2019
The Ministry of Labor publishes a guide on registration day
Campoamor / 0 Comments /This is the guide on registration day released today the Ministry of Labor:
Since the publication of Royal Decree-Law 8/2019, of 8 March, urgent measures of social protection and combating job insecurity in the working day, They have received several inquiries on registration day at the Directorate General of Labor.
Por ello, This document is prepared in order to facilitate the practical application of the standard, in which criteria are collected, for information purposes, in connection with this formal business duty, without prejudice to the interpretation of the rule corresponding to the Courts of social order.
A. Questions concerning the scope of timekeeping regulated in Article 34.9 del Estatuto de los Trabajadores (onwards, ET)
1. What kind of workers, professional sectors and companies aplicael timekeeping is provided for in Article 34.9 ET?
The timekeeping applies to all workers, regardless of their category or professional group, all sectors and all companies, whatever its size or organization of work, as long as they are included in the scope as defined in Article 1 AND.
So, companies are obliged alregistro daily working hours also with respect to workers 'mobile', commercial,temporary, telecommuters or any other situations where laprestación not work unfolds, total o parcialmente, in the workplace of the company.
The unique features or exceptions are:- labor relations of special character, in which case it shall be set out in specific legislation and address both the form and extent that is regulated working hours as the supplementary rules established in each case. Specifically, is completely excepcionada application of the standard senior management personnel referred to in Article 2.1.a) ET.
Other than the above is the assumption workers, not strictly senior management personnel (middle management, conejercicio positions of trust or special responsibilities) They have agreed a regime of free availability of working time or part of its contractual obligations toexpress time available for the proper performance of their professional activity. In general, under the premise that behind these modalities are not hidden situacionesde abuse of rights, the workday of these workers must be registered,notwithstanding the accreditation of their working time by time availability pact, interpreted that the compensation obtained by the worker and compensates proportionately greater requirement that working time. Por ello, it would be advisable that the self-regulatory capacity of collective subjects through collective bargaining or enterprise agreement leave record of such circumstances to avoid abusive situations or disproportionate indiciariamente.
– Workers who have a specific or particular rules on registration day:a) Workers with part-time contract, for which there is already a registration requirement regulated in Article 12.4.c) And B) workers, Today, already have specific records reguladosen Royal Decree 1561/1995, of 21 of September, on special working days,and they are called in the Royal Decree itself mobile workers (certain road transport), merchant marine workers and workers engaged in interoperable cross-border services in the railway transport, all as a result of various EU Directives.
– Concerning those other relationships or work benefits excluded from the scope of the Workers' Statute, as workers union members, trabajadores autónomos, etc, Article not apply 34.9 AND there, therefore,there will be no registration requirement particularly horario.En, on cooperatives, according to the law 27/1999, of 16 de julio,state level, the relationship of partners with the cooperative's corporate, so labor lanormativa not applicable, unless express reference. In terms of working time working partners it corresponds to the internal rules of the cooperative regulating the length of the day, minimum weekly rest, fiestasy annual leave, not foreseeing the supplementary application of labor laws or,therefore, the registration requirement of day.
– Regarding modes of work organization formulas based on market flexibility of working hours and irregular distribution of working time, including folklore work remotely or telecommuting and flexible schedules worker, always within legal and conventional loslímites applicable, the diary of day or preclude suoperatividad not constitute any impediment to its continuity or extension,considered an element that guarantees accommodation to business needs and the interests of reconciling workers, family or other. In this sense, because it fits variability of daily work (higher daily days compensated with other lower, for example), which count for purposes of determining the time work actually performed by the employee requires periods or superior temporal sequences day, the diary of day,required in all circumstances, It shall be balanced and globalize in order to control ycontabilización effective working time sequences in said upper daily. So that if, for exemplifying, time flexibility requires compliance with a certain monthly day, distributed freely by the worker, the fact that a record daily schedule overruns day compute not be construed as overtime work or above agreed if, analyzed the records of the remaining days of the month, It is demonstrated compliance with the regular monthly session. consistent, any periods of reference to the redistribution purposes identical rule will.
Más concretamente, in the case of telecommuting, including teleworking, there are affordable ways to ensure the registration of the working day, including specific or flexibility for computing, through electronic or similar records. En todo caso, if there conventional self about, through collective bargaining or enterprise agreement, or if the employer gives for good signing by the worker leaves or similar instruments of self-management of working time teleworker or remote worker, such shall be valid to comply with the legal obligation instruments. All without prejudice to the ability to control and power steering of the employer to ensure the accuracy of the statement unilateraldel worker.
2. Who is responsible for the registration requirement in the case of trabajadorescedidos by ETT? And in the case of subcontracting?
