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Alfredo Aspra: "It is not mandatory that the hourly register should necessarily be agreed via collective bargaining"

| News | Employment Law and Social Security

Interview for the Buen Gobierno magazine of El Economista by Alfredo Aspra on the main keys to the new requirement to register the daily working hours of workers

Is hourly control feasible with approved legislation?

Absolutely yes. However, the fact that new measures and bureaucratic mechanisms have been put in place to control workers' working hours more efficiently will in no way transfer into effective working hours that are higher than those that have been carried out to date. Moreover, companies must guarantee a record of the working day that includes the daily start and end times for each worker. However, the rule does not stipulate that the entire period between these moments can be considered effective working time. Think, for example, of companies where employees have multiple sports facilities, leisure spaces and catering places where they are daily.

The fact that there must be records of the working day available to both employees and their legal representatives and the Inspectorate of Work and Social Security Inspectorate itself will mean an additional control mechanism to try to ensure compliance with the working day limits.

Is this a rash move for companies?

The haste in general is not usually a good counsellor and of course the reform undertaken does not adjust to the budgets or demands of extraordinary and urgent need. Having said this, I would not dare to say that the norm is technologically hasty, although it would have been desirable to develop it in a much more updated, coordinated and integrated way with the provisions of article 91 of Organic Law 3/2018, LODPGDD ("Digital Rights in Collective Bargaining") and even with respect to those aspects related to data protection regulations -for example, the possibility of using the fingerprint as a possible system to comply with the obligation to register, etc.-. In addition, the regulation remains silent on the modalities of hourly control, to the extent that it even provides applicable parameters or criteria. Without prejudice to the above, whatever the registration formula finally agreed or adopted, it is equally advisable to link it to control and verification mechanisms that accredit the authenticity of the information. Most companies do not currently have systems or mechanisms to guarantee the registration of the working day in the terms established in the new paragraph 9 of article 34 of the ET. In addition, as mentioned above, the rule is ambiguous as to the content of the obligation.

Should it be included in collective bargaining?

It is advisable, as justified by the Preamble to the Statement of Reasons of RD-L 8/2019 and its exposition V, to guarantee compliance with the limits on working time, make it possible for the Labour and Social Security Inspectorate (IT) to control compliance and create a framework of legal security for workers and companies, recognising the role of collective bargaining. However - probably or presumably - the purpose of the Legislator, the regulation does not require its inclusion in collective bargaining.

Attacking labour flexibility? 

Technology or the reconciliation of work activity and personal and family life have encouraged the development of measures such as distance working or teleworking, which has meant a certain autonomy for each employee, which is suddenly conditioned and constrained by a measure from other times, with effects yet to be observed.

Will it reduce overtime or unpaid hours?

A priori this is the objective. Now, not all attendance time can be considered effective work time. Then, the new obligation of the daily record of the day will not necessarily reduce the amount of overtime.

In fact, Instruction 1/2017, of the Directorate General of Labour and Social Security Inspection, issued following the well-known Supreme Court ruling of 23 March 2017, which provided for the obligation to carry out a daily record only of overtime (article 35.5 Worker´s statute), but not of the ordinary daily working day (article 34 ET). The truth is that this body already had the necessary powers, competences and faculties to control limits on working time.

Is it a measure that can create jobs and improve work-life balance?

Insofar as it limits the working hours, because the established limits were exceeded, it could be so. The daily recording of working hours and the reconciliation of work and family life are perfectly compatible and harmonisable issues.

Let us say that a novel measure in terms of reconciling work and family life is the amendment introduced by RD-law 6/2019 of 1 March, which came into force on 8 March this year and which consists of the right of workers with children up to twelve years of age to request adaptations in the duration and distribution of their working day and in the form of provision, including telecommuting.

You can see the article on this link and the complete magazine in Buen Gobierno.

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