b) of the LISOS will be imposed per infraction or per worker.
If the stir in Spain due to the application of the obligations in Art. 34.9 of the Workers’ Statute were not enough, the Court of Justice of the European Union (CJEU) rules on the preliminary ruling (Matter: C-55/18) presented by the Spanish National High Court (Audiencia Nacional), and admonishes the more than 20 countries that comprise the European Union. Said preliminary ruling arises as a result of an appeal filed by the union Federacion de Servicios de Comisiones Obreras (CCOO) in the matter initiated against Deutsche Bank, S.A.E, the intention of which was for the Spanish National High Court to rule that Deutsche Bank is obliged to establish a system to record its workers’ workday on a daily basis. As the National High Court was not content with the rulings that the Supreme Court handed down in a national setting in matters of recording the workday, and considering that the domestic regulation did not match the European regulation, the National High Court decided to initiate steps for the CJEU to rule on the matter. And that day has arrived. Today the CJEU, ruling on preliminary ruling C-55/18, concluded that, in order to fulfil EU Directive 2003/88/EC, Directive 89/391/EEC and the letter on fundamental rights of the EU (Art. 31), Member States are obliged to approve regulations that impose on business owners the obligation to implement objective, trustworthy and accessible systems that permit the computation of the daily workday of their workers in order to guarantee their safety and health.
For further information: Monika Bertram