In the case of temporary employment, Article 15.1 de la Ley 14/1994, of 1 de junio, por la que se regulan las empresas de trabajo temporal, referring to the address and control work activity, states that "when workers performing work in the field of user company, in accordance with the provisions of this standard, the powers of direction and control of labor activity shall be exercised poraquélla during the time of service delivery in their area ". De modo que, corresponding to the user enterprise the powers of direction and control of labor activity of workers made available during the time these services in their area, It must be the user undertaking the obligation to duty daily log of the day set out in Article 34.9 ET. And shall comply with the obligation to keep the records referred to in this provision for four years, keeping them available to working people,their legal representatives and the Inspectorate of Labor and Social Security.
However, toda vez que, conforme al artículo 12.1 de la Ley 14/1994 "Corresponds to the temporary employment agency compliance with wage and social security obligations with regard to workers hired to be made available to the user enterprise", the ETT and the user company should establish procedures contribution records to fulfill its obligations. As for outsourcing Article 42 ET, since laactividad control remains in the contractor or subcontractor, true employer, This will be responsible for compliance with all labor obligations, including on-time daily record. However, when workers of the contractor provided on the main business activity, both companies may agree to use the system daily record time employees in the main for their workers. De esta manera, the increased reliability of the day effectively carried out by the workers of contractor ensures, and its control by the latter of defects or excesses of the day that may contradict the terms agreed in the inter-relationship and be responsible. En todo caso, dela contractor is required to preserve and maintain documentation of the daily records made.
B) Questions about the content and registration system
1. Is the entire time elapsed between the start and end registration of the working day is considered as effective working time? How the day of workers moving to other centers or companies register clients, and heading sessions or other interruptions?
The formal obligation under Article 34.9 ET is the daily La Jornada record of working so shall contain, by express legal mention, "Concrete schedule start and end of the working day of every working person". With everything, is suitable also is the subject of keeping everything that forms part thereof, especially regarding compulsory daily breaks provided by law or agreement, or voluntary, to allow circumvent the presumption that all the time between the start and end time is recorded effective working time. When the legal expression, conventional or contractual intrajornada such interruptions or breaks is clear, default and overall, the daily log can circumvent such internal constituent elements of the working day, because they are identifiable in relation to those other instruments to give legal certainty and security of work time and retribuible. However, otherwise, it is recommended that the model applicable record contains measurable parameters that give valordiario, if, those other breaks.
For these purposes, again conventional autoregulation, through collective bargaining or enterprise agreement, It is shown as the ideal model. En definitiva, the purpose of regulating the registration of the daily work is simply to create a framework of legal certainty in mutual relations of workers and employers, and allow inspection by the Inspection and Social Security detrabajo. It is, de una parte, to facilitate real La Jornada knowledge by the worker avoiding the need for greater days to legally or conventionally established. Of other, if proven extraordinary days, ensure their compensation in salary or breaks the terms applicable, permitiendodar guarantee payment and quote uncompensated overtime equivalent condescansos, unless they are the result of other forms of working time flexibility contained in the article itself 34 ET.
Hence this document legally imposed duty at nothing to prevent the existence of flexitime, daily intervals or at higher, which shall be subject to systematic and comprehensive consideration to give a reliable account of the effective implementation of rules on the time detrabajo. On the above premises, the employer may give precise instructions within its sphere of organization and management on compliance and distribution of working time in accordance with the provisions of collective bargaining, company agreements or, failing and if necessary, unilaterally after consultation with employee representatives.
Finalmente, in relation to workers displaced outside the normal workplace, with or without overnight, daily recording of time does not alter the application of the general statutory rules, whichever record the actual working time. Por ello, this record will not include slots made available to the company, notwithstanding its compensation by or supplemented diets. Sin embargo, it is appropriate in these cases registration, to test effects of separation between the two temporal elements, let expresses its particular computing, the documented statement worker still appropriate, regardless of the ability to control and exercise of executive powers by the company to verify the reality of that manifestation.
En definitiva, has only considered working hours for registration purposes as referred to in Article 34 ET, even though subsisting business duties in the prevention of occupational hazards and yes to be considered working time for the purposes of industrial accident (in the ongoing mission) because the worker is under the organizational sphere of the entrepreneur, unable to return to their personal level to break the causal link to his professional activity.
2. What means can be used to comply with the registration requirement of the day?
The rule does not set a specific or default mode for the daily record of the day, merely stating that should be performed daily and include the start and end time of the day. Para ello, and on the other elements shapers, calls for self-regulation, through collective bargaining or enterprise agreement. So, valid any system or means, on paper or telematic, suitable to meet the legal target, esto es, provide reliable information, unalterable and tamper-proof a posteriori, either by the employer or by the worker himself. Para ello, information of the day should be documented in some sort of written instrument or digital, or mixed systems, if, ensuring traceability and invariable and reliable tracking of the working day once registered. In the event that the registration system established through collective bargaining or enterprise agreement or, en su defecto, decision of the employer after consultation with the legal representatives of workers in the company requires access to digital devices or the use of video surveillance systems or geolocation, the rights of workers must be respected in any case to privacy under Article 20 bis Statute Workers, which refers to the Organic Law 3/2018, of 5 December, Personal Data Protection and guarantee of digital rights.
