Obligation of companies to keep a record of the hours of work of all the workers
NEW CRITERIA IN CONTROL OF THE WORKING DAY
The recent instruction 3/2016 of the Inspection of Work and Social Security, considers that "it is not admissible that, with the invocation of the flexible hours offered by the labor regulations, they can harm the rights of workers and alter their balance Contractual by means of the improper prolongation of the working day ". In other words, entrepreneurs can not take refuge in the hours flexibility of the day not to pay overtime.
Quite the contrary, this body of the Ministry of Employment considers in this instruction to its inspectors that the flexibility in business hours justifies the strengthening of labor standards, "particularly the rules on the registration of the daily work day."
In light of these arguments, the Inspection has decided to "intensify the control of compliance with the rules of working time"; In particular on the respect of the maximum working day, overtime and on the correct compensation and contribution, in the event that they are carried out.
According to what is ordered in this instruction, this greater control is already occurring in the sectors of banking, manufacturing, hospitality, commerce, repair of vehicles, sanitary activities and social services and financial and insurance activities.
Thus, sources of the Administration explain that when the inspectors and sub-inspectors carry out their corresponding visits to control this matter they act on four fronts: to check the execution of overtime hours and that they do not exceed the legal maximum (80 annual), their Remuneration and contribution, the registration of the day by the company, and if, as required by law, the representatives of the workers are being informed of its realization.
Indeed, the registration of the day is the point that is most controversial in the visits of the inspectors.
The law obliges the employer to count the hours of their part-time workers, to determine the completion of the so-called additional hours and to check whether the contracted day and the contracted are really correct and real, but Does not establish this obligation with the same clarity for workers with full days where it is considered a faculty of the company but not an a priori obligation, however, in 2015 there were rulings from the National Court on these aspects Which determined the need to have a daily schedule record in order to be able to show the company whether overtime or not.
Until now, it was the worker who had to prove that he had spent extra hours, at the time of claiming them. Moreover, jurisprudence only required companies to register their daily hours to compensate for overtime, if they were produced in the company. Otherwise, they were not obligated.
But that has changed, after two sentences of the National Court of December 4, 2015 (Bankia case) and another from February 19, 2016 (case NCG Bank). In these statements, the judges conclude that companies should carry a daily record of their workers' day, so that Labor inspectors can determine "whether or not the ordinary day limits are exceeded or not" and, therefore, the Worker has spent overtime.
This is also indicated by a report from the Directorate General for Employment which states that "to know if overtime has been done, the number of ordinary hours worked is accurate."
In view of all this, the Inspection seems to be very aggressive in the control of extra hours, and very severe with companies that do not register the ordinary days of their workers, arriving to sanction seriously for this already today It is clear, then, that companies have a legal obligation to control their employees' hours, although this obviously creates a technical and economic problem for companies to study what kind of system is established and implemented, It, with the disadvantages and time to invest that all this entails in order to comply with what the inspection demands and when there is "a legal vacuum" because there is no regulation that sets the control formulas appropriate for each sector .
Before all this, the first method in which it is thought are the machines to sign in, but these do not always serve because, without a doubt, there are sectors where the worker enters and leaves constantly from his work place but does not stop working outside or of Others who work from home and each type of activity will require specific control; In addition the file systems can also be manipulated and sometimes there is no possibility that the signature of the worker can be recorded; It seems that the inspectors, at least in Lleida, do not talk too much about the signing systems and in order to carry out this control they request more manual registrations with the signature of the worker with whom, surely, they will also contrast the reality of what is in it.
The law indicates that overtime can be paid or offset by rest periods. But these hours are also quoted in Social Security.
Therefore, if they are not counted or made without compensation - as happened with more than half the extra hours that were carried out in 2015, according to the same inspection as the result of the investigations carried out during the past year, in addition Of the loss of labor rights that it supposes, has a double negative effect for the coffers of the Social Security.
On the one hand, its contribution to social security is canceled, which is 14% of the gross salary of the employee in the case of overtime hours of force majeure, and 28.3% -as well as The ordinary hours - for the rest of the extra hours. With what is a significant loss of income. And, on the other hand, the 3.5 million extra hours per week and not paid last year, would be equivalent to the creation of 156,300 new full-time salaried jobs. Revenue from contributions to these jobs also means that money is not collected, according to the Inspection that considers that more than half of the excesses of workday are not paid
Last year, 14.8 million salaried workers in Spain made an average of 6.3 million extra hours per week (more than 327 million per year), according to the 2015 data of The Active Population Survey (EPA). The Workers' Statute states that, by means of a collective agreement or an individual contract, the payment of these hours (always above what the ordinary hour is paid) is set or compensated for by the equivalent period of rest. In the absence of a pact, it is understood that these hours will be paid with rest periods that must be enjoyed within four months of its completion. But not all these hours were rewarded.
EPA data indicate that 3.5 million extra hours a week were paid without money or with rest time last year; Compared to 2.8 million hours that were paid. This means that 56% of the overtime spent last year was not remunerated, compared to 39% that were not compensated in 2008.
Moreover, according to a recent study by the Technical Cabinet of Workers' Commissions (CC OO), during the crisis, overtime has fallen considerably, which has fallen more than employment. However, the most noteworthy is that the composition of these hours has been modified: its reduction has been concentrated almost exclusively in overdue hours paid, while those that are not recovered have just fallen between 2008 and 2015. "With two million less workers, a similar volume of unpaid extra hours is continued, while half compensated extras have been reduced." This report also requires that there is hardly any coincidence between the wage earners who carry out these hours in a paid way and those who do them without compensation.
In the services sector, three out of every four extra hours lasted last year and 60% of them were unpaid. The highest number of extra hours paid by wage earners is given in health (12.8 hours) while the unpaid are given more in hospitality (12.5 hours).
All these considerations have led to the Labor Inspection to establish new labor day control criteria and daily hours registration with IMPORTANT NEWS in relation to the SCHEDULE REGISTER regulated in article 12.4 c) of the Workers' Statute for Contracts at Partial Time and CONTROL OF EXTRAORDINARY HOURS regulated in article 35.5 of the Statute regarding Labor Day.
The Labor and Social Security Inspection requires all companies to have a REGISTER DIARY OF THE HOURS OF WORK OF ALL WORKERS , whether the Day is Partial or Single .
According to this instruction, the Labor Inspection requires that companies have duly signed the daily records of hours of work, without admitting that they can be presented to the inspector acting on the date after the visit and can sanction the company if it does not have Of the register of each day of the current month until the date of the visit as well as of the previous months.
The presumption of extraordinary hours is done in favor of the worker who claims to be executed in the event that the company does not have the duly signed and signed time records and in addition, the Labor Inspection considers that not having them A day at the time of the visit may also be punishable.
For all these reasons, we are obligated to inform you and we can provide you with a daily registration model that must be signed by all the workers of your company every day.
However, we believe that these records also need to be aggregated monthly and stored along with the monthly payrolls and we insist that in case of possible labor inspection, they can demand the hours records of the day of all their employees until The day of the visit.
Without any other particular, we take the opportunity to greet you attentively and remind you that we are at your disposal for any clarification or query.