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Tribunal Supremo

Dear customers,

We have already informed in our previous notice of the publication of two judgments of the National Court that had led to the Labor Inspection requiring the daily recording of hours, not only part-time workers, but also those others who They are full-time. In doing so, the Inspectorate sought to avoid fraud in the performance of overtime and to ensure its proper monitoring, remuneration and contribution. In this way he came to dictate Instruction 3/2016.

And not a few headaches has behaved since that time for many companies to implement such a requirement.

Recall that the problematic part of the Royal Decree Law 16/2013, of December 20, of measures to promote stable recruitment and improve the employability of workers includes in the Statute of Workers Act a provision that provides for the daily registration of the Day of the workers and the obligation of the employer to take the computation of the hours of their part-time workers.

In principle, the wording is clear and registration is only required for part-time workers, but this new obligation came from a change in interpretation of Article 35.5 of the Workers’ Statute referred to the control of “overtime” in the sense That, although the precept refers to the calculation of overtime, the obligation contemplated in that article can only be fulfilled by keeping a record of the daily work of each worker; Because only from the determination of which is the day actually realized can be discriminated what hours are considered ordinary and which of extraordinary; So that both the worker and, in his case, the Labor Authority, can know whether or not he is working overtime and can also verify whether or not he exceeds the limit legally scheduled in the year. This was the new interpretation made by the Audiencia Nacional and has protected the start of campaigns and actions by the Labor Inspectorate.

Well today has been made public the Sentence issued by the Plenum of the Social Chamber of the Supreme Court dated 23-03-2017 that, estimating an appeal by Bankia against the ruling of the National Court dated 04-12-2015 Which condemned that bank, in response to a demand from the unions, to establish a system of registration of the daily effective day that makes all of its workforce.
The supreme house and annul said sentence now determining that the law currently does not contain such an obligation for all workers, but only an obligation to control when there are overtime. Textually: “Article 35-5 of the ET does not require the keeping of a record of the effective daily work of the entire staff in order to verify compliance with the agreed timetables.”
And in the matter of infractions, it adds: “The lack of handling, or improper handling of the register, is not typified by the rule as an infringement in an evident and strict manner, which forces a restrictive and non-extensive interpretation of a sanctioning rule such as that contained In article 7-5 of RDL 5/2000, of August 4, on Infractions and Sanctions in the Social Order, a rule whose sanctioning nature precludes an extensive interpretation of art. 35-5 of the ET, because it is a principle of law that restrictive interpretation of the norms limiting rights and sanctioning.
That yes yes the Supreme one admits that “it would be advisable a legislative reform that clarifies the obligation to keep a clock record and it gives to the worker the proof of the accomplishment of overtime,” but “that obligation does not exist for now and the Tribunals can not supply the legislator Imposing on the company the establishment of a complicated system of time control, ”

I consulted tax advice Barcelona,

GAFIC, SLP
Advising companies since 1985
www.gafic.com

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