Technical Standard 101/2019 on labour inspection action in the field of working time recording

Technical Standard 101/2019 on labour inspection action in the field of working time recording

1 January 2022


The purpose of this Technical Criteria is to establish criteria for the performance of the inspection actions to be carried out, from the entry into force of Royal Decree-Law 8/2019, of 8 March, in relation to the provisions relating to the working day register, established in article 34.9 of the Workers' Statute.

2. guarantee of the working day register.

2.1. Compulsory nature of the working day register.
Article 10 section Two of Royal Decree-Law 8/2019, of 8 March, establishes that, "The revised text of the Workers' Statute Law, approved by Royal Legislative Decree 2/2015, of 23 October, is amended as follows: 'Article 34 is amended, adding a new paragraph 9, with the following wording:
"The company shall guarantee the daily record of the working day, which shall include the specific start and end times of the working day of each worker, without prejudice to the flexible working hours established in this article. "
The literal interpretation of the aforementioned provision allows us to affirm that the keeping of the working day register is not an option for the employer, but rather a duty that derives from the term "shall guarantee": that is to say, subject to the obligation to ensure the existence of such a register, and not as a mere power of the employer.
The term guarantee implies an obligation of result in the sense of actually establishing a register.

2.2. Content of the working time register.
Having established the basis for the obligation to keep a working time register, the content of this obligation must be specified:
First of all, it is necessary to specify what must be recorded. The new Article 34.g of the Workers' Statute (ET) establishes that "the company shall guarantee the daily record of the working day, which must include the specific start and end times of each worker's working day. "It must be understood that what must be recorded is the daily working time. As nothing has been said in this respect, the recording of paragraph g must be interpreted jointly and systematically with Article 34 E T. itself.
In this sense, collective bargaining or company agreements on the organisation and documentation of the register should be the ideal instrument for specifying how to consider all aspects related to the recording of interruptions, breaks or flexibility of working time.
According to the text of the new article 34.9 ET, the working day register must be kept on a daily basis, and it is not acceptable to show the company's general timetable, the working calendar or the timetables drawn up for certain periods in order to accredit compliance, as these are formulated "ex ante" and will determine the work forecast for that period but not the hours actually worked in that period, which will only be known "ex post" as a result of keeping the working day register. Only by means of the latter will it be possible to determine the working day actually worked, as well as, if applicable, the working hours in excess of the ordinary working day, whether legal or agreed, which will be those that have the status of overtime.

2.3. Other registers and specialities.

The register provided for in Article 34.9 ET does not affect the registers already established in the regulations in force, which remain functional and in accordance with their own provisions or legal regime, by registers in force we mean:
* The daily register of part-time contracts in article 12_4.c) ET: For these purposes, the working day of part-time workers will be registered day by day and totalised monthly. delivering a copy to the worker, together with the salary receipt, of the summary of all the hours worked in each month, both ordinary hours and the supplementary hours referred to in section 5.
The employer shall keep the monthly summaries of the working time records for a minimum period of four years. In the event of failure to comply with these recording obligations, the contract shall be presumed to have been concluded on a full-time basis, unless proof to the contrary is furnished to the contrary.
partial nature of the services ".

2.4. Retention of the working day register. With regard to the location and preservation of the time records, Article 10 Two of Royal Decree-Law 8/2019, introduces a final paragraph into Article 34.9 ET which establishes the following: "The company shall keep the records referred to in this provision for four years and they shall remain at the disposal of the workers, their legal representatives and the Labour and Social Security Inspectorate," Nothing is referred to in the aforementioned paragraph regarding the way in which the records are kept, so that any means, physical or otherwise, must be understood to be valid, provided that it guarantees the reliability and veracity of the data recorded on a daily basis. In this regard, the aforementioned Judgment of 14 May 2019 of the CJEU states that the system in place must be accessible. On the other hand, as it is not established in the regulation, this conservation of daily records does not imply their totalisation, as it is established in the case of part-time contracts and for the fulfilment of obligations in the case of overtime, which have already been analysed in section 2.3 of this technical criterion. In the event that the working day register was originally in paper format, for the purposes of its conservation, it may be archived in computerised format by scanning the original documents, being stored telematically with the due guarantees. This archive will also be available to workers, their representatives and the Labour Inspectorate. Likewise, and sticking to the framework of an inspection action that begins with a visit, the failure to make this documentation available in the terms indicated above would prevent the official acting to audit the effective fulfilment of the obligation to keep the register in question. In this regard, the CJEU in its Judgment of 14 May 2019, in paragraph 62, declares as a general obligation of employers the implementation of an objective, reliable and accessible system.

2.5. Organisation and documentation of the Register. As regards the form of organisation and documentation of the register, it will be determined by collective bargaining, company agreement or, failing that, by decision of the employer after consultation with the legal representatives of the workers in the company, as established in the recently introduced article 34.9 However, the existence and obligation of the daily register does not depend on whether there is a specific provision or regulation in collective bargaining or company agreement, and it is required in any case.

Finally, and with regard to the penalty regime, the new features included in Royal Decree-Law 8/2019 also entail the amendment of section 5 of article 7 of the revised text of the Law on Offences and Penalties in the Social Order, approved by Royal Legislative Decree 5/2000, of 4 August, which is worded as follows: "Transgression of the rules and legal or agreed limits on working hours, night work, overtime, overtime, supplementary hours, rest periods, holidays, leave, leave of absence, recording of working hours and, in general, the working time referred to in Articles 12, 23 and 34 to 38 of/ Workers' Statute. "The amendment introduced is clear, as it classifies as a serious infringement the transgression of obligations regarding the recording of working hours, including its specific provision in the aforementioned Article 7.5. With regard to the initiation of sanctioning proceedings for failure to comply with the obligation to record working hours, this is possible from the entry into force of article 34.9 of the Workers' Statute, i.e. from 12 May 2019.

Instruction 1/2017, complementary to Instruction 3/2016, on the intensification of the control of working time and overtime, and the latter in relation to the interpretative criteria of the same referring exclusively to the recording of working hours, insofar as they oppose this technical criterion, is hereby repealed.


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