3. Can companies unilaterally establish their own time recording systems?
Yes, within certain ranges: The article states that are collective bargaining agreements or company responsible for the organization and documentation timekeeping, including understood everything not expressly regulated 7 Article 34.9 ET, as well as the particular system (manual records, digital platforms, tornos, etc) or completing them specifically, incorporating all aspects considered necessary for the purpose is fulfilled. This forecast allows different types of companies, sectors and professional occupations can have a model or system to suit your features, and clarify, according to the definitions themselves in the convention, conditions such as interrupts, breaks, flexibility in the distribution of working time or similar. They will be the parties entitled to negotiate that, exercising their self-regulatory freedom to determine the content of collective bargaining or enterprise agreement for the fulfillment of this duty, should include as many aspects related to the organization and documentation deemed appropriate timekeeping. Only in the absence of agreement or collective agreement for the employer to establish a proper system, in any case, You must undergo consultation with legal representatives of workers. In the absence of legal representation for workers and foresight in agreement or collective agreement, the organization and registration papers correspond to the employer, which must necessarily comply with the requirements and objectives set in the standard. The existence and obligation of the journal is not dependent on its forecast, or specific regulation or collective bargaining agreement Company, It is required in all circumstances.
4. What it is meant by consultation for the purposes of compliance with the obligation under Article 34.9 ET? Is it necessary to reach an agreement in any case?
For consultation to be understood as generally provided in Article 64.1 ET ("Consultation must allow workers' representatives exchange views and establishment of a dialogue between the employer and the works council on a specific question, incluyendo, if, the issuance of the report by the same ') and also take into account the provisions of Article 64.6 ET.
C) Questions about conservation and registry access
1. Is it necessary to have some concrete means conservation? What eslo has to be conservation?
Any means is valid provided that supreservación conservation and ensure reliability and invariance post their content, whether in hardware or other guarantees to ensure identical. On the other hand, And unlike the recording of part-time contracts, conservation duty extends daily totalization records thereof are not expected in longer periods, without prejudice to the obligations in respect of overtime.
2. Which means that records remain available to workers laspersonas, their legal representatives and the Inspectorate of Social Security Trabajoy? Should we give copies to workers or legal losrepresentantes?
The requirement that remain available must be interpreted as meaning that it is possible to access them at any time when requested by workers, their representatives or the Inspectorate of Labor and Social Security, ensuring employer compliance, which shall be consistent with the registration system used. This obligation is directly and expressly established in the law so it can not be conditioned in any case. In this sense, the records "remain available" must be interpreted in the sense of being physically remain in the workplace, or be accessible from the same immediately.
Con ello, is avoided, further, the possibility of subsequent creation, manipulation or alteration of records. As for the delivery obligation or concrete form of making available, nothing indicates the norm that involves making it equivalent to day records of part-time contracts, overtime or mobile workers. Por tanto,It is understood, for reasons of legal certainty, permanence that provision does not imply an obligation to provide copies, unless expressly agreed otherwise, no worker must be given to individual copy of his diary, without prejudice to facilitate personal consultation, or the legal representatives of workers, which does not prevent, again, the possibility of the latter to take cognizance of the records of workers.
D) Questions about registration overtime
The Royal Decree-Law 8/2019 It maintains the legal regime for overtime Article 35 ET, including paragraph 5, which states that "delcómputo effects of overtime, the day of each worker will be recorded daily yse total in the period set for the payment of remuneration, delresumen delivering a copy to the worker in the receipt ". Por tanto, the daily log recording time and overtime are independent and compatible legal obligations. Sin embargo, registration article 34.9 ET It can be used simultaneously for compliance with the obligation of registration article 35.5 ET, Besides that, Additionally, be fulfilled other obligations under that provision and paragraph 2 of the third additional provision of Royal Decree 1561/1995.
Regarding overtime derived from force majeure, under the terms provided in Article 35 ET, exigenciaempresarial mandatory and allow workers to exceed the number of hours is the normal working hours of the latter, even if they are to be counted and remunerated as horasextraordinarias, with few formal and material effects derived from its realization. In such cases, as it has come to be generally applicable, business necessity prevails against voluntary worker realization, subject to registration in the terms stipulated in the aforementioned article 35 ET, not seen in this area particularly affected by the new registration requirement diary of the day.
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